45th legislature - STATE OF NEW MEXICO - first session, 2001

RELATING TO ABORTION; ENACTING THE INFORMED CHOICE ACT; REQUIRING INFORMED CONSENT AS A PREREQUISITE TO ABORTION; PROVIDING PENALTIES.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:

Section 1. SHORT TITLE.--This act may be cited as the "Informed Choice Act".

Section 2. DEFINITIONS.--As used in the Informed Choice Act:

A. "abortion" means the use or prescription of an instrument, medicine, drug or any other substance or device intentionally to terminate the pregnancy of a female known to be pregnant with an intention other than to increase the probability of a live birth, to preserve the life or health of the child after live birth or to remove a dead fetus;

B. "attempt to perform an abortion" means an act, or an omission of a statutorily required act, that, under the circumstances as the actor believes them to be, constitutes a substantial step in a course of conduct planned to culminate in the performance of an abortion;

C. "medical emergency" means any condition that, on the basis of the physician's good faith clinical judgment, so complicates the medical condition of a pregnant female as to necessitate the immediate abortion of her pregnancy to avert her death or for which a delay will create serious risk of substantial and irreversible impairment of a major bodily function;

D. "physician" means a physician or osteopathic physician licensed in New Mexico; and

E. "probable gestational age of the unborn child" means what, in the judgment of the physician, will with reasonable probability be the gestational age of the unborn child at the time the abortion is planned to be performed.

Section 3. INFORMED CONSENT.--No abortion shall be performed in New Mexico except with the voluntary and informed consent of the female 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:

A. the female is told the following, by telephone or in person, by the physician who is to perform the abortion or by referring physician, at least twenty-four hours before the abortion:

(1) the name of the physician who will perform the abortion;

(2) the particular medical risks associated with the particular abortion procedure to be employed, including, when medically accurate, the risks of infection, hemorrhage, breast cancer, danger to subsequent pregnancies and infertility;

(3) the probable gestational age of the unborn child at the time the abortion is to be performed; and

(4) the medical risks associated with carrying her child to term.

The information required by this subsection may be provided by telephone without conducting a physical examination or test of the patient, in which case the information required to be provided may be based on facts supplied to the physician by the female and whatever other relevant information is reasonably available to the physician. It may not be provided by a tape recording, but shall be provided during a consultation in which the physician is able to ask questions of the female and the female is able to ask questions of the physician. If a physical examination, tests or the availability of other information to the physician subsequently indicates, in the medical judgment of the physician, revision of the information previously supplied to the patient, that revised information may be communicated to the patient at any time prior to the performance of the abortion. Nothing in this section may be construed to preclude provision of required information in a language understood by the patient through a translator;

B. the female is informed, by telephone or in person, by the physician who is to perform the abortion, by a referring physician or by an agent of either physician at least twenty-four hours before the abortion that:

(1) medical assistance benefits may be available for prenatal care, childbirth and neonatal care;

(2) the father is liable to assist in the support of her child, even in instances in which the father has offered to pay for the abortion; and

(3) she has the right to review the printed materials described in Section 4 of the Informed Choice Act.

The physician or the physician's agent shall orally inform the female that the materials have been provided by the state and that they describe the unborn child and list agencies that offer alternatives to abortion. If the female chooses to view the materials, they shall either be given to her at least twenty-four hours before the abortion or mailed to her at least seventy-two hours before the abortion by certified mail, restricted delivery to addressee, which means the postal employee can only deliver the mail to the addressee.

The information required by this subsection may be provided by a tape recording if provision is made to record or otherwise register specifically whether the female does or does not choose to review the printed materials;

C. the female certifies in writing, prior to the abortion, that the information described in Subsections A and B of this section has been furnished to her and that she has been informed of her opportunity to review the information referred to in Paragraph (3) of Subsection B of this section; and

D. prior to the performance of the abortion, the physician who is to perform the abortion or the physician's agent receives a copy of the written certification prescribed by Subsection C of this section.

Section 4. PRINTED INFORMATION.--

A. Within ninety days after the effective date of the Informed Choice Act, the department of health shall publish, in English and in each language that is the primary language of two percent or more of the state's population, the following printed materials in such a way as to ensure that the information is easily comprehensible:

(1) geographically indexed information on public and private agencies and services available to assist a female through pregnancy, upon childbirth and while the child is dependent, including adoption agencies, which shall include a comprehensive list of the agencies available, a description of the services they offer and a description of the manner, including telephone numbers, in which they might be contacted or, at the option of the department of health, printed materials, including a toll-free twenty-four-hour-a-day telephone number that may be called to obtain orally such a list and description of agencies in the locality of the caller and of the services they offer; and

(2) materials designed to inform the female of the probable anatomical and physiological characteristics of the unborn child at two-week gestational increments from the time when a female can be known to be pregnant to full term, including relevant information on the possibility of the unborn child's survival and pictures or drawings representing the development of unborn children at two-week gestational increments, provided that such pictures or drawings must contain the dimensions of the fetus and must be realistic and objective, nonjudgmental and designed to convey only accurate scientific information about the unborn child at the various gestational ages. The material shall also contain objective information describing the methods of abortion procedures commonly employed, 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 child to term.

B. The materials referred to in Subsection A of this section shall be printed in a typeface large enough to be clearly legible.

C. The materials required under this section shall be available at no cost from the department of health upon request and in appropriate number to any person, facility or hospital.

Section 5. PROCEDURE IN CASE OF MEDICAL EMERGENCY.--When a medical emergency compels the performance of an abortion, the physician shall inform the female, prior to the abortion if possible, of the medical indications supporting the physician's judgment that an abortion is necessary to avert her death or that a twenty-four-hour delay will create serious risk of substantial and irreversible impairment of a major bodily function.

Section 6. REPORTING REQUIREMENTS.--

A. Within ninety days after the effective date of the Informed Choice Act, the department of health shall prepare a reporting form for physicians containing a reprint of the Informed Choice Act and listing:

(1) the number of females to whom the physician provided the information described in Subsection A of Section 3 of the Informed Choice Act; of that number, the number provided by telephone and the number provided in person; and of each of those numbers, the number provided in the capacity of a referring physician and the number provided in the capacity of a physician who is to perform the abortion;

(2) the number of females to whom the physician or an agent of the physician provided the information described in Subsection B of Section 3 of the Informed Choice Act; of that number, the number provided by telephone and the number provided in person; of each of those numbers, the number provided in the capacity of a referring physician and the number provided in the capacity of a physician who is to perform the abortion; and of each of those numbers, the number provided by the physician and the number provided by an agent of the physician;

(3) the number of females who availed themselves of the opportunity to obtain a copy of the printed information described in Section 4 of the Informed Choice Act and the number who did not; and of each of those numbers, the number who, to the best of the reporting physician's information and belief, went on to obtain the abortion; and

(4) the number of abortions performed by the physician in which information otherwise required to be provided at least twenty-four hours before the abortion was not so provided because an immediate abortion was necessary to avert the female's death and the number of abortions in which such information was not so provided because a delay would create serious risk of substantial and irreversible impairment of a major bodily function.

B. The department of health shall ensure that copies of the reporting forms described in Subsection A of this section are provided:

(1) within one hundred twenty days after the effective date of the Informed Choice Act, to all physicians licensed to practice in New Mexico;

(2) to each physician who subsequently becomes newly licensed to practice in New Mexico, at the same time as official notification to the physician that the physician is so licensed; and

(3) by December 1 of each year, other than the calendar year in which forms are distributed in accordance with Paragraph (1) of this subsection, to all physicians licensed to practice in New Mexico.

C. By February 28 of each year following a calendar year in any part of which the Informed Choice Act was in effect, each physician who provided, or whose agent provided, information to one or more females in accordance with Section 3 of the Informed Choice Act during the previous calendar year shall submit to the department of health a copy of the reporting form described in Subsection A of this section, with the requested data entered accurately and completely.

D. Reports submitted after a grace period of thirty days following the due date shall be subject to a late fee of five hundred dollars ($500) for each additional thirty-day period or portion of a thirty-day period they are overdue. A physician required to report in accordance with this section who has not submitted a report, or has submitted only an incomplete report, more than one year following the due date, may, in an action brought by the department of health, be directed by a court of competent jurisdiction to submit a complete report within a period stated by court order or be subject to sanctions for civil contempt.

E. By June 30 of each year, the department of health shall issue a public report providing statistics for the previous calendar year compiled from all of the reports covering that year submitted in accordance with this section for each of the items listed in Subsection A of this section. Each such report shall also provide the statistics for all previous calendar years, adjusted to reflect any additional information from late or corrected reports. The department shall take care to ensure that none of the information included in the public reports could reasonably lead to the identification of a physician submitting a report in accordance with this section or of an individual provided information in accordance with Subsection A or B of Section 3 of the Informed Choice Act.

F. The department of health may by rule alter the dates established by Paragraph (3) of Subsection B, C or E of this section or consolidate the forms or reports described in this section with other forms or reports to achieve administrative convenience or fiscal savings or to reduce the burden of reporting requirements, so long as reporting forms are sent to all licensed physicians in the state at least once every year and the report described in Subsection E of this section is issued at least once every year.

Section 7. CRIMINAL PENALTIES.--A person who knowingly or recklessly performs or attempts to perform an abortion in violation of the Informed Choice Act is guilty of a felony. A physician who knowingly or recklessly submits a false report under Subsection C of Section 6 of the Informed Choice Act is guilty of a misdemeanor. No penalty may be assessed against the female upon whom the abortion is performed or attempted to be performed. No penalty or civil liability may be assessed for failure to comply with Paragraph (3) of Subsection B of Section 3 or that portion of Subsection C of Section 3 of the Informed Choice Act requiring a written certification that the female has been informed of her opportunity to review the information referred to in Paragraph (3) of Subsection B of Section 3 of the Informed Choice Act unless the department of health has made the printed materials available at the time the physician or the physician's agent is required to inform the female of her right to review them.

Section 8. CIVIL REMEDIES.--

A. A female upon whom an abortion has been performed without complying with the Informed Choice Act, the father of the unborn child who was the subject of such an abortion or the grandparent of such an unborn child may maintain an action against the person who performed the abortion in knowing or reckless violation of that act for actual and punitive damages. A female upon whom an abortion has been attempted without complying with that act may maintain an action against the person who attempted to perform the abortion in knowing or reckless violation of that act for actual and punitive damages.

B. If the department of health fails to issue the public report required by Subsection E of Section 6 of the Informed Choice Act, any group of ten or more citizens of the state may seek an injunction in a court of competent jurisdiction against the secretary of health requiring that a complete report be issued within a period stated by the court order. Failure to abide by such an injunction shall subject the secretary to sanctions for civil contempt.

C. If judgment is rendered in favor of the plaintiff in any action described in this section, the court shall also render judgment for a reasonable attorney fee in favor of the plaintiff against the defendant. If judgment is rendered in favor of the defendant and the court finds that the plaintiff's suit was frivolous and brought in bad faith, the court shall also render judgment for a reasonable attorney fee in favor of the defendant against the plaintiff.

Section 9. PROTECTION OF PRIVACY IN COURT PROCEEDINGS.--In every civil or criminal proceeding or action brought pursuant to the Informed Choice Act, the court shall rule whether the anonymity of any female upon whom an abortion has been performed or attempted shall be preserved from public disclosure if she does not give her consent to such disclosure. The court, upon motion or sua sponte, shall make such a ruling and, upon determining that her anonymity should be preserved, shall issue orders to the parties, witnesses and counsel and shall direct the sealing of the record and exclusion of individuals from courtrooms or hearing rooms to the extent necessary to safeguard her identity from public disclosure. Each order shall be accompanied by specific written findings explaining why the anonymity of the female should be preserved from public disclosure, why the order is essential to that end, how the order is narrowly tailored to serve that interest and why no reasonable less restrictive alternative exists. In the absence of written consent of the female upon whom an abortion has been performed or attempted, anyone, other than a public official, who brings an action under Subsection A of Section 8 of the Informed Choice Act shall do so under a pseudonym. This section does not require concealment of the identity of the plaintiff or of witnesses from the defendant.

Section 10. SEVERABILITY.--If any part or application of the Informed Choice Act is held invalid, the remainder or its application to other situations or persons shall not be affected.