MISSISSIPPI LEGISLATURE
2012 Regular Session
To: Judiciary B
By: Representative Mims
AN ACT TO AMEND SECTION 41-41-33, MISSISSIPPI CODE OF 1972, TO REVISE THE INFORMATION THAT IS REQUIRED TO BE PROVIDED TO A WOMAN TO BE CONSIDERED AS HER INFORMED CONSENT TO HAVING AN ABORTION; TO AMEND SECTION 41-41-35, MISSISSIPPI CODE OF 1972, TO REVISE THE MATERIALS THAT ARE TO BE PROVIDED TO A WOMAN BEFORE SHE MAY HAVE AN ABORTION; TO CREATE NEW SECTION 41-41-41, MISSISSIPPI CODE OF 1972, TO PROVIDE FOR CIVIL LIABILITY AND PROFESSIONAL DISCIPLINARY ACTION FOR FAILURE TO COMPLY WITH THE REQUIREMENTS OF SECTIONS 41-41-31 THROUGH 41-41-45; TO CREATE NEW SECTION 41-41-43, MISSISSIPPI CODE OF 1972, TO REQUIRE CERTAIN REPORTS TO BE MADE TO THE STATE DEPARTMENT OF HEALTH RELATING TO ABORTIONS; TO PROVIDE PENALTIES FOR FAILURE TO MAKE THE REQUIRED REPORTS; TO AMEND SECTION 73-25-29, MISSISSIPPI CODE OF 1972, TO CONFORM TO THE PRECEDING PROVISIONS; AND FOR RELATED PURPOSES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:
SECTION 1. Section 41-41-33, Mississippi Code of 1972, is amended as follows:
41-41-33. (1) No abortion shall be performed or induced except with the voluntary and informed consent of the woman upon whom the abortion is to be performed or induced. Except in the case of a medical emergency, consent to an abortion is voluntary and informed if and only if:
(a) The woman is told the following by the physician who is to perform or induce the abortion or by the referring physician, orally and in person, at least twenty-four (24) hours before the abortion:
(i) The name of the physician who will perform or induce the abortion;
(ii) Medically-accurate information that a reasonable patient would consider material to the decision of whether or not to undergo the abortion, including:
1. A description of the proposed abortion method;
2. The immediate and long-term medical risks associated with the proposed abortion method including, but not limited to, the risks of infection, hemorrhage, cervical or uterine perforation, increased risk of breast cancer, and the danger to later pregnancies and infertility; and
3. Alternatives to the abortion;
(iii) The probable gestational age of the unborn child at the time the abortion is to be performed or induced; (iv) The probable anatomical and physiological characteristics of the unborn child at the time the abortion is to be performed or induced;
(v) The medical risks associated with carrying her child to term; and
(vi) Any need for anti-Rh immune globulin therapy if she is Rh negative, the likely consequences of refusing that therapy, and the cost of the therapy.
(b) The woman is informed, by the physician or his agent, orally and in person, at least twenty-four (24) hours before the abortion:
(i) That medical assistance benefits may be available for prenatal care, childbirth and neonatal care, and that more detailed information on the availability of that assistance is contained in the printed materials and informational DVD given to her and described in Section 41-41-35;
(ii) That the printed materials and informational DVD described in Section 41-41-35 describe the unborn child and list agencies that offer alternatives to abortion;
(iii) That the information contained in the printed materials and informational DVD given to her, as described in Section 41-41-35, are also available on a state-maintained website;
(iv) That the father of the unborn child is liable to assist in the support of her child, even in instances in which the father has offered to pay for the abortion. In the case of rape or incest, this information may be omitted;
(v) That she 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; and
(vi) That there are available services provided by public and private agencies that provide pregnancy prevention counseling and medical referrals for obtaining pregnancy prevention medications or devices.
(c) At least twenty-four (24) hours before the abortion, the woman is given a copy of the printed materials and permitted to view or given a copy of the informational DVD described in Section 41-41-35. If the woman is unable to read the materials, they shall be read to her. If the woman asks questions concerning any of the information or materials, answers shall be provided to her in a language that she can understand.
(d) The information required in paragraphs (a) and (b) of this section is provided to the woman individually and in a private room to protect her privacy, to maintain the confidentiality of her decision, and to ensure that the information focuses on her individual circumstances and that she has an adequate opportunity to ask questions.
(e) The woman certifies in writing before the abortion on a checklist form provided or approved by the department that the information required to be provided in paragraphs (a), (b) and (c) of this section has been furnished to her. All physicians who perform abortions shall report the total number of certifications received monthly to the department. The department shall make the number of certifications received available to the public on an annual basis.
(f) Before the abortion is performed or induced, the physician who is to perform or induce the abortion receives and signs a copy of the written certification prescribed by this section, except in the case of a medical emergency. The physician shall retain a copy of the checklist certification form in the woman's medical record.
(g) In the event of a medical emergency requiring an immediate termination of pregnancy, as provided in Section 41-41-37, the physician who performed or induced the abortion shall clearly certify in writing the nature of the medical emergency and the circumstances that necessitated the waiving of the informed consent requirements of this section. This certification shall be signed by the physician who performed or induced the emergency abortion, and shall be permanently filed in both the records of the physician performing or inducing the abortion and the records of the facility where the abortion takes place.
(2) The State Department of Health shall enforce the provisions of Sections 41-41-31 through 41-41-45 at abortion facilities, as defined in Section 41-75-1.
SECTION 2. Section 41-41-35, Mississippi Code of 1972, is amended as follows:
41-41-35. (1) The State Department of Health shall cause to be published printed materials and an informational DVD in English as described in this section. In addition, the department shall develop and maintain a secure Internet website, which may be part of an existing website, to provide the information described in this section. No information regarding persons using the website shall be collected or maintained. The department shall monitor the website on a weekly basis to prevent and correct tampering.
(2) The department shall prepare the following easily comprehensible printed materials and informational DVD containing the following information:
(a) Geographically indexed materials designed to inform the woman of public and private agencies and services available to assist a woman through pregnancy, upon childbirth and while the child is dependent, including, but not limited to, adoption agencies.
(i) The materials shall include a comprehensive list of the agencies available, a description of the services they offer, and the telephone numbers and addresses of the agencies, and shall inform the woman about available medical assistance benefits for prenatal care, childbirth, and neonatal care.
(ii) The materials shall also include the following statement:
"There are many public and private agencies willing and able to help you to carry your child to term, and to assist you and your child after your child is born, whether you choose to keep your child or to place her or him for adoption. The State of Mississippi strongly urges you to contact one or more of these agencies before making a final decision about abortion. The law requires that your physician or his agent give you the opportunity to call agencies like these before you undergo an abortion."
(b) Materials that include information on the support obligations of the father of a child who is born alive, including, but not limited to, the father's legal duty to support his child, which may include child support payments and health insurance, and the fact that paternity may be established by the father's signature on a birth certificate, by a statement of paternity, or by court action. The printed material shall also state that more information concerning establishment of paternity and child support services and enforcement may be obtained by calling state or county departments of human services.
(c) Materials that inform the woman of the probable anatomical and physiological characteristics of the unborn child at two-week gestational increments from the time when a woman can be known to be pregnant to full term, including any relevant information on the possibility of the unborn child's survival. The materials shall include color pictures representing the development of the child at two-week gestational increments. These pictures must contain the dimensions of the unborn child and must be realistic. The descriptions shall include information about brain and heart functions, the presence of external members and internal organs during the applicable stages of development, and any relevant information on the possibility of the unborn child's survival. If a photograph is not available, a picture must contain the dimensions of the unborn child and must be realistic. The materials shall be objective, nonjudgmental and designed to convey only accurate scientific information about the unborn child at the various gestational ages.
(d) Materials that include the information described in subparagraphs (ii) and (v) of paragraph (1)(a) of Section 41-41-33 and in subparagraphs (i), (iv) and (vi) of paragraph (1)(b) of Section 41-41-33.
(e) Materials designed to inform the woman of pregnancy prevention methods for females and males, which materials shall describe each method in detail and include pictures or diagrams that illustrate the proper usage of each method.
(f) Materials that contain objective information describing the various surgical and drug-induced methods of abortion, as well as the immediate and long-term medical risks commonly associated with each abortion method including, but not limited to, the risks of infection, hemorrhage, cervical or uterine perforation or rupture, danger to later pregnancies, increased risk of breast cancer, the possible adverse psychological effects associated with an abortion, and the medical risks associated with carrying a child to term.
(g) A uniform resource locator (URL) for the state-maintained website where the materials described in this section can be found.
(h) A checklist certification form to be used by the physician or a qualified person under Section 41-41-33(1)(e), which will list all the items of information that are to be given to the woman by a physician or the agent under Section 41-41-33.
(2) The materials shall be printed in a typeface large enough to be clearly legible.
(3) The department shall produce a standardized DVD that may be used statewide, presenting the information described in this section, in accordance with the requirements of this section. In preparing the DVD, the department may summarize and make reference to the printed comprehensive list of geographically indexed names and services described in subsection (1)(a) of this section. The DVD shall, in addition to the information described in subsection (1) of this section, show an ultrasound of the heartbeat of an unborn child at four (4) to five (5) weeks gestational age, at six (6) to eight (8) weeks gestational age, and each month thereafter, until viability. That information shall be presented in an objective, unbiased manner designed to convey only accurate scientific information.
(4) The printed materials and the informational DVD required under this section shall be available at no cost from the department * * * upon request and in appropriate number to any person, facility or hospital.
(5) On an annual basis, the department * * * shall review and update, if necessary, the printed materials and the informational DVD required under this section * * *.
SECTION 3. The following shall be codified as Section 41-41-41, Mississippi Code of 1972:
41-41-41. (1) In addition to any and all remedies available under the common or statutory law of this state, failure to comply with the requirements of Sections 41-41-31 through 41-41-45 shall:
(a) Provide a basis for a civil malpractice action for actual and punitive damages.
(b) Provide a basis for a professional disciplinary action under Section 73-25-29.
(2) No civil liability may be assessed against the female upon whom the abortion is performed or induced.
(3) When requested, the court shall allow a woman to proceed using solely her initials or a pseudonym and may close any proceedings in the case and enter other protective orders to preserve the privacy of the woman upon whom the abortion was performed or induced.
(4) If judgment is rendered in favor of the plaintiff, the court shall also render judgment for a reasonable attorney's fee in favor of the plaintiff against the defendant.
(5) 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 reasonable attorney's fee in favor of the defendant against the plaintiff.
SECTION 4. The following shall be codified as Section 41-41-43, Mississippi Code of 1972:
41-41-43. (1) For the purpose of promoting maternal health and life by adding to the sum of medical and public health knowledge through the compilation of relevant data, and to promote the state's interest in protecting the unborn child, a report of each abortion performed or induced shall be made to the State Department of Health on forms prescribed by it. The reports shall be completed by the hospital or other licensed facility in which the abortion occurred, signed by the physician who performed or induced the abortion, and transmitted to the department within fifteen (15) days after each reporting month. The report forms shall not identify the individual patient by name and shall include the following information:
(a) Identification of the physician who performed or induced the abortion, the facility where the abortion was performed or induced, and the referring physician, agency, or service, if any. The department shall ensure that the identification of any physician or other health care provider reporting under this section shall not be released or otherwise made available to the general public.
(b) The county and state in which the woman resides.
(c) The woman's age.
(d) The number of prior pregnancies and prior abortions of the woman.
(e) The probable gestational age of the unborn child.
(f) The type of procedure performed or prescribed and the date of the abortion.
(g) Preexisting medical condition(s) of the woman that would complicate pregnancy, if any.
(h) Medical complication(s) that resulted from the abortion, if known.
(i) The length and weight of the aborted child for any abortion performed or induced because of a medical emergency as defined in Section 41-41-31.
(j) Basis for any medical judgment that a medical emergency existed that excused the physician from compliance with any provision of Sections 41-41-31 through 41-41-45.
(2) When an abortion is performed or induced during the first trimester of pregnancy, the tissue that is removed shall be subjected to a gross or microscopic examination, as needed, by the physician or a qualified person designated by the physician to determine if a pregnancy existed and was terminated. If the examination indicates no fetal remains, that information shall immediately be made known to the physician and sent to the department within fifteen (15) days of the analysis.
(3) When an abortion is performed or induced after the first trimester of pregnancy, the physician must certify whether or not the child was viable, and the dead unborn child and all tissue removed at the time of the abortion shall be submitted for tissue analysis to a board-eligible or certified pathologist. If the report reveals evidence of viability or live birth, the pathologist shall report those findings to the department within fifteen (15) days, and a copy of the report shall also be sent to the physician performing the abortion. The department shall prescribe a form on which pathologists may report any evidence of live birth, viability, or absence of pregnancy.
(4) Every facility in which an abortion is performed or induced within this state during any quarter year shall file with the department a report showing the total number of abortions performed or induced within the hospital or other facility during that quarter year. This report shall also show the total abortions performed or induced in each trimester of pregnancy. These reports shall be submitted on a form prescribed by the department that will enable a facility to indicate whether or not it is receiving any state-appropriated funds. The reports shall be available for public inspection and copying only if the facility receives state-appropriated funds within the twelve-calendar-month period immediately preceding the filing of the report. If the facility indicates on the form that it is not receiving state-appropriated funds, the department shall regard that facility's report as confidential unless it receives other evidence that causes it to conclude that the facility receives state-appropriated funds.
(5) (a) The department shall require that all reports of maternal deaths occurring within the state arising from pregnancy, childbirth, or intentional abortion state the cause of death, the duration of the woman's pregnancy, when her death occurred, and whether or not the woman was under the care of a physician during her pregnancy before her death. The department shall issue any necessary regulations to assure that information is reported, and conduct its own investigation, if necessary, to ascertain that data.
(b) Known incidents of maternal mortality of nonresident women arising from an induced abortion in this state shall be included in the report as incidents of maternal mortality arising from induced abortions.
(c) Incidents of maternal mortality arising from continued pregnancy or childbirth and occurring after an induced abortion has been attempted but not completed, including deaths occurring after an induced abortion has been attempted but not completed as a result of ectopic pregnancy, shall be included as incidents of maternal mortality arising from induced abortion.
(6) Every physician who is called upon to provide medical care or treatment to a woman who is in need of medical care because of a complication or complications resulting, in the good faith judgment of the physician, from having undergone an abortion or attempted abortion, shall prepare a report. The report must be filed with the department within thirty (30) days of the date of the physician's first examination of the woman. The report shall be on forms prescribed by the department. The forms shall contain the following information, as received, and such other information except the name of the patient, as the department may from time to time require:
(a) Age of the patient.
(b) Number of pregnancies patient may have had prior to the abortion.
(c) Number and type of abortions patient may have had before this abortion.
(d) Name and address of the facility where the abortion was performed or induced.
(e) Gestational age of the unborn child at the time of the abortion, if known.
(f) Type of abortion performed, if known.
(g) Nature of complication or complications.
(h) Medical treatment given.
(i) The nature and extent, if known, of any permanent condition caused by the complication.
(7) Reports filed under subsection (1) or (6) of this section shall not be deemed public records and shall remain confidential, except that disclosure may be made to law enforcement officials upon an order of a court after application showing good cause. The court may condition disclosure of the information upon any appropriate safeguards it may impose.
(8) The department shall prepare a comprehensive annual statistical report for the Legislature based upon the data gathered from reports under subsections (1) and (6) of this section. The statistical report shall not lead to the disclosure of the identity of any physician or person filing a report under subsection (1) or (6) of this section, nor of any patient about whom a report is filed. The statistical report shall be available for public inspection and copying.
(9) Original copies of all reports filed under subsections (1), (4) and (6) of this section shall be available to the State Board of Medical Licensure for use in the performance of its official duties.
(10) The following penalties shall attach to any failure to comply with the requirements of this section:
(a) Any person required under this section to file a report, keep any records, or supply any information, who willfully fails to file the report, keep those records, or supply that information at the time or times required by law or regulation, is guilty of "unprofessional conduct," and his or her license for the practice of medicine and surgery shall be subject to suspension or revocation in accordance with procedures provided under the Medical Practice Act, Section 73-25-1 et seq.
(b) Any person who willfully delivers or discloses to the department any report, record, or information known by him or her to be false is guilty of a misdemeanor.
(c) Any person who willfully discloses any information obtained from reports filed under subsection (1) or (6) of this section, other than that disclosure authorized under subsection (7) of this section, or as otherwise authorized by law, is guilty of a misdemeanor.
(d) Intentional, knowing, reckless, or negligent failure of the physician to examine an unborn child or tissue remains or submit an unborn child or tissue remains to a pathologist as required by subsection (2) or (3) of this section, or intentional, knowing, or reckless failure of the pathologist to report any evidence of live birth or viability to the department in the manner and within the time prescribed in subsection (3) of this section is a misdemeanor.
(e) In addition to the above penalties, any person, organization, or facility who willfully violates any of the provisions of this section requiring reporting shall, upon conviction:
(i) For the first time, have his, her, or its license suspended for a period of six (6) months.
(ii) For a second time, have his, her, or its license suspended for a period of one (1) year.
(iii) For the third time, have his, her, or its license revoked.
SECTION 5. Section 73-25-29, Mississippi Code of 1972, is amended as follows:
73-25-29. The grounds for the nonissuance, suspension, revocation or restriction of a license or the denial of reinstatement or renewal of a license are:
(1) Habitual personal use of narcotic drugs, or any other drug having addiction-forming or addiction-sustaining liability.
(2) Habitual use of intoxicating liquors, or any beverage, to an extent which affects professional competency.
(3) Administering, dispensing or prescribing any narcotic drug, or any other drug having addiction-forming or addiction-sustaining liability otherwise than in the course of legitimate professional practice.
(4) Conviction of violation of any federal or state law regulating the possession, distribution or use of any narcotic drug or any drug considered a controlled substance under state or federal law, a certified copy of the conviction order or judgment rendered by the trial court being prima facie evidence thereof, notwithstanding the pendency of any appeal.
(5) Procuring, or attempting to procure, or aiding in, an abortion that is not medically indicated.
(6) Conviction of a felony or misdemeanor involving moral turpitude, a certified copy of the conviction order or judgment rendered by the trial court being prima facie evidence thereof, notwithstanding the pendency of any appeal.
(7) Obtaining or attempting to obtain a license by fraud or deception.
(8) Unprofessional conduct, which includes, but is not limited to:
(a) Practicing medicine under a false or assumed name or impersonating another practitioner, living or dead.
(b) Knowingly performing any act which in any way assists an unlicensed person to practice medicine.
(c) Making or willfully causing to be made any flamboyant claims concerning the licensee's professional excellence.
(d) Being guilty of any dishonorable or unethical conduct likely to deceive, defraud or harm the public.
(e) Obtaining a fee as personal compensation or gain from a person on fraudulent representation of a disease or injury condition generally considered incurable by competent medical authority in the light of current scientific knowledge and practice can be cured or offering, undertaking, attempting or agreeing to cure or treat the same by a secret method, which he refuses to divulge to the board upon request.
(f) Use of any false, fraudulent or forged statement or document, or the use of any fraudulent, deceitful, dishonest or immoral practice in connection with any of the licensing requirements, including the signing in his professional capacity any certificate that is known to be false at the time he makes or signs such certificate.
(g) Failing to identify a physician's school of practice in all professional uses of his name by use of his earned degree or a description of his school of practice.
(9) The refusal of a licensing authority of another state or jurisdiction to issue or renew a license, permit or certificate to practice medicine in that jurisdiction or the revocation, suspension or other restriction imposed on a license, permit or certificate issued by such licensing authority which prevents or restricts practice in that jurisdiction, a certified copy of the disciplinary order or action taken by the other state or jurisdiction being prima facie evidence thereof, notwithstanding the pendency of any appeal.
(10) Surrender of a license or authorization to practice medicine in another state or jurisdiction or surrender of membership on any medical staff or in any medical or professional association or society while under disciplinary investigation by any of those authorities or bodies for acts or conduct similar to acts or conduct which would constitute grounds for action as defined in this section.
(11) Final sanctions imposed by the United States Department of Health and Human Services, Office of Inspector General or any successor federal agency or office, based upon a finding of incompetency, gross misconduct or failure to meet professionally recognized standards of health care; a certified copy of the notice of final sanction being prima facie evidence thereof. As used in this paragraph, the term "final sanction" means the written notice to a physician from the United States Department of Health and Human Services, Officer of Inspector General or any successor federal agency or office, which implements the exclusion.
(12) Failure to furnish the board, its investigators or representatives information legally requested by the board.
(13) Violation of any provision(s) of the Medical Practice Act or the rules and regulations of the board or of any order, stipulation or agreement with the board.
(14) Violation of any provision of Sections 41-41-31 through 41-41-45.
In addition to the grounds specified above, the board shall be authorized to suspend the license of any licensee for being out of compliance with an order for support, as defined in Section 93-11-153. The procedure for suspension of a license for being out of compliance with an order for support, and the procedure for the reissuance or reinstatement of a license suspended for that purpose, and the payment of any fees for the reissuance or reinstatement of a license suspended for that purpose, shall be governed by Section 93-11-157 or 93-11-163, as the case may be. If there is any conflict between any provision of Section 93-11-157 or 93-11-163 and any provision of this chapter, the provisions of Section 93-11-157 or 93-11-163, as the case may be, shall control.
SECTION 6. This act shall take effect and be in force from and after July 1, 2012.