House File 380 - Introduced
HOUSE FILE
BY LUKAN
(COMPANION TO 2528SS
BY SEYMOUR)
Passed House, Date Passed Senate, Date
Vote: Ayes Nays Vote: Ayes Nays
Approved
A BILL FOR
1 An Act relating to establishing the unborn child pain awareness
2 and prevention Act and providing penalties.
3 BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF IOWA:
4 TLSB 2528HH 81
5 pf/gg/14
PAG LIN
1 1 Section 1. NEW SECTION. 146A.1 SHORT TITLE.
1 2 This chapter shall be known and may be cited as the "Unborn
1 3 Child Pain Awareness and Prevention Act".
1 4 Sec. 2. NEW SECTION. 146A.2 DEFINITIONS.
1 5 As used in this chapter, unless the context otherwise
1 6 requires:
1 7 1. "Abortion" means the use or prescription of any
1 8 instrument, medicine, drug, or any other substance or device
1 9 to terminate the pregnancy of a woman known to be pregnant
1 10 with an intention other than to increase the probability of a
1 11 live birth, to preserve the life or health of the child after
1 12 live birth, or to remove a fetus following a spontaneous
1 13 miscarriage.
1 14 2. "Attempt to perform an abortion" means an act, or an
1 15 omission of an act required by law, that under the
1 16 circumstances as the actor believes them to be, constitutes a
1 17 substantial step in a course of conduct planned to culminate
1 18 in the performance of an abortion.
1 19 3. "Department" means the Iowa department of public
1 20 health.
1 21 4. "Medical emergency" means any condition which, on the
1 22 basis of a physician's good faith clinical judgment, so
1 23 complicates the medical condition of a pregnant woman as to
1 24 necessitate the immediate performance of an abortion to avert
1 25 the pregnant woman's death or for which a delay in the
1 26 performance of an abortion will create a serious risk of
1 27 substantial and irreversible impairment of a major bodily
1 28 function.
1 29 5. "Physician" means a person licensed to practice
1 30 medicine and surgery pursuant to chapter 148, or an
1 31 osteopathic physician and surgeon licensed pursuant to chapter
1 32 150A.
1 33 6. "Probable gestational age" means what, in the judgment
1 34 of the physician, will with reasonable probability be the
1 35 gestational age of the unborn child at the time the abortion
2 1 is to be performed.
2 2 7. "Unborn child" means a member of the species homo
2 3 sapiens from fertilization until birth.
2 4 Sec. 3. NEW SECTION. 146A.3 INFORMATION.
2 5 Beginning November 1, 2005, except in the case of a medical
2 6 emergency, all of the following conditions shall be met prior
2 7 to the performance of an abortion on a pregnant woman, if the
2 8 probable gestational age of the unborn child is twenty weeks
2 9 or more:
2 10 1. At least twenty=four hours prior to the performance of
2 11 an abortion on a pregnant woman, the physician performing the
2 12 abortion or the physician's agent shall inform the pregnant
2 13 woman, by telephone, by audiotape, or in person that the
2 14 pregnant woman has the right to review the materials described
2 15 in section 146A.5, that the materials are available in printed
2 16 hard copy format and in an electronic format on a state=
2 17 sponsored website, and the address of the website. The
2 18 physician performing the abortion or the physician's agent
2 19 shall inform the pregnant woman that the materials have been
2 20 provided by the state and that the materials contain
2 21 information about pain relative to the unborn child.
2 22 2. If the pregnant woman chooses to view the materials
2 23 other than on the website, a printed hard copy of the
2 24 materials shall be provided by the physician or the
2 25 physician's agent to the pregnant woman at least twenty=four
2 26 hours prior to the performance of the abortion or mailed to
2 27 the pregnant woman at least seventy=two hours prior to the
2 28 performance of the abortion by restricted certified mail as
2 29 defined in section 618.15.
2 30 3. The pregnant woman shall certify in writing that the
2 31 pregnant woman has been informed of the pregnant woman's right
2 32 to review the materials described in section 146A.5.
2 33 4. The physician performing the abortion or the
2 34 physician's agent shall obtain a copy of the written
2 35 certification from the pregnant woman and shall retain the
3 1 copy of the written certification in the woman's medical
3 2 record for at least three years following the date of receipt.
3 3 Sec. 4. NEW SECTION. 146A.4 ELIMINATION OR ALLEVIATION
3 4 OF ORGANIC PAIN TO UNBORN CHILD == INFORMATION AND CONSENT.
3 5 1. Except in the case of a medical emergency, prior to the
3 6 performance of an abortion on a pregnant woman, if the
3 7 probable gestational age of the unborn child is twenty weeks
3 8 or more, the physician performing the abortion or the
3 9 physician's agent shall do all of the following:
3 10 a. Inform the pregnant woman if an anesthetic or analgesic
3 11 would eliminate or alleviate organic pain to the unborn child
3 12 caused by the particular method of abortion being performed.
3 13 b. Inform the pregnant woman of the particular medical
3 14 risks associated with the particular anesthetic or analgesic.
3 15 2. After being provided the information pursuant to
3 16 subsection 1, if the pregnant woman consents, the physician
3 17 performing the abortion may administer the particular
3 18 anesthetic or analgesic described under subsection 1.
3 19 Sec. 5. NEW SECTION. 146A.5 MATERIALS == PUBLISHED IN
3 20 HARD COPY PRINTED FORMAT.
3 21 1. By October 1, 2005, the department shall cause to be
3 22 published in a printed, hard copy format, in English and in
3 23 each language which is the primary language of two percent or
3 24 more of the state's population, materials which include the
3 25 following:
3 26 a. Materials which are objective, nonjudgmental, and
3 27 designed to convey only accurate scientific information about
3 28 the unborn child at the various stages of gestational age.
3 29 b. The following statement:
3 30 "By twenty weeks' gestational age, an unborn child has the
3 31 physical structures necessary to experience pain. There is
3 32 evidence that by twenty weeks' gestational age, an unborn
3 33 child seeks to evade certain stimuli in a manner which in an
3 34 infant or an adult would be interpreted to be a response to
3 35 pain. Anesthesia is routinely administered to unborn children
4 1 who are twenty weeks' or more gestational age and undergo
4 2 prenatal surgery."
4 3 2. The materials shall be printed in a typeface large
4 4 enough to be clearly legible.
4 5 3. The materials shall be available at no cost from the
4 6 Iowa department of public health upon request and in
4 7 appropriate numbers to any person.
4 8 Sec. 6. NEW SECTION. 146A.6 INTERNET SITE.
4 9 1. By October 1, 2005, the department shall establish and
4 10 maintain an internet site to provide the information contained
4 11 in the materials described in section 146A.5.
4 12 2. The internet site shall be maintained at a resolution
4 13 of seventy dots per inch. All pictures on the internet site
4 14 shall be a minimum of two hundred by three hundred pixels.
4 15 All print on the internet site shall be a minimum of eleven
4 16 point font. All print information and pictures shall be
4 17 accessible with an industry standard browser, requiring no
4 18 additional plug=ins.
4 19 3. The internet site shall provide for confidentiality of
4 20 individuals who access the site, and information identifying
4 21 the individual shall not be collected or maintained. The
4 22 department shall monitor the internet site to ensure that the
4 23 site is secure and to prevent and correct any tampering with
4 24 the site.
4 25 Sec. 7. NEW SECTION. 146A.7 PROCEDURE IN CASE OF A
4 26 MEDICAL EMERGENCY.
4 27 Beginning November 1, 2005, if a medical emergency
4 28 necessitates the performance of an abortion, the physician
4 29 shall inform the woman prior to the abortion, if possible, of
4 30 the medical indications supporting the physician's judgment
4 31 that an abortion is necessary to avert the woman's death or
4 32 that a delay in performing the abortion will create serious
4 33 risk of substantial and irreversible impairment of a major
4 34 bodily function.
4 35 Sec. 8. NEW SECTION. 146A.8 REPORTING FORM == REPORTING
5 1 REQUIREMENTS == FAILURE TO REPORT == FINES.
5 2 1. The department shall prepare a reporting form to be
5 3 provided to physicians to complete beginning November 1, 2005,
5 4 containing a reprint of this chapter and providing for the
5 5 recording of all of the following:
5 6 a. The number of women informed by the physician or the
5 7 physician's agent of the woman's right to review the materials
5 8 described in section 146A.5; of that number, the number
5 9 informed by telephone, audiotape, or in person; and of each of
5 10 those numbers, whether the capacity of the person informing
5 11 the woman was that of a referring physician, a physician
5 12 performing the abortion, or an agent of either physician.
5 13 b. The number of women who chose to obtain a printed, hard
5 14 copy of the materials described in section 146A.5 and the
5 15 number who did not; and of each of these numbers, the number
5 16 who obtained an abortion.
5 17 c. The number of abortions performed by the physician in
5 18 which information otherwise required to be provided at least
5 19 twenty=four hours prior to the abortion was not provided
5 20 because an immediate abortion was necessary to avert the
5 21 woman's death, and the number of abortions performed by the
5 22 physician in which information otherwise required to be
5 23 provided at least twenty=four hours prior to the abortion was
5 24 not provided because an immediate abortion was performed
5 25 because a delay would create a serious risk of substantial and
5 26 irreversible impairment of a major bodily function.
5 27 2. The department shall ensure that copies of the
5 28 reporting forms are distributed as follows:
5 29 a. By October 1, 2005, to all physicians licensed to
5 30 practice in this state.
5 31 b. To each physician who subsequently becomes licensed to
5 32 practice in this state, at the same time as official
5 33 notification to that physician that the physician is licensed.
5 34 c. Annually, on a date determined by rule of the
5 35 department, to all physicians licensed to practice in this
6 1 state.
6 2 3. On or before a date determined by rule of the
6 3 department beginning in calendar year 2006, and on or before
6 4 that date annually thereafter, each physician who, or whose
6 5 agent informed a woman of the woman's right to review the
6 6 materials described in section 146A.5, shall submit a copy of
6 7 the reporting form to the department, with the requested data
6 8 entered accurately and completely.
6 9 4. a. A physician who does not submit a report by thirty
6 10 days following the due date is subject to a fee of five
6 11 hundred dollars for each additional thirty=day period or
6 12 portion of a thirty=day period during which the report is not
6 13 submitted.
6 14 b. A physician who has not submitted a report or has
6 15 submitted only an incomplete report more than one year
6 16 following the original due date may be directed by a court of
6 17 competent jurisdiction, in an action brought by the
6 18 department, to submit a complete report within a period stated
6 19 by the court or be subject to contempt of court.
6 20 5. On or before a date determined by rule of the
6 21 department beginning in calendar year 2006, and on or before
6 22 that date annually thereafter, the department shall issue a
6 23 public report providing statistics for the previous calendar
6 24 year compiled from all of the reports submitted. Each report
6 25 shall provide the statistics for the previous calendar year,
6 26 adjusted to reflect any additional information from late or
6 27 corrected reports. The department shall ensure that the
6 28 information included in the public reports could not lead to
6 29 the identification of any individual who is the subject of the
6 30 information provided or who provided the information.
6 31 Sec. 9. NEW SECTION. 146A.9 CRIMINAL PENALTIES.
6 32 1. A person who knowingly or recklessly performs an
6 33 abortion or attempts to perform an abortion in violation of
6 34 this chapter is guilty of a class "C" felony.
6 35 2. A physician who knowingly or recklessly submits a false
7 1 report under section 146A.8 is guilty of a simple misdemeanor.
7 2 3. A criminal or civil penalty shall not be assessed under
7 3 this chapter against a woman upon whom an abortion is
7 4 performed or attempted to be performed.
7 5 4. A criminal or civil penalty shall not be assessed
7 6 against a physician or physician's agent for failure to comply
7 7 with section 146A.3 requiring written certification that a
7 8 woman has been informed of the woman's right to review the
7 9 materials described in section 146A.5, if the department has
7 10 not made the materials available at the time the physician or
7 11 physician's agent is required to inform the woman of the
7 12 woman's right to review the materials.
7 13 Sec. 10. NEW SECTION. 146A.10 CIVIL REMEDIES.
7 14 1. A woman upon whom an abortion has been performed in
7 15 violation of this chapter, the father of the unborn child that
7 16 was aborted, or the grandparent of the unborn child that was
7 17 aborted may maintain an action against the person who
7 18 knowingly or recklessly performed the abortion in violation of
7 19 this chapter for actual and punitive damages.
7 20 2. A woman upon whom a person has attempted to perform an
7 21 abortion in violation of this chapter may maintain an action
7 22 against the person who knowingly or recklessly attempted to
7 23 perform the abortion in violation of this chapter for actual
7 24 and punitive damages.
7 25 3. If the department fails to issue the public report
7 26 required pursuant to section 146A.8, any group of ten or more
7 27 citizens may seek a writ of mandamus against the director of
7 28 public health in a court of competent jurisdiction requiring
7 29 that a complete report be issued within a period stated by the
7 30 writ. If the director fails to comply with the writ, the
7 31 director of public health shall be subject to contempt of
7 32 court.
7 33 4. If a judgment is rendered in favor of a plaintiff in
7 34 any action described in this section, the court shall also
7 35 award reasonable attorney fees in favor of the plaintiff. If
8 1 judgment is rendered in favor of the defendant and the court
8 2 finds the plaintiff's action was frivolous and brought in bad
8 3 faith, the court shall award reasonable attorney fees in favor
8 4 of the defendant.
8 5 Sec. 11. NEW SECTION. 146A.11 PROTECTION OF PRIVACY IN
8 6 COURT PROCEEDINGS == PENALTY.
8 7 1. In every civil or criminal proceeding or action brought
8 8 under this chapter, the court shall rule whether the anonymity
8 9 of the woman upon whom the abortion was performed or was
8 10 attempted to be performed shall be preserved from public
8 11 disclosure, if the woman does not consent to such disclosure.
8 12 The court upon a motion or sua sponte shall make such a
8 13 ruling. If the court rules that the woman's anonymity shall
8 14 be preserved, the order shall direct the parties, witnesses,
8 15 and counsel to comply with the ruling and shall direct the
8 16 sealing of the record and the exclusion of individuals from
8 17 courtrooms or hearing rooms to the extent necessary to
8 18 safeguard the woman's identity from public disclosure. Each
8 19 order issued by the court shall be accompanied by specific
8 20 written findings explaining why the anonymity of the woman
8 21 should be preserved from public disclosure, why the order is
8 22 essential to maintain the woman's anonymity, how the order is
8 23 narrowly tailored to specifically attain the desired result,
8 24 and why no reasonable less restrictive alternative exists.
8 25 2. If a woman upon whom an abortion was performed or was
8 26 attempted to be performed does not provide written consent,
8 27 anyone other than a public official who brings an action under
8 28 section 146A.10, subsection 1 or 2, shall do so under a
8 29 pseudonym.
8 30 3. This section shall not be construed to conceal the
8 31 identity of the plaintiff or witnesses from the defendant.
8 32 EXPLANATION
8 33 This bill creates a new Code chapter, the short title of
8 34 which is the "Unborn Child Pain Awareness and Prevention Act".
8 35 The bill requires certain conditions to be met, except in
9 1 the case of a medical emergency, prior to the performance of
9 2 an abortion on a pregnant woman, if the probable gestational
9 3 age of the unborn child is 20 weeks or more. The conditions
9 4 include, beginning November 1, 2005, all of the following:
9 5 1. At least 24 hours prior to the performance of an
9 6 abortion on a pregnant woman, the physician performing the
9 7 abortion or the physician's agent is to inform the pregnant
9 8 woman of her right to review the materials described in the
9 9 bill regarding the unborn child at various stages of
9 10 gestational age. The person informing the pregnant woman is
9 11 to also inform the pregnant woman that the materials are
9 12 available in printed hard copy format or on an internet site,
9 13 that the materials have been provided by the state, and that
9 14 the materials contain information about pain relative to the
9 15 unborn child.
9 16 2. If the pregnant woman chooses to view the materials in
9 17 the printed hard copy format, the materials are to be provided
9 18 at least 24 hours prior to the performance of the abortion or
9 19 mailed to the pregnant woman at least 72 hours prior to the
9 20 performance of the abortion by restricted certified mail.
9 21 3. The pregnant woman is required to certify in writing
9 22 that she has been informed of her right to review the
9 23 materials.
9 24 4. The physician performing the abortion or the
9 25 physician's agent is required to obtain a copy of the written
9 26 certification from the pregnant woman and retain the copy of
9 27 the written certification in the woman's medical record for at
9 28 least three years following the date of receipt.
9 29 The bill also provides that except in the case of a medical
9 30 emergency, prior to the performance of an abortion on a
9 31 pregnant woman, if the probable gestational age of the unborn
9 32 child is 20 weeks or more, the physician performing the
9 33 abortion or the physician's agent is to inform the pregnant
9 34 woman if an anesthetic or analgesic would eliminate or
9 35 alleviate organic pain to the unborn child caused by the
10 1 particular method of abortion being performed, inform the
10 2 pregnant woman of the particular medical risks associated with
10 3 the particular anesthetic or analgesic, and if the pregnant
10 4 woman consents, the physician performing the abortion may
10 5 administer the particular anesthetic or analgesic.
10 6 The bill directs the Iowa department of public health, by
10 7 October 1, 2005, to publish the materials to be provided to
10 8 the pregnant woman in printed hard copy format and to
10 9 establish an internet site to provide for the electronic
10 10 version of these materials.
10 11 The bill provides a procedure, beginning November 1, 2005,
10 12 in the case of a medical emergency. The bill requires the
10 13 Iowa department of public health, by October 1, 2005, to
10 14 prepare a reporting form for distribution to physicians to
10 15 complete, containing a reprint of the provisions of the bill
10 16 and providing for the recording of information specified in
10 17 the bill. The bill specifies the schedule for distribution of
10 18 the reporting forms, the annual submission schedule for the
10 19 completed reporting forms, and penalties for failure to timely
10 20 submit forms or for incomplete forms. The bill directs the
10 21 department to issue a public report, annually, compiling the
10 22 information contained in the reporting forms.
10 23 The bill provides that any person who knowingly or
10 24 recklessly performs an abortion or attempts to perform an
10 25 abortion in violation of the bill is guilty of a class "C"
10 26 felony. Additionally, a physician who knowingly or recklessly
10 27 submits a false report is guilty of a simple misdemeanor. The
10 28 bill prohibits a criminal or civil penalty from being assessed
10 29 under the bill against a woman upon whom an abortion is
10 30 performed or attempted to be performed, and provides that if
10 31 the department has not made materials available at the time
10 32 the physician or the physician's agent is required to inform
10 33 the woman of the woman's right to review the materials, a
10 34 criminal or civil penalty is not to be assessed against the
10 35 physician or physician's agent.
11 1 The bill provides that any woman upon whom an abortion has
11 2 been performed in violation of the bill, the father of the
11 3 unborn child that was aborted, or the grandparent of the
11 4 unborn child that was aborted may maintain an action against
11 5 the person who knowingly or recklessly performed the abortion
11 6 for actual and punitive damages. Additionally, under the
11 7 bill, any woman upon whom a person has attempted to perform an
11 8 abortion in violation of the bill may maintain an action
11 9 against the person who knowingly or recklessly attempted to
11 10 perform the abortion for actual and punitive damages.
11 11 The bill also provides that if the department fails to
11 12 issue the public report required under the bill, any group of
11 13 10 or more citizens may seek a writ of mandamus against the
11 14 director of public health requiring that a complete report be
11 15 issued within a period stated by the writ. If the director
11 16 fails to comply with the writ, the director of public health
11 17 is subject to contempt of court. The bill provides for
11 18 awarding of reasonable attorney fees against the plaintiff or
11 19 defendant under certain conditions in actions brought under
11 20 the bill.
11 21 The bill provides that in any proceeding or action brought
11 22 under the bill, the court is to rule whether the anonymity of
11 23 the woman upon whom the abortion was performed or was
11 24 attempted to be performed shall be preserved from public
11 25 disclosure, if the woman does not consent to such disclosure.
11 26 If the court rules that the woman's anonymity is to be
11 27 preserved, the order is to direct the parties, witnesses, and
11 28 counsel to comply with the ruling and to direct the sealing of
11 29 the record and the exclusion of individuals from courtrooms or
11 30 hearing rooms to the extent necessary to safeguard the woman's
11 31 identity from public disclosure. Each order issued by the
11 32 court is to be accompanied by specific written findings
11 33 explaining why the anonymity of the woman should be preserved
11 34 from public disclosure, why the order is essential to maintain
11 35 the woman's anonymity, how the order is narrowly tailored to
12 1 specifically attain the desired result, and why no reasonable
12 2 less restrictive alternative exists.
12 3 The bill also provides that if a woman upon whom an
12 4 abortion was performed or was attempted to be performed does
12 5 not provide written consent, anyone other than a public
12 6 official who brings a civil action under the bill for actual
12 7 and punitive damages is to do so under a pseudonym.
12 8 The provisions relating to protection of privacy in court
12 9 proceedings are not to be construed to conceal the identity of
12 10 the plaintiff or witnesses from the defendant.
12 11 LSB 2528HH 81
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