Illinois 1998 Model Bill — The Protection from High Risk and Coerced Abortion Act
Woman’s Right to Know Act
June 27, 1998
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 Woman’s Right to Know Act.
Section 5. Legislative findings and purposes.
(a) the Legislature of the State of Illinois finds that:
(1) 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. Some submit to an unwanted abortion against their conscience because of pressure from other people. Officials of the National Abortion Federation report that 1 in 5 women served by their clinics are choosing abortion despite being philosophically and morally opposed to it. Women who choose abortion in violation of their consciences are significantly more prone to suffer severe psychological distress following an abortion.
(2) 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 to make it easier to carry a pregnancy to term.
(3) “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, 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.
(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) 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. “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.
(6) The omission of information regarding potential risks and alternatives of abortion may increase the risk and degree of distress, or even psychological illness, following an abortion. “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.
(7) 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.
(8) Fully informed consent 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.” [Italics added] Planned Parenthood v. Casey 505 U.S. 674, 718 (1992).
(9) There are well established predisposing risk factors in the medical and psychiatric literature which are predictive of a greater likelihood of adverse physical or 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; adolescence; strong religious convictions against abortion; a second or third-trimester pregnancy. See: “Fact Sheet: The Emotional Effects of Induced Abortion,” (New York: Planned Parenthood Federation of America, 1993.)
(10) 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. “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).
(11) 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. As a result, some injured patients have been denied legal representation or standing.
(12) Abortions performed by persons other than a licensed physician have many times the risk of causing death and other serious physical or psychological injury. Persons who perform illegal abortions, or who dispense medical advice regarding self-abortion techniques, are recklessly endangering the lives of women.
(b) Based on the findings in subsection (a) of this Section, it is the purpose of this Act to:
(1) 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).
(2) 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.
(3) 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.
(4) To deter illegal abortions by expanding the rights of redress of women against those parties who endanger their lives by providing unlicensed medical advice or treatments.
“Abortion” means the use or prescription of any instrument, medicine, drug, or any other substance or device with the intent to terminate a pregnancy if one exists. 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 pregnant woman and her unborn child.
“Physician” shall mean any person licensed to practice medicine in all its branches under the Illinois Medical Practice Act of 1987, as amended.
“Abortion providers” shall mean and include the physician, any individuals or corporations acting as agents of the physician who have contact with the patient and provide counseling, screening, referrals, or other support directly related to the abortion procedure, any corporation or owner or partner of a business or corporation that employs the physician to perform abortions, and any physician, referral service, business, individual, agency, or corporation that makes referrals to an abortion provider or physician.
“Conception” means the fertilization of a human egg by a human spermatozoa.
“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 women who do not possess this high risk factor.
“High risk patient” means any patient for whom one or more high risk factors exist.
“Medical emergency” means a condition that, on the basis of the physician’s reasonable medical 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.
“Qualified person” means a referring physician or an agent of the physician providing the abortion who is a licensed psychologist, licensed social worker, licensed professional counselor, or 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 one’s choices in order to arrive at a free and informed choice to either 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.
“Self-induced abortion” means any abortion or menstrual extraction, attempted or completed by a woman on her own body.
“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.
“Unborn child” means the offspring of human beings from conception until birth.
“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 making decisions or evaluating one’s actions with respect to future possible outcomes.
Section 15. Insurance Requirements.
(a) Physicians who perform abortions 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.
(b) All professional corporations and free standing clinics which provide more than ten (10) abortions per year must register proof of insurance covering all employees, contract workers, and volunteers who have contact with abortion patients in an amount of not less than$1,000,000 (one million dollars).
Section 20. 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 physician recommends or performs an abortion, the physician 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 physician, 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 physician 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 physician’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, 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 physician 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 physician, the proper law enforcement officials, and the child protection authorities.
Section 25. Disclosure Requirement.
(a) Except in the case of a medical emergency, 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. Consent to an abortion is informed only if the following are all true:
(1) The patient is given all the information that a reasonable patient may find relevant to a decision to forego the recommended abortion, plus any additional information the individual patient may request.
(2) Prior to the abortion a qualified person has informed the woman, orally and in writing, of:
(A) The name of the physician.
(B) The reasons why the physician is recommending the abortion as the preferred form of care.
(C) The nature of the proposed abortion method and alternatives for resolving the physical, emotional, social, or economic problems associated with her pregnancy.
(D) Any high risk factors which have been identified
(E) All risks that may be associated with the procedure, including the range of reported relative risk rates for each potential risk. Proven risks may be segregated, or otherwise highlighted, to distinguish them from disputed, unproven, or merely suspected risks. In the case where the risk of a complication varies according to age, gestational period, a patient’s prior history of abortion, or other high risk factors, the woman must be informed of the range of relative risk rates appropriate to her individual case.
(F) Tests results confirming that the patient is pregnant.
(G) 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.
(3) 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 physician 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.
(4) 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.
(5) 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 disclosure information that was provided to the patient and shall provide her with a copy of these records.
(c) The disclosure shall be invalid if it represents as fact opinions which a reasonable patient, after examination of all available evidence, would consider to be doubtful or questionable.
Section 30. Voluntary Consent Requirement
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. Except in the case of a medical emergency, consent to an abortion is voluntary if and only if:
(d) The requirements for screening and disclosure as described in Section 20 and Section 25 of this Act have been met.
(e) The physician 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.
(f) The physician 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.
(g) 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.
(h) The woman certifies in writing, before the abortion, that the information required by this Act has been provided her. The physician and the abortion patient shall each receive a copy of this written certification.
(a) Except in the case of a medical emergency necessitating an immediate abortion, an abortion patient has the right to withdraw her consent at any time. If the abortion procedure has begun, the patient shall be transferred to a hospital for evaluation and treatment by a physician other than the physician who was performing the abortion to determine if the pregnancy can be saved or if the abortion must be completed, except in the event that both the physician performing the abortion and the patient agree that the procedure was stopped at an early enough point that an additional medical examination is not necessary and there is no threat to the health of the woman or the viability of her pregnancy.
(b) Once an abortion patient has withdrawn consent, the presumption shall be that she is a vulnerable person. Except in the case of a medical emergency, an abortion may not be resumed on said patient until said patient has been reevaluated by a qualified person as required in Section 20, and the qualified person has provided a written statement to the physician certifying, to the best of his or her knowledge, that the patient’s ambivalence has been resolved and her consent to resume the abortion is consistent with the patient’s own autonomous views, needs and desires.
Section 40. 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.
(a) All the documents described in this section shall be available for public inspection during normal business hours.
(b) 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 50. Supplementary Disclosure Materials
(c) 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.
(d) 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.”
(e) 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.
(f) These supplementary materials shall be prepared and regularly updated by the State Department of Health to satisfy the interests of a reasonable patient.
(g) The supplementary materials shall be printed in a typeface large enough to be clearly legible.
(h) Before the physician 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).
(i) 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 60. Emergency. If a medical emergency compels the performance of an abortion, the attending physician 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 65. 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.
(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.
(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 physician 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 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 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 99. 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 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.
