HOUSE BILL 122

51st legislature - STATE OF NEW MEXICO - first session, 2013

INTRODUCED BY

Nora Espinoza

 

 

 

 

 

AN ACT

RELATING TO ABORTION; ENACTING THE WOMAN'S RIGHT TO KNOW ACT; SPECIFYING REQUIREMENTS FOR INFORMED CONSENT THAT INCLUDE INFORMATION TO BE PROVIDED TO THE PREGNANT FEMALE BY THE REFERRING PHYSICIAN, THE PHYSICIAN PERFORMING THE ABORTION AND THEIR AGENTS; MANDATING AN ULTRASOUND AND THE USE OF A FETAL MONITOR TO MAKE THE FETAL HEARTBEAT AUDIBLE TO THE PREGNANT FEMALE; REQUIRING A CERTIFICATION FROM THE PREGNANT FEMALE THAT SHE HAS BEEN FURNISHED WITH REQUIRED INFORMATION; MANDATING THE DEVELOPMENT AND MAINTENANCE OF A DEPARTMENT OF HEALTH WEB SITE TO PROVIDE REQUIRED INFORMATION TO THE PREGNANT FEMALE; MANDATING REQUIREMENTS FOR ABORTION PROVIDER WEB SITES; MANDATING REPORTING BY PHYSICIANS TO THE DEPARTMENT OF HEALTH TO DEMONSTRATE THAT THEY HAVE PROVIDED THE REQUIRED INFORMATION TO PREGNANT FEMALES AND TO PROVIDE STATISTICS ON INFORMED CONSENT FOR ABORTION; REQUIRING THE DEPARTMENT OF HEALTH TO ANNUALLY REPORT STATISTICS ON INFORMED CONSENT FOR ABORTION; IMPOSING PENALTIES ON PHYSICIANS FOR FAILURE TO REPORT OR LATE REPORTING OF REQUIRED INFORMATION; IMPOSING CRIMINAL PENALTIES FOR THE KNOWING OR RECKLESS PERFORMANCE OF AN ABORTION IN VIOLATION OF THE ACT; PROVIDING CIVIL REMEDIES FOR THE PREGNANT FEMALE, THE FATHER OF THE UNBORN CHILD AND GRANDPARENTS OF THE UNBORN CHILD FOR VIOLATIONS OF THE ACT; AUTHORIZING ACTUAL AND PUNITIVE DAMAGES FOR KNOWING OR RECKLESS VIOLATION OF THE ACT AND ATTORNEY FEES TO THE PREVAILING PARTY; CREATING A RIGHT OF ACTION TO COMPEL THE DEPARTMENT OF HEALTH TO COMPILE AN ANNUAL REPORT; MAKING PROVISIONS TO PROTECT THE PRIVACY OF FEMALES UPON WHOM AN ABORTION HAS BEEN ATTEMPTED OR PERFORMED IN COURT PROCEEDINGS BROUGHT UNDER THE ACT.

 

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

     SECTION 1. SHORT TITLE.--This act may be cited as the "Woman's Right to Know Act".

     SECTION 2. DEFINITIONS.--As used in the Woman's Right to Know Act:

          A. "abortion" means the use or prescription of any 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, to remove an ectopic pregnancy or to remove a dead unborn child who died as a result of a spontaneous abortion, accidental trauma or a criminal assault on the pregnant female or her unborn child;

          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 in New Mexico in violation of this act;

          C. "abortion provider" means any person legally qualified to perform an abortion under New Mexico law;

          D. "certified technician" means:

                (1) a registered diagnostic medical sonographer who is certified in obstetrics and gynecology by the American registry for diagnostic medical sonography; or

                (2) a nurse-midwife or an advanced-practice nurse practitioner in obstetrics, with certification in obstetrical ultrasonography;

          E. "embryonic or fetal heartbeat" means embryonic or fetal cardiac activity or the steady and repetitive rhythmic contraction of the embryonic or fetal heart;

          F. "medical emergency" means a condition which, in reasonable medical judgment, so complicates the medical condition of the pregnant woman 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 physical impairment of a major bodily function, not including psychological or emotional conditions. No condition shall be deemed a medical emergency if based on a claim or diagnosis that the woman will engage in conduct which she intends to result in her death or in substantial and irreversible physical impairment of a major bodily function;

          G. "physician" means a physician licensed under the Medical Practice Act or an osteopathic physician licensed by the board of osteopathic medical examiners;

          H. "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; and

          I. "stable internet web site" means a web site that, to the extent reasonably practicable, is safeguarded from having its content altered other than by the department of health.

     SECTION 3. INFORMED CONSENT.--

          A. No abortion shall be performed in this state 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 the female is told the following, by telephone or in person, by the physician who is to perform the abortion or by a 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.

          B. The information required by Subsection A of this section may be provided by telephone without conducting a physical examination or tests of the patient, in which case the information required to be provided may be based on facts supplied the physician by the female and whatever other relevant information is reasonably available to the physician.

          C. The information required by Subsection A of this section may not be provided by a tape recording, but must 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.

          D. If a physical examination, tests or the availability of other information to the physician subsequently indicate, in the medical judgment of the physician, a 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.

          E. Nothing in this section may be construed to preclude provision of required information in a language understood by the patient through a translator.

          F. The female shall be 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 legally responsible 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 Woman's Right to Know Act, that these materials are available on a state-sponsored web site and what the web site address is.

          G. The physician or the physician's agent shall orally inform the female that the materials have been provided by the state of New Mexico, that they describe the unborn child and list agencies which offer alternatives to abortion and are available on the department of health web site.

          H. If the female chooses to view the materials other than on the department of health web site, the materials 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.

          I. The information required by Subsection F of this section 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 have the printed materials given or mailed to her.

          J. The female shall certify in writing, prior to the abortion, that the information described in Subsections A and F 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 F of this section.

          K. Prior to the performance of the abortion, the physician who is to perform the abortion or the physician's agent shall receive a copy of the written certification described by Subsection J of this section.

     SECTION 4. PRINTED INFORMATION.--

          A. Within ninety days after the Woman's Right to Know Act is enacted, the department of health shall cause to be published, in English and in each language which is the primary language of two percent or more of the state's population, and shall cause to be available on the web site provided for in Section 7 of the Woman's Right to Know Act, the following printed materials in such a way as to ensure that the information is easily comprehensible:

                (1) geographically indexed materials designed to inform the female of 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 which 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 any 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 any such pictures or drawings must contain the dimensions of the fetus and must be realistic and appropriate for the stage of pregnancy depicted. The materials shall be 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, the medical risks commonly associated with each such procedure 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. The web site provided for in Section 7 of the Woman's Right to Know Act shall be maintained at a minimum resolution of seventy dots per inch. All pictures appearing on this web site shall be a minimum of two hundred by three hundred pixels. All letters on the web site shall be a minimum of eleven-point font. All information and pictures shall be accessible with an industry standard browser, requiring no additional plug-ins.

          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. ULTRASOUND REQUIREMENT.--

          A. Prior to a woman giving informed consent to having any part of an abortion performed or induced, and prior to the administration of any anesthesia or medication in preparation for the abortion on the woman, the physician who is to perform the abortion or a certified technician shall:

                (1) perform an obstetric ultrasound on the pregnant woman, using whichever method the physician and patient agree is best under the circumstance;

                (2) provide a simultaneous verbal explanation of what the ultrasound is depicting, which shall include the presence and location of the unborn child within the uterus and the number of unborn children depicted. If the ultrasound image indicates that fetal demise has occurred, a woman shall be informed of that fact;

                (3) display the ultrasound images so that the pregnant female may view them;

                (4) provide a medical description of the ultrasound images, which shall include the dimensions of the embryo or fetus and external members and internal organs, if present and visible;

                 (5) obtain a written certification from the female, prior to the abortion, that the requirements of Paragraphs (1) through (4) of this subsection have been complied with; and

                (6) retain a copy of the written certification prescribed by Paragraph (5) of this subsection. The certification shall be placed in the medical file of the female and shall be kept by the abortion provider for a period of not less than seven years. If the female is a minor, then the certification shall be placed in the medical file of the minor and kept for at least seven years or for five years after the minor reaches the age of majority, whichever is longer.

          B. Nothing in this section shall be construed to prevent a pregnant female from averting her eyes from the ultrasound images required to be provided to and reviewed with her. Neither the physician nor the pregnant female shall be subject to any penalty if she refuses to look at the presented ultrasound images.

     SECTION 6. AUDIBLE EMBRYONIC OR FETAL HEARTBEAT REQUIREMENT.--

          A. Prior to a woman giving informed consent to having any part of an abortion performed or induced, if the pregnancy is at least eight weeks after fertilization, the abortion provider who is to perform or induce the abortion, a certified technician or another agent of the abortion provider shall, using a hand-held Doppler fetal monitor, make the embryonic or fetal heartbeat of the unborn child audible for the pregnant woman to hear.

          B. A physician, a certified technician or another agent of the physician shall not be in violation of Subsection A of this section if:

                (1) the physician, certified technician or agent has attempted, consistent with standard medical practice, to make the embryonic or fetal heartbeat of the unborn child audible for the pregnant woman to hear using a hand-held Doppler fetal monitor;

                (2) that attempt does not result in the heartbeat being made audible; and

                (3) the physician has offered to attempt to make the heartbeat audible at a subsequent date.

          C. Nothing in this section shall be construed to prevent the pregnant woman from not listening to the sounds detected by the hand-held Doppler fetal monitor pursuant to Subsection A of this section.

     SECTION 7. INTERNET WEB SITE.--

          A. The department of health shall develop and maintain a stable internet web site to provide the information described in Section 4 of the Woman's Right to Know Act. No information regarding who uses the web site shall be collected or maintained. The department of health shall monitor the web site on a daily basis to prevent and correct tampering and shall immediately notify abortion providers of any change in the location of the material on the web site.

          B. The web site:

                (1) must use enhanced, user-friendly search capabilities to ensure that the information described in Section 4 of the Woman's Right to Know Act is easily accessible and must be searchable by keywords and phrases, specifically to ensure that entering the term "abortion" yields the Woman's Right to Know Act Section 4 materials, regardless of how these materials are labeled;

                (2) must ensure that the Woman's Right to Know Act Section 4 materials are printable;

                (3) must give clear prominent instructions on how to receive the information in printed form; and

                (4) must be accessible to the public without requiring registration or use of a user name, password or another user identification.

     SECTION 8. ABORTION PROVIDER WEB SITE.--If an abortion provider has a web site, the abortion provider's internet web site home page, by use of at least two direct links, one of which is posted prominently, must link to the department of health informed consent materials on the department's internet web site.

     SECTION 9. 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 physical impairment of a major bodily function, not including psychological or emotional conditions.

     SECTION 10. REPORTING REQUIREMENTS.--

          A. Within ninety days after the Woman's Right to Know Act is enacted, the department of health shall prepare a form for physicians that contains a reprint of the Woman's Right to Know Act and that requires physicians to report the following:

                (1) the number of females provided with the information described in Subsection A of Section 3 of the Woman's Right to Know Act with a breakout of:

                     (a) the number of females to whom information was provided by telephone and in person; and

                     (b) an indication of whether the information was provided by the referring physician or the physician who performed the abortion;

                (2) the number of females provided with the information described in Subsection F of Section 3 of the Woman's Right to Know Act with a breakout of:

                     (a) the number of females to whom information was provided by telephone and in person; and

                     (b) an indication of whether the information was provided by the referring physician, the physician who performed the abortion or 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 Woman's Right to Know Act other than on the department of health web site and the number who did not, with a breakout of the number of females who, to the best of the reporting physician's information and belief, went on to obtain the abortion;

                (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

                (5) 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. Within one hundred twenty days after the Woman's Right to Know Act is enacted, the department of health shall ensure that copies of the blank reporting forms described in Subsection A of this section are provided:

                (1) to all physicians licensed to practice in New Mexico;

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

                (3) by December 1 of each year, other than the calendar year in which forms are first 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 Woman's Right to Know 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 Woman's Right to Know Act during the previous calendar year shall submit a copy of the form described in Subsection A of this section, with the requested data entered accurately and completely, to the department of health.

          D. Reports that are not submitted by the end of 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. Any physician required to report in accordance with this section who has not submitted a report, or who 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 of health shall take care to ensure that none of the information included in the public reports could reasonably lead to the identification of any individual who provided information in accordance with Subsection A of this section.

          F. The department of health may, by regulation, alter the dates established by Paragraph (3) of Subsection B, Subsection C or Subsection 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 11. CRIMINAL PENALTIES.--

          A. Any person who knowingly or recklessly performs or attempts to perform an abortion in violation of the Woman's Right to Know Act shall be guilty of a felony.

          B. Any physician who knowingly or recklessly submits a false report under Subsection C of Section 10 of the Woman's Right to Know Act shall be guilty of a misdemeanor.

          C. No penalty may be assessed against the female upon whom the abortion is performed or attempted to be performed.

          D. No penalty or civil liability may be assessed for failure to comply with:

                (1) Paragraph (3) of Subsection F and Subsection G of Section 3 of the Woman's Right to Know Act; or

                (2) that portion of Subsection J of Section 3 of the Woman's Right to Know 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 F of Section 3 of the Woman's Right to Know 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 12. CIVIL REMEDIES.--

          A. Any person upon whom:

                (1) an abortion has been attempted without complying with the Woman's Right to Know Act may maintain an action against the person who attempted to perform the abortion in knowing or reckless violation of this article for actual and punitive damages; and

                (2) any person upon whom an abortion has been performed without complying with the Woman's Right to Know 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 the Woman's Right to Know Act for actual and punitive damages.

          B. If the department of health fails to issue the public report required by Subsection E of Section 10 of this act, any person with standing 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 court order. Failure to abide by such an injunction shall subject the secretary of health to sanctions for civil contempt.

          C. A prevailing plaintiff in any action described in this section shall be entitled to reasonable attorney fees. A prevailing defendant is entitled to reasonable attorney fees upon a finding that the plaintiff's suit was frivolous and brought in bad faith.

     SECTION 13. PROTECTION OF PRIVACY IN COURT PROCEEDINGS.--           A. In every civil or criminal proceeding or action brought under the Woman's Right to Know Act, the court shall issue orders to protect the privacy and anonymity of any female upon whom an abortion has been performed or attempted if she does not give her consent to such disclosure.

          B. The court, upon motion or sua sponte, 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 the female's identity from public disclosure.

          C. Each such 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.

          D. 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 12 of the Woman's Right to Know Act shall do so under a pseudonym. This section may not be construed to conceal the identity of the plaintiff or of witnesses from the defendant.

     SECTION 14. SEVERABILITY.--If any provision, section, subsection, sentence, clause, phrase or word of the Woman's Right to Know Act or the application thereof to any person or circumstance is found to be unconstitutional, the same is hereby declared to be severable and the balance of the Woman's Right to Know Act shall remain effective notwithstanding such unconstitutionality. The legislature hereby declares that it would have passed the Woman's Right to Know Act, and each provision, section, subsection, sentence, clause, phrase or word thereof, irrespective of the fact that any one or more provision, section, subsection, sentence, clause, phrase or word be declared unconstitutional.

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