MISSISSIPPI LEGISLATURE

2000 Regular Session

To: Public Health and Welfare; Appropriations

By: Representative Ketchings

AN ACT ENTITLED THE PROTECTION FROM HIGH RISK AND COERCIVE ABORTION ACT; TO PROVIDE DEFINITIONS; TO DEFINE THE APPLICABLE STANDARD OF CARE FOR ABORTIONS; TO PROVIDE SCREENING OF RISK FACTORS FOR ALL ABORTIONS EXCEPT IN THE CASE OF A MEDICAL EMERGENCY; TO REQUIRE THE STATE DEPARTMENT OF HEALTH TO MAINTAIN AN ABORTION INFORMATION DEPOSITORY; TO REQUIRE ABORTION PROVIDERS TO REGISTER PROOF OF INSURANCE WITH THE STATE DEPARTMENT OF HEALTH; TO PROVIDE CIVIL CAUSES OF ACTION AND CIVIL REMEDIES FOR THE FAILURE TO COMPLY WITH THE PROVISIONS OF THIS ACT; TO PROVIDE FOR THE RIGHT OF INTERVENTION IN ANY CONSTITUTIONAL ACTION AGAINST THE ENFORCEMENT OF THIS ACT; AND FOR RELATED PURPOSES.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:

SECTION 1. Short title. This act may be cited as the "Protection From High Risk and Coercive Abortion Act."

SECTION 2. Definitions. The following words and phrases shall have the meanings ascribed in this section unless the context clearly indicates otherwise:

(a) "Abortion" means the use or prescription of any instrument, medicine, drug or any other substance or device to terminate the pregnancy of a woman 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) "Medical emergency" means that condition which, on the basis of the physician's best clinical judgment, so complicates a pregnancy as to necessitate an immediate abortion to avert the death of the mother or for which a twenty-four-hour delay will create grave peril of immediate and irreversible loss of major bodily function.

(c) "Abortion providers" means any physician or entity that performs or provides abortions. For purposes of this act abortion providers shall also include any entity that refers for abortions as a normal part of their business at least ten (10) times per year.

(d) "Risk factor" means any physical, psychological, behavioral or situational factor which may predispose an individual woman to experience, or increase the risk of an individual woman experiencing, one or more adverse emotional or physical reactions to the abortion, in either the short or long term, compared to a woman who does not possess this risk factor.

(e) "High risk patient" means any patient for whom one or more risk factors exist.

(f) "Self-induced abortion" means any abortion or menstrual extraction attempted or completed by a woman on her own body.

(g) "Qualified person" means a licensed physician or an agent of the abortion practitioner who is a licensed psychologist, licensed social worker, licensed professional counselor, or licensed registered nurse.

SECTION 3. Screening requirements. Except in the case of a medical emergency, in addition to whatever requirements exist under the common or statutory law of this state consent to abortion is informed, voluntary and free from negligent and unnecessary exposure to risks if and only if all of the following are true:

(a) Before the physician recommends or performs an abortion, a qualified person has evaluated the woman to identify the presence of any known or suspected risk factors and informed her and the physician, in writing, of the results of this evaluation. This screening for risk factors shall normally include, but not be limited to, the following: gonorrhea or chlamydia infection; a family history of breast cancer; prior history of gestational trophoblastic tumor; history of caesarean section; a history of prior abortion; adolescence; feelings of being pressured to have the abortion; feelings of emotional attachment to the unborn child; a history of prior psychological illness or emotional instability; lack of support from the partner or parents; moral or religious convictions against abortion; a second or third-trimester pregnancy; low expectations of coping well.

(b) In the event that any risk factors were identified, the patient has been fully informed by a qualified person which risk factors exist, why these risk factors may lead to adverse reactions, and a detailed explanation of what adverse reactions may occur. This explanation shall include quantifiable risk rates whenever relevant data exists in the detail that a reasonable patient would consider material to the decision of whether or not to undergo the abortion.

(c) In the event that any risk factors were identified, the qualified person who has provided the screening and counseling provided a written statement to the patient and the physician certifying, to the best of the qualified person's knowledge, that the patient fully understands and appreciates the significance of the risk factors discussed and her increased exposure to the related adverse reactions. The risk factors and related reactions shall be listed in this certificate.

SECTION 4. Abortion Information Depository. (1) The State Department of Health shall maintain receipt-date stamped files containing the following:

(a) Proof of insurance certificates filed by abortion providers.

(b) At least one (1) copy of each edition of any document submitted by any individual, organization or other entity regarding:

(i) Known or claimed adverse effects of abortion;

(ii) Predisposing risk factors to post-abortion sequelae;

(iii) Alternative management techniques for crisis pregnancies;

(iv) Reports of monetary awards and settlements in civil actions against abortion providers which shall be used as a basis for the determination of adequate proof of insurance;

(v) Any other information which would be relevant to a reasonable patient or to the standard of care offered by abortion providers.

(2) The State Department of Health shall maintain an index of the documents placed into the Abortion Information Depository, including the date of submission.

(3) All the documents described in this section shall be available for public inspection during normal business hours.

(4) Copies of any document filed in the Abortion Information Depository shall be made available to the public at actual cost and in accordance with copyright laws.

SECTION 5. Insurance requirements. (a) Physicians who perform abortions must have admitting privileges at a hospital which, in the event of a medical emergency, is reasonably accessible to the site at which the abortion is performed.

(b) All professional corporations and freestanding clinics which provide more than ten (10) abortions per year must register with the Department of Public Health proof of insurance covering all employees, contract workers, and volunteers who have contact with abortion patients in an amount of not less than Two Million Dollars ($2,000,000.00).

SECTION 6. Civil remedies. (1) In addition to whatever remedies are available under the common or statutory laws of this state, the failure to comply with the requirements of this act and Section 41-41-33 shall provide a basis for the following:

(a) A civil action by any person suffering damages as a result of a failure to provide care under the standards of care defined in this act. Any intentional or negligent violation of this act shall be admissible in a civil suit as prima facie evidence of a failure to obtain a voluntary and informed consent and shall entitle the woman or her survivors to actual damages or Ten Thousand Dollars ($10,000.00) for each violation, at her option, plus punitive damages and reasonable attorney's fees and costs.

(b) Recovery for the woman for the death of her unborn child under the Wrongful Death Act, whether or not the unborn child was viable at the time of the abortion and whether or not the child was born alive, upon proving by the preponderance of evidence that the abortion provider knew or should have known that patient's consent to the abortion was either not informed and or not voluntary.

(2) Any action for civil remedies based on a failure to comply with the requirements of this act and Section 41-41-33 must be brought within four (4) years after the date at which the woman becomes, or should have been, aware that the abortion was the probable or contributory cause of a physical or emotional complication and has recovered from any psychological complication which may impede the patient's ability adequately to pursue a civil remedy.

(3) Notwithstanding the provisions of subsection (2) of this section, in the case of a woman who has died, any action under this act shall be brought within four (4) years of her death.

(4) No abortion provider shall be held liable for any claim of injury based on the premise that too much information was provided to the patient, provided said information was accurate or reasonably assumed to be accurate.

(5) If the physician provided a minor patient with an abortion without the informed consent of the minor's legal guardian the burden of proving that the minor woman was capable of maturely and independently evaluating the information given to her in the disclosure process, that the minor woman was capable of making a voluntary and informed choice, and that all aspects of the screening and disclosure were adequate shall fall upon the abortion providers.

(6) If the physician provided the patient with less than twenty-four (24) hours for reflection time to comprehend and consider all the information this act requires, the burden of proving that the woman had sufficient reflection time, given her age, level of maturity, emotional state, and mental capacity shall fall upon the abortion providers.

(7) In a civil action involving this act and Section 41-41-33:

(a) In determining liability, the absence of voluntary and fully informed consent shall create the presumption that the plaintiff would not have undertaken the recommended abortion.

(c) Any abortion provider that makes referrals to a physician whose practice is inside or outside this state shall be liable for ensuring that the party to whom the abortion provider refers the patient provides a standard of care equal to or better than the standard defined by this act.

(8) In addition to whatever remedies are available under the common or statutory laws of this state, a woman, or her survivors, who attempted or completed a self-abortion, except as legally prescribed by a physician, will have a cause of action for reckless endangerment against any person, who provided, distributed or sold medical advice to her with the intent to assist or encourage her in performing a self-induced abortion. Upon establishing as a finding of fact or by a preponderance of evidence that a defendant who is not a physician provided, distributed or sold medical advice with the intent to assist others to perform illegal or self-induced abortions, plaintiff shall be awarded not less than Four Hundred Thousand Dollars ($400,000.00) for reckless endangerment. Proof of injury shall not be required to recover an award for reckless endangerment under this statute.

(9) In addition to whatever remedies are available under the common or statutory laws of this state and in the event that an abortion is attempted or completed by a person who is not a licensed physician, the woman upon whom the abortion was attempted or completed, or her survivors, will have a cause of action against said person. Upon establishing by the preponderance of evidence that said person was not a licensed physician and attempted or completed an abortion on the woman, the plaintiff shall be awarded not less than Eight Hundred Thousand Dollars ($800,000.00) for reckless endangerment. Proof of injury shall not be required to recover an award for reckless endangerment under this statute.

SECTION 7. Severability. If any one or more provision, section, subsection, sentence, clause, phrase or word of this 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 this act shall remain effective notwithstanding such unconstitutionality. The Legislature hereby declares that it would have passed this 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.

SECTION 8. Construction. (1) Nothing in this act shall be construed as creating or recognizing a right to abortion.

(2) It is not the intention of this law to make lawful an abortion that is currently unlawful.

SECTION 9. Right of intervention. The Legislature, by joint resolution, may appoint one (1) of its members who sponsored or cosponsored this act in his official capacity to intervene as a matter of right in any case in which the constitutionality of this law is challenged.

SECTION 10. Effective date. (1) This act shall take effect and be in force ninety (90) days after becoming law.

(2) In the event that any portion of this act is enjoined and subsequently upheld, the running of the statute of limitations for filing civil suit under the provisions of this statute shall be tolled during the pendency of the injunction and for four (4) years thereafter.