House of Representatives

HB 2564

abortion

Sponsor: Representative Barto

 

DP

Committee on Health and Human Services

DPA

Caucus and COW

   X

As Transmitted to Governor

 

 

HB 2564 makes a variety of changes to statutes related to abortion including changing the existing parental notification and judicial bypass requirements that apply when a minor is seeking an abortion. It also includes new requirements that physicians must follow when obtaining the written informed consent of patients seeking abortions. And finally, it allows certain health professionals to abstain from having to facilitate or participate in the provision of an abortion, abortion medication, or emergency contraception.

 

History

Pursuant to Arizona Revised Statutes (A.R.S.) § 36-2151, no hospital is required to admit a patient for the purpose of performing an abortion. And physicians, as well as any other employees of facilities in which the performance of abortions is authorized, are not required to participate in the procedures that will lead to an abortion, if such persons state in writing their objection to the procedure based on moral or religious grounds.

 

A.R.S. § 36-2152 prohibits a person from knowingly performing an abortion on an unemancipated minor unless one of the following conditions applies:

 

  1. The attending physician has secured the written consent of the minor’s parent or guardian.
  2. A superior court judge has authorized the abortion after determining the minor is mature and capable of giving informed consent.
  3. A superior court judge has determined the minor is not mature, but concludes an abortion without consent of her parent or guardian is in the minor’s best interest.

 

Current law also states that parental consent or judicial authorization is not required if a pregnant minor certifies to an attending physician that the pregnancy resulted from criminal conduct or the attending physician certifies that the abortion is necessary to prevent the minor’s death or substantial impairment of major bodily function.

 

In 2003, the Court of Appeals of Arizona (Court) concluded that “…a pregnant juvenile who seeks a judicial bypass order pursuant to A.R.S. § 36-2152 bears the burden of proving her entitlement to the order by clear and convincing evidence” (In re B.S., 205 Ariz. 611, 74 P.3d 285). In addition, the Court specified criteria by which the maturity of a pregnant minor may be measured to determine if she is capable of giving informed consent including her experience, perspective, and judgment.

 

Provisions

Parental Consent and Judicial Bypass Requirements

·         Stipulates that parental consent for a minor’s abortion must be notarized, and indicates that the notarial act is confidential and not a public record.

·         Requires a pregnant minor to prove to a superior court judge by clear and convincing evidence that she is sufficiently mature and capable of giving informed consent to an abortion, without consulting her parent or guardian, based on her experience, perspective, and judgment.

·         Allows a superior court judge to consider, among other relevant factors, a minor’s age and experiences working outside the home, living away from home, traveling on her own, handling personal finances, and making other significant decisions in assessing a pregnant minor’s experience level.

·         Permits a superior court judge to consider, among other relevant factors, what steps a minor took to explore her options and the extent to which she considered and weighed the potential consequences of each option in assessing a pregnant minor’s perspective.

·         States a superior court judge may consider, among other relevant factors, a minor’s conduct since learning of her pregnancy and her intellectual ability to understand her options and make an informed decision in assessing a pregnant minor’s judgment.

·         Indicates that one or both of a minor’s parents or a minor’s guardian may bring a civil action to obtain relief for violations of parental consent laws, unless the pregnancy resulted from the criminal conduct of a parent or guardian.

·         Specifies a civil action related to an alleged violation of parental consent laws may be based on a claim that failure to obtain consent was the result of simple negligence, gross negligence, wantonness, willfulness, intention, or any other legal standard of care.

·         Stipulates that relief resulting from such civil actions includes the following:

·         Money damages for all psychological, emotional, and physical injuries related to the violation.

·         Statutory damages in an amount equal to $5,000 or three times the cost of the abortion, whichever is greater.

·         Reasonable attorney fees and costs.

·         Requires that civil actions of the type described above be initiated within six years of the violation.

 

Informed Consent Requirements

·         Prohibits an abortion from being performed or induced without the voluntary and informed consent of the woman on whom the abortion is to be performed or induced.

·         Stipulates that, except in the case of a medical emergency, voluntary and informed consent has only been obtained if all of the following conditions are met:

·         At least twenty-four hours before the abortion, the physician performing the abortion or the referring physician, has informed the woman, orally and in person of the following:

§         The name of the physician who will perform the abortion.

§         The nature of the proposed procedure or treatment.

§         The immediate and long-term medical risks associated with the procedure, and alternatives to the procedure that a reasonable patient would consider material to the decision of whether or not to undergo the abortion.

§         The probably gestational age and anatomical and physiological characteristics of the unborn child at the time the abortion is to be performed.

§         The medical risks associated with carrying the child to term.

·         At least twenty-four hours before the abortion, the physician performing the abortion, the referring physician, or another qualified physician, physician assistant, nurse, psychologist, or licensed behavioral health professional to whom the responsibility has been delegated, has informed the woman, orally and in person of the following:

§         Medical assistance benefits may be available for prenatal care, childbirth, and neonatal care.

§         The father of the child is liable to assist in the support of the child, even if he has offered to pay for the abortion (except in cases of rape or incest, in which case this information may be omitted).

§         Public and private services are available to assist the woman during and after her pregnancy, whether she chooses to keep the child or place the child for adoption.

§         It is unlawful for any person to coerce a woman to undergo an abortion.

§         The woman is free to withhold or withdraw her consent to the abortion at any time without affecting her right to future care or benefits to which she might otherwise be entitled.

·         The information is provided to the woman individually in a private room, and the woman has certified in writing that before the abortion all the information was provided.

·         Requires, if a medical emergency compels the performance of an abortion, that the physician inform the woman, before the abortion if possible, of the medical indications supporting the physician’s judgment that an abortion is necessary to avert the woman’s death or substantial impairment of major bodily function.

·         States that a physician who knowingly violates informed consent requirements has committed an act of unprofessional conduct and is subject to license suspension or revocation.

·         Allows the following persons to file a civil action for relief related to violations of informed consent requirements:

·         A woman on whom an abortion has been performed without her informed consent.

·         A father of an unborn child if married to the mother at the time she received the abortion, unless the pregnancy resulted from the plaintiff’s criminal conduct.

·         The maternal grandparents of an unborn child if the mother was a minor at the time of the abortion, unless the pregnancy resulted from the plaintiff’s criminal conduct.

·         Specifies a civil action related to an alleged violation of informed consent laws may be based on a claim that failure to obtain informed consent was the result of simple negligence, gross negligence, wantonness, willfulness, intention, or any other legal standard of care.

·         Stipulates that relief resulting from such civil actions includes the following:

·         Money damages for all psychological, emotional, and physical injuries related to the violation.

·         Statutory damages in an amount equal to $5,000 or three times the cost of the abortion, whichever is greater.

·         Reasonable attorney fees and costs.

·         Requires that civil actions of the type described above be initiated within six years of the violation.

 

Right to Refuse to Facilitate Abortion or Emergency Contraception

·         Clarifies that any employee of a facility where abortions are authorized to be performed is not required to facilitate the procedure that will result in the abortion.

·         Permits any employee of a pharmacy, hospital, or health professional who states in writing an objection to abortion, abortion medication, emergency contraception, or any medication or device intended to prevent implantation of a fertilized ovum, on moral or religious grounds, to not be required to facilitate or participate in the provision of an abortion, abortion medication, emergency contraception, or any medication or device intended to prevent implantation of a fertilized ovum.

·         Requires the pharmacy, hospital, or health professional, or an employee of the pharmacy, hospital, or health professional to return to the patient, the patient’s written prescription order.

 

Miscellaneous

·         Prohibits an individual who is not a physician from performing a surgical abortion.

·         Restricts a person from writing a prescription for a drug to induce an abortion or requiring payment for a service provided to a patient who has inquired about an abortion until the expiration of a twenty-four hour reflection period.

·         Stipulates that a person, including a parent or guardian of a minor, shall not coerce in any way a person to obtain an abortion.

·         Specifies that if a minor is denied financial support by the minor’s parents or guardian for the minor’s refusal to obtain an abortion, the minor is deemed emancipated for the purpose of eligibility for public benefits, except that the minor may not use those benefits to obtain an abortion.

·         States that this act does not create or recognize a right to an abortion and does not make lawful an abortion that is currently unlawful.

·         Includes a severability clause.

·         Modifies the definition of abortion.

·         Eliminates the definition of fetus.

·         Adds definitions for conception, gestational age, health professional, medical emergency, physician, pregnant, pregnancy, probable gestational age, surgical abortion, and unborn child.

·         Makes technical and conforming changes.

 

 

 

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Forty-ninth Legislature

First Regular Session  4          July 2, 2009

 

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