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1995 - 1996 LEGISLATURE
SENATE SUBSTITUTE AMENDMENT 1,
To 1995 SENATE BILL 274
August 23, 1995 - Offered by Senator Drzewiecki.
SB274-SSA1,1,6
1An Act to amend 48.375 (4) (a) 1. and 448.02 (3) (a);
to repeal and recreate
246.245 and 253.10; and
to create 69.186 (1) (j), 441.07 (1) (f), 441.07 (1r), 448.02
3(3) (bm), 457.26 (2) (gm), 457.26 (2m) and 893.55 (3m) of the statutes;
relating
4to: expanding requirements for a woman's informed consent for performance
5or inducement of an abortion and for consent to a minor's obtaining an abortion
6and providing a penalty.
The people of the state of Wisconsin, represented in senate and assembly, do
enact as follows:
SB274-SSA1, s. 1
7Section
1. 46.245 of the statutes is repealed and recreated to read:
SB274-SSA1,1,9
846.245 Information for certain pregnant women. A county department
9under s. 46.215, 46.22 or 46.23 shall do all of the following:
SB274-SSA1,2,4
10(1) Upon request, distribute the materials described under s. 253.10 (3) (d), as
11prepared and distributed by the department. The county department may charge a
12fee not to exceed the actual cost of preparation and distribution of the materials. A
13physician who intends to perform or induce an abortion or another qualified
14physician, as defined in s. 253.10 (2) (g), who reasonably believes that he or she might
1have a patient for whom the information under s. 253.10 (3) (d) is required to be
2given, shall request a reasonably adequate number of the materials from the county
3department under this subsection or from the department under s. 253.10 (3) (d). An
4individual may request a reasonably adequate number of the materials.
SB274-SSA1,2,7
5(2) In any county in which a hospital, clinic or other facility in which abortions
6are performed is located, prepare the list specified under s. 253.10 (3) (cm) and
7distribute the list to each of those hospitals, clinics or other facilities.
SB274-SSA1, s. 2
8Section
2. 48.375 (4) (a) 1. of the statutes is amended to read:
SB274-SSA1,2,189
48.375
(4) (a) 1. The person or the person's agent has, either directly or through
10a referring physician or his or her agent, received and made part of the minor's
11medical record
, under the requirements of s. 253.10, the
voluntary and informed 12written consent of the minor and the
voluntary and informed written consent of one
13of her parents; or of the minor's guardian or legal custodian, if one has been
14appointed; or of an adult family member of the minor; or of one of the minor's foster
15parents or treatment foster parents, if the minor has been placed in a foster home
16or treatment foster home and the minor's parent has signed a waiver granting the
17department, a county department, the foster parent or the treatment foster parent
18the authority to consent to medical services or treatment on behalf of the minor.
SB274-SSA1, s. 3
19Section
3. 69.186 (1) (j) of the statutes is created to read:
SB274-SSA1,2,2420
69.186
(1) (j) If the patient is a minor, whether consent was provided under s.
2148.375 (4) (a) 1. for the abortion and, if so, the relationship of the individual providing
22consent to the minor; or, if consent under s. 48.375 (4) (a) 1. was not provided, on
23which of the bases under s. 48.375 (4) (a) 2. or (b) 1., 1g., 1m., 2. or 3. the abortion was
24performed.
SB274-SSA1, s. 4
25Section
4. 253.10 of the statutes is repealed and recreated to read:
SB274-SSA1,3,2
1253.10 Voluntary and informed consent for abortions. (1) Legislative
2findings and intent. (a) The legislature finds that:
SB274-SSA1,3,63
1. Many women now seek or are encouraged to undergo elective abortions
4without full knowledge of the medical and psychological risks of abortion,
5development of the unborn child or of alternatives to abortion. An abortion decision
6is often made under stressful circumstances.
SB274-SSA1,3,107
2. The knowledgeable exercise of a woman's decision to have an elective
8abortion depends on the extent to which the woman receives sufficient information
9to make a voluntary and informed choice between 2 alternatives of great
10consequence: carrying a child to birth or undergoing an abortion.
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3. The U.S. supreme court has stated: "In attempting to ensure that a woman
12apprehend the full consequences of her decision, the State furthers the legitimate
13purpose of reducing the risk that a woman may elect an abortion, only to discover
14later, with devastating psychological consequences, that her decision was not fully
15informed." Planned Parenthood of Southeastern Pennsylvania v. Casey, 112 U.S.
162791, 2823 (1992).
SB274-SSA1,3,1917
4. It is essential to the psychological and physical well-being of a woman
18considering an elective abortion that she receive complete and accurate information
19on all options available to her in dealing with her pregnancy.
SB274-SSA1,4,420
5. The vast majority of elective abortions in this state are performed in clinics
21that are devoted solely to providing abortions and family planning services. Women
22who seek elective abortions at these facilities normally do not have a prior
23patient-physician relationship with the physician who is to perform or induce the
24abortion, normally do not return to the facility for post-operative care and normally
25do not continue a patient-physician relationship with the physician who performed
1or induced the abortion. In most instances, the woman's only actual contact with the
2physician occurs simultaneously with the abortion procedure, with little opportunity
3to receive personal counseling by the physician concerning her decision. Because of
4this, certain safeguards are necessary to protect a woman's right to know.
SB274-SSA1,4,75
6. A reasonable waiting period is critical to ensure that a woman has the fullest
6opportunity to give her voluntary and informed consent before she elects to undergo
7an abortion.
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(b) It is the intent of the legislature in enacting this section to further the
9important and compelling state interests in all of the following:
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1. Protecting the life and health of the woman subject to an elective abortion
11and, to the extent constitutionally permissible, the life of her unborn child.
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2. Fostering the development of standards of professional conduct in the
13practice of abortion.
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3. Ensuring that prior to the performance or inducement of an elective abortion,
15a woman considering an elective abortion receive personal counseling by the
16physician and be given a full range of information regarding her pregnancy, her
17unborn child, the abortion, the medical and psychological risks of abortion and
18available alternatives to the abortion.
SB274-SSA1,4,2019
4. Ensuring that a woman who decides to have an elective abortion gives her
20voluntary and informed consent to the abortion procedure.
SB274-SSA1,4,21
21(2) Definitions. In this section:
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(a) "Abortion" means the use of an instrument, medicine, drug or other
23substance or device with intent to terminate the pregnancy of a woman known to be
24pregnant or for whom there is reason to believe that she may be pregnant and with
1intent other than to increase the probability of a live birth, to preserve the life or
2health of the infant after live birth or to remove a dead fetus.
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(b) "Agency" means a private nonprofit organization or a county department
4under s. 46.215, 46.22 or 46.23.
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(c) "Disability" means a physical or mental impairment that substantially
6limits one or more major life activities, a record of having such an impairment or
7being regarded as having such an impairment. "Disability" includes any physical
8disability or developmental disability, as defined in s. 51.01 (5) (a).
SB274-SSA1,5,149
(d) "Medical emergency" means a condition, in a physician's reasonable medical
10judgment, that so complicates the medical condition of a pregnant woman as to
11necessitate the immediate abortion of her pregnancy to avert her death or for which
12a 24-hour delay in performance or inducement of an abortion will create serious risk
13of substantial and irreversible impairment of one or more of the woman's major
14bodily functions.
SB274-SSA1,5,2015
(e) "Probable gestational age of the unborn child" means the number of weeks
16that have elapsed from the probable time of fertilization of a woman's ovum, based
17on the information provided by the woman as to the time of her last menstrual period,
18her medical history, a physical examination performed by the physician who is to
19perform or induce the abortion or by any other qualified physician and any
20appropriate laboratory tests performed on her.
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(f) "Qualified person assisting the physician" means a social worker certified
22under ch. 457, a registered nurse or a physician assistant to whom a physician who
23is to perform or induce an abortion has delegated the responsibility, as the
24physician's agent, for providing the information required under sub. (3) (c) 2.
SB274-SSA1,6,2
1(g) "Qualified physician" means a physician who by training or experience is
2qualified to provide the information required under sub. (3) (c) 1.
SB274-SSA1,6,33
(h) "Viability" has the meaning given in s. 940.15 (1).
SB274-SSA1,6,8
4(3) Voluntary and informed consent. (a)
Generally. An abortion may not be
5performed or induced unless the woman upon whom the abortion is to be performed
6or induced has and, if the woman is a minor and s. 48.375 (4) (a) 2. does not apply,
7the individual who also gives consent under s. 48.375 (4) (a) 1. have given voluntary
8and informed written consent under the requirements of this section.
SB274-SSA1,6,109
(b)
Voluntary consent. Consent under this section to an abortion is voluntary
10only if the consent is given freely and without coercion by any person.
SB274-SSA1,6,1211
(c)
Informed consent. Except if a medical emergency exists, a woman's consent
12to an abortion is informed only if all of the following first take place:
SB274-SSA1,6,1513
1. At least 24 hours before the abortion is to be performed or induced, the
14physician who is to perform or induce the abortion or any other qualified physician
15has, in person, orally informed the woman of all of the following:
SB274-SSA1,6,1716
a. Whether or not, according to the reasonable medical judgment of the
17physician, the woman is pregnant.
SB274-SSA1,6,2018
b. The probable gestational age of the unborn child at the time that the
19information is provided. The physician or other qualified physician shall also
20provide this information to the woman in writing at this time.
SB274-SSA1,6,2121
c. The particular medical risks, if any, associated with the woman's pregnancy.
SB274-SSA1,6,2322
d. The probable anatomical and physiological characteristics of the woman's
23unborn child at the time the information is given.
SB274-SSA1,6,2524
e. The details of the medical or surgical method that would be used in
25performing or inducing the abortion.
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1f. The medical risks associated with the particular abortion procedure that
2would be used, including the risks of infection, psychological trauma, hemorrhage,
3endometriosis, perforated uterus, incomplete abortion, failed abortion, danger to
4subsequent pregnancies and infertility.
SB274-SSA1,7,175
g. That the state of Wisconsin encourages the woman to view an ultrasonic
6image and hear or view the heartbeat of her unborn child before she decides to have
7an abortion. If the woman chooses to view an ultrasonic image or hear or view the
8heartbeat of her unborn child, the physician who is to perform or induce the abortion
9or the other qualified physician who provides the information that is required under
10this subdivision shall provide the heartbeat transmittal or ultrasound service free
11of charge or at a nominal charge or order the heartbeat transmittal or ultrasound
12service for the woman at any facility that provides heartbeat transmittal or
13ultrasound imaging services. Any person who provides heartbeat transmittal or
14ultrasound imaging services under this subd. 1. g. shall adjust the resolution,
15magnification, amplification and other controls of the equipment in a manner that
16gives the clearest visual image of the unborn child that is reasonably possible and
17the clearest audible sound of the unborn child's heartbeat that is reasonably possible.
SB274-SSA1,7,2018
h. The recommended general medical instructions for the woman to follow after
19an abortion to enhance her safe recovery and the name and telephone number of a
20physician to call if complications arise after the abortion.
SB274-SSA1,7,2421
i. If, in the reasonable medical judgment of the physician, the woman's unborn
22child has reached viability, that the physician who is to perform or induce the
23abortion is required to take all steps necessary under s. 940.15 to preserve and
24maintain the life and health of the child.
SB274-SSA1,8,3
1j. Any other information that a reasonable patient would consider material and
2relevant to a decision of whether or not to carry a child to birth or to undergo an
3abortion.
SB274-SSA1,8,54
k. That the woman may withdraw her consent to have an abortion at any time
5before the abortion is performed or induced.
SB274-SSA1,8,86
L. That the woman is not required to pay any amount for performance or
7inducement of the abortion until at least 24 hours have elapsed after the
8requirements of this paragraph are met.
SB274-SSA1,8,129
2. At least 24 hours before the abortion is to be performed or induced, the
10physician who is to perform or induce the abortion, a qualified person assisting the
11physician or another qualified physician has, in person, orally informed the woman
12of all of the following:
SB274-SSA1,8,1413
a. That benefits under the medical assistance program may be available for
14prenatal care, childbirth and neonatal care.
SB274-SSA1,8,1615
b. That the father of the unborn child is liable for assistance in the support of
16the woman's child, if born, even if the father has offered to pay for the abortion.
SB274-SSA1,8,2017
c. That the woman has a legal right to continue her pregnancy and to keep the
18child, place the child in foster care, place the child with a relative for adoption or
19petition the court for placement of the child for adoption in the home of a person who
20is not a relative.
SB274-SSA1,9,221
d. That the woman has the right to receive and review the printed materials
22described in par. (d). The physician or qualified person assisting the physician shall
23physically give the materials to the woman and shall, in person, orally inform her
24that the materials are free of charge, have been provided by the state and describe
1the unborn child and list agencies that offer alternatives to abortion and shall
2provide her with the current updated copies of the printed materials free of charge.
SB274-SSA1,9,73
e. If the woman has received a diagnosis of disability for her unborn child, that
4the printed materials described in par. (d) contain information on community-based
5services and financial assistance programs for children with disabilities and their
6families, information on support groups for people with disabilities and parents of
7children with disabilities and information on adoption of children with special needs.
SB274-SSA1,9,128
f. If the woman asserts that her pregnancy is the result of sexual assault or
9incest, that the printed materials described in par. (d) contain information on
10counseling services and support groups for victims of sexual assault and incest and
11legal protections available to the woman and her child if she wishes to oppose
12establishment of paternity or to terminate the father's parental rights.
SB274-SSA1,9,1813
3. The information that is required under subds. 1. and 2. is provided to the
14woman in an individual setting that protects her privacy, maintains the
15confidentiality of her decision and ensures that the information she receives focuses
16on her individual circumstances. This subdivision may not be construed to prevent
17the woman from having a family member, or any other person of her choice, present
18during her private counseling.
SB274-SSA1,9,2319
4. Whoever provides the information that is required under subd. 1. or 2., or
20both, provides adequate opportunity for the woman to ask questions, including
21questions concerning the pregnancy, her unborn child, abortion, foster care and
22adoption, and provides the information that is requested or indicates to the woman
23where she can obtain the information.
SB274-SSA1,9,2524
5. The woman certifies in writing on a form that the department shall provide,
25prior to performance or inducement of the abortion, that the information that is
1required under each subdivision paragraph of subds. 1. and 2. has been provided to
2her in the manner specified in subd. 3., that she has been offered the information
3described in par. (d) and that all of her questions, as specified under subd. 4., have
4been answered in a satisfactory manner. The physician who is to perform or induce
5the abortion or the qualified person assisting the physician shall write on the
6certification form the name of the physician who is to perform or induce the abortion.
7The woman shall indicate on the certification form who provided the information to
8her and when it was provided.
SB274-SSA1,10,149
6. Prior to the performance or the inducement of the abortion, the physician
10who is to perform or induce the abortion or the qualified person assisting the
11physician receives the written certification that is required under subd. 5. The
12physician or qualified person assisting the physician shall place the certification in
13the woman's medical record and shall provide the woman with a copy of the
14certification.