HOUSE FILE 2239

BY  WINDSCHITL

A BILL FOR

An Act relating to abortions, providing civil and criminal penalties, and including effective date provisions.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF IOWA:

DIVISION I

WOMAN’S RIGHT TO KNOW ACT
    Section 1.  NEW SECTION.  146A.1  Title.
   This chapter shall be known and may be cited as the “Woman’s Right to Know Act”.
    Sec. 2.  NEW SECTION.  146A.2  Definitions.
   As used in this chapter, unless the context otherwise requires:
   1.  “Abortion” means abortion as defined in section 146.1.
   2.  “Attempt to perform an unlawful abortion” means an act, or an omission of an act required by law, that constitutes a substantial step in a course of conduct intended to culminate in the performance of an abortion in violation of this chapter.
   3.  “Department” means the department of public health.
   4.  “Fetus” means a human pregnancy in the postembryonic state.
   5.  “Medical emergency” means any condition which, on the basis of a physician’s good faith clinical judgment, so complicates the medical condition of a pregnant woman as to necessitate the immediate performance of an abortion to avert the pregnant woman’s death, or to necessitate the immediate performance of an abortion to avert a serious risk of substantial and irreversible impairment of a major bodily function if the performance of the abortion is delayed.
   6.  “Physician” means a person licensed to practice medicine and surgery or osteopathic medicine and surgery pursuant to chapter 148.
    Sec. 3.  NEW SECTION.  146A.3  Voluntary and informed consent.
   1.  An abortion shall not be performed in this state without the voluntary and informed consent of the woman upon whom the abortion is to be performed. Except in the case of a medical emergency, consent to an abortion is voluntary and informed only if the requirements of this section are met.
   2.  The referring physician, the physician who will perform the abortion, or an agent of either physician shall provide all of the following information to the woman by telephone, by audiotape, or in person, at the time the woman initially contacts the physician’s private office or a facility that provides abortions to inquire about or to schedule an appointment for an abortion:
   a.  Information that medical assistance benefits may be available to the woman for prenatal care, childbirth, and neonatal care.
   b.  Information that the putative father is liable to assist in the support of the child and that efforts to collect support may result in, but are not guaranteed to result in, financial support of the child, even if the putative father has offered to pay for the abortion.
   c.  Information that the woman has the right to review the printed materials described in subsection 3.
   d.  Information that the woman has the right to be given the opportunity to undergo an ultrasound imaging of the fetus prior to the performance of an abortion, to view the ultrasound image, and to hear a description of the ultrasound image and hear the heartbeat of the fetus at least twenty-four hours before the abortion is performed.
   3.
  a.  After being informed of the woman’s right to review printed materials pursuant to subsection 2, if the woman wishes to review the materials, all of the following shall apply:
   (1)  If the department establishes an internet site, the woman shall be informed that the materials are available through a state-sponsored internet site and shall be informed of the internet site address.
   (2)  If the woman initially contacts the physician’s private office or a facility that provides abortions in person, the materials shall be provided to the woman at that time.
   (3)  If the woman initially contacts the physician’s private office or a facility that provides abortions by telephone and wishes to review the materials, the materials shall be mailed to the woman by regular mail or by restricted certified mail, as defined in section 618.15, as requested by the woman.
   (4)  The woman shall be informed that the materials have been provided by the state and that they describe the fetus and list agencies that offer alternatives to abortion.
   b.  The printed materials shall include all of the following:
   (1)  Geographically indexed materials designed to inform the woman of public and private agencies and services available to assist a woman through pregnancy, at the time of childbirth, and while the child is dependent, including adoption agencies. The materials shall include a comprehensive list of the agencies available, categorized by the type of services offered, and a description of the manner, including telephone numbers, by which the agencies may be contacted. The department may also provide a toll-free, twenty-four-hour-a-day telephone number which may be called to obtain, orally, a list and description of agencies in the locality of the caller and of the services offered.
   (2)  Materials that encourage consideration of placement for adoption. The materials shall inform the woman of the benefits of adoption, including the requirements of confidentiality in the adoption process, the importance of adoption to individuals and society, and the state’s interest in promoting adoption by preferring childbirth over abortion.
   (3)  Materials designed to inform the woman of the probable anatomical and physiological characteristics of the fetus at two-week gestational increments from the time that it is medically possible to make a determination of pregnancy to full term. The materials shall include any relevant information regarding the possibility of the survival of the fetus and pictures or drawings representing the development of the fetus at two-week gestational increments, provided that any pictures or drawings shall contain the dimensions of the fetus and shall be realistic and appropriate for the state of pregnancy depicted. The materials shall be objective, nonjudgmental, and designed to convey only accurate scientific information about the fetus at various gestational stages. The materials shall also contain objective information describing the methods of abortion procedures commonly used, the medical risks commonly associated with each such procedure, the possible detrimental psychological effects of abortion, and the medical risks commonly associated with carrying a fetus to term.
   4.  A physician shall not perform an abortion on a woman unless both of the following conditions are met:
   a.  The physician obtains written certification that the information required pursuant to subsection 2 was provided to the woman. The physician shall retain a copy of the certification and shall provide a copy of the certification to the woman.
   b.  The physician certifies that the woman has been offered the opportunity to undergo an ultrasound of the fetus, to view the ultrasound, to hear a description of the image, and to hear the heartbeat of the fetus at least twenty-four hours before an abortion is performed. In order to comply with this requirement, the ultrasound image must be of a quality consistent with standard medical practice in the community, must contain the dimensions of the fetus, and must accurately portray the presence of external members and internal organs, including the heartbeat, if present or viewable, of the fetus. The auscultation of the fetal heart tone also must be of a quality consistent with standard medical practice in the community. The physician shall document that the woman has been offered the opportunity to undergo the ultrasound and the woman’s response to the offers, including the date and time of the offers and the woman’s signature attesting to the woman’s informed decision.
   5.
  a.  By October 1, 2012, the department shall cause the information described in subsection 3 to be published in printed format. The information shall be provided in an easily comprehensible manner. The information shall be published in a typeface large enough to be clearly legible. The printed information shall be available from the department at no cost, upon request, and in an appropriate number, to any person.
   b.  The department may establish and maintain an internet site to provide the information described in subsection 3. The internet site shall provide for confidentiality of individuals who access the site and no information identifying the individual shall be collected or maintained. The department shall monitor the internet site to ensure that the site is secure and to prevent and correct any tampering with the site.
    Sec. 4.  NEW SECTION.  146A.4  Procedure in case of medical emergency.
   If a medical emergency necessitates the performance of an abortion, the physician shall inform the woman, prior to the performance of the abortion, if possible, of the medical indications supporting the physician’s judgment that the immediate performance of an abortion is necessary to avert the woman’s death or that a delay in the performance of an abortion will create a serious risk of substantial and irreversible impairment of a major bodily function.
    Sec. 5.  NEW SECTION.  146A.5  Criminal penalties.
   1.  A person who knowingly or recklessly performs or attempts to perform an abortion in violation of this chapter is guilty of a class “C” felony.
   2.  A criminal penalty shall not be imposed under this chapter on a woman upon whom an abortion is performed or attempted to be performed. A criminal penalty shall not be imposed for failure of a woman to comply with the requirement of written certification pursuant to section 146A.3, if the department has not made the information available at the time the physician or the physician’s agent is required to inform the woman of the woman’s right to review the information.
    Sec. 6.  NEW SECTION.  146A.6  Protection of privacy in court proceedings —— penalty.
   1.  In every criminal proceeding brought pursuant to this chapter, the court proceedings shall be conducted in a manner which protects the confidentiality of the woman, and all court documents pertaining to the proceedings shall remain confidential and shall be sealed. The court shall direct the exclusion of individuals from courtrooms or hearing rooms to the extent necessary to safeguard the woman’s identity from public disclosure.
   2.  This section shall not be construed to conceal the identity of witnesses from the defendant.
   3.  A person who knowingly violates the confidentiality requirements of this section relating to court proceedings and documents is guilty of a simple misdemeanor.
    Sec. 7.  EFFECTIVE DATES.
   1.  The provisions of this division of this Act requiring the department of public health to publish information described in section 146A.3, subsection 3, as enacted in this Act, by October 1, 2012, being deemed of immediate importance, take effect upon enactment.
   2.  The remainder of this division of this Act takes effect October 1, 2012.

DIVISION II

APPLICATION OF AMBULATORY SURGICAL CENTER REGULATIONS TO FACILITIES THAT PROVIDE ABORTIONS
    Sec. 8.  Section 135.61, subsection 21, Code 2011, is amended to read as follows:
   21.  “Outpatient surgical facility” means a
 
any of the following:
   a.  A
 
facility which as its primary function provides, through an organized medical staff and on an outpatient basis to patients who are generally ambulatory, surgical procedures not ordinarily performed in a private physician’s office, but not requiring twenty-four hour hospitalization, and which is neither
 
not a part of a hospital nor
 
and is not owned wholly or in part by a hospital. “Outpatient surgical facility” also does not include the private office of a health care provider who there engages in the lawful practice of surgery. “Outpatient surgical facility” includes a
   b.  A
 
facility certified or seeking certification as an ambulatory surgical center, under the federal Medicare program or under the medical assistance program established pursuant to chapter 249A.
   c.  A facility that provides for the performing or inducing of any abortions.
    Sec. 9.  NEW SECTION.  135P.1  Definitions.
   As used in this chapter, unless the context otherwise requires:
   1.  “Ambulatory surgical center” means an outpatient surgical facility as defined in section 135.61 or an ambulatory surgical facility as defined in section 514.5.
   2.  “Department” means the department of inspections and appeals.
    Sec. 10.  NEW SECTION.  135P.2  Licenses —— fees —— criteria.
   1.  A person shall not operate an ambulatory surgical center in this state without first obtaining a license from the department after meeting the requirements of this chapter. The application shall be on a form prescribed by the department and shall require information the department deems necessary. Each application for license shall be accompanied by a nonrefundable biennial license fee determined by the department.
   2.  The ambulatory surgical center shall meet the requirements of 42 C.F.R. pt. 416 before a license is issued. The department shall provide the necessary personnel to inspect the ambulatory surgical center to determine if the ambulatory surgical center complies with necessary requirements before a license is issued. An ambulatory surgical center that is certified under the federal Medicare program and thereby meets the requirements of 42 C.F.R. pt. 416 shall be licensed without inspection by the department.
    Sec. 11.  NEW SECTION.  135P.3  Denial, suspension, or revocation of license.
   The department may deny, suspend, or revoke a license if the department determines an ambulatory surgical center fails to comply with this chapter or the rules adopted pursuant to this chapter. A denial, suspension, or revocation may be appealed under chapter 17A. The department may reissue a license following a suspension or revocation after the ambulatory surgical center corrects the conditions upon which the suspension or revocation was based.
    Sec. 12.  NEW SECTION.  135P.4  Limitation, expiration, and renewal of license.
   A license for an ambulatory surgical center shall be issued only for the premises, person, or facility named in the application and is not transferable or assignable. A license, unless sooner suspended or revoked, shall expire two years after the date of issuance and shall be renewed biennially upon an application by the licensee. Application for renewal shall be made in writing to the department at least thirty days prior to the expiration of the license. The fee for a license renewal shall be determined by the department.
    Sec. 13.  NEW SECTION.  135P.5  Rules.
   Except as otherwise provided in this chapter, the department shall adopt rules pursuant to chapter 17A necessary to administer this chapter, subject to approval of the state board of health. Formulation of the rules shall include consultation with persons affected by this chapter.
    Sec. 14.  Section 514.5, Code 2011, is amended to read as follows:
   514.5  Contracts for service.
   1.  A hospital service corporation organized under chapter 504, Code 1989, or current chapter 504 may enter into contracts for the rendering of hospital service to any of its subscribers with hospitals maintained and operated by the state or any of its political subdivisions, or by any corporation, association, or individual. Such hospital service corporation may also contract with an ambulatory surgical facility to provide surgical services to the corporation’s subscribers. Hospital service is meant to include bed and board, general nursing care, use of the operating room, use of the delivery room, ordinary medications and dressings and other customary routine care. “Ambulatory surgical facility” means a facility constructed and operated for the specific purpose of providing surgery to patients admitted to and discharged from the facility within the same day
 
or an “outpatient surgical facility” as defined in section 135.61.
   2.  A medical service corporation organized under this chapter may enter into contracts with subscribers to furnish health care service through physicians and surgeons, dentists, podiatric physicians, osteopathic physicians, osteopathic physicians and surgeons, or chiropractors.
   3.  Any pharmaceutical or optometric service corporation organized under the provisions of said
 
this chapter may enter into contracts for the rendering of pharmaceutical or optometric service to any of its subscribers. Membership in any pharmaceutical service corporation shall be open to all pharmacies licensed under chapter 155A.
   4.  A hospital service corporation or medical service corporation organized under this chapter may enter into contracts with subscribers and providers to furnish health care services not otherwise allocated by this section.

DIVISION III

MEDICAL ABORTIONS
    Sec. 15.  NEW SECTION.  146B.1  Medical abortions —— restrictions —— in-person administration —— penalties.
   1.  For the purpose of this section:
   a.  “Medical abortion” means the use of a medication including but not limited to mifepristone or ulipristal acetate to terminate a pregnancy.
   b.  “Physician” means a person licensed to practice medicine and surgery or osteopathic medicine and surgery pursuant to chapter 148.
   2.
  a.  Only a physician shall prescribe, dispense, or administer any medication for the purpose of inducing a medical abortion.
   b.  Any physician prescribing, dispensing, or administering a medication for the purpose of inducing a medical abortion shall also comply with all federal regulations relating to the prescribing, dispensing, and administering of such medication.
   c.  A physician shall only administer a medication for the purpose of inducing a medical abortion in person and in a clinic or hospital with the capacity to provide surgical intervention in cases resulting in an incomplete abortion or severe bleeding.
   3.  A physician who knowingly performs a medical abortion in violation of this section is guilty of a serious misdemeanor and is subject to revocation of licensure pursuant to chapter 148.

DIVISION IV

PREVENTION OF COERCED ABORTIONS
    Sec. 16.  NEW SECTION.  146C.1  Prevention of coerced abortion  signage.
   1.
  a.  Any facility in which abortions are performed shall conspicuously post a sign in each patient admission area, waiting room, and patient consultation room used by patients on whom abortions are performed which state:
  It is against the law for anyone, regardless of the individual’s relationship to you, to force you to have an abortion. You have the right to contact any local or state law enforcement or social services agency to receive protection from any actual or threatened physical, emotional, or psychological abuse. It is against the law to perform, induce, prescribe for, or provide you with the means for an abortion without your voluntary consent.
   b.  In addition to the posting of the signs required under this subsection, a pregnant woman shall be informed orally in a private room in the facility of the prohibition against a coerced abortion by a physician or an agent of the physician who performs abortions at the facility.
   2.  The department of public health shall make the signs required under this section available for download in a printable format on its internet site.
    Sec. 17.  NEW SECTION.  707.8B  Coerced abortion —— prohibited —— penalty.
   1.  For the purposes of this section, “coerces” means any act or attempted act including a threat of physical harm intended to compel a pregnant woman to have an abortion performed in otherwise lawful circumstances but performed against the pregnant woman’s will.
   2.  A person who coerces a pregnant woman to have an abortion is guilty of a class “C” felony.

DIVISION V

ABORTION PROVISIONS RELATING TO MINORS
    Sec. 18.  NEW SECTION.  135L.6A  Causing, aiding, or assisting a minor in obtaining abortion —— noncompliance with requirements  civil liability.
   1.  A person shall not intentionally cause a minor to obtain or aid or assist a minor in obtaining an abortion without complying with this chapter.
   2.  A person who violates subsection 1 shall be civilly liable to the minor and to the person to whom notification is required to be given under this chapter. Appropriate relief under this subsection may include compensatory damages for all injuries, psychological and physical, resulting from violation of subsection 1.
   3.  It shall not be a defense to a claim brought under this section that the abortion was performed pursuant to consent to the abortion provided in a manner that is otherwise lawful in the state or jurisdiction where the abortion was performed if not otherwise in compliance with this chapter.
    Sec. 19.  NEW SECTION.  146D.1  Definition.
   For the purpose of this chapter, unless the context otherwise requires, “minor” means a person under eighteen years of age who has not been and is not married.
    Sec. 20.  NEW SECTION.  146D.2  Persons providing abortions for minors —— required reporting of sexual abuse —— penalty.
   1.  An individual who is a physician or an agent of a physician and who performs abortions on minors shall report any suspected sexual abuse, as defined in section 709.1, of a minor no later than forty-eight hours after the suspected sexual abuse has been brought to the individual’s attention. The individual shall not delegate the responsibility to report suspected sexual abuse to any other person but shall make the report personally. The individual shall make the report to the local law enforcement agency, the department of public safety, or the department of human services.
   2.  The individual making the report shall identify the name and address of the minor as well as the name and address of the parent or legal guardian of the minor. The individual making the report shall provide any information the individual may possess relating to the suspected sexual abuse as specified by the agency or department receiving the report.
   3.  A physician or an agent of a physician who performs abortions on minors who has reason to believe that a minor’s physical or mental health or welfare has been adversely affected due to suspected sexual abuse and who knowingly does not report such suspected sexual abuse as required under this section, is guilty of a serious misdemeanor.
    Sec. 21.  NEW SECTION.  146D.3  Maintenance of forensic samples from abortions performed on certain minors —— penalties.
   1.  A physician who performs an abortion on a minor shall preserve fetal tissue extracted during the abortion in accordance with rules adopted by the department of public health in cooperation with the department of public safety pursuant to this section. The physician shall submit the tissue to the department of public safety.
   2.  The department of public health in cooperation with the department of public safety shall adopt rules pursuant to chapter 17A prescribing all of the following:
   a.  The amount and type of fetal tissue to be preserved and submitted by a physician pursuant to this section.
   b.  The procedures for the proper preservation of such tissue for the purpose of deoxyribonucleic acid testing and examination.
   c.  The procedures for documenting the chain of custody of such tissue for use as evidence.
   d.  The procedures for proper disposal of fetal tissue preserved pursuant to this section.
   e.  A uniform reporting instrument to be utilized by physicians when submitting fetal tissue under this section which shall include the name of the physician submitting the fetal tissue and the complete residential address and name of the parent or legal guardian of the minor upon whom the abortion was performed.
   f.  The procedures for communication with law enforcement agencies regarding evidence and information obtained pursuant to this section.
   3.  Failure of a physician to comply with any provision of this section or any rule adopted pursuant to this section constitutes a serious misdemeanor and a basis for license discipline under section 148.6.
EXPLANATION
   Division I of this bill establishes new Code chapter 146A, relating to informed consent prior to an abortion. The Code chapter is known and cited as the “Woman’s Right to Know Act”.
   Division I specifies the required informed consent provisions, including provision of certain information to a woman by the physician or an agent of the physician, and required certification by the woman of provision to the woman of the required information, receipt of the certification by the physician prior to the performance of an abortion, and receipt of documentation by the physician regarding the woman’s response to offers of undergoing of an ultrasound prior to the performance of an abortion. Division I requires the department of public health to publish information by October 1, 2012, relating to options for managing a pregnancy. Division I authorizes the department to establish and maintain an internet site to provide the information.
   Division I also provides for alternatives to providing informed consent in the case of a medical emergency.
   Division I establishes a criminal penalty of a class “C” felony for a person who knowingly or recklessly performs or attempts to perform an abortion in violation of the new Code chapter. A class “C” felony is punishable by confinement for no more than 10 years and a fine of at least $1,000 but not more than $10,000. Division I prohibits the imposition of a criminal penalty against a woman upon whom an abortion is performed or attempted to be performed, and prohibits the imposition of a criminal penalty against a woman for failure to comply with certification requirements if the department has not made the printed materials available as required. Division I also provides for protection of confidentiality of a woman with regard to criminal court proceedings relating to an action under the new Code chapter.
   The provisions of division I relating to the department of public health publishing information as prescribed in the bill take effect upon enactment. The remainder of division I takes effect October 1, 2012.
   Division II of the bill defines an outpatient surgical facility or ambulatory surgical center to include any facility that provides for performing or inducing abortions, thereby making these establishments subject to certificate of need requirements and other regulatory provisions to which outpatient surgical facilities or ambulatory surgical centers are subject. Division II also amends the definition of an outpatient surgical facility to exclude facilities that are owned wholly or in part by a hospital.
   Division II also requires that ambulatory surgical centers be licensed and meet the requirements of the centers for Medicare and Medicaid services of the United States department of health and human services for ambulatory surgical services.
   Division III of the bill relates to restrictions for medical abortions. The bill defines “medical abortion” as the use of a medication including but not limited to mifepristone or ulipristal acetate to terminate a pregnancy. Division III provides that only a physician shall prescribe, dispense, or administer any medication for the purpose of inducing a medical abortion. Additionally, division III requires that any physician prescribing, dispensing, or administering a medication for the purpose of inducing a medical abortion shall comply with all federal regulations relating to such medication; and a physician shall only administer a medication for the purpose of inducing a medical abortion in person and in a clinic or hospital with the capacity to provide surgical intervention in cases resulting in an incomplete abortion or severe bleeding.
   A physician who knowingly performs a medical abortion in violation of division III of the bill is guilty of a serious misdemeanor and is subject to revocation of licensure pursuant to Code chapter 148. A serious misdemeanor is punishable by confinement for no more than one year or a fine of at least $315 but not more than $1,875, or by both.
   Division IV of the bill relates to prevention of coerced abortions. The division requires any facility in which abortions are performed to conspicuously post a sign in each patient admission area, waiting room, and patient consultation room used by patients on whom abortions are performed which state specific language regarding the prohibition against forcing a pregnant woman to have an abortion. In addition to the posting of the signs, division IV requires that a pregnant woman be informed orally in a private room in the facility of the prohibition against a coerced abortion by a physician or an agent of the physician who performs abortions at the facility. The division directs the department of public health to make the signs required available for download in a printable format on its internet site.
   Division IV of the bill also provides that a person who coerces a pregnant woman to have an abortion is guilty of a class “C” felony. Division IV defines “coerces” as any act or attempted act including a threat of physical harm intended to compel a pregnant woman to have an abortion performed in otherwise lawful circumstances but performed against the pregnant woman’s will.
   Division V of the bill includes abortion provisions relating to minors. Division V provides a new provision under Code chapter 135L, (notification requirements regarding pregnant minors) to prohibit a person from intentionally causing a minor to obtain or aiding or assisting a minor in obtaining an abortion without complying with the Code chapter. A person who violates the prohibition is civilly liable to the minor and to the person to whom notification is required to be given under the Code chapter. The division provides that appropriate relief may include compensatory damages for all injuries, psychological and physical, resulting from the violation. Additionally, the division provides that it is not a defense to a claim that the abortion was performed pursuant to consent to the abortion provided in a manner that is otherwise lawful in the state or jurisdiction where the abortion was performed if not otherwise in compliance with the Code chapter.
   Division V also includes provisions requiring that a physician or an agent of a physician who performs abortions on minors shall report any suspected sexual abuse of a minor no later than 48 hours after the abuse has been brought to the individual’s attention. The division prohibits the individual from delegating the responsibility to report sexual abuse to any other person and requires the individual to make the report personally. The individual is required to make the report to the local law enforcement agency, the department of public safety, or the department of human services. The division prescribes the information to be included in the report. The division provides that a physician or an agent of a physician who performs abortions on minors who has reason to believe that a minor’s physical or mental health or welfare has been adversely affected due to sexual abuse and who knowingly does not report such sexual abuse as required, is guilty of a serious misdemeanor. A serious misdemeanor is punishable by confinement for no more than one year and a fine of at least $315 but not more than $1,875.
   Division V also requires that a physician, who performs an abortion on minors, preserve fetal tissue extracted during the abortion in accordance with rules adopted by the department of public health in cooperation with the department of public safety pursuant to this Code section. The division requires the physician to submit the tissue to the department of public safety. The bill specifies the rules to be adopted and provides that failure of a physician to comply with the requirements relating to preserving of fetal tissue constitutes a basis for license discipline and is a serious misdemeanor. A serious misdemeanor is punishable by confinement for no more than one year and a fine of at least $315 but not more than $1,875.