71st OREGON LEGISLATIVE ASSEMBLY--2001 Regular Session

NOTE: Matter within { + braces and plus signs + } in an amended section is new. Matter within { - braces and minus signs - } is existing law to be omitted. New sections are within { + braces and plus signs + } .

House Bill 3830

Sponsored by Representative CLOSE; Representatives BACKLUND, DOYLE, GARRARD, HAYDEN, KNOPP, KRIEGER, MINNIS, MORRISETTE, NELSON, T SMITH, STARR, WILSON, WINTERS, WITT, Senators ATKINSON, R BEYER, FISHER, HARPER, MESSERLE, MINNIS, STARR

SUMMARY

The following summary is not prepared by the sponsors of the measure and is not a part of the body thereof subject to consideration by the Legislative Assembly. It is an editor's brief statement of the essential features of the measure as introduced.

Requires informed consent of pregnant woman 24 hours prior to abortion. Specifies information physician must provide to obtain informed consent. Requires Department of Human Services to provide other information about fetal development and viability. Requires physicians to report to Health Division on compliance with Act. Requires Health Division to impose civil penalties on persons who willfully fail to comply with Act. Specifies remedies available for failure to comply with Act.

A BILL FOR AN ACT

Relating to medical information. Be It Enacted by the People of the State of Oregon: SECTION 1. { + As used in sections 1 to 10 of this 2001 Act: (1) 'Abortion' means the prescription or use by a physician of any instrument, medicine or drug or any other substance or device with the intent to terminate the pregnancy of a woman known by the physician to be pregnant. Prescription or use is not abortion if done with the intent to: (a) Save the life or preserve the health of an unborn child; (b) Remove a dead unborn child; or (c) Deliver an unborn child prematurely to preserve the health of the mother and the unborn child. (2) 'Medical emergency' means a condition that, on the basis of the good faith clinical judgment of a physician: (a) Requires the immediate termination of a pregnancy to avert the death of the female; or (b) Creates serious risk of substantial and irreversible impairment of a major bodily function of a female if treatment is delayed. (3) 'Physician' means any person licensed to practice medicine or surgery under ORS chapter 677. + } SECTION 2. { + A physician may not perform an abortion without the voluntary and informed consent of the female. Consent to an abortion is voluntary and informed only if, at least 24 hours before the abortion, the female receives by telephone or in person the information required by sections 3 and 4 of this 2001 Act. + }

SECTION 3. { + (1) A physician who is to perform an abortion or the referring physician shall inform the female by telephone or in person of: (a) The name of the physician who will perform the abortion. (b) The medical risks associated with the proposed abortion, including but not limited to infection, hemorrhage, breast cancer, danger to subsequent pregnancies and infertility. (c) The probable gestational age of the unborn child at the time the abortion is to be performed. (d) The medical risks to the female of carrying the unborn child to term. (2) A physician must provide the information required by this section in a conversation with the female in which the female may ask questions. (3) A physician may provide the information required by this section by telephone without having first conducted a physical examination of or test on the patient. The physician may base the information provided by telephone on facts the female provides to the physician and any other relevant information available to the physician. (4) A physician may not provide the information required by this section through a recording. + } SECTION 4. { + (1) A physician who is to perform an abortion, a referring physician, an agent of the physician who is to perform the abortion or an agent of the referring physician shall inform the female that: (a) Medical assistance benefits may be available for prenatal care, childbirth and neonatal care. (b) The father of the unborn child may be required to assist in the support of the child, even when the father has offered to pay for the abortion. (c) The female has the right to obtain the information described in section 6 of this 2001 Act. (d) The information described in section 6 of this 2001 Act: (A) Has been provided by the State of Oregon; (B) Includes a description of an unborn child; and (C) Is available in printed form and at a secure website maintained by the Department of Human Services. (e) The address of the website with the information described in section 6 of this 2001 Act. (f) Upon request, the physician who is to perform the abortion, the referring physician, an agent of the physician who is to perform the abortion or an agent of the referring physician will provide the information in printed form: (A) In person at least 24 hours before the abortion; or (B) By certified mail, with delivery restricted to the female, at least 72 hours before the abortion. (2) The physician who is to perform the abortion, the referring physician, an agent of the physician who is to perform the abortion or an agent of the referring physician shall provide the information required by subsection (1) of this section in person or by phone at least 24 hours before the abortion. (3) The physician who is to perform the abortion, the referring physician, an agent of the physician who is to perform the abortion or an agent of the referring physician may provide the information required by this section through a recording if the physician who is to perform the abortion, the referring physician, an agent of the physician who is to perform the abortion or an agent of the referring physician also records whether the female chooses to receive the information in printed form. + }

SECTION 5. { + Prior to an abortion: (1) The pregnant woman must certify in writing that the information required to be provided under sections 3 and 4 of this 2001 Act has been provided. (2) The physician who is to perform the abortion or an agent of the physician must receive a copy of the written certification required by subsection (1) of this section. + }

SECTION 6. { + (1) The Department of Human Services shall print materials that clearly inform a female of: (a) The services available to assist a woman through pregnancy and childbirth and while the child is dependent upon the care of the woman. As used in this paragraph, 'services ' includes adoption services, medical assistance benefits and support obligations of the father of a child born alive. (b) The probable anatomical and physiological characteristics of an unborn child at two-week gestational increments. (c) Abortion procedures commonly employed, the medical risks commonly associated with the procedures, the possible detrimental psychological effects of an abortion and the medical risks associated with carrying a child to term. (2) The information required by subsection (1)(a) of this section must include: (a) A list of the persons providing the services that includes each person's address, indexed geographically, each person's telephone number and a description of the services each person provides; or (b) A toll-free, 24-hour telephone number through which a person may obtain the list. (3) The information required by subsection (1)(b) of this section must: (a) Include: (A) All relevant information about the possibility of the unborn child's survival. (B) Representations of the development of an unborn child at two-week gestational increments. (b) Be objective, nonjudgmental and convey only accurate scientific information about the unborn child. (4) The representations required by subsection (3)(a)(A) of this section must contain the dimensions of the unborn child and realistically depict the stages of development. (5) The Department of Human Services shall make the information required by this section available through a secure Internet website. The department shall maintain the website's resolution at not less than 72 dots per inch. (6) The information required by this section must be: (a) In at least 10 point type. (b) In each language that is the primary language of at least two percent of the state's population. (c) Updated annually. + }

SECTION 7. { + When a medical emergency compels termination of a pregnancy, the physician must, if possible, inform the female that termination of the pregnancy is necessary to avert the death of the female or to avert substantial and irreversible impairment of a major bodily function of the female. + }

SECTION 8. { + (1) In addition to remedies available under the common or statutory law of this state, failure to comply with the requirements of sections 2 to 7 of this 2001 Act shall: (a) Provide a basis for recovery of damages for professional negligence by the woman, her spouse, the parents of the woman, the parents of the spouse or the father of the unborn child. (b) Provide a basis for the Board of Medical Examiners to suspend, revoke or refuse to grant a license to practice under ORS 677.190. (c) Provide a basis for recovery of damages by the woman under ORS 30.010 or 30.020, whether or not the unborn child was viable at the time the abortion was performed. (2) In an action for damages under this section, the court shall award a prevailing plaintiff reasonable attorney fees and costs at trial and on appeal. (3) In a proceeding to enforce a right granted under sections 1 to 10 of this 2001 Act, a woman may sue and appear as a 'Jane Doe.' In a proceeding to enforce a right granted under sections 1 to 10 of this 2001 Act, a court may not, without the woman's consent, disclose the name of the woman upon whom a physician performed or attempted to perform an abortion. + }

SECTION 9. { + Any physician who complies with sections 2 to 7 of this 2001 Act is immune from liability for failure to obtain informed consent to the abortion. + }

SECTION 10. { + (1) A physician who performs an abortion after the effective date of this 2001 Act shall, no later than February 28 of the year next following the abortion, report the following information to the Health Division: (a) The number of abortions the physician performed. (b) The number of abortions the physician performed that were compelled by a medical emergency. (c) The number of women to whom the physician provided the information required by section 3 of this 2001 Act. (d) The number of women to whom the physician or an agent of the physician provided the information required by section 4 of this 2001 Act. (e) The number of women to whom the physician provided the information required by section 6 of this 2001 Act. (2) For the information required by subsection (1)(c) of this section, a physician shall provide: (a) The number of women provided the information in person. (b) The number of women provided the information by telephone. (c) The number of women to whom the physician provided the information as the physician who was to perform the abortion. (d) The number of women to whom the physician provided the information as the referring physician. (3) For the information required by subsection (1)(d) of this section, a physician shall provide: (a) The number of women provided the information in person. (b) The number of women provided the information by telephone. (c) The number of women to whom the physician provided the information as the physician who was to perform the abortion. (d) The number of women to whom the physician provided the information as the referring physician. (e) The number of women to whom an agent of a physician provided the information. (f) The number of women who accepted the information in printed form. (g) The number of women who accepted the information in printed form and who had an abortion. (h) The number of women who accepted the information in printed form and who did not have an abortion. (i) The number of women who did not accept the information in printed form. (j) The number of women who did not accept the information in printed form and who had an abortion. (k) The number of women who did not accept the information in printed form and who did not have an abortion. (L) The number of women who informed the physician that they had received the information on the website. (m) The number of women who informed the physician that they had received the information on the website and who had an abortion. (n) The number of women who informed the physician that they had received the information on the website and who did not have an abortion. (4) The information required by subsection (1) of this section must cover the calendar year preceding the report. (5) No later than June 1 of each year, the division shall make available to the public a report setting forth the information provided under this section. The report shall set forth the information for every calendar year for which information is available. (6) The division may not, without the woman's consent, disclose the name of a woman upon whom a physician performed or attempted to perform an abortion. + }

SECTION 11. { + (1) The Health Division shall, in addition to any other liability or penalty provided by law, impose a civil penalty on a person who willfully fails to comply with section 10 of this 2001 Act. The penalty shall be $50 per day for the first 30 days and $500 per day thereafter. (2) The division shall pay any penalties collected under subsection (1) of this section into the State Treasury for deposit into the General Fund. (3) The division shall impose a civil penalty under subsection (1) of this section in the manner provided in ORS 183.090. + }

SECTION 12. { + Sections 1 to 10 of this 2001 Act shall be known and may be cited as the 'Women's Right to Know Act.' + } SECTION 13. { + Within 90 days after the effective date of this 2001 Act, the Department of Human Services shall prepare the materials described in section 6 of this 2001 Act and make the materials available on a secure Internet website. + } SECTION 14. { + The President of the Senate and the Speaker of the House of Representatives may appoint one or more members of the Legislative Assembly to intervene as a matter of right in an action challenging the validity of sections 1 to 13 of this 2001 Act. + } ----------



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