hb197_HB_197_AP

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05 HB 197/CSFA/AP

House Bill 197 (AS PASSED HOUSE AND SENATE)

By: Representatives Burmeister of the 119th, Mills of the 25th, Smith of the 168th, Walker of the 107th, Fleming of the 117th, and others

A BILL TO BE ENTITLED
AN ACT

To amend and revise provisions of the Official Code of Georgia Annotated relating to abortions; to amend Article 3 of Chapter 11 of Title 15 of the Official Code of Georgia Annotated, relating to parental notification, so as to define and redefine certain terms; to require certain types of identification to be presented in order for a physician to perform an abortion; to change provisions relating to required participation by or notice to parents, guardians, and others and court proceedings for waiver of such provisions; to amend Chapter 12 of Title 16 of the Official Code of Georgia Annotated, relating to offenses against health and morals, so as to provide that abortions must be performed in certain facilities and by certain persons; to provide for certain reports; to provide for certain forms; to provide for certain reports by the Department of Human Resources; to provide for penalties and remedies for failure to provide such reports; to amend Title 31 of the Official Code of Georgia Annotated, relating to health, so as to enact the "Womańs Right to Know Act"; to provide for a short title; to provide for definitions; to require that a female give her informed consent prior to an abortion; to require that certain information be provided to or made available to a female prior to an abortion; to require a written acknowledgment of receipt of such information; to provide for the preparation and availability of certain information; to provide for procedures in a medical emergency; to provide for reporting requirements and penalties for noncompliance; to provide for anonymity of certain persons in civil actions; to provide for related matters; to provide for severability; to provide for an effective date; to repeal conflicting laws; and for other purposes.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:

SECTION 1.

Article 3 of Chapter 11 of Title 15 of the Official Code of Georgia Annotated, relating to parental notification, is amended by striking Code Section 15-11-111, relating to definitions, and inserting in lieu thereof the following:

"15-11-111.

As used in this article, the term:

(1) 'Abortion' means the intentional termination of human pregnancy with an intention other than to produce a live birth or to remove a dead fetus use or prescription of any instrument, medicine, drug, or any other substance or device with the intent to terminate the pregnancy of a female known to be pregnant. The term 'abortion' shall not include the use or prescription of any instrument, medicine, drug, or any other substance or device employed solely 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 who died as a result of a spontaneous abortion. The term 'abortion' also shall not include the prescription or use of contraceptives.

(2) 'Proper identification' means any document issued by a governmental agency containing a description of the person, the persońs photograph, or both, including, but not limited to, a driveŕs license, an identification card authorized under Code Sections 40-5-100 through 40-5-104 or similar identification card issued by another state, a military identification card, a passport, or an appropriate work authorization issued by the United States Immigration and Naturalization Service.

(2)(3) 'Unemancipated minor' means any person under the age of 18 who is not or has not been married or who is under the care, custody, and control of such persońs parent or parents, guardian, person standing in loco parentis, or the juvenile court of competent jurisdiction."

SECTION 2.

Said article is further amended by striking Code Section 15-11-112, relating to the notice of an abortion for an unemancipated minor, and inserting in lieu thereof the following:

"(a) No physician or other person shall perform an abortion upon an unemancipated minor under the age of 18 years unless:

(1)(A) The minor seeking an abortion shall furnish a statement, signed be accompanied by a parent, or guardian, or person standing in loco parentis and such minor, stating who shall show proper identification and state that such the parent, or guardian, or person standing in loco parentis is the lawful parent or guardian of such the minor, or is the person standing in loco parentis of such minor, and that such the parent, or guardian, or person standing in loco parentis has been notified that an abortion is to be performed on such the minor; or

(B) The physician or an the physiciańs qualified agent gives at least 24 hourś actual notice, in person or by telephone, to a parent, or guardian, or person standing in loco parentis of the minor, of the pending abortion and the name and address of the place where the abortion is to be performed; provided, however, that, if the person so notified indicates that he or she has been previously informed that the minor was seeking an abortion or if the person so notified has not been previously informed and he or she clearly expresses that he or she does not wish to consult with the minor, then in either event the abortion may proceed immediately in accordance with Chapter 9A of Title 31; or

(C) The physician or an a physiciańs qualified agent gives written notice of the pending abortion and the address of the place where the abortion is to be performed, sent by regular certified mail, return receipt requested with delivery confirmation, addressed to a parent, or guardian, or person standing in loco parentis of the minor at the usual place of abode of the parent, or guardian, or person standing in loco parentis. Unless proof of delivery is otherwise sooner established, such notice shall be deemed delivered 48 hours after mailing. The time of mailing shall be recorded by the physician or agent in the minoŕs file. The abortion may be performed 24 hours after the delivery of the notice; provided, however, that, if the person so notified indicates certifies in writing that he or she has been previously informed that the minor was seeking an abortion or if the person so notified has not been previously informed and he or she clearly expresses certifies in writing that he or she does not wish to consult with the minor, then in either event the abortion may proceed immediately in accordance with Chapter 9A of Title 31; and

(2) The minor signs a consent form stating that she consents, freely and without coercion, to the abortion.

(b) If the unemancipated minor or the physician or an a physiciańs qualified agent, as the case may be, elects not to comply with any one of the notification requirements of subparagraph (a)(1)(A), (a)(1)(B), or (a)(1)(C) of this Code section, or if the parent, or legal guardian, or person standing in loco parentis of such the minor cannot be located, such the minor may petition, on such the minoŕs own behalf or by next friend, any juvenile court in the state for a waiver of such requirement pursuant to the procedures provided for in Code Section 15-11-114. Such The juvenile court shall assist the minor or next friend in preparing the petition and notices required pursuant to this Code section. Venue shall be lawful in any county, notwithstanding Code Section 15-11-29.

(c) No abortion shall be performed unless the requirements of subparagraph (a)(1)(A), (a)(1)(B), or (a)(1)(C) of this Code section have been met or the minor has obtained a court order waiving such requirements."

SECTION 3.

Said article is further amended by striking subsection (c) of Code Section 15-11-114, relating to the conduct of the hearing and appeal, and inserting in lieu thereof the following:

"(c) The notification requirement of subparagraph (a)(1)(A), (a)(1)(B), or (a)(1)(C) of Code Section 15-11-112 shall be waived if the court finds either:

(1) That the unemancipated minor is mature enough and well enough informed to make the abortion decision in consultation with her physician, independently of the wishes of such minoŕs parent, or guardian, or person standing in loco parentis; or

(2) That the notice to a parent or, if the minor is subject to guardianship, the legal guardian or person standing in loco parentis pursuant to Code Section 15-11-112 would not be in the best interests of the minor."

SECTION 4.

Chapter 12 of Title 16 of the Official Code of Georgia Annotated, relating to offenses against health and morals, is amended by striking subsection (b) of Code Section 16-12-141, relating to when abortion is legal, and inserting in lieu thereof a new subsection (b) to read as follows:

"(b)(1) No abortion is authorized or shall be performed after the first trimester unless the abortion is performed in a licensed hospital, in a licensed ambulatory surgical center, or in a health facility licensed as an abortion facility by the Department of Human Resources.

(2) An abortion shall only be performed by a physician licensed under Article 2 of Chapter 34 of Title 43."

SECTION 5.

Said chapter is further amended in Code Section 16-12-141.1, relating to disposal of aborted fetuses and reports, by adding new subsections (c), (d), (e), (f), (g), (h), and (i) to read as follows:

"(c) Within 90 days after the effective date of this subsection, the Department of Human Resources shall prepare a reporting form for physicians which shall include:

(1) The number of females whose parent or guardian was provided the notice required in paragraph (1) of subsection (a) of Code Section 15-11-112 by the physician or such physiciańs agent; of that number, the number of notices provided personally under subparagraphs (a)(1)(A) and (a)(1)(B) of Code Section 15-11-112 and the number of notices provided by mail under subparagraph (a)(1)(C) of Code Section 15-11-112; and, of each of those numbers, the number of females who, to the best of the reporting physiciańs information and belief, went on to obtain the abortion;

(2) The number of females upon whom the physician performed an abortion without providing to the parent or guardian of a minor the notice required by subsection (a) of Code Section 15-11-112; and of that number, the number of females for which subsection (b) of Code Section 15-11-112 and Code Section 15-11-116 were applicable;

(3) The number of abortions performed upon a female by the physician after receiving judicial authorization pursuant to subsection (b) of Code Section 15-11-112 and Code Section 15-11-114; and

(4) The same information described in paragraphs (1), (2), and (3) of this subsection with respect to females for whom a guardian or conservator has been appointed.

(d) The Department of Human Resources shall ensure that copies of the reporting forms described in subsection (c) of this Code section, together with a reprint of this Code section, are provided:

(1) Within 120 days after the effective date of this subsection, to all health facilities licensed as an abortion facility by the Department of Human Resources;

(2) To each physician licensed or who subsequently becomes licensed to practice medicine in this state at the same time as official notification to that physician that the physician is so licensed; and

(3) By December 1 of every year, other than the calendar year in which forms are distributed in accordance with paragraph (1) of this subsection, to all health facilities licensed as an abortion facility by the Department of Human Resources.

(e) By February 28 of each year following a calendar year in any part of which this subsection was in effect, each physician who provided, or whose agent provided, the notice described in subsection (a) of Code Section 15-11-112 and any physician who knowingly performed an abortion upon a female or upon a female for whom a guardian or conservator had been appointed because of a finding of incompetency during the previous calendar year shall submit to the Department of Human Resources a copy of the form described in subsection (c) of this Code section with the requested data entered accurately and completely.

(f) Reports that are submitted more than 30 days following the due date shall be subject to a late fee of $500.00 for that period and the same fee for each additional 30 day period or portion of a 30 day period in which they remain overdue. Any physician required to report in accordance with this Code section who submits an incomplete report or fails to submit a report for more than one year following the due date may, in an action brought by the Department of Human Resources, be directed by a court of competent jurisdiction to submit a complete report within a period stated by court order or be subject to sanctions for civil contempt.

(g) By June 30 of each year, the Department of Human Resources shall issue a public report providing statistics for the previous calendar year compiled from all the reports covering that year submitted in accordance with this Code section for each of the items listed in subsection (c) of this Code section. The report shall also include statistics which shall be obtained by the Administrative Office of the Courts giving the total number of petitions or motions filed under subsection (b) of Code Section 15-11-112 and, of that number, the number in which the court appointed a guardian ad litem, the number in which the court appointed counsel, the number in which the judge issued an order authorizing an abortion without notification, the number in which the judge denied such an order, and, of the last, the number of denials from which an appeal was filed, the number of such appeals that resulted in the denials being affirmed, and the number of such appeals that resulted in reversals of such denials. Each report shall also provide the statistics for all previous calendar years for which such a public statistical report was required to be issued, adjusted to reflect any additional information from late or corrected reports. The Department of Human Resources shall ensure that none of the information included in the public reports could reasonably lead to the identification of any individual female or of any female for whom a guardian or conservator has been appointed.

(h) The Department of Human Resources may by regulation alter the dates established by paragraph (3) of subsection (d) and subsections (e) and (g) of this Code section or consolidate the forms or reports to achieve administrative convenience or fiscal savings or to reduce the burden of reporting requirements so long as reporting forms are sent to all facilities licensed as an abortion facility by the Department of Human Resources at least once every year and the report described in subsection (g) of this Code section is issued at least once each year.

(i) The Department of Human Resources shall ensure that the names and identities of the physicians filing reports under this Code section shall remain confidential. The names and identities of such physicians shall not be subject to Article 4 of Chapter 18 of Title 50."

SECTION 6.

Title 31 of the Official Code of Georgia Annotated, relating to health, is amended by adding after Chapter 9 a new Chapter 9A to read as follows:

"CHAPTER 9A

31-9A-1.

This chapter shall be known and may be cited as the 'Womańs Right to Know Act.'

31-9A-2.

As used in this chapter, the term:

(1) 'Abortion' means the use or prescription of any instrument, medicine, drug, or any other substance or device with the intent to terminate the pregnancy of a female known to be pregnant. The term 'abortion' shall not include the use or prescription of any instrument, medicine, drug, or any other substance or device employed solely 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 who died as the result of a spontaneous abortion. The term 'abortion' also shall not include the prescription or use of contraceptives.

(2) 'Medical emergency' means any condition which, on the basis of the physiciańs good faith clinical judgment, so complicates the medical condition of a pregnant female as to necessitate the immediate abortion of her pregnancy to avert her death or for which a delay will create serious risk of substantial or irreversible impairment of a major bodily function.

(3) 'Physician' means a person licensed to practice medicine under Article 2 of Chapter 34 of Title 43.

(4) 'Probable gestational age of the unborn child' means the physiciańs best professional estimate of the probable gestational age of the unborn child at the time an abortion is to be performed.

(5) 'Qualified agent' means the agent of the physician who is a patient educator, licensed psychologist, licensed social worker, licensed professional counselor, licensed physiciańs assistant, registered nurse, or physician.

(6) 'Secure Internet website' means a website that is safeguarded from having its content altered other than by the commissioner of human resources.

(7) 'Unborn child' or 'fetus' means a member of the species homo sapiens from fertilization until birth.

31-9A-3.

No abortion shall be performed in this state except with the voluntary and informed consent of the female upon whom the abortion is to be performed. Notwithstanding any provision of law to the contrary, except in the case of a medical emergency, consent to an abortion is voluntary and informed if and only if:

(1) The female is told the following, by telephone or in person, by the physician who is to perform the abortion, by a qualified agent of the physician who is to perform the abortion, by a qualified agent of a referring physician, or by a referring physician, at least 24 hours before the abortion:

(A) The particular medical risks to the individual patient associated with the particular abortion procedure to be employed, when medically accurate;

(B) The probable gestational age of the unborn child at the time the abortion would be performed; and

The information required by this paragraph may be provided by telephone without conducting a physical examination or tests of the patient, in which case the information required to be provided may be based on facts supplied to the physician by the female and whatever other relevant information is reasonably available to the physician. Such information may not be provided by a tape recording but must be provided during a consultation in which the physician or a qualified agent of the physician is able to ask questions of the female and the female is able to ask questions of the physician or the physiciańs qualified agent. If in the medical judgment of the physician any physical examination, tests, or other information subsequently provided to the physician requires a revision of the information previously supplied to the patient, that revised information shall be communicated to the patient prior to the performance of the abortion. Nothing in this Code section may be construed to preclude provision of required information in a language understood by the patient through a translator;

(2) The female is informed, by telephone or in person, by the physician who is to perform the abortion, by a referring physician, or by a qualified agent of either physician at least 24 hours before the abortion:

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

(B) That the father will be liable pursuant to subsection (a) of Code Section 19-7-49 to assist in the support of her child; and

(C) That she has the right to review the printed materials described in Code Section 31-9A-4 and that these materials are available on a state sponsored website at a stated website address. The physician or the physiciańs qualified agent shall orally inform the female that materials have been provided by the State of Georgia and that they describe the unborn child, list agencies that offer alternatives to abortion, and contain information on fetal pain. If the female chooses to view the materials other than on the website, they shall either be given to her at least 24 hours before the abortion or mailed to her at least 72 hours before the abortion by certified mail, restricted delivery to addressee.

The information required by this paragraph may be provided by a tape recording if provision is made to record or otherwise register specifically whether the female does or does not choose to review the printed materials other than on the website;

(3) The female certifies in writing, prior to the abortion, that the information described in paragraphs (1) and (2) of this Code section has been furnished her and that she has been informed of her opportunity to review the information referred to in subparagraph (C) of paragraph (2) of this Code section; and

(4) Prior to the performance of the abortion, the physician who is to perform the abortion or the physiciańs qualified agent receives a copy of the written certification prescribed by paragraph (3) of this Code section and retains it on file with the femalés medical record for at least three years following the date of receipt.

31-9A-4.

(a) Within 90 days after this chapter first becomes effective, the Department of Human Resources shall cause to be published in English and in each language which is the primary language of 2 percent or more of the statés population and shall cause to be available on the state website provided for in subsection (d) of this Code section the following printed materials in such a way as to ensure that the information is easily comprehensible:

(1) Geographically indexed materials designed to inform the female of public and private agencies and services available to assist a female through pregnancy, upon childbirth, and while the child is dependent, including adoption agencies, which 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 website addresses, in which they might be contacted or, at the option of such department, printed materials including a toll-free, 24 hour telephone number which may be called to obtain, orally or by a tape recorded message tailored to the ZIP Code entered by the caller, such a list and description of agencies in the locality of the caller and of the services they offer;

(2) Materials designed to inform the female of the probable anatomical and physiological characteristics of the unborn child at two-week gestational increments from the time when a female can be known to be pregnant to full term, including any relevant information on the possibility of the unborn child́s survival and pictures representing the development of unborn children at two-week gestational increments, provided that any such pictures must contain the dimensions of the fetus and must be factually accurate for the stage of pregnancy depicted. The materials shall be objective, nonjudgmental, and designed to convey only factually accurate scientific information about the unborn child at the various gestational ages. The material 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, and the medical risks commonly associated with carrying a child to term; and

(3) Materials with the following statement concerning unborn children of 20 weekś or more gestational age:

'By 20 weekś gestation, the unborn child has the physical structures necessary to experience pain. There is evidence that by 20 weekś gestation unborn children seek to evade certain stimuli in a manner which in an infant or an adult would be interpreted to be a response to pain. Anesthesia is routinely administered to unborn children who are 20 weekś gestational age or older who undergo prenatal surgery.'

The materials shall be objective, nonjudgmental, and designed to convey only accurate scientific information about the unborn child at the various gestational ages.

(b) The materials referred to in subsection (a) of this Code section shall be printed in a typeface large enough to be clearly legible. All pictures and print appearing on the website shall be clearly legible. All information and pictures shall be accessible with an industry standard browser, requiring no additional plug-ins.

(c) The materials required under this Code section shall be available at no cost from the Department of Human Resources upon request and in a reasonably appropriate number to any person, facility, or hospital.

(d) The Department of Human Resources shall develop and maintain a secure Internet website to provide the information described in this Code section. No information regarding who uses the website shall be collected or maintained. The Department of Human Resources shall monitor the website on a weekly basis to prevent and correct tampering.

31-9A-5.

(a) When a medical emergency compels the performance of an abortion, the physician shall inform the female prior to the abortion, if medically reasonable and prudent, of the medical indications supporting the physiciańs judgment that an abortion is medically necessary to avert her death or that a 24 hour delay will create serious risk of substantial or irreversible impairment of a major bodily function.

(b) Any physician who complies with subsection (a) of this Code section shall not be held civilly liable to a patient for failure to obtain informed consent to an abortion.

31-9A-6.

(a) Within 90 days after this chapter first becomes effective, the Department of Human Resources shall prepare a reporting form for physicians performing abortions in a health facility licensed as an abortion facility by the Department of Human Resources containing a reprint of this chapter and listing:

(1) The number of females to whom the physician provided the information described in paragraph (1) of Code Section 31-9A-3; of that number, the number to whom the information was provided by telephone and the number to whom the information was provided in person; and of each of those numbers, the number to whom the information was provided by a referring physician and the number to whom the information was provided by a physician who is to perform the abortion;

(2) The number of females to whom the physician or a qualified agent of the physician provided the information described in paragraph (2) of Code Section 31-9A-3; of that number, the number to whom the information was provided by telephone and the number to whom the information was provided in person; of each of those numbers, the number to whom the information was provided by a referring physician and the number to whom the information was provided by a physician who is to perform the abortion; and of each of those numbers, the number to whom the information was provided by the physician and the number to whom the information was provided by a qualified agent of the physician; and

(3) The number of females who availed themselves of the opportunity to obtain a copy of the printed information described in Code Section 31-9A-4, other than on the website, and the number who did not; and of each of those numbers, the number who, to the best of the reporting physiciańs information and belief, went on to obtain the abortion.

(b) The Department of Human Resources shall ensure that copies of the reporting forms described in subsection (a) of this Code section are provided:

(1) Within 120 days after this chapter first becomes effective, to all health facilities licensed as an abortion facility by the Department of Human Resources;

(2) To each physician licensed or who subsequently becomes licensed to practice in this state, at the same time as official notification to that physician that the physician is so licensed; and

(3) By December 1 of each year, other than the calendar year in which forms are distributed in accordance with paragraph (1) of this subsection, to all health facilities licensed as an abortion facility by the Department of Human Resources.

(c) By February 28 of each year following a calendar year in any part of which this chapter was in effect, each physician who provided, or whose qualified agent provided, information to one or more females in accordance with Code Section 31-9A-3 during the previous calendar year shall submit to the Department of Human Resources a copy of the form described in subsection (a) of this Code section with the requested data entered accurately and completely.

(d) Nothing in this Code section shall be construed to preclude the voluntary or required submission of other reports or forms regarding abortions.

(e) Reports that are not submitted within a grace period of 30 days following the due date shall be subject to a late fee of $500.00 for that period and the same fee for each additional 30 day period or portion of a 30 day period the reports are overdue. Any physician required to submit a report in accordance with this Code section who submits an incomplete report or fails to submit a report for more than one year following the due date may, in an action brought by the Department of Human Resources, be directed by a court of competent jurisdiction to submit a complete report within a period stated by court order or may be subject to sanctions for civil contempt.

(f) By June 30 of each year, the Department of Human Resources shall issue a public report providing statistics for the previous calendar year compiled from all of the reports covering that year submitted in accordance with this Code section for each of the items listed in subsection (a) of this Code section. Each report shall also provide the statistics for all previous calendar years adjusted to reflect any additional information from late or corrected reports. The Department of Human Resources shall ensure that none of the information included in the public reports could reasonably lead to the identification of any individual who provided information in accordance with Code Section 31-9A-3 or 31-9A-4.

(g) The Department of Human Resources may, by regulation, alter the dates established by subsection (c) or (e) of this Code section or paragraph (3) of subsection (b) of this Code section or may consolidate the forms or reports described in this Code section with other forms or reports for reasons including, but not limited to, achieving administrative convenience or fiscal savings or reducing the burden of reporting requirements, so long as reporting forms are sent to all facilities licensed as an abortion facility by the Department of Human Resources at least once every year and the report described in subsection (f) of this Code section is issued at least once every year.

(h) The Department of Human Resources shall ensure that the names and identities of the physicians filing reports under this chapter shall remain confidential. The names and identities of such physicians shall not be subject to Article 4 of Chapter 18 of Title 50.

31-9A-7.

In any civil proceeding or action relating to this chapter or a breach of duty under this chapter, the court shall rule whether the anonymity of any female upon whom an abortion has been performed shall be preserved from public disclosure if she does not give her consent to such disclosure. The court, upon motion or sua sponte, 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 female 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. This Code section may not be construed to conceal the identity of the plaintiff or of witnesses from the defendant.

31-9A-8.

If any one or more provisions, Code sections, subsections, sentences, clauses, phrases, or words of this chapter or the application thereof to any person or circumstance is found to be unconstitutional, the same is declared to be severable, and the balance of this chapter shall remain effective notwithstanding such unconstitutionality. The General Assembly declares that it would have enacted this chapter and each Code section, subsection, sentence, clause, phrase, or word thereof irrespective of the fact that any one or more provisions, Code sections, subsections, sentences, clauses, phrases, or words would be declared unconstitutional."

SECTION 7.

This Act shall become effective upon its approval by the Governor or upon its becoming law without such approval.

SECTION 8.

All laws and parts of laws in conflict with this Act are repealed.