SECOND REGULAR SESSION
97TH GENERAL ASSEMBLY
INTRODUCED BY REPRESENTATIVES COX (Sponsor), WILSON, GATSCHENBERGER, HANSEN, WALKER, SWAN, MUNTZEL, LOVE, CRAWFORD, WIELAND, HURST, POGUE, BARNES, PARKINSON, BLACK, KELLEY (127) AND SCHIEFFER (Co-sponsors).
5887H.01I D. ADAM CRUMBLISS, Chief Clerk
AN ACT
To repeal sections 188.023, 188.027, 188.039, 188.043, 188.075, 188.080, 188.250, and 197.230, RSMo, and to enact in lieu thereof nine new sections relating to the enforcement of abortion laws, with penalty provisions.
Be it enacted by the General Assembly of the state of Missouri, as follows:
Section A. Sections 188.023, 188.027, 188.039, 188.043, 188.075, 188.080, 188.250, and 197.230, RSMo, are repealed and nine new sections enacted in lieu thereof, to be known as sections 188.023, 188.027, 188.039, 188.043, 188.075, 188.080, 188.250, 197.115, and 197.230, to read as follows:
188.023. 1. Any licensed health care professional who delivers a baby or performs an abortion, who has prima facie evidence that a patient has been the victim of statutory rape in the first degree or statutory rape in the second degree, or if the patient is under the age of eighteen, that [he or she] the patient has been a victim of sexual abuse, including rape in the first or second degree, or incest, shall be required to report such offenses in the same manner as provided for by section 210.115.
2. Upon receipt of a report required by this section, the department of social services shall send a summary of the report made, including all of the facts reported, to the licensed health care professional who made the report. The licensed health care professional who made the report shall include the summary as part of the patient’s medical records.
188.027. 1. Except in the case of medical emergency, no abortion shall be performed or induced on a woman without her voluntary and informed consent, given freely and without coercion. Consent to an abortion is voluntary and informed and given freely and without coercion[,] if, and only if, at least twenty-four hours prior to the abortion:
(1) The physician who is to perform or induce the abortion or a qualified professional has informed the woman, orally, reduced to writing, and in person, of the following:
(a) The name of the physician who will perform or induce the abortion;
(b) Medically accurate information that a reasonable patient would consider material to the decision of whether or not to undergo the abortion, including:
a. A description of the proposed abortion method;
b. The immediate and long-term medical risks to the woman associated with the proposed abortion method including, but not limited to, infection, hemorrhage, cervical tear or uterine perforation, harm to subsequent pregnancies or the ability to carry a subsequent child to term, and possible adverse psychological effects associated with the abortion; and
c. The immediate and long-term medical risks to the woman, in light of the anesthesia and medication that is to be administered, the unborn child's gestational age, and the woman's medical history and medical condition;
(c) Alternatives to the abortion which shall include making the woman aware that information and materials shall be provided to her detailing such alternatives to the abortion;
(d) A statement that the physician performing or inducing the abortion is available for any questions concerning the abortion, together with the telephone number that the physician may be later reached to answer any questions that the woman may have;
(e) The location of the hospital that offers obstetrical or gynecological care located within thirty miles of the location where the abortion is performed or induced and at which the physician performing or inducing the abortion has clinical privileges and where the woman may receive follow-up care by the physician if complications arise;
(f) The gestational age of the unborn child at the time the abortion is to be performed or induced; and
(g) The anatomical and physiological characteristics of the unborn child at the time the abortion is to be performed or induced;
(2) The physician who is to perform or induce the abortion or a qualified professional has presented the woman, in person, printed materials provided by the department, which describe the probable anatomical and physiological characteristics of the unborn child at two-week gestational increments from conception to full term, including color photographs or images of the developing unborn child at two-week gestational increments. Such descriptions shall include information about brain and heart functions, the presence of external members and internal organs during the applicable stages of development and information on when the unborn child is viable. The printed materials shall prominently display the following statement: "The life of each human being begins at conception. Abortion will terminate the life of a separate, unique, living human being.";
(3) The physician who is to perform or induce the abortion or a qualified professional has presented the woman, in person, printed materials provided by the department, which describe the various surgical and drug-induced methods of abortion relevant to the stage of pregnancy, as well as the immediate and long-term medical risks commonly associated with each abortion method including, but not limited to, infection, hemorrhage, cervical tear or uterine perforation, harm to subsequent pregnancies or the ability to carry a subsequent child to term, and the possible adverse psychological effects associated with an abortion;
(4) The physician who is to perform or induce the abortion or a qualified professional shall provide the woman with the opportunity to view at least twenty-four hours prior to the abortion an active ultrasound of the unborn child and hear the heartbeat of the unborn child if the heartbeat is audible. The woman shall be provided with a geographically indexed list maintained by the department of health care providers, facilities, and clinics that perform ultrasounds, including those that offer ultrasound services free of charge. Such materials shall provide contact information for each provider, facility, or clinic including telephone numbers and, if available, website addresses. Should the woman decide to obtain an ultrasound from a provider, facility, or clinic other than the abortion facility, the woman shall be offered a reasonable time to obtain the ultrasound examination before the date and time set for performing or inducing an abortion. The person conducting the ultrasound shall ensure that the active ultrasound image is of a quality consistent with standard medical practice in the community, contains the dimensions of the unborn child, and accurately portrays the presence of external members and internal organs, if present or viewable, of the unborn child. The auscultation of fetal heart tone must also be of a quality consistent with standard medical practice in the community. If the woman chooses to view the ultrasound or hear the heartbeat or both at the abortion facility, the viewing or hearing or both shall be provided to her at the abortion facility at least twenty-four hours prior to the abortion being performed or induced;
(5) Prior to an abortion being performed or induced on an unborn child of twenty-two weeks gestational age or older, the physician who is to perform or induce the abortion or a qualified professional has presented the woman, in person, printed materials provided by the department that offer information on the possibility of the abortion causing pain to the unborn child. This information shall include, but need not be limited to, the following:
(a) At least by twenty-two weeks of gestational age, the unborn child possesses all the anatomical structures, including pain receptors, spinal cord, nerve tracts, thalamus, and cortex, that are necessary in order to feel pain;
(b) A description of the actual steps in the abortion procedure to be performed or induced, and at which steps the abortion procedure could be painful to the unborn child;
(c) There is evidence that by twenty-two weeks of gestational age, unborn children seek to evade certain stimuli in a manner that in an infant or an adult would be interpreted as a response to pain;
(d) Anesthesia is given to unborn children who are twenty-two weeks or more gestational age who undergo prenatal surgery;
(e) Anesthesia is given to premature children who are twenty-two weeks or more gestational age who undergo surgery;
(f) Anesthesia or an analgesic is available in order to minimize or alleviate the pain to the unborn child;
(6) The physician who is to perform or induce the abortion or a qualified professional has presented the woman, in person, printed materials provided by the department explaining to the woman alternatives to abortion she may wish to consider. Such materials shall:
(a) Identify on a geographical basis public and private agencies available to assist a woman in carrying her unborn child to term, and to assist her in caring for her dependent child or placing her child for adoption, including agencies commonly known and generally referred to as pregnancy resource centers, crisis pregnancy centers, maternity homes, and adoption agencies. Such materials shall provide a comprehensive list by geographical area of the agencies, a description of the services they offer, and the telephone numbers and addresses of the agencies; provided that such materials shall not include any programs, services, organizations, or affiliates of organizations that perform or induce, or assist in the performing or inducing[,] of, abortions or that refer for abortions;
(b) Explain the Missouri alternatives to abortion services program under section 188.325, and any other programs and services available to pregnant women and mothers of newborn children offered by public or private agencies which assist a woman in carrying her unborn child to term and assist her in caring for her dependent child or placing her child for adoption, including but not limited to prenatal care; maternal health care; newborn or infant care; mental health services; professional counseling services; housing programs; utility assistance; transportation services; food, clothing, and supplies related to pregnancy; parenting skills; educational programs; job training and placement services; drug and alcohol testing and treatment; and adoption assistance;
(c) Identify the state website for the Missouri alternatives to abortion services program under section 188.325, and any toll-free number established by the state operated in conjunction with the program;
(d) Prominently display the statement: "There are public and private agencies willing and able to help you carry your child to term, and to assist you and your child after your child is born, whether you choose to keep your child or place him or her for adoption. The state of Missouri encourages you to contact those agencies before making a final decision about abortion. State law requires that your physician or a qualified professional give you the opportunity to call agencies like these before you undergo an abortion.";
(7) The physician who is to perform or induce the abortion or a qualified professional has presented the woman, in person, printed materials provided by the department explaining that the father of the unborn child is liable to assist in the support of the child, even in instances where he has offered to pay for the abortion. Such materials shall include information on the legal duties and support obligations of the father of a child, including, but not limited to, child support payments, and the fact that paternity may be established by the father's name on a birth certificate or statement of paternity, or by court action. Such printed materials shall also state that more information concerning paternity establishment and child support services and enforcement may be obtained by calling the family support division within the Missouri department of social services; and
(8) The physician who is to perform or induce the abortion or a qualified professional shall inform the woman that she is free to withhold or withdraw her consent to the abortion at any time without affecting her right to future care or treatment and without the loss of any state or federally funded benefits to which she might otherwise be entitled.
2. All information required to be provided to a woman considering abortion by subsection 1 of this section shall be presented to the woman individually, in the physical presence of the woman and in a private room, to protect her privacy, to maintain the confidentiality of her decision, to ensure that the information focuses on her individual circumstances, to ensure she has an adequate opportunity to ask questions, and to ensure that she is not a victim of coerced abortion. Should a woman be unable to read materials provided to her, they shall be read to her. Should a woman need an interpreter to understand the information presented in the written materials, an interpreter shall be provided to her. Should a woman ask questions concerning any of the information or materials, answers shall be provided in a language she can understand.
3. No abortion shall be performed or induced unless and until the woman upon whom the abortion is to be performed or induced certifies in writing on a checklist form provided by the department that she has been presented all the information required in subsection 1 of this section, that she has been provided the opportunity to view an active ultrasound image of the unborn child and hear the heartbeat of the unborn child if it is audible, and that she further certifies that she gives her voluntary and informed consent, freely and without coercion, to the abortion procedure.
4. No abortion shall be performed or induced on an unborn child of twenty-two weeks gestational age or older unless and until the woman upon whom the abortion is to be performed or induced has been provided the opportunity to choose to have an anesthetic or analgesic administered to eliminate or alleviate pain to the unborn child caused by the particular method of abortion to be performed or induced. The administration of anesthesia or analgesics shall be performed in a manner consistent with standard medical practice in the community.
5. No physician shall perform or induce an abortion unless and until the physician has obtained from the woman her voluntary and informed consent given freely and without coercion. If the physician has reason to believe that the woman is being coerced into having an abortion, the physician or qualified professional shall inform the woman that services are available for her and shall provide her with private access to a telephone and information about such services, including but not limited to the following:
(1) Rape crisis centers, as defined in section 455.003;
(2) Shelters for victims of domestic violence, as defined in section 455.200; and
(3) Orders of protection, pursuant to chapter 455.
6. No physician shall perform or induce an abortion unless and until the physician has received and signed a copy of the form prescribed in subsection 3 of this section. The physician shall retain a copy of the form in the patient's medical record.
7. In the event of a medical emergency as provided by section [188.075] 188.039, the physician who performed or induced the abortion shall clearly certify in writing the nature and circumstances of the medical emergency. This certification shall be signed by the physician who performed or induced the abortion, and shall be maintained under section 188.060.
8. No person or entity shall require, obtain, or accept payment for an abortion from or on behalf of a patient until at least twenty-four hours have passed since the time that the information required by subsection 1 of this section has been provided to the patient. Nothing in this subsection shall prohibit a person or entity from notifying the patient that payment for the abortion will be required after the twenty-four-hour period has expired if she voluntarily chooses to have the abortion. A woman shall be deemed to be coerced into having an abortion if an abortion facility or any employee thereof requires, obtains, or accepts payment for an abortion from or on behalf of the woman in violation of this subsection.
9. The term "qualified professional" as used in this section shall refer to a physician, physician assistant, registered nurse, licensed practical nurse, psychologist, licensed professional counselor, or licensed social worker, licensed or registered under chapter 334, 335, or 337, acting under the supervision of the physician performing or inducing the abortion, and acting within the course and scope of his or her authority provided by law. The provisions of this section shall not be construed to in any way expand the authority otherwise provided by law relating to the licensure, registration, or scope of practice of any such qualified professional.
10. By November 30, 2010, the department shall produce the written materials and forms described in this section. Any written materials produced shall be printed in a typeface large enough to be clearly legible. All information shall be presented in an objective, unbiased manner designed to convey only accurate scientific and medical information. The department shall furnish the written materials and forms at no cost and in sufficient quantity to any person who performs or induces abortions, or to any hospital or facility that provides abortions. The department shall make all information required by subsection 1 of this section available to the public through its department website. The department shall maintain a toll-free, twenty-four-hour hotline telephone number where a caller can obtain information on a regional basis concerning the agencies and services described in subsection 1 of this section. No identifying information regarding persons who use the website shall be collected or maintained. The department shall monitor the website on a regular basis to prevent tampering and correct any operational deficiencies.
11. In order to preserve the compelling interest of the state to ensure that the choice to consent to an abortion is voluntary and informed, and given freely and without coercion, the department shall use the procedures for adoption of emergency rules under section 536.025 in order to promulgate all necessary rules, forms, and other necessary material to implement this section by November 30, 2010.
12. In order to ensure that the woman considering abortion has been provided with the written materials produced by the department, the department shall stamp each copy of the written materials with a unique identification number. The woman shall write, in her own handwriting, the unique identification number found on the written materials she has received on the checklist form described in subsection 3 of this section. The abortion facility shall provide the woman with an exact duplicate copy of the signed checklist form.
13. The department shall review the checklist forms described in subsection 3 of this section as part of its annual inspection under section 197.230.
14. Any physician who performs or induces an abortion upon a woman without her voluntary and informed consent given freely and without coercion and any abortion facility in which such an abortion occurs shall be liable to the woman for any damages incurred by the woman, including the cost of the abortion and medical expenses incurred as the result of the abortion, for punitive damages, and for any reasonable attorney fees incurred by the woman. There shall be a rebuttable presumption that the actual damages incurred by the woman are not less than five thousand dollars.
15. No agent or employee of an abortion facility shall advise or refer a woman to go to a location outside of the state of Missouri for the purpose of obtaining an abortion without first providing the woman with the information provided by subsection 1 of this section and obtaining the woman’s signature on the checklist form described in subsection 3 of this section.
188.039. 1. For purposes of this section, "medical emergency" means a condition which, on the basis of the physician's good faith clinical judgment, 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 delay will create a serious risk of substantial and irreversible impairment of a major bodily function.
2. Except in the case of medical emergency, no person shall perform or induce an abortion unless at least twenty-four hours prior thereto the physician who is to perform or induce the abortion or a qualified professional has conferred with the patient and discussed with her the indicators and contraindicators, and risk factors including any physical, psychological, or situational factors for the proposed procedure and the use of medications, including but not limited to mifepristone, in light of her medical history and medical condition. For an abortion performed or an abortion induced by a drug or drugs, such conference shall take place at least twenty-four hours prior to the writing or communication of the first prescription for such drug or drugs in connection with inducing an abortion. Only one such conference shall be required for each abortion.
3. The patient shall be evaluated by the physician who is to perform or induce the abortion or a qualified professional during the conference for indicators and contraindicators, risk factors including any physical, psychological, or situational factors which would predispose the patient to or increase the risk of experiencing one or more adverse physical, emotional, or other health reactions to the proposed procedure or drug or drugs in either the short or long term as compared with women who do not possess such risk factors.
4. At the end of the conference, and if the woman chooses to proceed with the abortion, the physician who is to perform or induce the abortion or a qualified professional shall sign and shall cause the patient to sign a written statement that the woman gave her informed consent freely and without coercion after the physician or qualified professional had discussed with her the indicators and contraindicators, and risk factors, including any physical, psychological, or situational factors. All such executed statements shall be maintained as part of the patient's medical file, subject to the confidentiality laws and rules of this state. No consent given prior to the conference shall be deemed to be given freely and without coercion.
5. The director of the department of health and senior services shall disseminate a model form that physicians or qualified professionals may use as the written statement required by this section, but any lack or unavailability of such a model form shall not affect the duties of the physician or qualified professional set forth in subsections 2 to 4 of this section.
6. As used in this section, the term "qualified professional" shall refer to a physician, physician assistant, registered nurse, licensed practical nurse, psychologist, licensed professional counselor, or licensed social worker, licensed or registered under chapter 334, 335, or 337, acting under the supervision of the physician performing or inducing the abortion, and acting within the course and scope of his or her authority provided by law. The provisions of this section shall not be construed to in any way expand the authority otherwise provided by law relating to the licensure, registration, or scope of practice of any such qualified professional.
7. Any physician who performs or induces an abortion upon a woman without her voluntary and informed consent given freely and without coercion and any abortion facility in which such an abortion occurs shall be liable to the woman for any damages incurred by the woman, including the cost of the abortion and medical expenses incurred as the result of the abortion, for punitive damages, and for any reasonable attorney fees incurred by the woman. There shall be a rebuttable presumption that the actual damages incurred by the woman are not less than five thousand dollars.
188.043. 1. No person shall perform or induce a surgical or medical abortion unless such person has proof of medical malpractice insurance with coverage amounts of at least [five hundred thousand] one million dollars.
2. For the purpose of this section, "medical malpractice insurance" means insurance coverage against the legal liability of the insured and against loss, damage, or expense incident to a claim arising out of the death or injury of any person as a result of the negligence or malpractice in rendering professional service by any health care provider.
3. No abortion facility or hospital shall employ or engage the services of a person to perform one or more abortions if the person does not have proof of medical malpractice insurance pursuant to this section, except the abortion facility or hospital may provide medical malpractice insurance for the services of persons employed or engaged by such facility or hospital.
4. Notwithstanding the provisions of section 334.100, failure of a person to maintain the medical malpractice insurance required by this section shall be an additional ground for sanctioning of a person's license, certificate, or permit.
188.075. 1. Any person who contrary to the provisions of sections 188.010 to 188.085 knowingly performs, induces, or aids in the performance or inducing of any abortion or knowingly fails to perform any action required by sections 188.010 to 188.085 shall be guilty of a class [A misdemeanor] D felony, unless a different penalty is provided for in state law, and, upon conviction, shall be punished as provided by law.
2. It shall be an affirmative defense for any person alleged to have violated any provision of this chapter that the person performed an action or did not perform an action because of a medical emergency. This affirmative defense shall be available in criminal, civil, and administrative actions or proceedings. The defendant shall have the burden of persuasion that the defense is more probably true than not.
3. A violation of the provisions of sections 188.010 to 188.085 shall be deemed to occur either in the county in which the woman upon whom the abortion was performed or induced resides or in the county in which the abortion occurs. The attorney general may enforce the provisions of sections 188.010 to 188.085 in addition to county prosecutors.
188.080. Any person who is not a physician who performs or induces or attempts to perform or induce an abortion on another is guilty of a class B felony, and, upon conviction, shall be punished as provided by law. Any physician performing or inducing an abortion who does not have clinical privileges at a hospital which offers obstetrical or gynecological care located within thirty miles of the location at which the abortion is performed or induced shall be guilty of a class [A misdemeanor] D felony, and, upon conviction shall be punished as provided by law.
188.250. 1. No person shall intentionally cause, aid, or assist a minor to obtain an abortion without the consent or consents required by section 188.028.
2. A person who violates subsection 1 of this section shall be civilly liable to the minor and to the person or persons required to give the consent or consents under section 188.028. A court may award damages to the person or persons adversely affected by a violation of subsection 1 of this section, including compensation for emotional injury without the need for personal presence at the act or event, and the court may further award attorneys' fees, litigation costs, and punitive damages. Any adult who engages in or consents to another person engaging in a sex act with a minor in violation of the provisions of chapter 566, 567, 568, or 573 which results in the minor's pregnancy shall not be awarded damages under this section.
3. It shall not be a defense to a claim brought under this section that the abortion was performed or induced pursuant to consent to the abortion given in a manner that is otherwise lawful in the state or place where the abortion was performed or induced.
4. An unemancipated minor does not have capacity to consent to any action in violation of this section or section 188.028.
5. A court may enjoin conduct that would be in violation of this section upon petition by the attorney general, a prosecuting or circuit attorney, or any person adversely affected or who reasonably may be adversely affected by such conduct, upon a showing that such conduct:
(1) Is reasonably anticipated to occur in the future; or
(2) Has occurred in the past, whether with the same minor or others, and that it is not unreasonable to expect that such conduct will be repeated.
6. Any person who knowingly causes, aids, or assists a minor to obtain an abortion without the consent required by section 188.028 shall be guilty of a class D felony.
197.115. Every hospital shall publish and maintain a current list of all physicians holding clinical privileges with the hospital. This list shall be reviewed and updated as necessary, but no less frequently than once per month. The publication of this list shall be a requirement for the annual renewal of the license required by section 197.040.
197.230. [The department of health and senior services shall make, or cause to be made, such inspections and investigations as it deems necessary. The department may delegate its powers and duties to investigate and inspect ambulatory surgical centers to an official of a political subdivision having a population of at least four hundred fifty thousand if such political subdivision is deemed qualified by the department to inspect and investigate ambulatory surgical centers. The official so designated shall submit a written report of his findings to the department and the department may accept the recommendations of such official if it determines that the facility inspected meets minimum standards established pursuant to sections 197.200 to 197.240] 1. The department of health and senior services shall make or cause to be made such inspections and investigations as it deems necessary.
2. The department of health and senior services shall annually inspect each ambulatory surgical center operated for the purpose of performing or inducing any second or third trimester abortions or five or more first trimester abortions per month and shall make or cause to be made any other such inspections and investigations as it deems necessary.
3. The department may delegate its powers and duties to investigate and inspect ambulatory surgical centers to an official of a political subdivision having a population of at least four hundred fifty thousand individuals if such political subdivision is deemed qualified by the department to inspect and investigate ambulatory surgical centers. The official so designated shall submit a written report of his findings to the department and the department may accept the recommendations of such official if it determines that the facility inspected meets minimum standards established under sections 197.200 to 197.240.
4. In the case of any ambulatory surgical center operated for the purpose of performing or inducing any second or third trimester abortions or five or more first trimester abortions per month, the annual inspection conducted by the department of health and senior services shall include a review of the medical records retained by the ambulatory surgical center to ensure compliance with sections 188.023 and 188.027.
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