Revised Form 2

See Nebraska_Amendments

See also the basic Stop Forced Abortions Model Bill For documents filed in the challenge of LB595, see Docket

28-325. Abortion; declaration of purpose.

The Legislature hereby finds and declares:

(1) That the following provisions were motivated by the legislative intrusion of the United States Supreme Court by virtue of its decision removing the protection afforded the unborn. Sections 28-325 to 28-345 are in no way to be construed as legislatively encouraging abortions at any stage of unborn human development, but are rather an expression of the will of the people of the State of Nebraska and the members of the Legislature to provide protection for the life of the unborn child whenever possible;

(2) That the members of the Legislature expressly deplore the destruction of the unborn human lives which has and will occur in Nebraska as a consequence of the United States Supreme Court's decision on abortion of January 22, 1973;

(3) That it is in the interest of the people of the State of Nebraska that every precaution be taken to insure the protection of every viable unborn child being aborted, and every precaution be taken to provide life-supportive procedures to insure the unborn child its continued life after its abortion;

(4) That currently this state is prevented from providing adequate legal remedies to protect the life, health, and welfare of pregnant women and unborn human life;

(5) That it is in the interest of the people of the State of Nebraska to maintain accurate statistical data to aid in providing proper maternal health regulations and education;

(6) That the existing standard of care for preabortion screening and counseling is not always adequate to protect the health needs of women;

(7) That clarifying the minimum standard of care for preabortion screening and counseling in statute is a practical means of protecting the well-being of women and may better ensure that abortion doctors are sufficiently aware of each patient's risk profile so they may give each patient a well-informed medical opinion regarding her unique case; and

(8) That providing right to redress against non-physicians who perform illegal abortions or encourage self-abortions is an important means of protecting women's health.

(9) That certain subgroups of women who are at higher risk of experiencing negative reactions associated with abortion can be identified by screening for pre-existing risk factors, including, but not limited to, the perception of being coerced to have an abortion, a prior history of abuse or mental illness, negative moral beliefs about abortion, and other statistically significant risk factors.

(10) That large scale record based studies have shown that compared to women who carry to term, the risk of death associated with abortion is significantly higher than the risk of death associated with childbirth.

(11) That there are few, if any, statistically validated benefits associated with abortion, and therefore, given the lack of proven benefits and the abundance of associated risks, the hypothesis that induced abortion provides more benefits than risks is still unproven, and abortion may therefore rightly be considered an unproven, experimental treatment.

(12) That "the abortion decision in all its aspects is inherently, and primarily, a medical decision, and basic responsibility for it must rest with the physician," as declared in Roe v Wade and furthermore, that only an irresponsible physician would recommend or perform an abortion without first evaluating each individual patient's unique risk profile to determine if the option of abortion is more likely to produce benefits than risks, or more risks than benefits, or if the risks are negligible.

(13) That collection of data regarding the frequency of women being pressured into abortions and the distribution of risk factors, follow up, and complication rates may contribute improved medical care and public health policies.

(14) That many women report that their abortion providers paternalistically withheld information about risks and risk factors. Peer reviewed studies also a high degree of dissatisfaction with abortion counseling and that 95% of women desire information about all risks, and about 1 in 4 women report that risks that may occur rarely, in only 1 in 1,000 to 1 in 10,0000 cases, may be relevant to their decision.

(15) That it is within the resources of organizations such as Planned Parenthood of America, the National Abortion Federation, the American College of Obstetrics and Gynecology, which train and advise physicians in regard to research findings related to abortion procedures to conduct literature reviews which would produce and maintain up to date checklists of statistically validated risk factors and abortion associated risks. It is also within their means to provide such information in the form of printed or computerized checklists which would make the full disclosures of all risks that may be relevant to a reasonable patient in accord with each patients individual risk profile. Alternatively, insurance companies could maintain and provide computerized screening and disclosure programs which would assure adequate screening and disclosure in order to mitigate liability risks.

(16) Improved pre-abortion screening will benefit individual women and public health by reducing (a) unwanted abortions consented to under duress, (b) unsafe abortions among specific subgroups of high risk patients, and (c) unbeneficial abortions which are predictably unlikely to produce the benefits some women seek and which women are more likely to profoundly regret.

(17) That the problem of increasing health care costs, as addressed by U.S. Preventive Services Task Force initiative and an increasing emphasis on evidence based medicine, underscores the importance of avoiding medical procedures, including abortion, when the procedure either (a) has been shown to not produce the positive effects sought by the patient or (b) produces negative health effects which are greater than any benefits.

(18) That any potential increase in the cost of abortion that may be required to comply with a higher standard for pre-abortion screening and counseling is an appropriate and necessary cost to safeguard the health interests of women and to reduce the higher costs associated with treating complications associated with abortion.

28-326. Terms Defined.

For purposes of sections 28-325 to 28-345, unless the context otherwise requires:

(1) Abortion means the use or prescription of any instrument, medicine, drug, or other substance or device intentionally to terminate the pregnancy of a woman known to be pregnant with an intention other than to increase the probability of a live birth, to preserve the life or health of the child after live birth, or to remove a dead unborn child, and which causes the premature termination of the pregnancy;

(2) Complications associated with abortion means any adverse physical, psychological, or emotional reactions that are reported in a peer-reviewed journal to be statistically associated with abortion.

(3) Conception means the fecundation of the ovum by the spermatozoa;

(4) Emergency situation means that condition which, on the basis of the physician's good faith clinical judgment, so complicates the medical condition of a pregnant woman as to necessitate the immediate abortion of her pregnancy to avert her death or for which a delay will create serious risk of substantial impairment of a major bodily function;

(5) Hospital means those institutions licensed by the Department of Health and Human Services pursuant to the Health Care Facility Licensure Act;

(6) Negligible risk means a risk that a reasonable person would consider to be immaterial to a decision to undergo an elective medical procedure;

(7) Partial-birth abortion means an abortion procedure in which the person performing the abortion partially delivers vaginally a living unborn child before killing the unborn child and completing the delivery. For purposes of this subdivision, the term partially delivers vaginally a living unborn child before killing the unborn child means deliberately and intentionally delivering into the vagina a living unborn child, or a substantial portion thereof, for the purpose of performing a procedure that the person performing such procedure knows will kill the unborn child and does kill the unborn child;

(8) Physician means any person licensed to practice medicine in this state as provided in the Uniform Credentialing Act;

(9) Pregnant means that condition of a woman who has unborn human life within her as the result of conception;

(10) Probable gestational age of the unborn child means what will with reasonable probability, in the judgment of the physician, be the gestational age of the unborn child at the time the abortion is planned to be performed;

(11) Risk factor associated with abortion means any factor, including any physical, psychological, emotional, demographic, or situational factor, for which there is a statistical association with one or more complications associated with abortion such that there is less than a five percent probability (P < .05) that such statistical association is due to chance. Such information on risk factors shall have been published in any peer-reviewed journals indexed by the United States National Library of Medicine's search services (PubMed or MEDLINE) or in any journal included in the PsycINFO not less than twelve months prior to the day preabortion screening was provided;

(11) Risk factor associated with abortion means any factor, including any physical, psychological, emotional, demographic, or situational factor, for which there is a statistically significant association with one or more complications associated with legally induced abortion.

(12) Relative risk rates of abortion means any statistically significant relative risk rate or odds ratio for any adverse physical, psychological, or emotional reaction reported in a qualifying study registered with the the Abortion Information Depository.

(13) Self-induced abortion means any abortion or menstrual extraction attempted or completed by a pregnant woman on her own body;

(14) Ultrasound means the use of ultrasonic waves for diagnostic or therapeutic purposes, specifically to monitor an unborn child;

(15) Viability means that stage of human development when the unborn child is potentially able to live more than merely momentarily outside the womb of the mother by natural or artificial means; and

(16) Woman means any female human being whether or not she has reached the age of majority.

 

28-327. Abortion; voluntary and informed consent required; exception.

No abortion shall be performed except with the voluntary and informed consent of the woman upon whom the abortion is to be performed. Except in the case of an emergency situation, consent to an abortion is voluntary and informed only if:

(1) The woman is told the following by the physician who is to perform the abortion, by the referring physician, or by a physician assistant or registered nurse licensed under the Uniform Credentialing Act who is an agent of either physician, at least twenty-four hours before the abortion:

(a) The medically relevant risks (or "the medically credible risks") associated with the proposed abortion. The particular medical risks associated with the particular abortion procedure to be employed including, when medically accurate, the risks of infection, hemorrhage, perforated uterus, danger to subsequent pregnancies, and infertility;

(b) The probable gestational age of the unborn child at the time the abortion is to be performed;

(c) The medically relevant risks medical risks associated with carrying her child to term; and

(d) That she cannot be forced or required by anyone to have an abortion and is free to withhold or withdraw her consent for an abortion.

The person providing the information specified in this subdivision to the person upon whom the abortion is to be performed shall be deemed qualified to so advise and provide such information only if, at a minimum, he or she has had training in each of the following subjects: Sexual and reproductive health; abortion technology; contraceptive technology; short-term counseling skills; community resources and referral; and informed consent. The physician or the physician's agent may provide this information by telephone without conducting a physical examination or tests of the patient, in which case the information required to be supplied may be based on facts supplied by the patient and whatever other relevant information is reasonably available to the physician or the physician's agent;

(2) The woman is informed by telephone or in person, by the physician who is to perform the abortion, by the referring physician, or by an agent of either physician, at least twenty-four hours before the abortion:

(a) The name of the physician who will perform the abortion;

(b) That medical assistance benefits may be available for prenatal care, childbirth, and neonatal care;

(c) That the father is liable to assist in the support of her child, even in instances in which the father has offered to pay for the abortion;

(d) That she has the right to review the printed materials described in section 28-327.01. The physician or his or her agent shall orally inform the woman that the materials have been provided by the Department of Health and Human Services and that they describe the unborn child and list agencies which offer alternatives to abortion. If the woman chooses to review the materials, they shall either be given to her at least twenty-four hours before the abortion or mailed to her at least seventy-two hours before the abortion by certified mail, restricted delivery to addressee, which means the postal employee can only deliver the mail to the addressee. The physician and his or her agent may disassociate themselves from the materials and may comment or refrain from commenting on them as they choose; and

(e) That she has the right to request a comprehensive list, compiled by the Department of Health and Human Services, of health care providers, facilities, and clinics that offer to have ultrasounds performed by a person at least as qualified as a registered nurse licensed under the Uniform Credentialing Act, including and specifying those that offer to perform such ultrasounds free of charge. The list shall be arranged geographically and shall include the name, address, hours of operation, and telephone number of each entity. If requested by the woman, the physician who is to perform the abortion, the referring physician, or his or her agent shall provide such a list as compiled by the department;

(3) If an ultrasound is used prior to the performance of an abortion, the physician who is to perform the abortion, the referring physician, or a physician assistant or registered nurse licensed under the Uniform Credentialing Act who is an agent of either physician, or any qualified agent of either physician, shall:

(a) Perform an ultrasound of the woman's unborn child of a quality consistent with standard medical practice in the community at least one hour prior to the performance of the abortion;

(b) Simultaneously display the ultrasound images so that the woman may choose to view the ultrasound images or not view the ultrasound images. The woman shall be informed that the ultrasound images will be displayed so that she is able to view them. Nothing in this subdivision shall be construed to require the woman to view the displayed ultrasound images; and

(c) If the woman requests information about the displayed ultrasound image, her questions shall be answered. If she requests a detailed, simultaneous, medical description of the ultrasound image, one shall be provided that includes the dimensions of the unborn child, the presence of cardiac activity, if present and viewable, and the presence of external members and internal organs, if present and viewable;

(Screening Section)

(4) At least one hour prior to the performance of an abortion, a physician, psychiatrist, psychologist, mental health practitioner, physician assistant, registered nurse, or social worker licensed under the Uniform Credentialing Act has:

(a) Evaluated the pregnant woman to identify if the pregnant woman had the perception of feeling pressured or coerced into seeking or consenting to an abortion;

(b) Evaluated the pregnant woman to identify the presence of any medically relevant (medically credible???) risk factors associated with abortion;

(c) Informed the pregnant woman and the physician who is to perform the abortion of the results of the evaluation in writing. The written evaluation shall include, at a minimum, the age of the woman, the research questions described in 28-327.01.5(g), the stated reason or reasons for requesting the abortion, a description of any perceived pressures identified in subsection (a) in a manner that does not reveal any personal identifying information, a checklist identifying both the positive and negative results of the evaluation for each risk factor associated with abortion, and both the licensed person's written certification and the woman's written certification that the pregnant woman was informed of the risk factors associated with abortion as discussed;

(d) Retained a copy of the written evaluation results in the pregnant woman's permanent record,with said copy including the woman's written certification that she personally discussed the risk factors and any associated complications with the licensed person who signed the written certification.

If steps (b) and (c) are completed with the aid of a computer program or internet site, the results must be reviewed with the woman, in person, with the licensed person signing a printed copy of the written evaluation at least one hour prior to the performance of the abortion.

(5) If any risk factors associated with abortion were identified, the pregnant woman was informed of the following in such manner and detail that a reasonable person would consider material to a decision of undergoing an elective medical procedure:

(a) Each medically relevant (medically credible?) complication associated with each identified risk factor; and

(b) Any quantifiable risk rates whenever such relevant data exists;

The requirement of this section may be met by providing the woman with at least one hour to review the information described in this section in the form of either a printed or electronic document. If viewed in the form of an electronic document, the patient shall be notified of the option to receive a printed copy.

(6) The physician performing the abortion has formed a reasonable medical judgment, documented on the written evaluation described in section 4(c), in the permanent record, that either:

(a) The preponderance of statistically validated medical medically relevant studies demonstrates that the physical, psychological, and familial risks associated with abortion for patients with risk factors similar to the patient's risk factors are negligible risks;

(b) Continuance of the pregnancy would involve greater risk of injury to the physical or mental health of the pregnant woman greater than if the pregnancy were terminated by induced abortion; or

(c) Continuance of the pregnancy would involve less risk of injury to the physical or mental health of the pregnant woman than if the pregnancy were terminated by an induced abortion.

(7) The woman certifies in writing, prior to the abortion, that:

(a) The information described in subdivisions (1) and (2)(a), (b), and (c) of this section has been furnished her;

(b) She has been informed of her right to review the information referred to in subdivision (2)(d) of this section; and

(c) The requirements of subdivision (3) of this section have been performed if an ultrasound is performed prior to the performance of the abortion; and

(8) Prior to the performance of the abortion, the physician who is to perform the abortion or his or her agent receives a copy of the written certification prescribed by subdivision (7) of this section. The physician or his or her agent shall retain a copy of the signed certification form in the woman's medical record.

28-327.01. Department of Health and Human Services; printed materials; duties; availability; Internet web site information; Abortion Information Depository.

(1) The Department of Health and Human Services shall cause to be published the following easily comprehensible printed materials:

(a) Geographically indexed materials designed to inform the woman of public and private agencies and services available to assist a woman through pregnancy, upon childbirth, and while the child is dependent, including adoption agencies and agencies and services for prevention of unintended pregnancies, which materials shall include a comprehensive list of the agencies available, a description of the services they offer, and a description of the manner, including telephone numbers and addresses in which such agencies may be contacted or printed materials including a toll-free, twenty-four-hour-a-day telephone number which may be called to orally obtain such a list and description of agencies in the locality of the caller and of the services they offer;

(b) Materials designed to inform the woman of the probable anatomical and physiological characteristics of the unborn child at two-week gestational increments from the time when a woman can be known to be pregnant to full term, including pictures or drawings representing the development of unborn children at the two-week gestational increments, and any relevant information on the possibility of the unborn child's survival. Any such pictures or drawings shall contain the dimensions of the unborn child and shall be realistic and appropriate for the stage of pregnancy depicted. The materials shall be objective, nonjudgmental, and designed to convey only accurate scientific information about the unborn child at the various gestational ages. The materials shall also contain objective information describing the methods of abortion procedures commonly employed, the medical risks commonly associated with each such procedure, the possible detrimental psychological effects of abortion, the medical risks commonly associated with abortion, and the medical risks commonly associated with carrying a child to term.

(c) A comprehensive list of health care providers, facilities, and clinics that offer to have ultrasounds performed by a person at least as qualified as a registered nurse licensed under the Uniform Credentialing Act, including and specifying those that offer to perform such ultrasounds free of charge. The list shall be arranged geographically and shall include the name, address, hours of operation, and telephone number of each entity, and

(d) The materials shall include a representative sample of graphs (of the type known as a forest plot) illustrating the statistically significant relative risk rates for maternal mortality and psychological reactions associated with induced abortion compared to childbirth and/or compared to similar women who were not pregnant, where the relative risk rates are reported in peer reviewed studies submitted to the Abortion Information Depository which are record based prospective studies, longitudinal studies, or case control studies.

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(2) The printed materials shall be printed in a typeface large enough to be clearly legible.

(3) The printed materials required under this section shall be available from the department upon the request by any person, facility, or hospital for an amount equal to the cost incurred by the department to publish the materials.

(4) The Department of Health and Human Services shall make available on its Internet web site a printable publication of geographically indexed materials designed to inform the woman of public and private agencies with services available to assist a woman with mental health concerns, following a risk factor evaluation. Such services shall include, but not be limited to, outpatient and crisis intervention services and crisis hotlines. The materials shall include a comprehensive list of the agencies available, a description of the services offered, and a description of the manner in which such agencies may be contacted, including addresses and telephone numbers of such agencies, as well as a toll-free, twenty-four-hour-a-day telephone number to be provided by the department which may be called to orally obtain the names of the agencies and the services they provide in the locality of the woman. The department shall update the publication as necessary.

Abortion Information Depository

(5) The Department of Health and Human Services shall make available on its Internet web site an Abortion Information Depository which shall include:

(a) The materials described in (1) and (4) of this section in both an HTML format and in a downloadable portable document format (pdf)

(b) A bibliographic listing of peer reviewed medical studies published between 1973 and 1990, inclusive, which identify any risk factors associated with abortion.

(c) A bibliographic listing of peer reviewed medical studies published after 1973 which identify one or more relative risk rates of abortion.

(d) The Department is not required to engage in a proactive search for studies described in (b) or (c). The Department is required to maintain an updated list of studies meeting the required definitions for inclusion which have been submitted for inclusion by third parties. The Abortion Information Depository shall include directions for mailing the required information and shall also provide a means for interested persons to make an electronic submissions. The submissions shall at a minimum include the complete citation and identification of at least one statistically significant risk factor or at least one statistically significant relative risk in order to assist the Department in determining if the minimum standards for inclusion are met. The electronic submission process shall also include an option for submitting a hyperlink to the study or an abstract or for uploading a copy of the published study. Within 30 days of receiving a third party submission, the Department shall notify the third party either that the submitted citation has been added to the appropriate online bibliographic listing or shall be given notice regarding which of the conditions for qualifying studies were not met.

(e) Graphs or tables of the relative risks rates for legal induced abortion submitted by third parties which meet the following criteria:

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(1) The reported relative risk rate was statistically validated such that there is less than a five percent probability (P < .05) that the identified statistical association is due to chance;

(2) The study (or studies) identifying the relative risk rates was published in a peer-reviewed journal indexed by the United States National Library of Medicine's search services (PubMed or MEDLINE) or in any peer-reviewed journal included in the Thomson Reuters Scientific Master Journal List and was published after 1973 and in the English language;

(3) A printed or electronic copy of a qualifying study was submitted to the Abortion Information Depository.

(4) The relative risk rates compare (a) women having abortions compared to women who give birth, (b) women having abortions compared to women who carry an unwanted or unplanned pregnancy, (c) women having abortions compared to women who place a child for adoption, (d) younger women having abortions compared to older women having abortions, or (e) women have not been pregnant within the past year to women who have given birth or had an abortion within the past year.

(f) The documents submitted by third parties described in (e) may optionally include the original abstracts. In the event the Department becomes aware of any inaccuracies in the document, the Department shall seek to cooperate with the submitter to correct the inaccuracies or, in the event a mutual agreement can not be reached, shall attach a disclaimer to document identifying the claimed inaccuracies.

(g) A listing of the research questions developed by the Department of health which may be useful for researchers to better understand the risk factors for and effects of abortion which shall be included on the written evaluation form  described in section 28-327.4(c). There shall be no more than five research questions for any given year, and they shall be published at least three months prior to each calendar year for inclusion on the written evaluation forms for the designated year.

 

28-327.02. Abortion; emergency situation; physician; duties.

When an emergency situation compels the performance of an abortion, the physician shall inform the woman, prior to the abortion if possible, of the medical indications supporting his or her judgment that an abortion is necessary to avert her death or to avert substantial impairment of a major bodily function.

28-327.03. Civil liability; limitation.

No civil liability for failure to comply with subdivision (2)(d) of section 28-327 or that portion of subdivision (7) of such section requiring a written certification that the woman has been informed of her right to review the information referred to in subdivision (2)(d) of such section may be imposed unless the Department of Health and Human Services has published and made available the printed materials at the time the physician or his or her agent is required to inform the woman of her right to review them.

28-327.04. Civil cause of action; authorized; evidence of professional negligence; attorney's fee.

Any person upon whom an abortion has been performed or attempted in violation of section 28-327 or the parent or guardian of a minor upon whom an abortion has been performed or attempted in violation of such section shall have a right to maintain a civil cause of action against the person who performed the abortion or attempted to perform the abortion. A violation of subdivision (1), (2), (3), (7), or (8) of section 28-327 shall be prima facie evidence of professional negligence. The written certifications prescribed by subdivisions (4) and (7) of section 28-327 signed by the person upon whom an abortion has been performed or attempted shall constitute and create a rebuttable presumption of full compliance with all provisions of section 28-327 in favor of the physician who performed or attempted to perform the abortion, the referring physician, or the agent of either physician. The written certification shall be admissible as evidence in the cause of action for professional negligence or in any criminal action. If judgment is rendered in favor of the plaintiff in any such action, the court shall also render judgment for a reasonable attorney's fee in favor of the plaintiff against the defendant.

Any person who receives screening, disclosure, or counseling in regard to an abortion in violation of subdivisions (4), (5) or (6) of 28-327, or the parent or guardian of such a person, shall have a right to maintain a civil cause of action against the physician, the person who provided the screening, disclosure, or counseling, and the health care facility offering abortion services and the parent corporation of the health care facility. If judgment is rendered in favor of the plaintiff in any such action, the court shall also render judgment for a reasonable attorney's fee in favor of the plaintiff against the defendant.

28-327.05. Civil action; anonymity of woman; procedures.

In every civil action brought pursuant to section 28-327.04, the court shall rule whether the anonymity of any woman upon whom an abortion is performed or attempted shall be preserved from public disclosure if she does not give her consent to such disclosure. The court, upon motion by a party or on its own motion, shall make such a ruling and, upon determining that her anonymity should be preserved, shall issue orders to the parties, witnesses, and counsel and shall direct the sealing of the record and exclusion of individuals from courtrooms or hearing rooms to the extent necessary to safeguard her identity from public disclosure. Each such order shall be accompanied by specific written findings explaining why the anonymity of the woman should be preserved from public disclosure, why the order is essential to that end, how the order is narrowly tailored to serve that interest, and why no reasonable less restrictive alternative exists. In the absence of written consent of the woman upon whom an abortion has been performed or attempted, anyone given standing under section 28-327.04 who brings a civil action under such section shall do so under a pseudonym. This section may not be construed to conceal the identity of the plaintiff or of witnesses from the defendant.

28-327.06. Waiver of evaluations and notices; void and unenforceable.

Any waiver of the evaluations and notices provided for in subdivision (4) of section 28-327 is void and unenforceable.

28-327.07. Damages.

In addition to whatever remedies are available under the common or statutory laws of this state, the intentional, knowing, or negligent failure to comply with the requirements of section 28-327 shall provide a basis for the following damages:

(1) The award of reasonable costs and attorney's fees; and

(2) A recovery for the pregnant woman for the wrongful death of her unborn child under section 30-809 upon proving by a preponderance of evidence that the physician knew or should have known that the pregnant woman's consent was either not fully informed or not fully voluntary pursuant to section 28-327.

28-327.08. Action for civil remedies.

Any action for civil remedies based on a failure to comply with the requirements of section 28-327 shall be commenced in accordance with section 25-222. (Amend this?! The statute of limitations should be extended to ten years since the shame and emotional toil of abortion may preclude a woman's ability to seek counsel and/or pursue recover of damages for many years.)

28-327.09. Minor; burden of proof.

If a physician performed an abortion on a pregnant woman who is a minor without providing the information required in section 28-327 to the pregnant woman's parent or legal guardian, then the physician bears the burden of proving that the pregnant woman was capable of independently evaluating the information given to her.

28-327.10. Time requirement.

Except in the case of an emergency situation, if a pregnant woman is provided with the information required by section 28-327 less than twenty-four hours before her scheduled abortion, the physician shall bear the burden of proving that the pregnant woman had sufficient reflection time, given her age, maturity, emotional state, and mental capacity, to comprehend and consider such information.

28-327.11. Civil action; rebuttable presumption;noneconomic damages; expert witness; physician deemed transacting business; affirmative defense; additional remedies.

In a civil action involving section 28-327 (4)-(7), the following shall apply:

(1) In determining the liability of the physician and the validity of the consent of a pregnant woman, the failure to comply with the requirements of section 28-327 (4)-(7)shall create a rebuttable presumption that the pregnant woman would not have undergone the recommended abortion had section 28-327 been complied with by the physician;

(2) The absence of physical injury shall not preclude an award of noneconomic damages including pain, suffering, inconvenience, mental suffering, emotional distress, psychological trauma, loss of society or companionship, loss of consortium, injury to reputation, or humiliation associated with the abortion;

(3) The fact that a physician does not perform elective abortions or has not performed elective abortions in the past shall not automatically disqualify such physician from being an expert witness. A licensed obstetrician or family practitioner who regularly assists pregnant women in resolving medical matters related to pregnancy may be qualified to testify as an expert on the screening, counseling, management, and treatment of pregnancies;

(4) Any physician advertising services in this state shall be deemed to be transacting business in this state pursuant to section 25-536 and shall be subject to the provisions of section 28-327;  

(Like all provisions in the model legislation, this section was never intended for state enforcement against out of state abortion providers. Instead, it was intended to clarify that advertising in a state constitutes sufficient "minimum contacts" within a state to warrant the court having personal jurisdiction over the defendant business. This is allowed in many states, if not Nebraska, for other business transactions. Why would it be a violation of the commerce clause to for the legislature to require the courts to use this advertising threshold to determine that an out of state, advertising abortion business was engaging in sufficient "minimum contacts?"  If the courts already can exercise their discretion in regard to other out of state businesses, on similar civil matters, why not a law requiring them to do so in the case of abortion providers -- especially when there is evidence of widespread bad business practices in regard to screening and counseling? Could we amend 25-536 to provide for "(g) Advertising abortion services in this state or receives referrals of women for abortion services from an affiliated business in this state." ) The latter is intended to encompass Planned Parenthood referrals to Planned Parenthood clinics.

(5) It shall be an affirmative defense to an allegation of inadequate disclosure under the requirements of section 28-327 that the defendant omitted the contested information because statistically validated surveys of the general population of women of reproductive age, conducted within the three years before or after the contested abortion, demonstrate that less than five percent of women would consider the contested information to be relevant to an abortion decision, or, if the jury concludes that less than five percent of women of reproductive age would consider the material both plausible and relevant to her assessment of the risks of abortion

Key Listing and Definition of Medically Relevant Risk Factors

(6) Medically relevant risk factors shall, at a minimum, include any factor listed in any edition of the National Abortion Federation's medical textbooks "A Clinician's Guide to Medical and Surgical Abortion" or "Management of Unintended and Abnormal Pregnancy: Comprehensive Abortion Care" or in the 2008 report by the American Psychological Association Task Force on Mental Health and Abortion.

(See Risk Factors Identified by Pro-Choice Sources)

(7) There is a rebuttable presumption that an alleged risk factor is medically credible and would deemed relevant to the abortion decision of a reasonable patient if there are at least two peer reviewed studies identifying said risk factor is associated with legally induced abortion which meet all of the following criteria:

1. the studies identifying the risk factor and associated complication(s) were published in the English language in a peer-reviewed journal indexed by the United States National Library of Medicine's search services (PubMed or MEDLINE) or in any peer-reviewed journal included in PsycINFO not less than twelve months prior to the day pre-abortion screening was provided; and

2. the studies were published after 2000, or were published between 1973 and 1990 and were registered with the Abortion Information Depository at least twelve months prior to the abortion; and

and the alleged risk factor and complication associated with abortion was statistically validated in at least one of the studies such that there is less than a five percent probability (P < .05) that the identified statistical association is due to chance.

(Should we specifically identify the criteria upon which the presumption that the risk factor is medically credible? Or is it sufficient to just leave that to the jury. We do want to assure that this is a question of fact that should be determined by the jury, based on evidence and testimony.)

(8) In addition to the other remedies available under the common or statutory law of this state, a woman or her survivors shall have a cause of action for reckless endangerment against any person, other than a physician or pharmacist licensed under the Uniform Credentialing Act, who attempts or completes an abortion on the pregnant woman or aids or abets the commission of a self-induced abortion with the exception of a person who is a licensed physician or a licensed pharmacist filling a prescription. Proof of injury shall not be required to recover an award, including reasonable costs and attorney's fees, for wrongful death under this subdivision.

28-327.12. Statute of limitations; tolled; section, how construed; violations; how treated.

(1) In the event that any portion of section 28-327 is enjoined and subsequently upheld, the statute of limitations for filing a civil suit under section 28-327 shall be tolled during the period for which the injunction is pending and for two years thereafter.

(2) Nothing in section 28-327 shall be construed as defining a standard of care for any medical procedure other than an induced abortion.

(3) A violation of subdivision (4), (5), or (6) of section 28-327 shall not provide grounds for any criminal action or disciplinary action against or revocation of a license to practice medicine and surgery pursuant to the Uniform Credentialing Act.

(4) In regard to health care facilities where an abortion may be performed and to persons licensed under the Uniform Credentialing Act who are acting under the direction of the attending physician, a violation of subdivision (4), (5), or (6) of section 28-327 shall not provide grounds for any criminal action, disciplinary action, or revocation of a license of the licensed person or health care facility under any section of Chapter 71 or in regard to the Uniform Credentialing Act or any other sections of Chapter 38 or Chapter 28.

ALTERNATIVE - Blanket exemption from prosecution or disciplinary action:

(3) A violation of subdivision (4), (5), or (6) of section 28-327 shall not provide grounds for any criminal action or disciplinary action against or revocation of any license for any person.

28-343. Department of Health and Human Services; abortion reporting form; items included; confidential.

The Department of Health and Human Services shall prescribe an abortion reporting form which shall be used for the reporting of every abortion performed in this state. Such form shall include the following items:

(1) The age of the pregnant woman;

(2) The location of the facility where the abortion was performed;

(3) The type of procedure performed;

(4) Complications, if any;

(5) The name of the attending physician;

(6) The pregnant woman's obstetrical history regarding previous pregnancies, abortions, and live births;

(7) The stated reason or reasons for which the abortion was requested;

(8) The state of the pregnant woman's legal residence;

(9) The length and weight of the aborted child, when measurable;

(10) Whether an emergency situation caused the physician to waive any of the requirements of section 28-327; and

(11) Such other information as may be prescribed in accordance with section 71-602; and

(12) Whether or not the woman returned to the clinic for the scheduled follow up(s).

The completed form shall be signed by the attending physician and sent to the department within fifteen thirty days after each reporting month. The completed form shall be an original, typed or written legibly in durable ink, and shall not be deemed complete unless the omission of any item of information required shall have been disclosed or satisfactorily accounted for. Carbon copies shall not be acceptable. The abortion reporting form shall not include the name of the person upon whom the abortion was performed. The abortion reporting form shall be confidential and shall not be revealed except upon the order of a court of competent jurisdiction in a civil or criminal proceeding.

The completed form shall be accompanied by a copy of the written evaluation described in section 28-327.4(c) with the date of the abortion and any other information that might personally identify the woman, her partner, or her family redacted by the physician or the reporting medical facility. The Department shall maintain files containing these written evaluations in lots spanning a three month period. After each three month period, these lots shall be available to researchers seeking to aggregate the information collected, provided the researchers shall sign a non-disclosure agreement, prepared by the Department, precluding the use of the written evaluations to attempt to identify any individual.

Possible New Section Regarding Reporting of Abortion Complications Treated By Hospitals.

Precedent in Mississippi Law § 41-41-77.

Rationale: Current law requires only abortion clinics to report complications. Most women go elsewhere for treatment of complications. Also, by requiring reports of complication treatments paid for by the State, the State may subsequently seek reimbursement from the abortion providers for these costs.

New Section. Hospitals to file regular reports to state on patients treated or dying in abortion procedures; confidentiality; sanctions for breach of confidentiality.

(1) Hospitals and free standing medical clinics shall file a written report with the State Department of Health regarding each patient who receives any medical treatment or suffers death where the attending physician, nurse, or physician's assistant has a reasonable basis to believe is a primary, secondary, or tertiary result of an induced abortion. The report shall include the ICD codes for the conditions treated, and the treatment was charged to medicaid or any other state funded or subsidized program, the total cost of the treatments.

(2) These reports shall be submitted on an annual basis, by February 15th of the following year.

(3) The department shall summarize aggregate data from the reports required under this section for purposes of inclusion into the annual Vital Statistics Report.

(4) The department shall develop and distribute or make available online in a downloadable format a standardized form for the report required under this section.

(5) The department shall communicate this reporting requirement to all medical professional organizations, licensed physicians, hospitals, emergency rooms, abortion facilities, Department of Health clinics and ambulatory surgical facilities operating in the state on an annual basis.

(6) The department shall destroy each individual report required by this section and each copy of the report after retaining the report for five (5) years after the date the report is received.

(7) The report required under this section shall not contain the name of the woman, common identifiers such as her social security number or motor vehicle operator's license number or other information or identifiers that would make it possible to identify in any manner or under any circumstances an individual who has obtained or seeks to obtain an abortion. A state agency shall not compare data in an electronic or other information system file with data in another electronic or other information system that would result in identifying in any manner or under any circumstances an individual obtaining or seeking to obtain an abortion. Statistical information that may reveal the identity of a woman obtaining or seeking to obtain an abortion shall not be maintained.

(8) The department or an employee of the department shall not disclose to a person or entity outside the department the reports or the contents of the reports required under this section in a manner or fashion as to permit the person or entity to whom the report is disclosed to identify in any way the person who is the subject of the report.

(9) Disclosure of confidential identifying information in violation of this section shall constitute a felony which, upon conviction, shall be punished by imprisonment in the State Penitentiary for not more than three (3) years, or a fine of not more than Five Thousand Dollars ($5,000.00), or both.