LRB-1548/4
DAK:jrd:jlb
1995 - 1996 LEGISLATURE
July 12, 1995 - Introduced by Senators Drzewiecki, Petak, Buettner, Andrea,
Cowles, Rude, Fitzgerald, Breske, A. Lasee, Zien, Farrow, Schultz and
Weeden, cosponsored by Representatives
Grothman, Grobschmidt, Ladwig,
Walker, Albers, Ryba, Duff, Vander Loop, Ourada, Hoven, Schneiders,
Musser, Silbaugh, Lehman, Nass, Huebsch, Green, Hutchison, Dobyns, Gard,
Lazich, Urban, Ward, Zukowski, Owens, Kreibich, F. Lasee, Seratti,
Johnsrud, Goetsch, Ainsworth, Lorge, Gunderson, Coleman, Hahn, Olsen,
Wood, Otte, Freese, Brandemuehl, Ott, Porter, Handrick, Kelso and
Powers. Referred to Committee on Health, Human Services and Aging.
SB274,1,6
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.
Analysis by the Legislative Reference Bureau
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 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, 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. In language designed to be understood by the woman taking into account her
level of maturity, age and intellectual capability, the probable anatomical and
physiological characteristics of the unborn child.
3. The details of the medical or surgical method that will be used in performing
or inducing the abortion.
4. That the state encourages the woman to view an ultrasonic image and hear
the heartbeat of her unborn child before she decides to have an abortion. If the
woman chooses to view the ultrasonic image or hear the heartbeat, the physician
must provide the heartbeat transmittal or ultrasound service free of charge or at a
nominal charge or order the service for the woman at a facility.
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:
SB274, s. 1
1Section
1. 46.245 of the statutes is repealed and recreated to read:
SB274,5,9
246.245 Information for certain pregnant women. A county department
3under s. 46.215, 46.22 or 46.23 shall, upon request, distribute the materials
4described under s. 253.10 (3) (d), as prepared and distributed by the department, and
5may charge a fee not to exceed the actual cost of preparation and distribution of the
6materials. A physician who intends to perform or induce an abortion shall request
7and any individual may request a reasonably adequate number of the materials from
8the county department under this section or from the department under s. 253.10 (3)
9(d).
SB274, s. 2
10Section
2. 48.375 (4) (a) 1. of the statutes is amended to read:
SB274,6,211
48.375
(4) (a) 1. The person or the person's agent has, either directly or through
12a referring physician or his or her agent, received and made part of the minor's
13medical record
, under the requirements of s. 253.10, the
voluntary and informed 14written consent of the minor and the
voluntary and informed written consent of one
15of her parents; or of the minor's guardian or legal custodian, if one has been
16appointed; or of an adult family member of the minor; or of one of the minor's foster
17parents or treatment foster parents, if the minor has been placed in a foster home
18or treatment foster home and the minor's parent has signed a waiver granting the
1department, a county department, the foster parent or the treatment foster parent
2the authority to consent to medical services or treatment on behalf of the minor.
SB274, s. 3
3Section
3. 69.186 (1) (j) of the statutes is created to read:
SB274,6,84
69.186
(1) (j) If the patient is a minor, whether consent was provided under s.
548.375 (4) (a) 1. for the abortion and, if so, the relationship of the individual providing
6consent to the minor; or, if consent under s. 48.375 (4) (a) 1. was not provided, on
7which of the bases under s. 48.375 (4) (a) 2. or (b) 1., 1g., 1m., 2. or 3. the abortion was
8performed.
SB274, s. 4
9Section
4. 253.10 of the statutes is repealed and recreated to read:
SB274,6,11
10253.10 Voluntary and informed consent for abortions.
(1) Legislative
11findings and intent. (a) The legislature finds that:
SB274,6,1512
1. Many women now seek or are encouraged to undergo elective abortions
13without full knowledge of the medical and psychological risks of abortion,
14development of the unborn child or of alternatives to abortion. An abortion decision
15is often made under stressful circumstances.
SB274,6,1916
2. The knowledgeable exercise of a woman's decision to have an elective
17abortion depends on the extent to which the woman receives sufficient information
18to make a voluntary and informed choice between 2 alternatives of great
19consequence: carrying a child to birth or undergoing an abortion.
SB274,6,2520
3. The U.S. supreme court has stated: "In attempting to ensure that a woman
21apprehend the full consequences of her decision, the State furthers the legitimate
22purpose of reducing the risk that a woman may elect an abortion, only to discover
23later, with devastating psychological consequences, that her decision was not fully
24informed." Planned Parenthood of Southeastern Pennsylvania v. Casey, 112 U.S.
252791, 2823 (1992).
SB274,7,3
14. It is essential to the psychological and physical well-being of a woman
2considering an elective abortion that she receive complete and accurate information
3on all options available to her in dealing with her pregnancy.
SB274,7,134
5. The vast majority of elective abortions in this state are performed in clinics
5that are devoted solely to providing abortions and family planning services. Women
6who seek elective abortions at these facilities normally do not have a prior
7patient-physician relationship with the physician who is to perform or induce the
8abortion, normally do not return to the facility for post-operative care and normally
9do not continue a patient-physician relationship with the physician who performed
10or induced the abortion. In most instances, the woman's only actual contact with the
11physician occurs simultaneously with the abortion procedure, with little opportunity
12to receive personal counseling by the physician concerning her decision. Because of
13this, certain safeguards are necessary to protect a woman's right to know.
SB274,7,1614
6. A reasonable waiting period is critical to ensure that a woman has the fullest
15opportunity to give her voluntary and informed consent before she elects to undergo
16an abortion.
SB274,7,1817
(b) It is the intent of the legislature in enacting this section to further the
18important and compelling state interests in all of the following:
SB274,7,2019
1. Protecting the life and health of the woman subject to an elective abortion
20and, to the extent constitutionally permissible, the life of her unborn child.
SB274,7,2221
2. Fostering the development of standards of professional conduct in the
22practice of abortion.
SB274,8,223
3. Ensuring that prior to the performance or inducement of an elective abortion,
24a woman considering an elective abortion receive personal counseling by the
25physician and be given a full range of information regarding her pregnancy, her
1unborn child, the abortion, the medical and psychological risks of abortion and
2available alternatives to the abortion.
SB274,8,43
4. Ensuring that a woman who decides to have an elective abortion gives her
4voluntary and informed consent to the abortion procedure.
SB274,8,5
5(2) Definitions. In this section:
SB274,8,106
(a) "Abortion" means the use of an instrument, medicine, drug or other
7substance or device with intent to terminate the pregnancy of a woman known to be
8pregnant or for whom there is reason to believe that she may be pregnant and with
9intent other than to increase the probability of a live birth, to preserve the life or
10health of the infant after live birth or to remove a dead fetus.
SB274,8,1211
(b) "Agency" means a private nonprofit organization or a county department
12under s. 46.215, 46.22 or 46.23.