FREE CONFERENCE COMMITTEE AMENDMENTS TO S.B. 1112
(Reference to House engrossed Senate bill)
Page 8, line 20, after the second quotation mark insert ":
(a)"
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"(b) Does not include initiating a prescription order for any medication, drug or other substance used to induce or cause a medication abortion as defined in section 36‑2151."
Page 11, line 28, strike "are" insert "is"
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"Sec. 4. Section 36-449.03, Arizona Revised Statutes, as amended by Laws 2016, chapter 75, section 1, is amended to read:
36-449.03. Abortion clinics; rules; civil penalties
A. The director shall adopt rules for an abortion clinic's physical facilities. At a minimum these rules shall prescribe standards for:
1. Adequate private space that is specifically designated for interviewing, counseling and medical evaluations.
2. Dressing rooms for staff and patients.
3. Appropriate lavatory areas.
4. Areas for preprocedure hand washing.
5. Private procedure rooms.
6. Adequate lighting and ventilation for abortion procedures.
7. Surgical or gynecologic examination tables and other fixed equipment.
8. Postprocedure recovery rooms that are supervised, staffed and equipped to meet the patients' needs.
9. Emergency exits to accommodate a stretcher or gurney.
10. Areas for cleaning and sterilizing instruments.
11. Adequate areas for the secure storage of medical records and necessary equipment and supplies.
12. The display in the abortion clinic, in a place that is conspicuous to all patients, of the clinic's current license issued by the department.
B. The director shall adopt rules to prescribe abortion clinic supplies and equipment standards, including supplies and equipment that are required to be immediately available for use or in an emergency. At a minimum these rules shall:
1. Prescribe required equipment and supplies, including medications, required for the conduct, in an appropriate fashion, of any abortion procedure that the medical staff of the clinic anticipates performing and for monitoring the progress of each patient throughout the procedure and recovery period.
2. Require that the number or amount of equipment and supplies at the clinic is adequate at all times to assure sufficient quantities of clean and sterilized durable equipment and supplies to meet the needs of each patient.
3. Prescribe required equipment, supplies and medications that shall be available and ready for immediate use in an emergency and requirements for written protocols and procedures to be followed by staff in an emergency, such as the loss of electrical power.
4. Prescribe required equipment and supplies for required laboratory tests and requirements for protocols to calibrate and maintain laboratory equipment at the abortion clinic or operated by clinic staff.
5. Require ultrasound equipment.
6. Require that all equipment is safe for the patient and the staff, meets applicable federal standards and is checked annually to ensure safety and appropriate calibration.
C. The director shall adopt rules relating to abortion clinic personnel. At a minimum these rules shall require that:
1. The abortion clinic designate a medical director of the abortion clinic who is licensed pursuant to title 32, chapter 13, 17 or 29.
2. Physicians performing abortions are licensed pursuant to title 32, chapter 13 or 17, demonstrate competence in the procedure involved and are acceptable to the medical director of the abortion clinic.
3. A physician is available:
(a) For a surgical abortion who has admitting privileges at a health care institution that is classified by the director as a hospital pursuant to section 36‑405, subsection B and that is within thirty miles of the abortion clinic.
(b) For a medication abortion who has admitting privileges at a health care institution that is classified by the director as a hospital pursuant to section 36‑405, subsection B.
4. If a physician is not present, a registered nurse, nurse practitioner, licensed practical nurse or physician assistant is present and remains at the clinic when abortions are performed to provide postoperative monitoring and care, or monitoring and care after inducing a medication abortion, until each patient who had an abortion that day is discharged.
5. Surgical assistants receive training in counseling, patient advocacy and the specific responsibilities of the services the surgical assistants provide.
6. Volunteers receive training in the specific responsibilities of the services the volunteers provide, including counseling and patient advocacy as provided in the rules adopted by the director for different types of volunteers based on their responsibilities.
D. The director shall adopt rules relating to the medical screening and evaluation of each abortion clinic patient. At a minimum these rules shall require:
1. A medical history, including the following:
(a) Reported allergies to medications, antiseptic solutions or latex.
(b) Obstetric and gynecologic history.
(c) Past surgeries.
2. A physical examination, including a bimanual examination estimating uterine size and palpation of the adnexa.
3. The appropriate laboratory tests, including:
(a) Urine or blood tests for pregnancy performed before the abortion procedure.
(b) A test for anemia.
(c) Rh typing, unless reliable written documentation of blood type is available.
(d) Other tests as indicated from the physical examination.
4. An ultrasound evaluation for all patients. The rules shall require that if a person who is not a physician performs an ultrasound examination, that person shall have documented evidence that the person completed a course in the operation of ultrasound equipment as prescribed in rule. The physician or other health care professional shall review, at the request of the patient, the ultrasound evaluation results with the patient before the abortion procedure is performed, including the probable gestational age of the fetus.
5. That the physician is responsible for estimating the gestational age of the fetus based on the ultrasound examination and obstetric standards in keeping with established standards of care regarding the estimation of fetal age as defined in rule and shall write the estimate in the patient's medical history. The physician shall keep original prints of each ultrasound examination of a patient in the patient's medical history file.
E. The director shall adopt rules relating to the abortion procedure. At a minimum these rules shall require:
1. That medical personnel is available to all patients throughout the abortion procedure.
2. Standards for the safe conduct of abortion procedures that conform to obstetric standards in keeping with established standards of care regarding the estimation of fetal age as defined in rule.
3. Appropriate use of local anesthesia, analgesia and sedation if ordered by the physician.
4. The use of appropriate precautions, such as the establishment of intravenous access at least for patients undergoing second or third trimester abortions.
5. The use of appropriate monitoring of the vital signs and other defined signs and markers of the patient's status throughout the abortion procedure and during the recovery period until the patient's condition is deemed to be stable in the recovery room.
6. That any medication, drug or other substance used to induce or cause a medication abortion, as defined in section 36-2151, is administered in compliance with the Mifeprex final printing label protocol that is approved by the United States food and drug administration and in effect as of December 31, 2015.
F. The director shall adopt rules that prescribe minimum recovery room standards. At a minimum these rules shall require that:
1. For a surgical abortion, immediate postprocedure care, or care provided after inducing a medication abortion, consists of observation in a supervised recovery room for as long as the patient's condition warrants.
2. The clinic arrange hospitalization if any complication beyond the management capability of the staff occurs or is suspected.
3. A licensed health professional who is trained in the management of the recovery area and is capable of providing basic cardiopulmonary resuscitation and related emergency procedures remains on the premises of the abortion clinic until all patients are discharged.
4. For a surgical abortion, a physician with admitting privileges at a health care institution that is classified by the director as a hospital pursuant to section 36‑405, subsection B and that is within thirty miles of the abortion clinic remains on the premises of the abortion clinic until all patients are stable and are ready to leave the recovery room and to facilitate the transfer of emergency cases if hospitalization of the patient or viable fetus is necessary. A physician shall sign the discharge order and be readily accessible and available until the last patient is discharged.
5. A physician discusses RhO(d) immune globulin with each patient for whom it is indicated and assures it is offered to the patient in the immediate postoperative period or that it will be available to her within seventy‑two hours after completion of the abortion procedure. If the patient refuses, a refusal form approved by the department shall be signed by the patient and a witness and included in the medical record.
6. Written instructions with regard to postabortion coitus, signs of possible problems and general aftercare are given to each patient. Each patient shall have specific instructions regarding access to medical care for complications, including a telephone number to call for medical emergencies.
7. There is a specified minimum length of time that a patient remains in the recovery room by type of abortion procedure and duration of gestation.
8. The physician assures that a licensed health professional from the abortion clinic makes a good faith effort to contact the patient by telephone, with the patient's consent, within twenty‑four hours after a surgical abortion to assess the patient's recovery.
9. Equipment and services are located in the recovery room to provide appropriate emergency resuscitative and life support procedures pending the transfer of the patient or viable fetus to the hospital.
G. The director shall adopt rules that prescribe standards for follow‑up visits. At a minimum these rules shall require that:
1. For a surgical abortion, a postabortion medical visit is offered and, if requested, scheduled for three weeks after the abortion, including a medical examination and a review of the results of all laboratory tests. For a medication abortion, the rules shall require that a postabortion medical visit is scheduled between one week and three weeks after the initial dose for a medication abortion to confirm the pregnancy is completely terminated and to assess the degree of bleeding.
2. A urine pregnancy test is obtained at the time of the follow‑up visit to rule out continuing pregnancy. If a continuing pregnancy is suspected, the patient shall be evaluated and a physician who performs abortions shall be consulted.
H. The director shall adopt rules to prescribe minimum abortion clinic incident reporting. At a minimum these rules shall require that:
1. The abortion clinic records each incident resulting in a patient's or viable fetus' serious injury occurring at an abortion clinic and shall report them in writing to the department within ten days after the incident. For the purposes of this paragraph, "serious injury" means an injury that occurs at an abortion clinic and that creates a serious risk of substantial impairment of a major body organ and includes any injury or condition that requires ambulance transportation of the patient.
2. If a patient's death occurs, other than a fetal death properly reported pursuant to law, the abortion clinic reports it to the department not later than the next department work day.
3. Incident reports are filed with the department and appropriate professional regulatory boards.
I. The director shall adopt rules relating to enforcement of this article. At a minimum, these rules shall require that:
1. For an abortion clinic that is not in substantial compliance with this article and the rules adopted pursuant to this article or that is in substantial compliance but refuses to carry out a plan of correction acceptable to the department of any deficiencies that are listed on the department's statement of deficiency, the department may do any of the following:
(a) Assess a civil penalty pursuant to section 36‑431.01.
(b) Impose an intermediate sanction pursuant to section 36‑427.
(c) Suspend or revoke a license pursuant to section 36‑427.
(d) Deny a license.
(e) Bring an action for an injunction pursuant to section 36‑430.
2. In determining the appropriate enforcement action, the department consider the threat to the health, safety and welfare of the abortion clinic's patients or the general public, including:
(a) Whether the abortion clinic has repeated violations of statutes or rules.
(b) Whether the abortion clinic has engaged in a pattern of noncompliance.
(c) The type, severity and number of violations.
J. The department shall not release personally identifiable patient or physician information.
K. The rules adopted by the director pursuant to this section do not limit the ability of a physician or other health professional to advise a patient on any health issue.
Sec. 5. Section 36-2153, Arizona Revised Statutes, is amended to read:
36-2153. Informed consent; requirements; information; website; signs; violation; civil relief; statute of limitations
A. An abortion shall not be performed or induced without the voluntary and informed consent of the woman on whom the abortion is to be performed or induced. Except in the case of a medical emergency and in addition to the other requirements of this chapter, consent to an abortion is voluntary and informed only if all of the following are true:
1. At least twenty‑four hours before the abortion, the physician who is to perform the abortion or the referring physician has informed the woman, orally and in person, of:
(a) The name of the physician who will perform the abortion.
(b) The nature of the proposed procedure or treatment.
(c) The immediate and long-term medical risks associated with the procedure that a reasonable patient would consider material to the decision of whether or not to undergo the abortion.
(d) Alternatives to the procedure or treatment that a reasonable patient would consider material to the decision of whether or not to undergo the abortion.
(e) The probable gestational age of the unborn child at the time the abortion is to be performed.
(f) The probable anatomical and physiological characteristics of the unborn child at the time the abortion is to be performed.
(g) The medical risks associated with carrying the child to term.
2. At least twenty‑four hours before the abortion, the physician who is to perform the abortion, the referring physician or a qualified physician, physician assistant, nurse, psychologist or licensed behavioral health professional to whom the responsibility has been delegated by either physician has informed the woman, orally and in person, that:
(a) Medical assistance benefits may be available for prenatal care, childbirth and neonatal care.
(b) The father of the unborn child is liable to assist in the support of the child, even if he has offered to pay for the abortion. In the case of rape or incest, this information may be omitted.
(c) Public and private agencies and services are available to assist the woman during her pregnancy and after the birth of her child if she chooses not to have an abortion, whether she chooses to keep the child or place the child for adoption.
(d) It is unlawful for any person to coerce a woman to undergo an abortion.
(e) The woman 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.
(f) The department of health services maintains a website that describes the unborn child and lists the agencies that offer alternatives to abortion.
(g) The woman has a right to review the website and that a printed copy of the materials on the website will be provided to her free of charge if she chooses to review these materials.
(h) It may be possible to reverse the effects of a medication abortion if the woman changes her mind but that time is of the essence.
(i) Information on and assistance with reversing the effects of a medication abortion is available on the department of health services' website.
3. The information in paragraphs 1 and 2 of this subsection is provided to the woman individually and in a private room to protect her privacy and to ensure that the information focuses on her individual circumstances and that she has adequate opportunity to ask questions.
4. The woman certifies in writing before the abortion that the information required to be provided pursuant to paragraphs 1 and 2 of this subsection has been provided.
B. If a woman has taken mifepristone as part of a two‑drug regimen to terminate her pregnancy, has not yet taken the second drug and consults an abortion clinic questioning her decision to terminate her pregnancy or seeking information regarding the health of her fetus or the efficacy of mifepristone alone to terminate a pregnancy, the abortion clinic staff shall inform the woman that the use of mifepristone alone to end a pregnancy is not always effective and that she should immediately consult a physician if she would like more information.
B. C. If a medical emergency compels the performance of an abortion, the physician shall 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 to avert substantial and irreversible impairment of a major bodily function.
C. D. The department of health services shall establish and shall annually update a website that includes a link to a printable version of all materials listed on the website. The materials must be written in an easily understood manner and printed in a typeface that is large enough to be clearly legible. The website must include all of the following materials:
1. Information that is organized geographically by location and that is designed to inform the woman about public and private agencies and services that are available to assist a woman through pregnancy, at childbirth and while her child is dependent, including adoption agencies. The materials shall include a comprehensive list of the agencies, a description of the services they offer and the manner in which these agencies may be contacted, including the agencies' telephone numbers and website addresses.
2. Information on the availability of medical assistance benefits for prenatal care, childbirth and neonatal care.
3. A statement that it is unlawful for any person to coerce a woman to undergo an abortion.
4. A statement that any physician who performs an abortion on a woman without obtaining the woman's voluntary and informed consent or without affording her a private medical consultation may be liable to the woman for damages in a civil action.
5. A statement that the father of a child is liable to assist in the support of that child, even if the father has offered to pay for an abortion, and that the law allows adoptive parents to pay costs of prenatal care, childbirth and neonatal care.
6. Information that is designed to inform the woman of the probable anatomical and physiological characteristics of the unborn child at two‑week gestational increments from fertilization to full term, including pictures or drawings representing the development of unborn children at two‑week gestational increments and any relevant information on the possibility of the unborn child's survival. The pictures or drawings must contain the dimensions of the unborn child and must be realistic and appropriate for each stage of pregnancy. The information provided pursuant to this paragraph must be objective, nonjudgmental and designed to convey only accurate scientific information about the unborn child at the various gestational ages.
7. Objective information that describes the methods of abortion procedures commonly employed, the medical risks commonly associated with each procedure, the possible detrimental psychological effects of abortion and the medical risks commonly associated with carrying a child to term.
8. Information on the potential ability of qualified medical professionals to reverse a medication abortion, including information directing women where to obtain further information and assistance in locating a medical professional who can aid in the reversal of a medication abortion explaining the efficacy of mifepristone taken alone, without a follow‑up drug as part of a two‑drug regimen, to terminate a pregnancy and advising a woman to immediately contact a physician if the woman has taken only mifepristone and questions her decision to terminate her pregnancy or seeks information regarding the health of her fetus.
D. E. An individual who is not a physician shall not perform a surgical abortion.
E. F. A person shall not write or communicate a prescription for a drug or drugs to induce an abortion or require or obtain payment for a service provided to a patient who has inquired about an abortion or scheduled an abortion until the expiration of the twenty-four‑hour reflection period required by subsection A of this section.
F. G. A person shall not intimidate or coerce in any way any person to obtain an abortion. A parent, a guardian or any other person shall not coerce a minor to obtain an abortion. If a minor is denied financial support by the minor's parents, guardians or custodian due to the minor's refusal to have an abortion performed, the minor is deemed emancipated for the purposes of eligibility for public assistance benefits, except that the emancipated minor may not use these benefits to obtain an abortion.
G. H. An abortion clinic as defined in section 36‑449.01 shall conspicuously post signs that are visible to all who enter the abortion clinic, that are clearly readable and that state it is unlawful for any person to force a woman to have an abortion and a woman who is being forced to have an abortion has the right to contact any local or state law enforcement or social service agency to receive protection from any actual or threatened physical, emotional or psychological abuse. The signs shall be posted in the waiting room, consultation rooms and procedure rooms.
H. I. A person shall not require a woman to obtain an abortion as a provision in a contract or as a condition of employment.
I. J. A physician who knowingly violates this section commits an act of unprofessional conduct and is subject to license suspension or revocation pursuant to title 32, chapter 13 or 17.
J. K. In addition to other remedies available under the common or statutory law of this state, any of the following may file a civil action to obtain appropriate relief for a violation of this section:
1. A woman on whom an abortion has been performed without her informed consent as required by this section.
2. The father of the unborn child if the father was married to the mother at the time she received the abortion, unless the pregnancy resulted from the plaintiff's criminal conduct.
3. The maternal grandparents of the unborn child if the mother was not at least eighteen years of age at the time of the abortion, unless the pregnancy resulted from the plaintiff's criminal conduct.
K. L. A civil action filed pursuant to subsection J K of this section shall be brought in the superior court in the county in which the woman on whom the abortion was performed resides and may be based on a claim that failure to obtain informed consent was a result of simple negligence, gross negligence, wantonness, wilfulness, intention or any other legal standard of care. Relief pursuant to subsection J K of this section includes the following:
1. Money damages for all psychological, emotional and physical injuries resulting from the violation of this section.
2. Statutory damages in an amount equal to five thousand dollars or three times the cost of the abortion, whichever is greater.
3. Reasonable attorney fees and costs.
L. M. A civil action brought pursuant to this section must be initiated within six years after the violation occurred.
Sec. 6. Legislative findings
A. The legislature finds that:
1. The state of Arizona has a legitimate concern for the public's health and safety. Williamson v. Lee Optical, 348 U.S. 483, 486 (1955); Cohen v. State, 121 Ariz. 6, 10, 588 P.2d 299, 303 (1978).
2. The state of Arizona "has legitimate interests from the outset of the pregnancy in protecting the health of women." Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833, 846 (1992); see also Planned Parenthood Arizona, Inc. v. American Ass'n of Pro-Life Obstetricians & Gynecologists, 257 P.3d 181, 194 (Ariz. App. Div. 1, 2011). More specifically, Arizona "has a legitimate concern with the health of women who undergo abortions." Akron v. Akron Ctr. for Reproductive Health, Inc., 462 U.S. 416, 428-29 (1983).
3. The use of mifepristone presents significant medical risks to women, including but not limited to C. sordellii bacterial infection, septic shock, toxic shock syndrome, adult respiratory distress syndrome from sepsis, Escheria coli sepsis, group B Streptococcus septicemia, disseminated intravascular coagulopathy (DIC) with heptic and renal failure, severe pelvic infection and massive hemorrhage.
4. Abortion-inducing drugs are associated with an increased risk of complications relative to surgical abortion. The risk of complications increases with increasing gestational age, and, in the instance of mifepristone, with failure to complete the two-step dosage process.
5. Section 36-449.03, subsection E, paragraph 6, Arizona Revised Statutes, as added by Laws 2012, chapter 250, section 2, is preliminarily enjoined.
6. Recent developments by the United States food and drug administration have led to expanded limits for the use of abortion‑inducing drugs, specifically in regard to its revised regimen for the use of Mifeprex (mifepristone).
7. Abortion providers challenging section 36‑2153, subsection A, paragraph 2, subdivisions (h) and (i) and subsection C, paragraph 8, Arizona Revised Statutes, as added by Laws 2015, chapter 87, section 4, admit in court filings that "women can carry to term after taking mifepristone alone", "mifepristone was never approved for use on its own in an abortion, and it is not currently used for such, because it is not sufficiently effective unless used in combination with misoprostol", "mifepristone has never been — and is not now — considered to be a sufficiently effective abortifacient on its own" and "the range of continuing pregnancies after mifepristone alone may be anywhere from between 20 percent and 80 percent." Supplemental Declaration of Courtney Schreiber, M.D., M.P.H., Case No. CV-15-01022-PHX-SPL, FN 15, ¶¶ 22, 24; Deposition of Courtney A. Schreiber, M.D., 10/1/2015, page 214.
B. For the reasons prescribed in subsection A of this section, the legislature's purposes in enacting this legislation include:
1. Resolving pending litigation.
2. Providing time for the legislature to research and examine how to best protect the health and safety of women who may choose to have a medication abortion.
3. Ensuring that women who may question their decision to have a medication abortion after taking mifepristone alone are properly informed, consistent with what abortion providers admit in court filings, that the use of mifepristone alone to end a pregnancy is not always effective."
Renumber to conform
Amend title to conform