AB441: Bill Text

5. That if, in the reasonable medical judgment of the physician, the woman's unborn child has reached viability, the physician is required to take all steps necessary to preserve and maintain the life and health of the child.

6. Any other information that a reasonable patient would consider material and relevant to a decision of whether or not to carry a child to birth or to undergo an abortion.

7. That the woman may withdraw her consent to have an abortion at any time before the abortion is performed or induced.

8. That the woman is not required to pay for performance or inducement of the abortion until at least 24 hours have elapsed.

The bill deletes requirements for provision of information on the availability of public and private agencies to provide birth control information and on the availability of services to assist a minor in seeking consent for the abortion or in petitioning a court for a waiver of the consent requirement. The bill also modifies the requirement for the provision of information on the medical risks associated with the abortion to require mention, if medically applicable, of the risks of infection, psychological trauma, hemorrhage, endometriosis, perforated uterus, incomplete abortion, failed abortion, danger to subsequent pregnancies, infertility and breast cancer.

In addition, under the bill, at least 24 hours before the abortion is performed or induced, the physician who is to perform or induce the abortion or a qualified person assisting the person (who is required, under the bill, to be a certified social worker or licensed registered nurse) must in person orally inform the woman and, if the woman is a minor, the individual who is also giving consent for the abortion for the minor, of all of the following:

1. That benefits for prenatal care, childbirth and neonatal care may be available under the medical assistance program.

2. That the father of the unborn child must assist in the support of the child, if born.

3. That the woman has a legal right to continue her pregnancy and keep the child, place the child with a relative for adoption, place the child in foster care or petition the court for placement of the child for adoption in the home of a nonrelative.

4. That the woman and, if the woman is a minor, the individual who is also giving consent for the abortion for the minor have the right to receive and review certain printed information, provided by the state, free of charge, that describes the unborn child and lists agencies that offer alternatives to abortion. The physician or qualified person must physically give current, updated materials to the woman and, if the woman is a minor, to the individual who is also giving consent for the abortion for the minor.

Under the bill, the information that is required to be provided to the woman and, if the woman is a minor, the individual who is also giving consent for the abortion for the minor must be provided in an individual setting that protects privacy, maintains the confidentiality of the decision and ensures that the information received focuses on the woman's individual circumstances. The woman and, if the woman is a minor, the individual who is also giving consent for the abortion for the minor receiving the information must be provided the opportunity to ask questions and receive requested information, after which the woman and, if the woman is a minor, the individual must certify in writing that the required or requested information has been provided, in the required setting, and that any questions have been answered. The physician or qualified person assisting the physician must place this certification in the woman's medical record prior to performance or inducement of the abortion.

The bill requires that the department of health and social services (DHSS) publish certain printed materials in English, Spanish and certain other languages, distribute the materials to county departments of social services and human services and upon request, annually review the materials for accuracy and exercise reasonable diligence in providing materials that are current. The materials include a listing of services and agencies available to assist a woman through pregnancy, upon childbirth and while the child is dependent, pictures or drawings that are designed to inform the woman of probable anatomical and physiological characteristics of the unborn child at certain increments of the pregnancy and a form to certify that required information is provided. The bill requires DHSS and the county departments to distribute the materials, upon request, and authorizes the charging of a fee, not to exceed the actual costs of preparation and distribution, for them. Under the bill, physicians who intend to perform or induce an abortion must request a reasonably adequate number of these materials from DHSS or a county department. Other persons may request a reasonably adequate number of these materials. DHSS also is authorized, under the bill, to maintain a 24-hour toll-free telephone service to provide the listing of available agencies in the locality of the caller, a description of the services that the agencies offer and the manner in which they may be contacted.

The bill creates a forfeiture and provides civil remedies for violation of the informed consent requirements. The bill also creates provisions that include violations of the informed consent requirements as bases for allegations of unprofessional conduct for licensed physicians, licensed registered nurses and certified social workers.

The bill creates provisions that permit anonymity and otherwise protect the confidentiality of a woman who has sought or obtained an abortion and who files an action in civil court or who files an informal complaint with the appropriate examining board for an allegation of unprofessional conduct.

Lastly, the bill expands the types of information required to be reported to DHSS concerning induced abortions to include, for a minor, whether consent for the minor's abortion was obtained and, if so, the relationship to the minor of the individual who provided consent or if not, on what basis the abortion was performed.

In Planned Parenthood v. Casey, 505 U.S. ...., 112 S.Ct. 2791 (1992), 3 justices of the U.S. supreme court delivered a plurality opinion that specifically overruled the court's previous holding in City of Akron v. Akron Center for Reproductive Health, 462 U.S. 416, 103 S.Ct. 2481 (1983) and found that a 24-hour waiting period prior to performance of an abortion does not constitute an undue burden on a woman's procurement of an abortion. Casey, at 2825, 2826. With respect to the informed consent requirement of the Pennsylvania law in question, the 3 justices found that "... requiring that the woman be informed of the availability of information relating to fetal development and the assistance available should she decide to carry the pregnancy to full term is a reasonable measure to insure an informed choice ...." Id., at 2824. They stated, "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. If the information the State requires to be made available to the woman is truthful and not misleading, the requirement may be permissible." Id., at 2823. (The Pennsylvania law reviewed in Casey required that the physician who is to perform the abortion, the referring physician or a qualified physician assistant, health care practitioner, technician or social worker orally inform the pregnant woman about the proposed procedure, medical risks, the probable gestational age of the unborn child, alternatives to abortion, medical assistance benefits and the liability of the father for child support and that the Pennsylvania department publishes and will provide to her, free of charge, if she chooses to review it, printed materials designed to inform the woman of the probable anatomical and physiological characteristics of the unborn child at 2-week gestational increments from fertilization to full term.) The 3 justices noted that the Pennsylvania statute requiring provision of information "... does not require a physician to comply with the informed consent provisions `if he or she can demonstrate by a preponderance of the evidence, that he or she reasonably believed that furnishing the information would have resulted in a severely adverse effect on the physical or mental health of the patient ...' " and "... does not prevent the physician from exercising his or her medical judgment." Id., at 2824.

For further information see the state fiscal estimate, which will be printed as an appendix to this bill.

The people of the state of Wisconsin, represented in senate and assembly, do enact as follows:

AB441, s. 1 Section 1. 46.245 of the statutes is repealed and recreated to read:

AB441,5,9 46.245 Information for certain pregnant women. A county department under s. 46.215, 46.22 or 46.23 shall, upon request, distribute the materials described under s. 253.10 (3) (d), as prepared and distributed by the department, and may charge a fee not to exceed the actual cost of preparation and distribution of the materials. A physician who intends to perform or induce an abortion shall request and any individual may request a reasonably adequate number of the materials from the county department under this section or from the department under s. 253.10 (3) (d).

AB441, s. 2 Section 2. 48.375 (4) (a) 1. of the statutes is amended to read:

AB441,6,2 48.375 (4) (a) 1. The person or the person's agent has, either directly or through a referring physician or his or her agent, received and made part of the minor's medical record, under the requirements of s. 253.10, the voluntary and informed written consent of the minor and the voluntary and informed written consent of one of her parents; or of the minor's guardian or legal custodian, if one has been appointed; or of an adult family member of the minor; or of one of the minor's foster parents or treatment foster parents, if the minor has been placed in a foster home or treatment foster home and the minor's parent has signed a waiver granting the department, a county department, the foster parent or the treatment foster parent the authority to consent to medical services or treatment on behalf of the minor.

AB441, s. 3 Section 3. 69.186 (1) (j) of the statutes is created to read:

AB441,6,8 69.186 (1) (j) If the patient is a minor, whether consent was provided under s. 48.375 (4) (a) 1. for the abortion and, if so, the relationship of the individual providing consent to the minor; or, if consent under s. 48.375 (4) (a) 1. was not provided, on which of the bases under s. 48.375 (4) (a) 2. or (b) 1., 1g., 1m., 2. or 3. the abortion was performed.

AB441, s. 4 Section 4. 253.10 of the statutes is repealed and recreated to read:

AB441,6,11 253.10 Voluntary and informed consent for abortions. (1) Legislative findings and intent. (a) The legislature finds that:

AB441,6,15 1. Many women now seek or are encouraged to undergo elective abortions without full knowledge of the medical and psychological risks of abortion, development of the unborn child or of alternatives to abortion. An abortion decision is often made under stressful circumstances.

AB441,6,19 2. The knowledgeable exercise of a woman's decision to have an elective abortion depends on the extent to which the woman receives sufficient information to make a voluntary and informed choice between 2 alternatives of great consequence: carrying a child to birth or undergoing an abortion.

AB441,6,25 3. The U.S. supreme court has stated: "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." Planned Parenthood of Southeastern Pennsylvania v. Casey, 112 U.S. 2791, 2823 (1992).

AB441,7,3 4. It is essential to the psychological and physical well-being of a woman considering an elective abortion that she receive complete and accurate information on all options available to her in dealing with her pregnancy.

AB441,7,13 5. The vast majority of elective abortions in this state are performed in clinics that are devoted solely to providing abortions and family planning services. Women who seek elective abortions at these facilities normally do not have a prior patient-physician relationship with the physician who is to perform or induce the abortion, normally do not return to the facility for post-operative care and normally do not continue a patient-physician relationship with the physician who performed or induced the abortion. In most instances, the woman's only actual contact with the physician occurs simultaneously with the abortion procedure, with little opportunity to receive personal counseling by the physician concerning her decision. Because of this, certain safeguards are necessary to protect a woman's right to know.

AB441,7,16 6. A reasonable waiting period is critical to ensure that a woman has the fullest opportunity to give her voluntary and informed consent before she elects to undergo an abortion.

AB441,7,18 (b) It is the intent of the legislature in enacting this section to further the important and compelling state interests in all of the following:

AB441,7,20 1. Protecting the life and health of the woman subject to an elective abortion and, to the extent constitutionally permissible, the life of her unborn child.

AB441,7,22 2. Fostering the development of standards of professional conduct in the practice of abortion.

AB441,8,2 3. Ensuring that prior to the performance or inducement of an elective abortion, a woman considering an elective abortion receive personal counseling by the physician and be given a full range of information regarding her pregnancy, her unborn child, the abortion, the medical and psychological risks of abortion and available alternatives to the abortion.

AB441,8,4 4. Ensuring that a woman who decides to have an elective abortion gives her voluntary and informed consent to the abortion procedure.

AB441,8,5 (2) Definitions. In this section:

AB441,8,10 (a) "Abortion" means the use of an instrument, medicine, drug or other substance or device with intent to terminate the pregnancy of a woman known to be pregnant or for whom there is reason to believe that she may be pregnant and with intent other than to increase the probability of a live birth, to preserve the life or health of the infant after live birth or to remove a dead fetus.

AB441,8,12 (b) "Agency" means a private nonprofit organization or a county department under s. 46.215, 46.22 or 46.23.

AB441,8,18 (c) "Medical emergency" means a condition, in a physician's reasonable medical judgment, that 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 a 24-hour delay in performance or inducement of an abortion will create serious risk of substantial and irreversible impairment of one or more of the woman's major bodily functions.

AB441,8,24 (d) "Probable gestational age of the unborn child" means the number of weeks that have elapsed from the probable time of fertilization of a woman's ovum to the time when an abortion is to be performed or induced, based on the information provided by the woman as to the time of her last menstrual period, her medical history, a physical examination performed by the physician who is to perform or induce the abortion and any appropriate laboratory tests performed on her.

AB441,9,4 (e) "Qualified person assisting the physician" means a social worker certified under ch. 457 or a registered nurse to whom a physician who is to perform or induce an abortion has delegated the responsibility, as the physician's agent, for providing the information required under sub. (3) (c) 2.

AB441,9,5 (f) "Viability" has the meaning given in s. 940.15 (1).

AB441,9,12 (3) Voluntary and informed consent. (a) Generally. An abortion that otherwise is permitted to be performed or induced under s. 48.375 (4), 940.04 (5) or 940.15 may not be performed or induced unless the woman upon whom the abortion is to be performed or induced has and, if the woman is a minor and s. 48.375 (4) (a) 2. does not apply, the individual who also gives consent under s. 48.375 (4) (a) 1. have given voluntary and informed written consent under the requirements of this section.

AB441,9,14 (b) Voluntary consent. Consent under this section to an abortion is voluntary only if the consent is given freely and without coercion by any person.

AB441,9,16 (c) Informed consent. Except if a medical emergency exists, a woman's consent to an abortion is informed only if all of the following first take place:

AB441,9,19 1. At least 24 hours before the abortion is to be performed or induced, the physician who is to perform or induce the abortion has, in person, orally informed the woman of all of the following:

AB441,9,21 a. Whether or not, according to the reasonable medical judgment of the physician, the woman is pregnant.

AB441,9,23 b. The probable gestational age of the unborn child at the time that the abortion is to be performed or induced.

AB441,9,24 c. The particular medical risks, if any, associated with the woman's pregnancy.

AB441,10,3 d. In language designed to be understood by the woman taking into account her age, level of maturity and intellectual capability, the probable anatomical and physiological characteristics of her unborn child.

AB441,10,4 e. The name of the physician who will perform or induce the abortion.

AB441,10,6 f. The details of the medical or surgical method that will be used in performing or inducing the abortion.

AB441,10,10 g. The medical risks associated with the particular abortion procedure to be used, including, if medically applicable, the risks of infection, psychological trauma, hemorrhage, endometriosis, perforated uterus, incomplete abortion, failed abortion, danger to subsequent pregnancies, infertility and breast cancer.

AB441,10,20 h. That the state of Wisconsin encourages the woman to view an ultrasonic image and hear or view the heartbeat of her unborn child before she decides to have an abortion. If the woman chooses to view an ultrasonic image or hear or view the heartbeat of her unborn child, the physician who is to perform or induce the abortion shall provide the heartbeat transmittal or ultrasound service free of charge or at a nominal charge or order the heartbeat transmittal or ultrasound service for the woman at any facility that provides heartbeat transmittal or ultrasound imaging services. Any person who provides heartbeat transmittal or ultrasound imaging services under this subd. 1. h. shall use the method most likely to give the clearest image or sound.

AB441,10,23 i. The recommended general medical instructions for the woman to follow after her abortion to enhance her safe recovery and the name and telephone number of a physician to call if complications arise after the abortion.

AB441,11,3 j. If, in the reasonable medical judgment of the physician, the woman's unborn child has reached viability, that the physician is required under s. 940.15 to take all steps necessary to preserve and maintain the life and health of the child.

AB441,11,6 k. Any other information that a reasonable patient would consider material and relevant to a decision of whether or not to carry a child to birth or to undergo an abortion.

AB441,11,8 L. That the woman may withdraw her consent to have an abortion at any time before the abortion is performed or induced.

AB441,11,10 m. That the woman is not required to pay any amount for performance or inducement of the abortion until at least 24 hours have elapsed.

AB441,11,13 2. At least 24 hours before the abortion is to be performed or induced, the physician who is to perform or induce the abortion or a qualified person assisting the physician has, in person, orally informed the woman of all of the following:

AB441,11,15 a. That benefits under the medical assistance program may be available for prenatal care, childbirth and neonatal care.

AB441,11,17 b. That the father of the unborn child is liable for assistance in the support of the woman's child, if born, even if the father has offered to pay for the abortion.

AB441,11,21 c. That the woman has a legal right to continue her pregnancy and to keep the child, place the child in foster care, place the child with a relative for adoption or petition the court for placement of the child for adoption in the home of a person who is not a relative.

AB441,12,2 d. That the woman has the right to receive and review the printed materials described in par. (d). The physician or qualified person assisting the physician shall physically give the materials to the woman and shall, in person, orally inform her that the materials are free of charge, have been provided by the state and describe the unborn child and list agencies that offer alternatives to abortion and shall provide her with the current updated copies of the printed materials free of charge.

AB441,12,8 3. The information that is required under subds. 1. and 2. is provided to the woman in an individual setting that protects her privacy, maintains the confidentiality of her decision and ensures that the information she receives focuses on her individual circumstances. This subdivision may not be construed to prevent the woman from having a family member, or any other person of her choice, present during her private counseling.

AB441,12,14 4. The physician who is to perform or induce the abortion and, if the qualified person assisting the physician provides information under subd. 2., the qualified person provide adequate opportunity for the woman to ask questions, including questions concerning the pregnancy, her unborn child, abortion, foster care and adoption, and provide the information that is requested or indicate to the woman where she can obtain the information.

AB441,12,21 5. The woman certifies in writing on a form that the department shall provide, prior to performance or inducement of the abortion, that the information that is required under each subdivision paragraph of subds. 1. and 2. has been provided to her in the manner specified in subd. 3., that she has been offered the information described in par. (d) and that all of her questions, as specified under subd. 4., have been answered in a satisfactory manner. The woman shall indicate on the certification form who provided the information to her.

AB441,13,2 6. Prior to the performance or the inducement of the abortion, the physician who is to perform or induce the abortion or the qualified person assisting the physician receives the written certification that is required under subd. 5. The physician or qualified person assisting the physician shall place the certification in the woman's medical record.

AB441,13,6 7. If the woman whose consent to performance or inducement of an abortion under this paragraph is a minor, unless s. 48.375 (4) (a) 2. applies, the requirements to provide information to the woman under subds. 1. to 6. apply to require provision of the information to the individual who also gives consent under s. 48.375 (4) (a) 1.

AB441,13,17 (d) Printed information. By the date that is 60 days after the effective date of this paragraph .... [revisor inserts date], the department shall cause to be published in English, Spanish, and other languages spoken by a significant number of state residents, as determined by the department, materials that are in an easily comprehensible format and are printed in type of not less than 12-point size. The department shall distribute a reasonably adequate number of the materials to county departments as specified under s. 46.245 and upon request, annually review the materials for accuracy and exercise reasonable diligence in providing materials that are accurate and current. The department may charge a fee not to exceed the actual cost of the preparation and distribution of the materials. The materials shall be all of the following:

AB441,14,19 1. Geographically indexed materials that are designed to inform a woman about public and private agencies, including adoption agencies, and services that are available to provide ultrasound imaging services and to assist her through pregnancy, upon childbirth and while the child is dependent. The materials shall include a comprehensive list of the agencies available, a description of the services that they offer and a description of the manner in which they may be contacted, including telephone numbers and addresses, or, at the option of the department, the materials shall include a toll-free, 24-hour telephone number that may be called to obtain an oral listing of available agencies in the locality of the caller and a description of the services that the agencies offer and the manner in which they may be contacted. The materials shall provide information on the availability of governmentally funded programs that serve pregnant women and children. Services identified for the woman shall include aid to families with dependent children under s. 49.19, medical assistance for pregnant women and children under s. 49.47 (4) (am), the job opportunities and basic skills program under s. 49.193, the availability of family or medical leave under s. 103.10, child care services, child support laws and programs and the credit for expenses for household and dependent care and services necessary for gainful employment under section 21 of the internal revenue code. The materials shall state that it is unlawful for any person to coerce a woman to undergo an abortion, that any physician who performs or induces an abortion without obtaining the woman's voluntary and informed consent is liable to her for damages in a civil action and is subject to a civil penalty, that the father of a child is liable for assistance in the support of the child, even in instances in which the father has offered to pay for an abortion, and that adoptive parents may pay the costs of prenatal care, childbirth and neonatal care. The materials shall state that the state of Wisconsin encourages the woman to view an ultrasonic image and hear or view the heartbeat of her unborn child before she decides to have an abortion.

AB441,15,11 2. Materials, including pictures or drawings, that are designed to inform the woman of the probable anatomical and physiological characteristics of the unborn child at 2-week gestational increments for the first 16 weeks of her pregnancy and at 4-week gestational increments from the 17th week of the pregnancy to full term, including any relevant information regarding the time at which the unborn child could possibly be viable. The pictures or drawings must contain the dimensions of the unborn child and must be realistic and appropriate for the stage of pregnancy depicted. The materials shall be objective, nonjudgmental and designed to convey only accurate scientific information about the unborn child at the various gestational ages, including appearance, mobility, brain and heart activity and function, tactile sensitivity and the presence of internal organs and external members. The materials shall also contain objective, accurate information describing the methods of abortion procedures commonly employed, the medical and psychological risks commonly associated with each such procedure, including the risks of infection, psychological trauma, hemorrhage, endometriosis, perforated uterus, incomplete abortion, failed abortion, danger to subsequent pregnancies, infertility and breast cancer, and the medical risks commonly associated with carrying a child to birth.

AB441,15,13 3. A certification form for use under par. (c) 5. that lists, in a check-off format, all of the information required to be provided under that subdivision.

AB441,15,17 (e) Requirement to obtain materials. A physician who intends to perform or induce an abortion shall request a reasonably adequate number of the materials that are described under par. (d) from the department under par. (d) or from a county department as specified under s. 46.245.

AB441,16,2 (f) Medical emergency. If a medical emergency exists, the physician who is to perform or induce the abortion necessitated by the medical emergency shall inform the woman, prior to the abortion if possible, of the medical indications supporting the physician's reasonable medical judgment that an immediate abortion is necessary to avert her death or that a 24-hour delay in performance or inducement of an abortion will create a serious risk of substantial and irreversible impairment of one or more of the woman's major bodily functions. If possible, the physician shall obtain the woman's written consent prior to the abortion. The physician shall certify these medical indications in writing and place the certification in the woman's medical record.

AB441,16,10 (g) Presumptions. Satisfaction of the conditions required under par. (c) creates a rebuttable presumption that the woman's consent and, if the woman is a minor and if s. 48.375 (4) (a) 2. does not apply, the consent of the individual who also gives consent under s. 48.375 (4) (a) 1. to an abortion is informed. The presumption of informed consent may be overcome by a preponderance of evidence that establishes that the consent was obtained through fraud, negligence, deception, misrepresentation or omission of a material fact. There is no presumption that consent to an abortion is voluntary.

AB441,16,12 (4) Hotline. The department may maintain a toll-free telephone number that is available 24 hours each day, to provide the materials specified in sub. (3) (d) 1.

AB441,16,14 (5) Penalty. Any person who violates sub. (3) shall be required to forfeit not less than $5,000 nor more than $10,000.

AB441,16,18 (6) Civil remedies. (a) A person who violates sub. (3) is liable to the woman on or for whom the abortion was performed or induced for damages arising out of the performance or inducement of the abortion, including damages for personal injury and emotional and psychological distress.

AB441,16,22 (b) If a person who has been awarded damages under par. (a) proves by clear and convincing evidence that the violation of sub. (3) was wilful, wanton or reckless, that person shall, in addition to any damages awarded under par. (a), be entitled to not less than $5,000 nor more than $10,000 in punitive damages.

AB441,16,24 (c) A conviction under sub. (5) is not a condition precedent to bringing an action, obtaining a judgment or collecting the judgment under this subsection.

AB441,17,3 (d) Notwithstanding s. 814.04 (1), a person who recovers damages under par. (a) or (b) may also recover reasonable attorney fees incurred in connection with the action.

AB441,17,4 (e) A contract is not a defense to an action under this subsection.

AB441,17,5 (f) Nothing in this subsection limits the common law rights of a person.

AB441,17,12 (7) Affirmative defense. No person is liable under sub. (5) or (6) or under s. 441.07 (1) (f) or 457.26 (2) (gm) for failure under sub. (3) (c) 2. d. to provide the printed materials described in sub. (3) (d) to a woman if the person has made a reasonably diligent effort to obtain the printed materials under sub. (3) (e) and s. 46.245 and the department and the county department under s. 46.215, 46.22 or 46.23 have not made the printed materials available at the time that the person is required to give them to the woman.

AB441,17,20 (8) Confidentiality. (a) Notwithstanding ss. 801.09 (1), 801.095, 802.04 (1) and 815.05 (intro.), in an action brought under sub. (5) or (6), the plaintiff may substitute her initials, or fictitious initials, and her age and county of residence for her name and address on the summons and complaint. The plaintiff's attorney shall supply the court with the name and other necessary identifying information of the plaintiff. The court shall maintain the name and other identifying information, and supply the information to other parties to the action, in a manner that reasonably protects the information from being disclosed to the public.