Amendment ASA1-AB441

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1995 - 1996 LEGISLATURE

ASSEMBLY SUBSTITUTE AMENDMENT 1, To 1995 ASSEMBLY BILL 441

August 24, 1995 - Offered by Committee on Children and Families.

AB441-ASA1,1,6 An Act to amend 48.375 (4) (a) 1. and 448.02 (3) (a); to repeal and recreate 46.245 and 253.10; and to create 69.186 (1) (j), 441.07 (1) (f), 441.07 (1r), 448.02 (3) (bm), 457.26 (2) (gm), 457.26 (2m) and 893.55 (3m) of the statutes; relating to: expanding requirements for a woman's informed consent for performance or inducement of an abortion and for consent to a minor's obtaining an abortion and providing a penalty.

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

AB441-ASA1, s. 1 Section 1. 46.245 of the statutes is repealed and recreated to read:

AB441-ASA1,1,9 46.245 Information for certain pregnant women. A county department under s. 46.215, 46.22 or 46.23 shall do all of the following:

AB441-ASA1,2,4 (1) Upon request, distribute the materials described under s. 253.10 (3) (d), as prepared and distributed by the department. The county department 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 or another qualified physician, as defined in s. 253.10 (2) (g), who reasonably believes that he or she might have a patient for whom the information under s. 253.10 (3) (d) is required to be given, shall request a reasonably adequate number of the materials from the county department under this subsection or from the department under s. 253.10 (3) (d). An individual may request a reasonably adequate number of the materials.

AB441-ASA1,2,7 (2) In any county in which a hospital, clinic or other facility in which abortions are performed is located, prepare the list specified under s. 253.10 (3) (cm) and distribute the list to each of those hospitals, clinics or other facilities.

AB441-ASA1, s. 2 Section 2. 48.375 (4) (a) 1. of the statutes is amended to read:

AB441-ASA1,2,18 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-ASA1, s. 3 Section 3. 69.186 (1) (j) of the statutes is created to read:

AB441-ASA1,2,24 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-ASA1, s. 4 Section 4. 253.10 of the statutes is repealed and recreated to read:

AB441-ASA1,3,2 253.10 Voluntary and informed consent for abortions. (1) Legislative findings and intent. (a) The legislature finds that:

AB441-ASA1,3,6 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-ASA1,3,10 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-ASA1,3,16 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-ASA1,3,19 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-ASA1,4,4 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-ASA1,4,7 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-ASA1,4,9 (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-ASA1,4,11 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-ASA1,4,13 2. Fostering the development of standards of professional conduct in the practice of abortion.

AB441-ASA1,4,18 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-ASA1,4,20 4. Ensuring that a woman who decides to have an elective abortion gives her voluntary and informed consent to the abortion procedure.

AB441-ASA1,4,21 (2) Definitions. In this section:

AB441-ASA1,5,2 (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-ASA1,5,4 (b) "Agency" means a private nonprofit organization or a county department under s. 46.215, 46.22 or 46.23.

AB441-ASA1,5,8 (c) "Disability" means a physical or mental impairment that substantially limits one or more major life activities, a record of having such an impairment or being regarded as having such an impairment. "Disability" includes any physical disability or developmental disability, as defined in s. 51.01 (5) (a).

AB441-ASA1,5,14 (d) "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-ASA1,5,20 (e) "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, 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 or by any other qualified physician and any appropriate laboratory tests performed on her.

AB441-ASA1,5,24 (f) "Qualified person assisting the physician" means a social worker certified under ch. 457, a registered nurse or a physician assistant 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-ASA1,6,2 (g) "Qualified physician" means a physician who by training or experience is qualified to provide the information required under sub. (3) (c) 1.

AB441-ASA1,6,3 (h) "Viability" has the meaning given in s. 940.15 (1).

AB441-ASA1,6,8 (3) Voluntary and informed consent. (a) Generally. An abortion 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-ASA1,6,10 (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-ASA1,6,12 (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-ASA1,6,15 1. At least 24 hours before the abortion is to be performed or induced, the physician who is to perform or induce the abortion or any other qualified physician has, in person, orally informed the woman of all of the following:

AB441-ASA1,6,17 a. Whether or not, according to the reasonable medical judgment of the physician, the woman is pregnant.

AB441-ASA1,6,20 b. The probable gestational age of the unborn child at the time that the information is provided. The physician or other qualified physician shall also provide this information to the woman in writing at this time.

AB441-ASA1,6,21 c. The particular medical risks, if any, associated with the woman's pregnancy.

AB441-ASA1,6,23 d. The probable anatomical and physiological characteristics of the woman's unborn child at the time the information is given.

AB441-ASA1,6,25 e. The details of the medical or surgical method that would be used in performing or inducing the abortion.

AB441-ASA1,7,4 f. The medical risks associated with the particular abortion procedure that would be used, including the risks of infection, psychological trauma, hemorrhage, endometriosis, perforated uterus, incomplete abortion, failed abortion, danger to subsequent pregnancies and infertility.

AB441-ASA1,7,17 g. 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 or the other qualified physician who provides the information that is required under this subdivision 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. g. shall adjust the resolution, magnification, amplification and other controls of the equipment in a manner that gives the clearest visual image of the unborn child that is reasonably possible and the clearest audible sound of the unborn child's heartbeat that is reasonably possible.

AB441-ASA1,7,20 h. The recommended general medical instructions for the woman to follow after an abortion to enhance her safe recovery and the name and telephone number of a physician to call if complications arise after the abortion.

AB441-ASA1,7,24 i. If, in the reasonable medical judgment of the physician, the woman's unborn child has reached viability, that the physician who is to perform or induce the abortion is required to take all steps necessary under s. 940.15 to preserve and maintain the life and health of the child.

AB441-ASA1,8,3 j. 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.