Stop Forced Abortions Model Bill

Prevention of Coerced and Unsafe Abortions Act

Be it enacted by the General Assembly of this STATE, as follows:

Section X, Chapter X (governing medical negligence or informed consent), is amended by adding thereto one new section, to be known as section New SECTION, to read as follows:

1. Name of Act and Legislative Findings

This section shall be known and may be cited as the "Prevention of Coerced and Unsafe Abortions Act" [or the "Negligent Screening Act].

The Legislature hereby finds and declares:

(1) That the existing standard of care for pre-abortion screening and counseling is not always adequate to protect the health needs of women;

(2) That clarifying the minimum standard of care for pre-abortion 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;

(3) 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;

(4) 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 mental illness, negative moral beliefs about abortion, and other statistically significant risk factors;

(5) 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;

(6) 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;

(7) 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;

(8) 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.

2. Definitions

As used in this section, the following terms mean:

(1) "Abortion", the use or prescription of any instrument, medicine, drug, or any other substance or device to terminate the pregnancy of a woman 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 fetus;

(2) "Abortion provider", any physician or entity that performs or provides abortions. For purposes of this section, abortion provider shall also include any entity that refers for abortions as a normal part of their business at least ten times per year;

(3) "Complications associated with abortion" means any adverse physical, psychological, or emotional reaction that is reported in a peer-reviewed journal to be statistically associated with abortion such that there is less than a five percent probability (P < .05) that the result is due to chance;

(4) "Medical emergency", that condition which, on the basis of the physician's reasonable clinical judgment, so complicates the medical condition of the pregnant woman as to necessitate an immediate abortion to avert the death of the mother or for which a twenty-four-hour delay will create grave peril of immediate and irreversible loss of a major bodily function;

(5) "Negligible risks", risks that a reasonable patient would consider to be immaterial to a decision to undergo an elective medical procedure;

(6) "Physician", any person licensed under chapter 334 to practice in this state, including medical doctors and doctors of osteopathy;

3. Negligent Pre-Abortion Screening and Counseling

In addition to any other requirements under state law, it is an act of medical negligence to perform or refer for an abortion, except in the case of medical emergency, unless all of the following are true:

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

(a) Evaluated the pregnant woman in person to identify the presence of any indicators and contraindicators, and risk factors including any physical, psychological, or situational factors associated with abortion, , the list including, at least the following risk factors:

(1) perceived pressure from others to terminate a pregnancy;

(2) perceived opposition to the abortion from partners, family, and/or friends;

(3) lack of perceived social support from others;

(4) low self-esteem, a pessimistic outlook, low-perceived control over life;

(5) a history of mental health problems prior to the pregnancy;

(6) feelings of stigma;

(7) perceived need for secrecy;

(8) use of avoidance and denial coping strategies;

(9) feelings of commitment to the pregnancy;

(10) ambivalence about the abortion decision;

(11) low perceived ability to cope with the abortion prior to its occurrence;

(12) abortion after the first trimester;

(13) a history of prior abortion;

(14) the woman views an abortion to be in conflict with her personal or religious values;

(15) the woman is twenty-two years old or younger;

(16) the woman has a family history of breast cancer; and

(b) 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 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 that the pregnant woman was informed of the risk factors associated with abortion as discussed;

(c) 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 the written evaluation at least one hour prior to the performance of the abortion.

(2) If any indicators and contraindicators, and risk factors including any physical, psychological, or situational factors were identified, the pregnant woman was informed of each complication associated with such indicators and contraindicators, and risk factors including any physical, psychological, or situational factors in such manner and detail that a reasonable person would consider material to a decision of undergoing an elective medical procedure. 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.

(3) After review of the written evaluation in subsection, the physician performing the abortion has formed a reasonable medical judgment, documented in the permanent record and has disclosed in person to the woman at least one hour prior to performing the abortion that it is the physician’s reasonable medical judgment that:

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

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

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

4. Civil Remedies.

(1) In addition to other remedies available under state law, the intentional, knowing, or negligent failure to comply with the requirements of this section shall provide a basis for the following:

(a) Each violation of this section shall entitle the woman or her survivors to ten thousand dollars for each failure to screen for a risk factor and for each failure to inform her of associated complications plus actual damages and reasonable attorney's fees and costs;

(b) Recovery for the woman for the death of her unborn child in a wrongful death action under section <identify section number here>, whether or not the unborn child was viable at the time of the abortion, upon proving by a preponderance of evidence that the abortion provider knew or should have known that the patient's consent to the abortion was not informed or not fully voluntary.

(2) Any action for civil remedies based on a failure to comply with the requirements of this section shall be brought no later than two years after the screening and assessment required in subsection 3 of this section, or two years after the date the woman becomes or should have been aware that the abortion was the probable or contributory cause of a physical or emotional complication and has recovered from any psychological complications which may have impeded the patient's ability to seek or cooperate with counsel to pursue a civil remedy.

(3) Notwithstanding the provisions of subdivision (2) of this subsection, in the case of a woman who has died within one year of the abortion, any action under this section shall be brought within two years of her death.

(4) In a civil action involving this section:

(a) In determining liability and validity of consent, the failure to comply with the requirements of subsection 3 of this section shall create the presumption that the plaintiff would not have undertaken the recommended abortion had subsection 3 of this section been complied with by the physician;

(b) 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;

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

(d) The failure to comply with the requirements of subsection 3 of this section shall create the presumption that the negligence was willful and wanton unless the defendant proved by a preponderance of evidence that a lesser mental state in fact applied;

(e) Any waiver of the evaluations and notices provide for in in subsection 3 of this section is void and unenforceable; and

(f) The jury shall be instructed that in regard to any studies or research findings alleged to be relevant, the study and findings shall be ignored if, after hearing the evidence, the jury determines that the study was too obscure to be readily identified by persons reasonably familiar with the peer reviewed literature, or if they determine that it is unreasonable to believe that more than five percent of women of reproductive age would consider the material both plausible and relevant to an assessment of the risks of abortion.

(5) It shall be an affirmative defense to allegations of inadequate disclosure under the standards and requirements of subsection 3 of this section that the defendants omitted the contested information because:

(a) Statistically validated surveys of the general population of women of reproductive age, conducted within three years before or after the contested abortion, demonstrates that less than five percent of women would consider the contested information to be relevant to an abortion decision; or

(b) In the reasonable medical judgment of two licensed psychiatrists who examined the patient prior to the abortion, disclosure of the contested information would most likely have been the immediate and direct cause of a severe adverse effect on the physical health of the patient; or

(6) In addition to the other remedies available under 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. Proof of injury shall not be required to recover an award for reckless endangerment or wrongful death under this subdivision and the minimum award for damages under this subdivision shall be eight hundred thousand dollars, plus reasonable costs and attorney's fees.

(7)If the physician provided a minor patient with an abortion without the informed consent of the minor's legal guardian, as may be provided by law, the burden of proving that the minor woman was capable of maturely and independently evaluating the information given to her in the disclosure process, that the minor woman was capable of making a voluntary and informed choice, and that all aspects of the screening and disclosure were adequate shall fall upon the abortion provider.

5. Abortion Information Depository.

The Department of Health and Human Services shall make available on its Internet web site an Abortion Information Depository which shall include, in both an HTML format and in a downloadable portable document format (pdf), the following information:

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

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

(3) The Department is not required to engage in a proactive search for studies described in (1) or (2). The Department shall 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.

(d) The Abortion Information Depository shall include one or more pages including graphs (of the type known as a forest plot) illustrating only those relative risk rates of abortion meeting the defined qualifications, with a citation to the study reporting each relative risk rate and a description of each risk and the population sample to which the reported risk rate applies, and an explanation on interpreting the confidence intervals displayed on a forest plot. These graphs shall be updated with any new information on at least a biannual basis.

(NOTE: If the state has a Woman's Right to Know type statute providing for a state prepared booklet containing information on complications to be given to women prior to an abortion, the statute should include a requirement for this booklet to include the relative risk information described above.)

6. Construction.

(1) Nothing in this section shall be construed as creating or recognizing a right to abortion.

(2) It is not the intention of this section to make lawful an abortion that is otherwise unlawful or to make unlawful an abortion that is otherwise lawful.

(3) Nothing in this section shall be construed as defining the standard of care for any medical procedures other than induced abortion.

(4) A violation of subsection 3(1), 3(2), and 3(3) shall shall not provide grounds for any criminal action or disciplinary action by any State agency or State licensing authority against the physician or persons acting under the physician's direction or against a licensed medical facility where the abortion is performed.

Alternate Definition of Risk Factors

Risk factor associated with abortion means any factor for which there is a statistical association with a higher risk of one or more complications associated with legally induced abortion and which meets all of the following criteria:

(1) the risk factor has been 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 identifying the risk factor and associated complication(s) was published in English, in a peer-reviewed journal indexed by the United States National Library of Medicine's search services (PubMed or MEDLINE) or the index PsychInfo, or if published before 1991 and after 1970, the study was registered with the Abortion Information Depository; and

(3) the associated complication is one that a reasonable patient may consider relevant to a decision to undergo or forgo an induced abortion. The list of risk factors shall, at a minimum, include all the risk factors identified by the American Psychological Association Task Force on Abortion and Mental Health, including the characteristics of being an adolescent, having a prior history of abortion, having a non-elective abortion, terminating a pregnancy that is wanted or meaningful, perceived pressure from others to terminate a pregnancy, perceived opposition to the abortion from partners, family, and/or friends, lack of perceived social support from others, various personality traits (e.g., low self-esteem, a pessimistic outlook, low-perceived control over life), a history of mental health problems prior to the pregnancy, feelings of stigma, perceived need for secrecy, exposure to antiabortion picketing, use of avoidance and denial coping strategies, Feelings of commitment to the pregnancy, ambivalence about the abortion decision, low perceived ability to cope with the abortion, history of prior abortion, late term abortion.