SB274: Bill Text

LRB-1548/4

DAK:jrd:jlb

1995 - 1996 LEGISLATURE

1995 Senate BILL 274

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 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.

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 Section 1. 46.245 of the statutes is repealed and recreated to read:

SB274,5,9 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).

SB274, s. 2 Section 2. 48.375 (4) (a) 1. of the statutes is amended to read:

SB274,6,2 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.

SB274, s. 3 Section 3. 69.186 (1) (j) of the statutes is created to read:

SB274,6,8 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.

SB274, s. 4 Section 4. 253.10 of the statutes is repealed and recreated to read:

SB274,6,11 253.10 Voluntary and informed consent for abortions. (1) Legislative findings and intent. (a) The legislature finds that:

SB274,6,15 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.

SB274,6,19 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.

SB274,6,25 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).

SB274,7,3 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.

SB274,7,13 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.

SB274,7,16 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.

SB274,7,18 (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:

SB274,7,20 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.

SB274,7,22 2. Fostering the development of standards of professional conduct in the practice of abortion.

SB274,8,2 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.

SB274,8,4 4. Ensuring that a woman who decides to have an elective abortion gives her voluntary and informed consent to the abortion procedure.

SB274,8,5 (2) Definitions. In this section:

SB274,8,10 (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.

SB274,8,12 (b) "Agency" means a private nonprofit organization or a county department under s. 46.215, 46.22 or 46.23.

SB274,8,18 (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.

SB274,8,24 (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.

SB274,9,4 (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.

SB274,9,5 (f) "Viability" has the meaning given in s. 940.15 (1).

SB274,9,12 (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.

SB274,9,14 (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.

SB274,9,16 (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:

SB274,9,19 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:

SB274,9,21 a. Whether or not, according to the reasonable medical judgment of the physician, the woman is pregnant.

SB274,9,23 b. The probable gestational age of the unborn child at the time that the abortion is to be performed or induced.

SB274,9,24 c. The particular medical risks, if any, associated with the woman's pregnancy.

SB274,10,3 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.

SB274,10,4 e. The name of the physician who will perform or induce the abortion.