07 LC 29
2551ER
House
Bill 147
By:
Representatives Mills of the
25th,
Sheldon of the
105th,
Fleming of the
117th,
Coan of the
101st,
Ralston of the
7th,
and others
A
BILL TO BE ENTITLED
AN ACT
AN ACT
To
provide a short title; to provide for legislative findings and purpose; to amend
Chapter 9A of Title 31 of the Official Code of Georgia Annotated, relating to
the 'Woman´s Right to Know Act,' so as to require physicians or other
qualified agents to require that pregnant females undergo an ultrasound or
sonogram prior to having an abortion; to change certain provisions relating to
voluntary and informed consent to abortions; to require certain information be
made available by the Department of Human Resources; to change certain
provisions relating to reporting requirements; to provide for civil causes of
action; to amend Article 5 of Chapter 12 of Title 16 of the Official Code of
Georgia Annotated, relating to abortion, to provide for criminal penalties for
failure to comply with the "Woman´s Right to Know Act"; to provide for
construction; to provide for intervention; to provide for severability; to
provide for an effective date; to provide for related matters; to repeal
conflicting laws; and for other purposes.
BE
IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:
SECTION
1.
This
Act shall be known and may be cited as the "Woman´s Ultrasound Right to
Know Act."
SECTION
2.
(a)
The General Assembly finds that:
(1)
It is essential to the psychological and physical well-being of a woman
considering an abortion that she receive complete and accurate information on
the reality and status of her pregnancy and of her unborn child;
(2)
The decision to abort "is an important and often a stressful one, and it is
desirable and imperative that it be made with full knowledge of its nature and
consequences."
Planned Parenthood v.
Danforth, 428 U.S. 52, 67 (1976);
and
(3)
The knowledgeable exercise of a woman´s decision to have an abortion
depends on the extent to which the woman receives sufficient information to make
an informed choice between two alternatives: giving birth or having an
abortion.
(b)
Based on the findings in subsection (a) of this section, it is the purpose of
this Act to:
(1)
Ensure that every woman considering an abortion receive complete information on
the reality and status of her pregnancy and of her unborn child and that every
woman submitting to an abortion do so only after giving her voluntary and
informed consent to the abortion procedure;
(2)
Protect unborn children from a woman´s uninformed decision to have an
abortion;
(3)
Reduce "the risk that a woman may elect an abortion, only to discover later,
with devastating psychological consequences, that her decision was not fully
informed" Planned
Parenthood v. Casey, 505 U.S. 833, 882
(1992); and
(4)
Adopt the construction of the term "medical emergency" accepted by the United
States Supreme Court in
Planned Parenthood v.
Casey, 505 U.S. 833 (1992).
SECTION
3.
Chapter
9A of Title 31 of the Official Code of Georgia Annotated, relating to the
"Woman´s Right to Know Act," is amended by revising Code Section 31-9A-3,
relating to voluntary and informed consent to abortion, as follows:
"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
(C)
The medical risks associated with carrying the unborn child to
term.
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 physician´s
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;
(1.1)
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)
An ultrasound or sonogram examination of each unborn child shall be performed
prior to an abortion being performed. Such examination may be performed at any
facility designed for such examination; and
(B)
That she has the right to view an active ultrasound of the unborn child and hear
the heartbeat of the unborn child if the heartbeat is audible. The active
ultrasound image shall be of a quality consistent with standard medical practice
in the community, contain the dimensions of the unborn child, and accurately
portray the presence of external members and internal organs, if present or
viewable, of the unborn child. The auscultation of fetal heart tone shall be of
a quality consistent with standard medical practice in the
community;
(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 a list of health care providers, facilities, and clinics that offer to
perform ultrasounds free of charge is available; such list shall be arranged
geographically and shall include the name, address, hours of operation, and
telephone number of each listed entity;
(C)(D)
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 physician´s 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),
(1.1), and (2) of this Code section has
been furnished
her, that she
viewed the ultrasound imaging and was given the opportunity to listen to the
heartbeat of the unborn child or decided not to view the ultrasound or listen to
the heartbeat, and that she has been
informed of her opportunity to review the information referred to in
subparagraph
(C)
(D)
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 physician´s qualified agent receives a copy of the written
certification prescribed by paragraph (3) of this Code section and retains it on
file with the female´s medical record for at least three years following
the date of receipt."
SECTION
4.
Said
chapter is further amended by revising subsection (a) of Code Section 31-9A-4,
relating to information to be made available by the Department of Human
Resources, format requirements, availability, and requirements for website, as
follows:
"(a)
Not later
than August 8, 2005, the
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 state´s
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;
(1.1)
Geographically indexed materials designed to inform the female of public and
private facilities and services available to assist a female with obtaining an
ultrasound or sonogram which shall include a comprehensive list of the
facilities 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 facilities 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 child´s
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
weeks´ or more gestational age:
'By
20 weeks´ gestation, the unborn child has the physical structures necessary
to experience pain. There is evidence that by 20 weeks´ 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 weeks´ 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."
SECTION
5.
Said
chapter is further amended by revising subsection (a) of Code Section 31-9A-6,
relating to reporting requirements, as follows:
"(a)
Not later
than August 8, 2005, the
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;
(1.1)
The number of females to whom the physician provided the information described
in paragraph (1.1) 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 physician´s information and belief, went
on to obtain the abortion."
SECTION
6.
Said
chapter is further amended by adding a new Code Section as follows:
"31-9A.6.1.
In
addition to whatever remedies are available under the common or statutory law of
this state, failure to comply with the requirements of this chapter
shall:
(1)
Provide a basis for a malpractice action. Any intentional violation of this
Code section shall be admissible in a civil suit as prima-facie evidence of a
failure to obtain informed consent, which, except in the case of a medical
emergency, constitutes medical malpractice;
(2)
Provide a basis for professional disciplinary action from the Composite State
Board of Medical Examiners; and
(3)
Provide a basis for recovery for the woman for the wrongful death of her unborn
child under Chapter 4 of Title 51, whether or not the unborn child was born
alive or was viable at the time the abortion was performed."
SECTION
7.
Article
5 of Chapter 12 of Title 16 of the Official Code of Georgia Annotated, relating
to abortion, is amended by adding a new Code section to read as
follows:
"16-12-141.2.
Any
person who purposefully, knowingly, or recklessly performs or attempts to
perform or induce an abortion without complying with Chapter 9A of Title 31
shall be punished as for a misdemeanor."
SECTION
8.
Nothing
in this Act shall be construed as creating or recognizing a right to abortion.
It is not the intention of this Act to make lawful an abortion that is currently
unlawful.
SECTION
9.
The
General Assembly, by joint resolution, may appoint one or more of its members
who sponsored or cosponsored this Act in his or her official capacity to
intervene as a matter of right in any case in which the constitutionality of
this Act is challenged.
SECTION
10.
In
the event any section, subsection, subsection, paragraph, subparagraph, item,
sentence, clause, phrase, or word of this Act is declared or adjudged to be
invalid or unconstitutional, the remain portions of this Act shall automatically
be repealed upon the entry of such declaration or adjudication and shall not
remain of full force and effect such declaration or adjudication. The General
Assembly declares that it would not have enacted the remaining parts of this Act
if it had known that such portion of this Act would be declared or adjudged
invalid or unconstitutional.
SECTION
11.
This
Act shall become effective on July 1, 2007.
SECTION
12.
All
laws and parts of laws in conflict with this Act are repealed.