AB441: Bill Text Engrossed

LRB-4544/1

DAK:skg:ch

1995 - 1996 LEGISLATURE

1995 Engrossed Assembly BILL 441

October 4, 1995 - Printed by direction of Senate Chief Clerk.

AB441-engrossed,1,5 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) and 457.26 (2) (gm) 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.

Analysis by the Legislative Reference Bureau

Engrossment information:

The text of Engrossed 1995 Assembly Bill 441 consists of the following documents adopted in the assembly on September 28, 1995: Assembly Substitute Amendment 1 as affected by Assembly Amendments 19, 21 and 40. The text also includes the September 19, 1995, chief clerk's corrections to the substitute amendment.

Content of Engrossed 1995 Assembly Bill 441:

Under current law, before performing an abortion that is otherwise permitted by law, unless an emergency requires performance of an abortion because continuation of the pregnancy poses an immediate threat and grave risk to the life and health of the woman, the attending physician or a person who is assisting the attending physician must verbally provide the pregnant woman with accurate information on all of the following:

1. Whether or not the woman is pregnant.

2. The number of weeks that have elapsed from the probable time of conception.

3. The availability of public and private agencies and services to provide birth control information and to assist the woman during pregnancy and after childbirth, if the woman chooses not to have an abortion.

4. For minors, the availability of services from a county department of social services or human services to assist a minor in seeking consent for the abortion or in petitioning a court for a waiver of the consent requirement.

5. Any particular risks associated with the pregnancy and with the abortion technique to be employed.

The attending physician or person who is assisting the attending physician may verbally provide the woman with accurate information on the probable physical characteristics of the fetus or unborn child at the gestational point of development of the fetus or unborn child at the time that the abortion is to be performed. After the required information is provided, the pregnant woman must sign a statement acknowledging that she has received the information and stating that she consents to the abortion.

This bill modifies and expands the requirements for obtaining informed consent prior to the performance of otherwise-lawful abortions and applies the modified and expanded requirements to both adults and minors who are seeking abortions. Under the bill, unless a medical emergency (as defined in the bill) exists, the physician who is to perform or induce the abortion or any other qualified physician must, at least 24 hours before the abortion is performed or induced, in person orally inform the woman and, if the woman is a minor and has not obtained a judicial waiver, the individual who is also giving consent for the abortion for the minor, of all of the following, in addition to the requirements of current law:

1. The name of the physician who will perform or induce the abortion.

2. The probable anatomical and physiological characteristics of the unborn child at the time that the information is given.

3. The details of the medical or surgical method that will be used in performing or inducing the abortion.

4. That fetal ultrasound imaging and auscultation of fetal heart tone services are available that enable a pregnant woman to view the image or hear the heartbeat of her unborn child and how the woman may obtain these services if she desires to do so.

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 under current law 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 after provision of the information.

The bill deletes requirements for provision of information 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, endometritis, perforated uterus, incomplete abortion, failed abortion, danger to subsequent pregnancies and infertility.

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, another qualified physician or a qualified person assisting the person (who is required, under the bill, to be a certified social worker, a physician assistant or a 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, in addition to requirements under current law:

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 material, 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 and has not obtained a judicial waiver, to the individual who is also giving consent for the abortion for the minor.

5. That if the woman has received a diagnosis of disability for her unborn child, that the printed materials contain information on community-based services and financial assistance programs for children with disabilities and their families, information on support groups for people with disabilities and parents of children with disabilities and information on adoption of children with special needs.

6. That if the woman asserts that her pregnancy is the result of sexual assault or incest, the printed materials contain information on counseling services and support groups for victims of sexual assault and incest and legal protections available to the woman and her child if she wishes to oppose establishment of paternity or to terminate the father's parental rights.

If the woman requests it, the physician or qualified person assisting the physician must provide the woman with a list that specifies public and private agencies and services that are available to provide her with birth control information. The list is distributed by county departments of social services or human services of counties in which are located hospitals, clinics or facilities in which abortions are performed.

Under the bill, the information that is required to be provided to the woman and, if the woman is a minor and has not obtained a judicial waiver, 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 and has not obtained a judicial waiver, 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 and has not obtained a judicial waiver, 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 provide ultra sound imaging services, to assist if the unborn child is diagnosed to have a disability or if the pregnancy is the result of sexual assault or incest or 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; information on the availability of certain governmentally funded programs; 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, or other qualified physicians who believe they may have a patient for whom the materials must be provided, 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.

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.

Current U.S. supreme court opinion:

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.

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

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

AB441-engrossed,5,3 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-engrossed,6,5 (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-engrossed,6,8 (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-engrossed, s. 2 Section 2. 48.375 (4) (a) 1. of the statutes is amended to read:

AB441-engrossed,6,19 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-engrossed, s. 3 Section 3. 69.186 (1) (j) of the statutes is created to read:

AB441-engrossed,6,25 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-engrossed, s. 4 Section 4. 253.10 of the statutes is repealed and recreated to read:

AB441-engrossed,7,3 253.10 Voluntary and informed consent for abortions. (1) Legislative findings and intent. (a) The legislature finds that:

AB441-engrossed,7,7 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-engrossed,7,11 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-engrossed,7,17 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-engrossed,7,20 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-engrossed,8,5 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-engrossed,8,8 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-engrossed,8,10 (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-engrossed,8,12 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-engrossed,8,14 2. Fostering the development of standards of professional conduct in the practice of abortion.

AB441-engrossed,8,19 3. Ensuring that prior to the performance or inducement of an elective abortion, the 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-engrossed,8,21 4. Ensuring that a woman who decides to have an elective abortion gives her voluntary and informed consent to the abortion procedure.

AB441-engrossed,8,22 (2) Definitions. In this section:

AB441-engrossed,9,2 (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-engrossed,9,4 (b) "Agency" means a private nonprofit organization or a county department under s. 46.215, 46.22 or 46.23.

AB441-engrossed,9,8 (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-engrossed,9,14 (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.