1998 Model Bill — The Protection from High Risk and Coerced Abortion Act
THE PROTECTION FROM HIGH RISK AND COERCIVE ABORTION ACT
January 15, 1998 Text from Mississippi Senate Bill 3039
THE PROTECTION FROM HIGH RISK AND COERCIVE ABORTION ACT
Synopsis:
Creates the Protection From High Risk And Coercive Abortion Act. Requires physicians and the facilities where they are providing abortions to inform each woman of her rights under the law and of all unique and predisposing risk factors which she may possess, and to ensure that each woman understands the information disclosed. Requires physicians and the facilities where they are providing abortions 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 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, as well as reference and source documents regarding abortion related risks. 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.
The purpose of this Act is 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 risks, and any other information which may influence her decision to follow or reject a recommendation to abort.
(3) Ensure that no woman’s consent to a recommendation to abort is 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 the risks of abortion to women possessing unique risk factors.
(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, 505 U.S. 833,882, (1992).
(8) 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.
(9) Deter dangerous illegal abortions by expanding the rights of redress of women against those parties who endanger their lives by providing unlicenced medical advice or treatments.
Be it enacted by the Legislature of Mississippi:
Section 1. Short title. This Act may be cited as the Protection From High Risk And Coercive Abortion Act
Section 2. Definitions. The following words and phrases shall have the meanings ascribed in this section unless the context clearly indicates otherwise:
“Abortion” means the use or prescription of any instrument, medicine, drug or any other substance or device to terminate the pregnancy of a woman known to be pregnant with an intention other than to increase the probability of a live birth, to preserve the life or health of the child after live birth or to remove a dead fetus.
“Abortion practitioner” shall mean the licensed physician who induces an abortion.
“Abortion providers” shall mean and include the physician performing the abortion, and any individuals or corporations acting as agents of the physician who have contact with the patient and provide counseling, screening, referrals, or directly assist with the abortion procedure itself, and any corporation or owner or partner of a business or corporation that employs or contracts with the physician to perform abortions, and any physician, referral service, business, agency, or corporation that makes referrals to abortion providers.
“High risk patient” means any patient for whom one or more risk factors exist.
“Medical emergency” means that condition which, on the basis of the physician’s best clinical judgment, so complicates a pregnancy as to necessitate an immediate abortion to avert the death of the mother or for which a twenty-four-hour delay will create grave peril of immediate and irreversible loss of major bodily function.
“Probable gestational age of the unborn child” means what, in the judgment of the attending physician, will with reasonable probability be the gestational age of the unborn child at the time the abortion is planned to be performed.
“Qualified person” means a licensed physician or an agent of the abortion practitioner who is a licensed psychologist, licensed social worker, licensed professional counselor, or licensed registered nurse.
“Reasonable patient” means a patient who is capable of thoughtfully considering and weighing both technical and summary information to determine its relevancy to that patient’s choices in order to arrive at a free and informed choice either to follow or reject a medical recommendation.
“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.
“Risk factor” means any physical, psychological, behavioral, or situational factor which may predispose an individual woman to experience, 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 does not possess this risk factor.
“Self-induced abortion” means any abortion or menstrual extraction, attempted or completed by a woman on her own body.
“Vulnerable person” shall mean any person who is submitting to an unwanted abortion due to pressure from others or due to psychological instability.
Section 3. Screening Requirements
(a) Except in the case of a medical emergency, no abortion shall be performed or induced without prior screening of the patient for risk factors, including screening for evidence of coercion of a vulnerable person. Risk factors shall include, but not be limited to, the following: gonorrhea or chlamydia infection; a family history of breast cancer; prior history of gestational trophoblastic tumor; history of caesarean section; a history of prior abortion; adolescence; 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; strong religious convictions against abortion; a second or third-trimester pregnancy; low expectations of coping well.
(b) Except in the case of a medical emergency, consent to abortion is free from unnecessary exposure to risks and coercion only if all of the following are true:
(1) Before the abortion practitioner recommends or performs an abortion, the abortion practitioner must insure that a qualified person has evaluated the woman to identify the presence of any known or suspected risk factors and informed her and the abortion practitioner, in writing, of the results of this evaluation. In the event that risk factors are identified:
(A) The woman shall be fully informed by a qualified person which risk factors exist, why these risk factors may lead to adverse reactions, and 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 does not have the risk factor, and it shall include quantifiable risk rates whenever relevant data exists. The woman shall be given the information in all the detail that a reasonable patient may find relevant to her decision, plus any additional information the individual patient may request.
(B) The woman shall be counseled by a qualified person, to assist her to address and reduce, if possible, the 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 risk factors discussed and her increased exposure to the related adverse reactions. The risk factors and related reactions shall be listed in this certificate.
(2) Prior to the 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 may be 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 abortion, or 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 express herself freely.
(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 other sources of assistance or counseling that may be deemed appropriate by the qualified person, until she is able to make a fully free decision, either to have an abortion or to carry the pregnancy to term with respect to her own views, needs, and desires.
(D) If upon evaluation the qualified person concludes that the 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 with the consent of the woman, and shall include at the request of the woman, disclosure of information to the pressuring parties as to the negative impact a coerced abortion may have on a vulnerable person and referrals for interventive aid in the form of family counseling, marital counseling, legal aid, or other appropriate measures.
(E) If, after having received said additional counseling and interventive assistance on her behalf, the patient identified as a vulnerable person persists in her request for an induced abortion, and if the qualified person has made the reasonable judgment that the patient has freely and voluntarily decided to continue her request for an abortion in accordance with her own autonomous views, needs, and desires, the qualified person shall provide a written statement to the abortion practitioner certifying, to the best of that qualified person’s knowledge, that the patient’s request for an abortion is freely and voluntarily made and is consistent with the patient’s own autonomous views, needs, and desires. No abortion may be performed upon a person previously identified as a vulnerable person in the absence of this certification by a qualified person that the patient’s request for an abortion is freely made and is consistent with the patient’s own autonomous views, needs, and desires.
(c) Whenever the patient seeking abortion is under eighteen (18) years of age, a qualified person shall interview the woman to determine if her pregnancy is the result of a criminal act, 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 4. Abortion Information Depository.
(a) The State Department of Public Health shall maintain receipt-date stamped files containing the following:
(1) Proof of insurance certificates filed by abortion providers.
(2) At least one (1) copy of each edition of any document submitted by any individual, organization, or other entity 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) 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.
(E) Any other information which would be relevant to a reasonable patient or to the standard of care offered by abortion providers.
(b) The Department of Public Health shall maintain an index of the documents placed into the Abortion Information Depository including the date of submission.
(d) All the documents described in this section shall be available for public inspection during normal business hours.
(e) Copies of any document filed in the Abortion Information Depository shall made available to the public at actual cost and in accordance with copyright laws.
Section 5. Supplementary document for disclosure
(a) The Department of Public Health shall cause printed materials to be published in English, within 90 days after this Act becomes law, and shall update them on an annual basis. These supplementary materials shall include the following information in easily comprehensible form. 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 cover shall be provided for clearly typing or imprinting the name of the physician and the facility or hospital at which the procedure is performed.
(b) The text of this supplementary document shall include, but not be limited to, the following statements arranged in an easily understandable format:
“Only a physician, who possesses adequate insurance coverage to protect your interests, may perform an abortion.”
“It is your physician’s duty to ensure that your consent is freely and voluntarily given. In the event that you may feel pressured into undergoing an unwanted abortion by other persons or circumstances, it is the duty of your physician to assist you in identifying these pressures and, if possible, reducing them.”
“It is your physician’s duty to ensure that an abortion is likely to be safe and beneficial in your unique case. You have the option of following his recommendation regarding 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 should be told about potential aftereffects about which there may still be 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 possible risks and make your decision accordingly.”
“After examining your case, including your unique situation and health needs, your physician should 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. Your physician has the right and the duty to refuse to perform an abortion that in your case may be dangerous or contraindicated.”
“If you are a patient who is 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 or economic help. Your physician should discuss non-surgical ways of dealing with the social or 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 wish to continue this pregnancy. If this is the case, your physician should refer you to private or public agencies which can help you to deal with these problems. These referral agencies may 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.”
(c) This supplementary document shall include under the title “CHARACTERISTICS WHICH MAY PLACE YOU AT HIGHER RISK” a listing of risk factors reported in peer review medical, psychological and other academic journals.
(d) These supplementary materials shall be prepared and regularly updated by the State Department of Health to satisfy the interests of a reasonable patient.
(e) The supplementary materials shall be printed in a typeface large enough to be clearly legible.
(f) Before the abortion practitioner recommends or performs an abortion, each woman seeking an abortion must be given a copy of this supplementary document by a qualified person except in those instances described in Section 8(e)(6)(B).
(g) Violation of Section 5(f) 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.
Section 6. 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) Physicians performing abortions 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.
Section 7. Criminal penalties.
(a) Except in the case of a medical emergency, no physician shall knowingly perform an abortion on a woman who has not consented to the abortion, who has revoked her consent, or who has consented under the coercion or duress of another person. Said person shall, upon conviction, be imprisoned in the State Penitentiary not less than one (1) year nor more than (10) years.
(b) Any person who encourages or assists a woman in a self-induced abortion is guilty of a felony. Said person shall, upon conviction, be imprisoned in the State Penitentiary not less than one (1) year nor more than (10) years.
(c) Any person who sells or distributes materials or drugs with the intent that they be used for a criminal or self-induced abortion is guilty of a felony. Said person shall, upon conviction, be imprisoned in the State Penitentiary not less than one (1) year nor more than (10) years.
Section 8. Civil remedies
(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) A civil action under statutes or in common law relating to malpractice, negligence, fraud, extortion, battery, violation of conscience, and a violation of the individual’s 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) Recovery of the woman for the death of her unborn child under the Wrongful Death Act, whether or not the unborn child was viable at the time the abortion and whether or not the child was born alive.
(b) Any 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 contributory cause of a physical or emotional complication and has recovered from any psychological complication, including shame, which may impede the patient’s ability adequately to pursue a civil remedy.
(c) Notwithstanding the provisions of subsection (b) of this section, in the case of a woman who has died, any action under this act shall be brought within four years of her death.
(d) 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.
(e) In a civil action involving this Act:
(1) 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.
(2) 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.
(3) 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.
(4) It shall be conclusively 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 Health Abortion Information Depository three months prior to the date of the abortion at issue. The abortion provider shall not be presumed to have knowledge of information that was not in the Abortion Information Depository three months prior to the abortion, but that presumption can be rebutted by the preponderance of evidence that the abortion provider had or should have had knowledge of additional information.
(5) Any abortion provider that makes referrals to an abortion practitioner whose practice is inside or outside this State 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.
(6) It shall be an affirmative defense to allegations of inadequate disclosure or of a failure to provide all information that a reasonable patient may find relevant to a decision to forego a recommended abortion that the defendants omitted the contested information because:
(A) statistically validated surveys of the general population of women of reproductive age, conducted within three years before or after the contested abortion, demonstrate that less than five (5) percent of women would consider the information in question to be relevant to an abortion decision; or
(B) in the expert opinion of a psychiatrist who examined the patient prior to the abortion, disclosure of the contested information would most likely have been the immediate and direct cause of a severely adverse effect on the physical or mental health of the patient. The risk that providing the information may have caused the patient to choose to refuse the abortion and would subsequently suffer adverse reactions as a result of that birth shall not be deemed sufficient grounds for withholding the information.
(7) The failure to record an accurate medical and psychosocial history of the patient in making the recommendation to abort, shall be presumptive evidence 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.
(8) The failure to provide adequate guarantees for the delivery of post-procedural evaluation, treatment, and counseling shall be presumptive evidence of gross negligence. The burden of proving the adequacy of the post-procedural evaluation, treatment, and counseling shall fall upon the abortion provider.
(9) The determination of whether any particular information contained in documents deposited in the Abortion Information Depository was credible and should have been used by the abortion providers for the proper screening of risk factors, or for proper disclosure of information to the woman in all the detail that a reasonable patient may find relevant to her decision, is a question of fact to be answered by the jury.
(10) The determination of whether the information regarding risks was given to the woman in all the detail that a reasonable patient may find relevant to her decision is a question of fact to be answered by the jury.
(f) In addition to whatever remedies are available under the common or statutory law of this State, a woman who attempted or completed a self-abortion, or her survivors, will have a cause of action against any person, agency, or corporation which provided, distributed, or sold medical advice to her with the intent to assist or encourage her in performing a self-induced abortion. Upon establishing as a finding of fact or by a preponderance of evidence that a defendant provided, distributed, or sold medical advice with the intent to assist others to perform illegal or self-induced abortions, plaintiff shall be awarded not less than $400,000 for reckless endangerment. Proof of injury shall not be required to recover an award for reckless endangerment under this statute.
(g) In addition to whatever remedies are available under the common or statutory law of this State, in the event that an abortion is attempted or completed by a person who is not a licensed physician, the woman upon whom the abortion was attempted or completed, or her survivors, will have a cause of action against said person and any individual, agency, corporation, or referral service who referred her to said person. Upon establishing by the preponderance of evidence, that said person was not a licensed physician and attempted or completed an abortion on the woman, the plaintiff shall be awarded not less than $800,000 for reckless endangerment. Liability for referral may only be imposed after the further proof, by a preponderance of the evidence, that the referring party intended, knew, or recklessly disregarded the possibility that the person to whom the referral was made would attempt or complete an abortion upon the woman. Proof of injury shall not be required to recover an award for reckless endangerment under this statute
Section 9. 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. In such an event, the requirements of this act shall not apply.
Section 10. 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 11. 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 12. Right of intervention. The Legislature, 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 13. Effective date.
(a) This Act takes effect 90 days after becoming law.
(b) In the event that any portion of this Act is enjoined and subsequently upheld, the running of the statute of limitations for filing civil suit under the provisions of this statute shall be tolled during the pendency of the injunction and for four years thereafter.
Appendix A – Legislative Findings
(a) the Legislature of the State of Mississippi 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). 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 for 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, 192 (1973).
(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. McRae, 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.” Id., at 66.
(8) At least some physicians who provide abortions 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 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, 780 (D.C. Cir. 1972). “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) 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 505 U.S. 833, 882 (1992).
(10) “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).
(11) 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.
(12) 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.
(13) 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.
(14) Some women seek abortions without an adequate understanding of the risks of abortion given their unique physical and psychological conditions.
(15) 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.
(16) 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.
(17) 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.
(18) 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.
(19) Some abortion facilities or providers offer only limited and impersonal counseling opportunities.
(20) Some physicians who provide abortions, particularly those with a history of incompetency, move from state to state.
(21) 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.)
(22) It is essential that women who are at a higher risk of suffering severe psychological distress following an abortion shall be screened and counseled appropriately if any pre-identifying risk factors are present.
(23) “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).
(24) Some abortion facilities or providers provide inadequate screening of women to determine if they are at greater risk of experiencing abortion sequelae.
(25) Some abortion facilities or providers hire untrained and unprofessional “counselors” whose primary goal is to sell abortion services.
(26) Some abortion facilities or providers act in ways below ethical and professional standards of the medical community at large.
(27) 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.
(28) Some injured abortion patients have been unable to recover damages in civil actions for lack of adequate insurance coverage to cover their claims.
(29) Some complications reportedly associated with abortion may become clearly evident only several years, or even decades, after the abortion.
(30) 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.
(31) 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.
(32) Women who attempt or complete a self-abortion are at 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 exploit 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.
(33) The information that a “reasonable patient” would consider relevant to a decision to abort can be reliably and unambiguously determined by the use of statistically validated polls of potential patients.
