1996 Model Bill — The Protection from High Risk and Coerced Abortion Act

Synopsis:

Creates the Abortion Choice Act. Requires physicians providing abortions to inform women of their rights under the law, of all risks and alternatives to the abortion which would be relevant to the decision of a reasonable patient, of unique and predisposing risk factors which she may possess, and to ensure that she understands and has had sufficient time to reflect on the information disclosed. Requires physicians providing abortion to assist and protect women who are being coerced into unwanted abortions, to report evidence of child abuse, and to ensure that the decision to accept a recommendation to abort is voluntary and autonomous. Requires all facilities where abortions are performed to have on site a viewing equipment and video tape concerning fetal development, and additional reference and source materials which a reasonable patient might rely upon in forming a decision with regard to a abortion. Requires the Department of Public Health to maintain an Abortion Information Depository as a service to the public and abortion providers wherein shall be deposited copies of abortion providers disclosure and consent documents, reference and source documents regarding abortion related risks, and an index of agencies offering aid to pregnant women. Sets minimum requirements of insurance coverage for abortion providers and establishes rules of presumption, evidence, and standing for civil action based on non-compliance with this Act.

Be it enacted by the People of the State of Illinois, represented in the General Assembly:

Section 1. Short title. This Act may be cited as the Abortion Choice Act.

Section 5. Legislative findings and purposes.

the Legislature of the State of Illinois finds that:

(1) Abortion is one of many options used by physicians to treat a crisis pregnancy. Other tools, such as a referral for financial aid, legal counseling, or marital counseling, may sometimes better serve a woman’s needs by helping to alleviate a crisis situation and allow her to carry a wanted pregnancy to term.

(2) “The abortion decision in all its aspects is inherently, and primarily, a medical decision, and basic responsibility for it must rest with the physician.” Roe v Wade, [hereinafter Roe] 410 U.S. 113, 166 (1973). In forming a recommendation to abort, “The attending physician, in consultation with his patient, is free to determine, without regulation by the State, that in his medical judgment, the patient’s pregnancy should be terminated.” Roe at 163. It is clear, furthermore, both in the law and in standard medical ethics, that patients are not allowed to prescribe their own treatments. Roe at 153. While a woman may initiate a request an abortion, it is the attending physician who is responsible for determining if an abortion is actually recommended as a form of care given each woman’s individual needs and risks.

(3) At least some abortion providers tend to provide abortion on request without forming an adequate basis for recommending an abortion as the best form of care.

(4) In forming a medical recommendation, the physician is obligated to develop this opinion “in light of all factors – physical, emotional, psychological, and the woman’s age – relevant to the well being of the patient.” Planned Parenthood v Danforth 428 U.S. 51, 67 (1975). And in all cases, the weighing of all the factors should operate “for the benefit, not the disadvantage, of the pregnant woman.” Doe v. Bolton 410 U.S. 179 (1973) at 192.

(5) At least some abortion providers neglect to develop an adequate psychosocial profile of the woman seeking an abortion, or fail to identify and note known risk factors which would place the woman at greater risk of experiencing adverse physical or psychological sequelae after an abortion, both of which are necessary to making an informed recommendation.

(6) It is essential to the psychological and physical well-being of a woman considering an abortion that she receive complete and accurate information on her alternatives. This is especially so since “abortion is inherently different from other medical procedures, because no other procedure involves the purposeful termination of potential life.” Harris v. McRaie, 448 U.S. 297, 325 (1980).

(7) A patient has the right to be fully informed of the basis for a physician’s recommendation to abort, and of the potential risks attendant to abortion, and of alternative forms of care. “The decision to abort, indeed, 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.” [emphasis added] Danforth, at 67. Furthermore, provision of this information is necessary to “insure that the pregnant woman retains control over the discretion of her consulting physician.” ibid, at 66.

(8) At least some abortion practitioners withhold information about potential risks or alternatives which if provided might alter the woman’s decision and result in her refusal to undergo the recommended abortion. Sometimes this information is withheld to reduce the woman’s stress prior to the abortion, but this omission may result in greater distress, or even psychological illness, subsequent to the abortion. Women are ill served by those few abortion providers who would patronizingly protect them from evidence of risks which they have a right and need to consider. “As the patient must bear the expense, pain and suffering of any injury from medical treatment, his right to know all material facts pertaining to the proposed treatment cannot be dependent upon the self-imposed standards of the medical profession.” Cooper v. Roberts, 220 Pa. Super Ct. 260,267,286 A.2d 647, 650 (1971). “True consent to what happens to oneself is the exercise of a choice, and that entails an opportunity to evaluate knowledgeably the options available and the risks attendant upon each.” Canterbury v. Spence, 464 F.2d 772 (D.C. Cir. 1972) at 780. “What is at stake is the woman’s right to make the ultimate decision, not a right to be insulated from all others in doing so.” Casey, at 715

(9) Fully informed consent to abortion is often, if not always, dependent on an accurate understanding of the developmental stages of the human fetus. “It cannot be questioned that psychological well-being is a facet of health. Nor can it be doubted that most women considering an abortion would deem the impact on the fetus relevant, if not dispositive, to the decision. In attempting to ensure that a woman apprehend the full consequences of her decision, the State furthers the legitimate purpose of reducing the risk that a woman may elect an abortion, only to discover later, with devastating psychological consequences, that her decision was not fully informed.” [Italics added] Planned Parenthood v. Casey 120 L Ed 2d 674 at 718.

(10) Some women who seek abortions have little or no prior knowledge about the stages of development of the human fetus.

(11) “If the pregnant girl elects to carry her child to term, the medical decisions to be made entail few — perhaps none — of the potentially grave emotional and psychological consequences of the decision to abort.” H.L. v. Matheson, 450 U.S. 398, 412-413 (1980).

(12) Post-procedural adjustment to an induced abortion is complicated by sexual, familial, and moral dimensions with the result that risk of experiencing significant psychological sequelae following induced abortion is much greater than for any other elective medical procedure.

(13) Some women seek abortions in great haste and under emotional stress. Many state that they made poor decisions because they did not adequately think through alternative ways of coping with their crisis situations.

(14) Some abortion providers encourage clients to make a decision quickly and without adequate counseling to alleviate stress which may result in an ill-considered decision which will later be regretted.

(15) Some women report having had abortions, which they now regret, because they were unaware of alternatives or resources which were available which would have empowered them to carry their pregnancies to term.

(16) A few abortion providers encourage women to believe that abortion is the only way to solve their crisis when in fact financial, legal, and social resources are available which might help them to resolve their social, economic, or familial problems and thereby transform their untimely pregnancy into a wanted pregnancy.

(17) Some women seek abortions without an adequate understanding of the risks of abortion given their unique physical and psychological conditions.

(18) The National Abortion Federation, which represents abortion providers, reports that 1 in 5 women served by their clinics are choosing abortion despite being philosophically and morally opposed to it. Other research indicates that up to 70 percent of women seeking abortion may be morally opposed to it. See Zimmerman, Passages Through Abortion (New York: Praeger Publishers, 1977) 69.

(19) Numerous researchers have found that women who choose abortion in violation of their consciences are significantly more prone to suffer severe psychological distress following an abortion.

(20) There are many cases in which women who would prefer to keep their pregnancies feel forced by others, or by correctable circumstances, to undergo unwanted abortions which they subsequently regret. In some cases, the abortion provider has been aware of these outside pressures and has failed to assist the woman in alleviating these pressures to avoid an unwanted abortion. When a woman is being pressured into an unwanted abortion, the physician is the her last hope for an ally against her oppressors.

(21) Over 80% of all abortions are performed in clinics devoted solely to providing abortions and family planning services. Most women who seek abortions at these facilities do not have any relationship with the physician who performs the abortion before or after the procedure. Women do not return to the facility for post-surgical care. In most instances, the woman’s only actual contact with the physician occurs simultaneously with the abortion procedure with little opportunity to receive counseling concerning her decision.

(22) Some abortion facilities or providers offer only limited and impersonal counseling opportunities.

(23) Some abortion practitioners, particularly those with a history of incompetency, move from state to state.

(24) There are well established predisposing risk factors in the medical and psychiatric literature which are predictive of a greater likelihood of regrets or other adverse emotional reactions to abortion. These risk factors include among others: feelings of being pressured to have the abortion; feelings of attachment to the unborn child; a history of prior psychological illness or emotional instability; lack of support from the partner or parents; adolescence; strong religious convictions against abortion; a second or third-trimester pregnancy; low expectations of coping well. See: “Fact Sheet: The Emotional Effects of Induced Abortion,” (New York: Planned Parenthood Federation of America, 1993.)

(25) It is essential that women who are at an especially high risk of suffering severe psychological distress following an abortion be screened and counseled appropriately if any pre-identifying high risk factors are present.

(26) “The medical, emotional, and psychological consequences of abortion are serious and can be lasting; this is particularly so when the patient is immature. An adequate medical and psychological case history is important to the physician.” H.L. v Matheson 450 U.S. 398, 411 (1980).

(27) Some abortion facilities or providers provide inadequate screening of women to determine if they are at greater risk of experiencing abortion sequelae.

(28) Some abortion facilities or providers hire untrained and unprofessional “counselors” whose primary goal is to sell abortion services.

(29) Some abortion facilities or providers act in ways below ethical and professional standards of the medical community at large.

(30) Some abortion facilities or providers neglect to carry adequate insurance coverage to protect the interests of patients who may be injured as a result of their abortions.

(31) Some injured abortion patients have been unable to recover damages in civil action for lack of adequate insurance coverage to cover their claims.

(32) Some complications reportedly associated with abortion may become clearly evident only several years, or even decades, after the abortion.

(33) Some injured abortion patients have suffered psychological injuries which prevent them from seeking recovery of damages in a civil action, or cooperating effectively with counsel, prior to their recovery from their psychological disabilities. Because these injured women may be unable to cooperate in an action for recovery prior to the expiration of the normal statute of limitations, some injured patients have been denied legal representation or standing.

(34) Abortions performed by persons other than a licensed physician are dangerous and have many times the risk of causing death and other serious physical and psychological injury.

(35) Women who attempt or complete a self-abortion at are a much greater risk of suffering serious physical and emotional complications, including death, as compared to women who receive abortions from a licensed physician. Persons or organizations which dispense medical advice regarding self-abortion techniques are exploiting the fears of women in crisis, encourage the false belief that a self-induced abortion can be safe, and thereby deter women them from seeking appropriate medical care from a licensed physician who can ensure that women receive adequate pre-abortion risk evaluation, counseling, and post-operative care.

(a) Based on the findings in subsection (a) of this Section, it is the purpose of this Act to:

(1) Ensure that every woman considering abortion receives complete information about her rights and her physician’s obligations to safeguard both her health and her autonomy.

(2) Ensure that every woman considering an abortion receive complete information on the reasons for her physician’s recommendation, her alternatives, her risks, and any other information which may influence her decision to follow or reject a recommendation to abort.

(3) Ensure that every woman submitting to an abortion do so only after giving her voluntary and informed consent to the abortion procedure, and to ensure that her agreement to a recommendation to abort is not the result of coercion or external pressures which are in conflict with her own personal moral beliefs or desires to give birth to her unborn child.

(4) Protect women from the loss of their unborn children due to uninformed choices concerning risks and alternatives to an abortion recommendation.

(5) Protect women from feeling pressured into unwanted abortions by other persons or by circumstances which can be corrected.

(6) Protect women from individuals or circumstances that would pressure them into a violation of their conscience.

(7) 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, 112 S.Ct. 2791, 2823, (1992).

(8) To preserve the rights of women who may have suffered from an emotional or psychological disability that prevents them from being able to cooperate with counsel or to seek recovery through civil action prior to their recovery from said emotional or psychological injuries.

Section 10. Definitions.

“Menstrual extraction” means the use of any instrument or drug to evacuate or induce the expulsion of the contents of a woman’s uterus prior to the confirmation of a pregnancy. The evacuation of the uterus shall not be considered a menstrual extraction if a licensed physician has definitively verified through accurate and appropriate medical tests that the woman is not pregnant.

“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 woman known by the person performing the abortion to be pregnant or for the purpose of causing the menstrual extraction of a woman who may be pregnant. The use or prescription of any instrument, medicine, drug, or any other substance or device is not considered an abortion if done with the intent to (i) save the life or preserve the health of an unborn child, (ii) remove a dead unborn child, or (iii) deliver an unborn child prematurely in order to preserve the health of both the mother and her unborn child.

“Self-induced abortion” means any abortion or menstrual extraction, attempted or completed by a woman on her own body.

“Abortion practitioner” shall mean the person who induces or completes abortions.

“Abortion providers” shall mean and include the abortion practitioner and any other individuals or corporations acting as employees, sub-contractors, business associates, as agents of the abortion practitioner in providing counseling, screening, referrals, or other support for abortion related services, or any individual, agency, or corporation which makes referrals to an abortion provider or abortion practitioner.

“Qualified person” means an agent of the abortion practitioner who is a psychologist, licensed social worker, licensed professional counselor, registered nurse, or physician.

“Reasonable patient” means a patient who is capable of thoughtfully considering and weighing both technical and summary information to determine its relevancy to one’s choices in order to arrive at a free and informed choice to either follow or reject a medical recommendation.

“Conception” means fertilization of human egg by a human spermatozoa.

“Gestational age” means the time that has elapsed since the first day of the woman’s last menstrual period.

“Medical emergency” means a condition that, on the basis of the abortion practitioner’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 any delay will create serious risk of substantial and irreversible impairment of a major bodily function.

“Pregnant” or “pregnancy” means the female reproductive condition of having an unborn child in the woman’s body.

“Unborn child” means the offspring of human beings from fertilization until birth.

“Viability” and “viable” mean that stage of fetal development when the life of the unborn child may be continued indefinitely outside the womb by natural or artificial life-support systems.

“Sufficient reflection time” means an amount of time between receiving information described in this act and making a final decision to proceed with an abortion which is adequate for the patient, given the individual patient’s age, emotional state, and mental capacity to thoughtfully comprehend, investigate, consider, and discuss with others the information which she has received about the abortion procedure, its risks, and alternatives. A period of less than 24 hours shall be considered inadequate to ensure sufficient reflection unless the attending abortion practitioner has certified that the patient has demonstrated exceptional maturity, possessed prior knowledge of all the information which she has been given, and has already given the information due consideration.

“Risks” and “Complications” shall mean any physical and psychological sequelae which a reasonable patient, upon review of all the available information, is likely to consider to be either an established risk of abortion, a likely risk of abortion, or a possible risk of abortion.

“High risk factor” means any physical, psychological, behavioral, or situational factor which would predispose or increase the risk of an individual woman experiencing one or more adverse emotional or physical reactions to the abortion, in either the short or long term, compared to a woman who do not possess this high risk factor.

“High risk patient” means any patient for whom one or more high risk factors exist.

“Vulnerable person” means any person, either an adult or a minor, who due to their emotional or psychological state, including distress over situational factors, is at an increased risk of being unduly influenced by the opinions or directions of others, or said person is at a reduced capacity for objectively evaluating or understanding information, or said person is at a reduced capacity for evaluating one’s actions with respect to future possible outcomes.

Section 15. License requirements; insurance requirements.

(a) All abortion providers shall register proof of insurance with the State Department of Public Health. Said insurance coverage must cover liability for all requirements and provisions of this act in an amount of not less than the larger of $1,000,000 dollars, or one-third of the largest reported court ordered award for abortion related injuries registered with the Department of Public Health.

(b) Only licensed physicians may act as abortion practitioners.

(c) Abortion practitioners must register proof of insurance with the State Department of Public Health. Said insurance coverage must cover liability for all requirements and provisions of this act in an amount of not less than the larger of three million dollars, or two-thirds of the largest reported court ordered award or settlement for abortion related injuries registered with the Department of Public Health.

(d) Abortion practitioners must have admitting privileges at a hospital which, in the event of a medical emergency, is reasonably accessible to the site at which the abortion is performed.

Section 20. Screening Requirements

(a) No abortion shall be performed or induced without prior screening of the patient for high risk factors, including screening for evidence of coercion of a vulnerable person. Except in the case of a medical emergency, consent to abortion is voluntary and informed only if all of the following are true:

(1) Prior to the abortion practitioner’s recommendation for an abortion, a qualified person has evaluated the woman to identify the presence of any high risk factors and informed her and the abortion practitioner, in writing, of the results of this evaluation. In the event that high risk factors are identified:

(A) The woman shall be fully informed which high risk factors exist, why these high risk factors may lead to adverse reactions, a detailed explanation of what adverse reactions may occur. This explanation of relevant risks must be in greater detail than would normally be provided to a woman who has no identifiable high risk factors, and it shall include quantifiable risk rates whenever relevant data exists.

(B) The woman shall be counseled, or referred to a qualified person, to assist her to address and reduce, if possible, the high risk factors which place her at increased risk of sequelae.

(C) Prior to the high risk patient’s consent to an abortion, the qualified person who has provided the screening and counseling shall provide a written statement to the patient and the abortion practitioner certifying, to the best of that person’s knowledge, that the patient fully understands and appreciates the significance of the high risk factors discussed and her increased exposure to the related adverse reactions. The high risk factors and related reactions shall be listed in this certificate.

(2) Prior to an abortion practitioner’s recommendation for an abortion, a qualified person has privately evaluated the woman to determine if she is a vulnerable person, and in particular if she is seeking an abortion under pressure to do so from other persons.

(A) Evaluation of the woman to identify if she is a vulnerable person shall include investigation of her moral views about abortion and any possible emotional attachment which she may have developed with her unborn child. If she describes a negative moral view toward her requested abortion, an emotional attachment to her unborn child, or otherwise indicates that the abortion is unwanted, is her “only choice,” or is being sought to satisfy some other person’s desires which are contrary to her own, the presumption shall exist that she is a vulnerable person.

(B) This evaluation of the woman shall be done individually, in a private room in the absence of third parties, such as parents, spouse, or others, to protect her privacy and increase her opportunity to freely express herself.

(C) If a woman is identified as a vulnerable person, she must be informed of this evaluation and continue to receive non-directive counseling by a qualified person, or be referred to counselors at an appropriate agency, until she is able to make a fully free decision to either have an abortion or carry the pregnancy to term based on her own views, needs, and desires.

(D) If upon evaluation it appears that a woman seeking an abortion may be a vulnerable person seeking abortion against her own self interests because of pressure or coercion from a third party, the qualified person shall assist her in finding resources to mitigate the pressure or protect her from the coercion. This assistance may include disclosure of information to the pressuring parties as to the negative impact a coerced abortion may have on a vulnerable person, or interventive aid in the form of family counseling, marital counseling, legal aid, or other appropriate measures.

(E) If a woman who has been previously identified as a vulnerable person, after having received said additional counseling and interventive assistance on her behalf, has autonomously decided to continue her request for an abortion, a qualified person shall provide a written statement to the abortion practitioner certifying, to the best of their knowledge, that the patient’s request for an abortion is freely made and is consistent with the patient’s own autonomous views, needs, and desires.

(b) Whenever the patient seeking abortion is under 18 years of age, a qualified person shall interview the woman to determine if her pregnancy is the result of a criminal act against a minor, including acts of incest, rape, or statutory rape. If the qualified person determines that a criminal act was or is likely to have occurred, written notice will be given to the abortion practitioner, the proper law enforcement officials, and the child protection authorities.

Section 25. Disclosure Requirement.

(a) No abortion shall be performed or induced without the complete and fully informed consent of the woman upon whom the abortion is to be performed or induced. Except in the case of a medical emergency, consent to an abortion is informed only if the following are all true:

(1) The patient is given all that information which a reasonable patient may reasonably find relevant to a decision to forego the recommended abortion, plus any additional information the individual patient may request.

(2) Prior to the abortion, the abortion practitioner who is to perform the abortion or the referring abortion practitioner has informed the woman, orally and in person, of:

(A) The name of the abortion practitioner who will perform the abortion

(B) The approximate number of abortions which the abortion practitioner has performed or assisted.

(C) Any high risk factors which have been identified and how they have or shall be addressed.

(D) The reasons why the abortion practitioner is recommending the abortion as the preferred form of care.

(E) The nature of the proposed abortion method and of any risks which may be associated with the procedure, and alternatives to the procedure that a reasonable patient would consider material to the decision of whether or not to undergo the abortion, and of any factors in the patient’s individual case which would place her at increased risk of experiencing adverse effects.

(F) The probable gestational age of the unborn child at the time the abortion is to be performed. If the unborn child is viable or has reached the gestational age of 22 weeks, that (i) the unborn child may be able to survive outside the womb; (ii) the woman has the right to request the abortion practitioner to use the method of abortion that is most likely to preserve the life of the unborn child; and (iii) if the unborn child is born alive, the attending abortion practitioner has the legal obligation to take all reasonable steps necessary to maintain the life and health of the child.

(G) The probable anatomical and physiological characteristics of the unborn child at the time the abortion is to be performed.

(H) If the woman is Rh negative, any need for anti-Rh immune globulin therapy, the probable consequences of refusing such therapy, and the cost of the therapy.

(I) If the patient has any venereal diseases which may increase the likelihood of post-operative infections.

(3) Prior to the abortion, the abortion practitioner who is to perform the abortion, the referring abortion practitioner, or a qualified person has informed the woman, orally and in person, that:

(A) Medical assistance benefits may be available for prenatal care, childbirth and neonatal care, and that more detailed information on the availability of such assistance is contained in the printed materials given to her and described in Section 50.

(B) The father of the unborn child is liable to assist in the support of her child, even in instances when he has offered to pay for the abortion.

(C) Interventive counseling may be available at no charge to assist the woman in discussing the pregnancy with her parents, husband, or with others by whom she may feel pressured to abort.

(D) The woman has the right to view, and is encouraged to view, the video tape described in Section 55 following the disclosure of the information required by this Act.

(E) The State encourages her to view an ultrasound image of her unborn child before she decides to have an abortion.

(F) She is free to withhold or withdraw her consent to the abortion at any time without affecting her right to future care or treatment and without the loss of any State or federally funded benefits to which she might otherwise be entitled.

(G) She is free to withhold or withdraw her consent to the abortion at any time before the uterus has been evacuated, in which case she shall be required to pay the abortion providers no more than $50 in counseling and surgical preparation fees.

(H) If she should withdraw her consent after the abortion has begun, but before the uterus has been evacuated, she shall be transferred to a hospital where an independent determination shall be made to determine if the pregnancy can be saved. She shall be liable for any ambulance expenses or medical care she will incur in the transfer and subsequent treatment.

(4) Prior to the abortion, the woman is given a copy of the printed materials described in Section 50 upon which the name of the facility and the abortion practitioner is clearly typed or printed. If the woman is unable to read the materials, they shall be read to her. If the woman asks questions concerning any of the information or materials, complete answers shall be provided to her in her primary language.

(5) Prior to the abortion, the woman is advised that a space is available in the facility wherein she can review additional source materials that may be relevant to her decision. These additional materials shall include those materials selected by the abortion providers from the Department of Public Health’s Abortion Information Depository regarding specific risks, predisposing risk factors, or other information which a reasonable patient might choose to inspect prior to giving consent to the recommended abortion.

(6) The information required by this Section is provided to the woman individually and in a private room to protect her privacy and to maintain the confidentiality of her decision, to ensure that the information focuses on her individual circumstances, and that she has an adequate opportunity to ask questions.

(7) The patient is allowed, at her free discretion, to be accompanied, during the disclosure process, by other persons she has chosen to advise and support her in making her decision.

(b) The abortion providers shall keep complete records of the information that was provided to the patient and shall provide her with a copy of these records. A video tape of the counseling session is the recommended form of recording the screening, disclosure, and consent process. In the absence of a video tape of the disclosure and counseling session, the patient’s recall of the counseling process shall be presumed true and the abortion providers shall have the burden of disproving the patient’s recall.

(c) The disclosure shall be invalid if it represents as fact opinions which a reasonable patient, after examination of evidence such as that on file at the Abortion Information Depository would consider to be doubtful or questionable.

Section 30. Voluntary Consent Requirement

(a) No abortion shall be performed or induced without the completely free and voluntary consent of the woman upon whom the abortion is to be performed or induced. An abortion performed or induced without the completely free and voluntary consent of the patient upon whom the abortion was performed shall constitute an act of battery. Except in the case of a medical emergency, consent to an abortion is voluntary if and only if:

(1) The requirements for screening and disclosure as described in Section 20 and Section 25 of this Act have been met.

(2) The abortion practitioner who performs the abortion has determined that the woman has had sufficient reflection time to comprehend and consider all the information this Act requires that she be given in order for her to make an informed decision to proceed with the abortion.

(3) The abortion practitioner who performs the abortion has determined that the woman is capable and free to make an make an autonomous decision in light of any findings regarding the existence of any coercion or duress and in light of the assistance the patient has received to mitigate or overcome the coercion or duress.

(4) The patient is not required to pay any amount for the abortion procedure or pre-abortion counseling until after the procedure has been completed. This requirement shall not, however, limit the abortion provider’s right to request proof of an ability to pay before providing services.

(5) The woman certifies in writing, before the abortion, that the information required by this Act has been provided her. The abortion practitioner or his or her agent shall receive a copy of the written certification. A written consent form meeting the requirements set forth in this section and signed by the pregnant woman shall be presumed valid. This presumption may be overcome by evidence sufficient to establish that consent was given while the woman was being subjected to coercion or was under duress, or was obtained through omission of material fact, fraud, negligence, deception, or violation of any other requirements of this act..

(b) No abortion shall be performed or induced on a minor without the voluntary and informed consent, as described in subsection (a) of this section, of both the minor and the minor’s legal guardian, except under the following conditions:

(1) Based upon the psychosocial evaluation and screening of the minor woman, the abortion practitioner:

(A) Concludes in his best medical judgment that abortion as the best alternative to treating the minor’s overall health needs; and

(B) Has documented a substantial basis for believing that providing notice to the minors parents and obtaining their consent will result in abuse which may pose a significant injury to the patient’s health; and

(C) Has explained the basis for this exclusion of the guardian to the patient as part of the recommended course of treatment; and

(D) Has explained any risks associated with exclusion of the guardian from the decision.

(2) Notice of the recommendation to abort without consent of the guardian is delivered to the Department of Public Health at least 6 hours prior to the abortion.

(3) The evidence or testimony upon which the abortion practitioner concludes that minor has been abused or is at risk of abuse is conveyed to the Department of Children and Family Services at least 6 hours prior to the abortion. This report must include the minor patient’s name and the address of her residence. This report shall be not subject to public inspection, except by request of the patient or by order of a court.

Section 35: Withdrawn Consent

(a) If a patient withdraws her consent to an abortion at any time before the uterus has been evacuated, she shall be required to pay the abortion providers no more than $50 in counseling and surgical preparation fees.

(b) If she should withdraw her consent after the abortion has begun, and before it has been completed, she shall be transferred to a hospital for evaluation and treatment by a physician other than the abortion practitioner to determine if the pregnancy can be saved.

Section 40: Reporting Requirement

(a) In every case that the abortion practitioner who performs the abortion allows less than 24 hours of reflection time, based on his or her determination that the woman is sufficiently informed and mature enough to make an informed decision in less time, he or she shall record the following information:

(1) The amount of time provided for reflection between the end of the information giving period and the decision to proceed with the abortion.

(2) A brief statement of the basis of the abortion practitioner’s decision to provide less than 24 hours.

(3) The age of the patient.

(4) The date the abortion was performed.

(5) The name of abortion practitioner who performed the abortion and the name of the facility at which the procedure was provided.

(b) In every case that the abortion practitioner who performs the abortion on a minor without the informed consent of the minor’s legal guardian, he or she shall record the following information:

(1) The testimony or evidence which provides a substantial basis for believing that the minor has been or is likely to be the victim of abuse if the guardian were to be informed about the pregnancy and abortion, excluding any names or details which would identify the parties involved.

(2) The age of the patient.

(3) The date the abortion was performed.

(4) The name of abortion practitioner who performed the abortion and the name of the facility at which the procedure was provided.

(c) The information described in subsections (a) and (b) above shall be recorded:

(1) On the patient’s receipt or other documents which are given to the patient and she is advised to retain.

(2) In the abortion practitioner’s permanent case files.

(3) In a statement which shall be filed with the Department of Public Health within 5 business days after the abortion.

(d) Each abortion practitioner and facility will file with the Department of Public Health copies of all disclosure documents, and consent forms required by this Act, and notification of the title, producer, and distributor of the videotape, as described in Section 55, which is available on site. Any change in these documents or titles must be filed with the Department within 5 business days of the change.

(e) The records filed with Public Health under subsections (c) and (d) above shall open to public inspection.

(f) If upon interviewing a patient who is a minor the abortion provider should discover that a minor is being coerced or otherwise pressured into an unwanted abortion by a relative, the case shall be reported to the Department of Child and Family Services for investigation of abuse.

(g) If upon interviewing a patient who is a minor the abortion provider should discover that a minor may have been the victim of incest, rape, or statutory rape, the case shall be reported to the Department of Child and Family Services for investigation of abuse.

Section 45. Abortion Information Depository.

(a) The Department of Public Health maintain receipt-date stamped files containing the following:

(1) Proof of insurance certificates filed by abortion providers.

(2) Reports of informed consents granted in less than 24 hours, as filed by abortion practitioners under Section 40.

(3) Reports of abortions granted without the informed consent of a minor’s guardian, as filed by abortion practitioners under Section 40. Any information which would identify the minor or her guardian’s shall be deleted.

(4) Copies of each abortion practitioner’s disclosure documents, consent forms, and information identifying the on site videotape used, as filed by abortion practitioners as described under Sections 40 and Section 55.

(5) A geographically indexed list of public and private agencies and services available to assist pregnant women in coping with emotional, financial, career, family, and social problems and which thereby assist her through pregnancy, childbirth, and while her child is dependent, including but not limited to adoption agencies. The index shall include a comprehensive list of these agencies, a description of the services they offer, and the telephone numbers and addresses of the agencies. All agencies requesting to be included in the index shall be included unless it can reasonably be demonstrate that an agency is has ceased to provide the claimed services.

(6) At least one copy of each edition of any document submitted by outside agencies regarding:

(A) Known or claimed adverse effects of abortion;

(B) Predisposing risk factors to post-abortion sequelae.

(C) Alternative management techniques for crisis pregnancies.

(D) Any other information which would be relevant to a reasonable patient or to the standard of care offered by abortion providers.

(7) Reports of monetary awards and settlements in civil actions against abortion providers which shall be used as a basis for the determination of adequate proof of insurance.

(b) The Department of Public Health shall maintain an index of the documents placed into the Abortion Information Depository including the date of submission.

(c) All the documents described in section shall be available for public inspection during normal business hours.

(d) Copies of any document filed in the Abortion Information Depository shall made available to the public at cost.

Section 50. Supplementary document for disclosure

(a) Each abortion practitioner shall prepare, or purchase from a third party, in both English and Spanish versions, a printed supplementary document for disclosure which shall be updated on no less than an annual basis. This supplementary document shall include the following information in an easily comprehensible form:

(1) On the front cover shall be printed in large type: “YOUR CHOICE. YOUR RIGHTS.” Followed by “IMPORTANT DOCUMENT – Read and keep in your permanent records.” A space on the front or rear cover shall be provided for clearly typing or imprinting the name of the abortion practitioner and the facility or hospital at which the procedure is performed.

(2) Beginning on the first page, under the title “YOUR LEGAL RIGHTS” shall be the following statement, in an appropriate format:

“The law gives you specific rights to safeguard your health and freedom. The abortion practitioner who will perform your abortion is required by law to ensure that you have received and comprehend all of the following:

(1) Why an abortion is recommended as the means of treatment.

(2) The nature of the proposed abortion method, including its impact on the human fetus and the stage of development of your fetus.

(3) Any risks which may be associated with the abortion.

(4) Any adverse effects which you, due to your individual circumstances, may be at a higher risk of experiencing compared to other patients; and

(5) Information about alternative sources of financial aid and crisis pregnancy counseling which might enable you to avoid an abortion, if you so desire.

The attending physician is also required to ensure that you have had sufficient time (which normally should not be less than 24 hours) to reflect on this information and discuss it with your loved ones prior to making your final decision.

The attending physician is also required to ensure that your decision is freely made. It is the physician’s duty, to the degree possible, to protect you from feeling pressured into an abortion by other persons. In the event you are feeling pressured into an abortion by circumstances, it is also the physician’s duty to assist you in finding resources which will help you to deal with these pressure, whether they are due to financial problems, career or education problems, legal or social problems, or problems with your loved ones. This assistance, which may be in the form of referrals to outside agencies, is intended to increase your options, to assist you in this difficult time of your life, and to ensure that your decision to abort is a free and informed choice.

The law forbids payment for an abortion prior to its completion.

The above rights are guaranteed to you by law. If your rights are violated, or if you sustain injuries as a result of a violation of your rights, you are entitled to seek recovery of damages in a court of law. You have the right to seek damage up to 4 years after you have recovered from any physical or emotional injuries to the degree necessary to effectively pursue your action.”

(3) The text of this supplementary document shall include, but not be limited to, the following statements arranged in an easily understandable format:

“It is unlawful for any individual to pressure or coerce a woman to undergo an abortion. It is the obligation of treating physician to protect you from individuals, or circumstances, which might make you feel pressured into undergoing an unwanted abortion.”

“Only a licensed physician, who possesses adequate insurance coverage to protect your interests, may perform an abortion.”

“You have a right to seek a safe and legal abortion. But it is your physician’s duty to ensure that an abortion will be safe and beneficial in your unique case. You have the option of following his recommendation for an abortion. You also have a legal right to be fully informed of the nature of abortion, of any physical or psychological risks which may be associated with abortion, and of alternative ways of coping with your crisis. This information is your right, and it must be given to you so that your final decision to accept or reject your doctor’s recommendation is a fully informed one.”

“It is your physician’s duty to screen you for physical or emotional factors which place you at risk of suffering negative reactions after the abortion. It is also the physician’s duty to ensure that you are given and understand information about all the physical and psychological complications which may be associated with abortion. You will be told about some potential after effects about which there is still uncertainty. This uncertainty may involve how often these complications occur. Or there may be uncertainty about whether these problems actually result from abortion or from some other cause. In cases where a reported risk has not been firmly established, you may ask your physician to help you to examine the evidence for and against these claimed risks and make your decision accordingly.”

“After examining your case, including your unique situation and health needs, your physician will make a recommendation. This may be a recommendation for abortion. Or it may be a recommendation to use other ways to solve your present problems.

“If you are a patient at risk of abortion related complications, abortion may not be the best medical recommendation. If your reasons for seeking an abortion are mainly social or economic, your needs may be best served by social and economic help. Your physician will discuss non-surgical ways of dealing with the social and economic problems which have turned your pregnancy into a crisis. Such alternatives may include referral for family counseling, marital counseling, legal counseling, financial aid, job relocation services, career or education counseling services, adoption counseling, or residency in a maternity home. Many of these alternatives are available at no cost.”

“Your physician may recommend a non-abortion alternative especially if you are feeling pressured to seek an abortion because it is your ‘only choice.’ These pressures may be coming from emotional, social, financial, career, or family problems. In such cases, an abortion may only make your problems worse, especially if you would otherwise be keeping this pregnancy. If this is the case, your physician will refer you to private or public agencies which will help you to deal with these problems. These referral agencies have resources to help you sort through and cope with these people or circumstances which are making you feel pressured into undergoing an unwanted abortion. Only after these pressures are addressed can a decision to abort be properly made. Otherwise, your choice may not truly be a free one.”

“There are many public and private agencies willing and able to help you carry your child to term and to assist you and your child after your child is born whether you choose to keep your child or to place her or him for adoption. State law permits adoptive parents to pay the costs of medical care before, during, and after the birth. The State strongly urges you to contact any of these agencies before making a final decision about abortion. The law requires that your physician or agent give you the opportunity to call agencies like these before you undergo an abortion.”

“The law guarantees you the right to be fully informed by your physician of all the potential adverse effects which may be associated with abortion. The failure to provide you with this information is itself a violation of your rights. The physician is required to provide you with a written copy of this information, and if available, a video tape of the counseling you received. The State strongly urges you to keep these records in order to protect your rights to recover damages in the event that you later discover that you have sustained physical or emotional injuries or that you rights have otherwise been violated.”

(4) This supplementary document shall include under the title “RESOURCES TO HELP YOU” a geographically indexed list of public and private agencies and services available to assist the woman in coping with emotional, financial, career, family, and social problems and which thereby assister her through pregnancy, childbirth, and while her child is dependent, including but not limited to adoption agencies. The materials shall include a comprehensive list of these agencies, a description of the services they offer, and the telephone numbers and addresses of the agencies.

(5) The materials shall also inform the woman about available medical assistance benefits for prenatal care, childbirth, neonatal care, and about the support obligations of the father of a child who is born alive.

(6) This supplementary document shall include under the title “DEVELOPMENT OF THE HUMAN FETUS” materials that inform the pregnant woman of the probable anatomical and physiological characteristics of the unborn child at 2-week gestational increments from fertilization to full term including pictures or drawings and any relevant information on whether an unborn child delivered at that stage of development has ever survived. Any pictures or drawings must contain the dimensions of the unborn child and must be realistic. The materials shall be objective, non-judgmental, and designed to convey only accurate scientific information about the fetus at various gestational ages. The supplementary material shall also contain objective information describing the methods of abortion procedures commonly employed.

(7) This supplementary document shall include under the title “POTENTIAL RISKS RELATED TO ABORTION” a listing of all adverse reactions, including physical, psychological, and emotional ones, which may reasonably be associated with abortion. A range of relative risk rates for each reaction may be listed if known. Proven risks may be segregated, or otherwise highlighted, to distinguish them from disputed, unproven, or merely suspected risks. Any complication reported as appearing in more than 5% of any sample of women must be included in this list. Complications which appear less frequently should also be included if a reasonable patient would consider them relevant to making an informed choice. In any case where the risk of a complication varies according to a prior history of abortion, the relative risk rates must be reported separately for a) women who have no prior history of abortion and b) for women with a history of one or more prior abortions.

(8) This supplementary document shall include under the title “CHARACTERISTICS WHICH MAY PLACE YOU AT HIGHER RISK” a listing of reported characteristics of women which may pre-identify them as being at greater risk of experiencing physical or psychological sequelae following an abortion.

(b) These supplementary document shall be limited to the topics described in part (a) of this Section. Information on the risks of childbirth, or other matters deemed appropriate by the abortion practitioner, may be provided in separate printed documents or by oral communication.

(c) These supplementary materials shall be prepared and regularly updated to satisfy the interests of a reasonable patient.

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

Section 55. On Site Resources.

(a) All facilities where abortions are performed and offices of abortion providers who refer for abortion shall do all of the following:

(1) Obtain a copy of a video tape, such as are readily available from the American College of Obstetrics and Gynecology, medical schools, medical publishers, or medical documentary producers, that depicts living unborn children at various gestational increments from fertilization to full term and an explanation of the probable anatomical and physiological characteristics of unborn children at these various stages as well as an other relevant information on the development of unborn life. The video shall include real time laproscopic images and objective and accurate scientific information about the unborn child at the various gestational ages.

(2) Have video viewing equipment on the premises.

(3) Make the video available for viewing whenever the facilities are open for business.

(4) File and maintain with the Department of Public Health an updated notice of the title, producer, and distribution source of the video.

(b) All facilities where abortions are performed and offices of abortion providers who refer for abortion must maintain an up to date reference library, easily accessible to their patients, containing reference and source information regarding specific risks, predisposing risk factors, or other information which a reasonable patient might choose to inspect before making a decision relevant to abortion.

(1) Said reference library shall include, but not be restricted to, a representative sample of materials selected from the Department of Public Health’s Abortion Information Depository.

(2) Said reference library should be maintained in a way which would reasonably serve the interests of patients who desire to more thoroughly investigate issues which are summarily described in the supplementary disclosure document as defined in Section 50.

Section 60. Emergency. If a medical emergency compels the performance of an abortion, the abortion practitioner shall inform the woman, before 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 and irreversible impairment of a major bodily function.

Section 65. Criminal penalties.

(a) Any person who intentionally, knowingly, or recklessly violates this Act is guilty of a Class 2 felony.

(b) No physician shall be guilty of violating this Act if he or she can demonstrate by a preponderance of evidence, which must include the opinion of at least one psychologist or psychiatrist who has independently evaluated the woman prior to the abortion, that furnishing the information would have resulted in a severely adverse effect on the physical or mental health of the pregnant woman. Information about the adverse effects of abortion may be withheld, upon the recommendation of an independent psychiatrist or psychologist, if and only if the information itself will result in severe adverse effects. The risk that a woman who is provided with the information may choose to give birth to her unborn child and suffer adverse reactions as a result of that birth, shall not be deemed sufficient grounds for withholding the information. The presumption shall be that the woman herself is capable of weighing the relative risks between the adverse effects of abortion and the adverse effects of childbirth.

(c) Any person, other than a physician who has a current and valid license of this State, who induces or completes an abortion on a woman is guilty of a Class X felony.

(d) Any person who encourages or assists a woman in a self-induced abortion is guilty of a Class X felony.

(e) Any person who sells or distributes materials or drugs intended for use in a self-induced abortion is guilty of a Class X felony.

Section 70. Civil penalties.

(a) In addition to whatever remedies are available under the common or statutory law of this State, the failure to comply with the requirements of this Act shall provide a basis for the following:

(1) Civil action under statutes relating to malpractice, negligence, fraud, consumer fraud and deceptive business practices, extortion, battery, violation of conscience, violation of the individuals civil rights. Any intentional violation of this Act shall be admissible in a civil suit as prima facie evidence of a failure to obtain a voluntary and informed consent.

(2) Provide a basis for professional disciplinary action.

(b) If the abortion practitioner provides the patient with less than 24 hours for reflection time:

(1) the burden of proving that the woman had sufficient reflection time, given her age, level of maturity, emotional state, and mental capacity, and her opportunities to thoughtfully comprehend, investigate, consider, and discuss with others the information which she received or was entitled to receive, shall fall upon the abortion providers.

(2) In a judgement against the abortion providers, based on the failure to provide sufficient reflection time for giving an informed consent, the plaintiff shall be awarded double damages.

(c) If the abortion practitioner provides a minor patient with an abortion without the informed consent of the minor’s legal guardian:

(1) The failure to provide prior notice of the abortion to the Departments of Public Health and Children and Family Services, as required by this act, shall be presumptive of gross negligence.

(2) The failure to record an accurate medical and pscyhosocial history of the patient in making the recommendation to abort, shall be presumptive of gross negligence. The burden of proving by a preponderance of evidence the adequacy of the medical and psychosocial history shall fall upon the abortion provider.

(3) The failure to provide adequate guarantees for the delivery of post-procedural evaluation, treatment, and counseling shall be presumptive of gross negligence. The burden of proving the adequacy of the post-procedural evaluation, treatment, and counseling shall fall upon the abortion provider.

(4) The burden of proving that the minor woman was capable of independently evaluating the information given to her in the disclosure process and was capable of making a voluntary choice to accept the abortion recommendation shall fall upon the abortion providers.

(5) In a judgement against the abortion provider on the basis of gross negligence, as described in this subsection, or for failure to obtain the voluntary and informed consent of the minor, the plaintiff shall be awarded triple damages, with a total award of not less than $1,000,000 dollars irrespective of the actual damages.

(d) An action for civil remedies based on a failure to comply with the requirements of this Act must be brought within 4 years after the date at which the woman becomes, or should have been, aware that the abortion was the probable or related cause of a physical or emotional complication and has recovered from any psychological complication, including shame, which may impede the patient’s ability to adequately pursue a civil remedy.

(e) No abortion provider shall be held liable for any claim of injury based on the premise that too much information was provided to the patient, provided said information was accurate or reasonably assumed to be accurate.

(f) Lack of full disclosure as described in Section 25 is itself injurious and a violation of the individual’s civil rights, and shall be compensated by an award of not less than $50,000 and not more than $2,000,000.

(g) In a civil action involving this Act:

(1) Testimony and arguments regarding the plaintiff’s sexual history with regard to the number and frequency of sexual partners shall not be admissible.

(2) The presiding judge shall recognize that the plaintiff may still be recovering from elements of shame and avoidance behavior with regard to her abortion. The judge, in any portion of the proceedings, shall not permit tactics that resemble emotional battery, intimidation, or other shame provoking behavior.

(3) The jury may request a copy of this legislation, or shall be presented with a copy of this legislation upon the demand of counsel for either party.

(4) In determining liability, the absence of voluntary and fully informed consent shall create the presumption that the plaintiff would not have undertaken the recommended abortion. This burden can be overcome by a preponderance of evidence showing that the woman would have acceded to the recommendation even if the information had been disclosed.

(5) In allowing the testimony of expert witnesses, the technical-medical aspect of induced abortion shall be a separate issue from the screening, counseling, disclosure, and recommendation process.

(A) With regard to proper procedures for screening, counseling, and the recommendation of alternative forms of crisis resolution, the testimony of physicians or persons who care for women in crisis pregnancies shall be allowed as expert testimony.

(B) With regard to the technical-medical process used for the induced abortion, the testimony of any physician skilled in D&C, D&E, evacuation techniques, instillation, prescription of labor inducing drugs, or other medical procedures such as would be employed following a miscarriage, wherein said procedures or techniques are substantially similar to the method employed for the induced abortion at issue, shall be allowed as expert testimony. The testimony of a board certified obstetrician-gynecologist shall normally be allowed as expert testimony.

(6) It shall be presumed that the abortion provider has, or should have had, knowledge of all the information regarding potential risks, predisposing risk factors, and crisis pregnancy management alternatives that was deposited in the Department of Public Healths Abortion Information Depository prior to the date of the abortion at issue.

(7) Any abortion provider that advertises its services in this State shall be deemed to be doing business in this State and shall be fully responsible for fulfilling all the requirements of this Act.

(8) Any abortion provider that makes referrals to an abortion practitioner whose practice is outside this State’s jurisdiction shall be fully responsible for ensuring that all provisions of this Act, in particular those relating to screening, disclosure, and voluntary consent, are satisfied. In the absence of adequate screening, full disclosure, and voluntary consent, the referring abortion provider shall be liable for all injuries sustained.

(h) In the event of a self-induced abortion, the plaintiff will have cause for action against any person, agency, or corporation which provided, distributed, or sold medical advice with regard to performing a self-induced abortion.

(1) Evidence of authorship, publication, or distribution of materials teaching, advising, or assisting in self-induced abortion shall establish as a judicial finding of fact:

(A) Liability for lack of adequate pre-abortion screening as required under Section 20 of this act.

(B) Liability for lack of full disclosure of risks and alternatives as required in Section 25 of this Act.

(C) Liability for lack of full disclosure of risks and alternatives as required in Section 25 of this Act.

(2) Upon establishing as a finding of fact or by a preponderance of evidence that a defendant provided, distributed, or sold medical advice with regard to performing a self-induced abortion, plaintiff shall be awarded three times actual damages, plus punitive damages, with a minimum award of not less than $2,000,000.

Section 80. Severability. If any provision of this Act or its application to any person or circumstance is held invalid, the invalidity of that provision or application does not affect other provisions or applications of the Act that can be given effect without the invalid provisions or application.

Section 85. Construction.

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

(b) It is not the intention of this law to make lawful an abortion that is currently unlawful.

Section 90. Right of intervention. The General Assembly, by joint resolution, may appoint one 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 law is challenged.

Section 99. Effective date.

(a) This Act takes effect 60 days after becoming law.

(b) In the event that any portion of this Act is enjoined and subsequently upheld, all portions of this statute which are upheld shall be retroactively applied to the date this Act was passed by the legislature and signed into law.

(c) In the event that any portion of this Act is enjoined and subsequently upheld, the statute of limitations for filing civil suit under the provisions of this statute shall be extended for two years after any injunctions against provisions of this Act have been lifted.

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