0001|                           SENATE BILL 233
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0002|     43RD LEGISLATURE - STATE OF NEW MEXICO - SECOND SESSION, 1998
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0003|                            INTRODUCED BY
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0004|                           RAMSAY L. GORHAM
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0005|     
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0006|                                   
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0007|     
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0008|                                   
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0009|     
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0010|                                AN ACT
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0011|     RELATING TO ABORTION; ENACTING THE WOMAN'S RIGHT TO KNOW ACT;
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0012|     REQUIRING VOLUNTARY, INFORMED CONSENT AS A PREREQUISITE TO
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0013|     ABORTION; PROVIDING EXCEPTIONS; PROVIDING PENALTIES.
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0014|     
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0015|     BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:
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0016|          Section 1.  SHORT TITLE.--This act may be cited as the
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0017|     "Woman's Right to Know Act".
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0018|          Section 2.  DEFINITIONS.--As used in the Woman's Right to
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0019|     Know Act:
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0020|               A.  "abortion" means the use or prescription of any
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0021|     instrument, medicine, drug or any other substance or device
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0022|     intentionally to terminate the pregnancy of a female known to
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0023|     be pregnant with an intention other than to increase the
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0024|     probability of a live birth, to preserve the life or health of
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0025|     the child after live birth or to remove a dead fetus;
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0001|               B.  "attempt to perform an abortion" means an act,
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0002|     or an omission of a statutorily required act, that, under the
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0003|     circumstances as the actor believes them to be, constitutes a
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0004|     substantial step in a course of conduct planned to culminate
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0005|     in the performance of an abortion in New Mexico in violation
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0006|     of the Woman's Right to Know Act;
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0007|               C.  "medical emergency" means any condition that,
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0008|     on the basis of the physician's good faith clinical judgment,
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0009|     so complicates the medical condition of a pregnant female as
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0010|     to necessitate the immediate abortion of her pregnancy to
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0011|     avert her death or for which a delay will create serious risk
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0012|     of substantial and irreversible impairment of a major bodily
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0013|     function;
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0014|               D.  "physician" means a physician or osteopathic
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0015|     physician licensed in New Mexico; and
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0016|               E.  "probable gestational age of the unborn child"
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0017|     means what, in the judgment of the physician, will with
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0018|     reasonable probability be the gestational age of the unborn
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0019|     child at the time the abortion is planned to be performed.
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0020|          Section 3.  INFORMED CONSENT.--No abortion shall be
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0021|     performed in this state except with the voluntary and informed
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0022|     consent of the female upon whom the abortion is to be
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0023|     performed.  Except in the case of a medical emergency, consent
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0024|     to an abortion is voluntary and informed only if:
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0025|               A.  the female is told the following, by telephone
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0001|     or in person, by the physician who is to perform the abortion
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0002|     or by referring physician, at least twenty-four hours before
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0003|     the abortion:
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0004|                    (1)  the name of the physician who will
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0005|     perform the abortion;
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0006|                    (2)  the particular medical risks associated
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0007|     with the particular abortion procedure to be employed,
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0008|     including, when medically accurate, the risks of infection,
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0009|     hemorrhage, breast cancer, danger to subsequent pregnancies
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0010|     and infertility;
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0011|                    (3)  the probable gestational age of the
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0012|     unborn child at the time the abortion is to be performed; and
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0013|                    (4)  the medical risks associated with
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0014|     carrying her child to term.
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0015|          The information required by this subsection may be
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0016|     provided by telephone without conducting a physical
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0017|     examination or test of the patient, in which case the
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0018|     information required to be provided may be based on facts
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0019|     supplied the physician by the female and whatever other
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0020|     relevant information is reasonably available to the physician. 
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0021|     It may not be provided by a tape recording, but shall be
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0022|     provided during a consultation in which the physician is able
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0023|     to ask questions of the female and the female is able to ask
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0024|     questions of the physician.  If a physical examination, tests
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0025|     or the availability of other information to the physician
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0001|     subsequently indicates, in the medical judgment of the
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0002|     physician, revision of the information previously supplied to
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0003|     the patient, that revised information may be communicated to
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0004|     the patient at any time prior to the performance of the
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0005|     abortion.  Nothing in this section may be construed to
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0006|     preclude provision of required information in a language
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0007|     understood by the patient through a translator;
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0008|               B.  the female is informed, by telephone or in
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0009|     person, by the physician who is to perform the abortion, by a
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0010|     referring physician or by an agent of either physician at
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0011|     least twenty-four hours before the abortion that:
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0012|                    (1)  medical assistance benefits may be
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0013|     available for prenatal care, childbirth and neonatal care;
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0014|                    (2)  the father is liable to assist in the
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0015|     support of her child, even in instances in which the father
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0016|     has offered to pay for the abortion; and
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0017|                    (3)  she has the right to review the printed
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0018|     materials described in Section 4 of the Woman's Right to Know
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0019|     Act.  
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0020|          The physician or the physician's agent shall orally
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0021|     inform the female the materials have been provided by the sate
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0022|     and that they describe the unborn child and list agencies that
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0023|     offer alternatives to abortion.  If the female chooses to view
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0024|     the materials, they shall either be given to her at least
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0025|     twenty-four hours before the abortion or mailed to her at
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0001|     least seventy-two hours before the abortion by certified mail,
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0002|     restricted delivery to addressee, which means the postal
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0003|     employee can only deliver the mail to the addressee.
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0004|          The information required by this subsection may be
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0005|     provided by a tape recording if provision is made to record or
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0006|     otherwise register specifically whether the female does or
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0007|     does not choose to review the printed materials;
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0008|               C.  the female certifies in writing, prior to the
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0009|     abortion, that the information described in Subsections A and
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0010|     B of this section has been furnished her and that she has been
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0011|     informed of her opportunity to review the information referred
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0012|     to in Paragraph (3) of Subsection B of this section; and
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0013|               D.  prior to the performance of the abortion, the
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0014|     physician who is to perform the abortion or the physician's
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0015|     agent receives a copy of the written certification prescribed
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0016|     by Subsection C of this section.
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0017|          Section 4.  PRINTED INFORMATION.--
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0018|               A.  Within ninety days after the effective date of
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0019|     the Woman's Right to Know Act, the department of health shall
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0020|     cause to be published, in English and in each language that is
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0021|     the primary language of two percent or more of the state's
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0022|     population, the following printed materials in such a way as
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0023|     to ensure that the information is easily comprehensible:
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0024|                    (1)  geographically indexed materials designed
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0025|     to inform the female of public and private agencies and
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0001|     services available to assist a female through pregnancy, upon
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0002|     childbirth and while the child is dependent, including
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0003|     adoption agencies, which shall include a comprehensive list of
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0004|     the agencies available, a description of the services they
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0005|     offer and a description of the manner, including telephone
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0006|     numbers, in which they might be contacted or, at the option of
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0007|     department of health, printed materials, including a toll-free
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0008|     twenty-four-hour-a-day telephone number that may be called to
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0009|     obtain orally, such a list and description of agencies in the
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0010|     locality of the caller and of the services they offer; and
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0011|                    (2)  materials designed to inform the female
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0012|     of the probable anatomical and physiological characteristics
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0013|     of the unborn child at two-week gestational increments from
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0014|     the time when a female can be known to be pregnant to full
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0015|     term, including any relevant information on the possibility of
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0016|     the unborn child's survival and pictures or drawings
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0017|     representing the development of unborn children at two-week
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0018|     gestational increments, provided that any such pictures or
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0019|     drawings must contain the dimensions of the fetus and must be
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0020|     realistic and objective, nonjudgmental and designed to convey
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0021|     only accurate scientific information about the unborn child at
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0022|     the various gestational ages.  The material shall also contain
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0023|     objective information describing the methods of abortion
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0024|     procedures commonly employed, the medical risks commonly
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0025|     associated with each such procedure, the possible detrimental
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0001|     psychological effects of abortion and the medical risks
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0002|     commonly associated with each such procedure and the medical
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0003|     risks commonly associated with carrying a child to term.
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0004|               B.  The materials referred to in Subsection A of
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0005|     this section shall be printed in a typeface large enough to be
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0006|     clearly legible.
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0007|               C.  The materials required under this section shall
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0008|     be available at no cost from the department of health upon
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0009|     request and in appropriate number to any person, facility or
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0010|     hospital.
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0011|          Section 5.  PROCEDURE IN CASE OF MEDICAL EMERGENCY.--When
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0012|     a medical emergency compels the performance of an abortion,
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0013|     the physician shall inform the female, prior to the abortion
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0014|     if possible, of the medical indications supporting the
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0015|     physician's judgment that an abortion is necessary to avert
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0016|     her death or that a twenty-four-hour delay will create serious
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0017|     risk of substantial and irreversible impairment of a major
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0018|     bodily function.
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0019|          Section 6.  REPORTING REQUIREMENTS.--
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0020|               A.  Within ninety days after the effective date of
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0021|     the Woman's Right to Know Act, the department of health shall
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0022|     prepare a reporting form for physicians containing a reprint
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0023|     of the Woman's Right to Know Act and listing:
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0024|                    (1)  the number of females to whom the
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0025|     physician provided the information described in Subsection A
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0001|     of Section 3 of the Woman's Right to Know Act; of that number,
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0002|     the number provided by telephone and the number provided in
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0003|     person; and of each of those numbers, the number provided in
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0004|     the capacity of a referring physician and the number provided
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0005|     in the capacity of a physician who is to perform the abortion;
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0006|                    (2)  the number of females to whom the
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0007|     physician or an agent of the physician provided the
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0008|     information described in Subsection B of Section 3 of the
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0009|     Woman's Right to Know Act; of that number, the number provided
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0010|     by telephone and the number provided in person; of each of
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0011|     those numbers, the number provided in the capacity of a
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0012|     referring physician and the number provided in the capacity of
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0013|     a physician who is to perform the abortion; and of each of
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0014|     those numbers, the number provided by the physician and the
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0015|     number provided by an agent of the physician;
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0016|                    (3)  the number of females who availed
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0017|     themselves of the opportunity to obtain a copy of the printed
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0018|     information described in Section 4 of the Woman's Right to
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0019|     Know Act and the number who did not; and of each of those
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0020|     numbers, the number who, to the best of the reporting
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0021|     physician's information and belief, went on to obtain the
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0022|     abortion; and
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0023|                    (4)  the number of abortions performed by the
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0024|     physician in which information otherwise required to be
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0025|     provided at least twenty-four hours before the abortion was
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0001|     not so provided because an immediate abortion was necessary to
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0002|     avert the female's death, and the number of abortions in which
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0003|     such information was not so provided because a delay would
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0004|     create serious risk of substantial and irreversible impairment
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0005|     of a major bodily function.
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0006|               B.  The department of health shall ensure that
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0007|     copies of the reporting forms described in Subsection A of
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0008|     this section are provided:
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0009|                    (1)  within one hundred twenty days after the
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0010|     effective date of the Woman's Right to Know Act, to all
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0011|     physicians licensed to practice in this state;
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0012|                    (2)  to each physician who subsequently
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0013|     becomes newly licensed to practice in this state, at the same
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0014|     time as official notification to the physician that the
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0015|     physician is so licensed; and
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0016|                    (3)  by December 1 of each year, other than
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0017|     the calendar year in which forms are distributed in accordance
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0018|     with Paragraph (1) of this subsection, to all physicians
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0019|     licensed to practice in this state.
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0020|               C.  By February 28 of each year following a
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0021|     calendar year in any part of which the Woman's Right to Know
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0022|     Act was in effect, each physician who provided, or whose agent
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0023|     provided, information to one or more females in accordance
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0024|     with Section 3 of the Woman's Right to Know Act during the
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0025|     previous calendar year shall submit to the department of
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0001|     health a copy of the form described in Subsection A of this
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0002|     section, with the requested data entered accurately and
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0003|     completely.
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0004|               D.  Reports that are not submitted more than a
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0005|     grace period of thirty days following the due date shall be
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0006|     subject to a late fee of five hundred dollars ($500) for each
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0007|     additional thirty-day period or portion of a thirty-day period
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0008|     they are overdue.  Any physician required to report in
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0009|     accordance with this section who has not submitted a report,
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0010|     or has submitted only an incomplete report, more than one year
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0011|     following the due date, may, in an action brought by the
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0012|     department of health, be directed by a court of competent
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0013|     jurisdiction to submit a complete report within a period
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0014|     stated by court order or be subject to sanctions for civil
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0015|     contempt.
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0016|               E.  By June 30 of each year the department of
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0017|     health shall issue a public report providing statistics for
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0018|     the previous calendar year compiled from all of the reports
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0019|     covering that year submitted in accordance with this section
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0020|     for each of the items listed in Subsection A of this section. 
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0021|     Each such report shall also provide the statistics for all
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0022|     previous calendar years, adjusted to reflect any additional
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0023|     information from late or corrected reports.  The department
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0024|     shall take care to ensure that none of the information
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0025|     included in the public reports could reasonably lead to the
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0001|     identification of any individual provided information in
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0002|     accordance with Subsection A, B or C of Section 3 of the
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0003|     Woman's Right to Know Act.
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0004|               F.  The department of health may by rule alter the
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0005|     dates established by Paragraph (3) of Subsection B or
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0006|     Subsection C or E of this section or consolidate the forms or
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0007|     reports described in this section with other forms or reports
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0008|     to achieve administrative convenience or fiscal savings or to
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0009|     reduce the burden of reporting requirements, so long as
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0010|     reporting forms are sent to all licensed physicians in the
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0011|     state at least once every year and the report described in
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0012|     Subsection E of this section is issued at least once every
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0013|     year.
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0014|          Section 7.  CRIMINAL PENALTIES.--Any person who knowingly
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0015|     or recklessly performs or attempts to perform an abortion in
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0016|     violation of the Woman's Right to Know Act is guilty of a
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0017|     felony.  Any physician who knowingly or recklessly submits a
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0018|     false report under Subsection C of Section 6 of the Woman's
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0019|     Right to Know Act is guilty of a misdemeanor.  No penalty may
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0020|     be assessed against the female upon whom the abortion is
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0021|     performed or attempted to be performed.  No penalty or civil
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0022|     liability may be assessed for failure to comply with Paragraph
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0023|     (3) of Subsection B of Section 3 or that portion of Subsection
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0024|     C of Section 3 of the Woman's Right to Know Act requiring a
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0025|     written certification that the female has been informed of her
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0001|     opportunity to review the information referred to in Paragraph
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0002|     (3) of Subsection B of Section 3 of the Woman's Right to Know
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0003|     Act unless the department of health has made the printed
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0004|     materials available at the time the physician or the
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0005|     physician's agent is required to inform the female of her
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0006|     right to review them.
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0007|          Section 8.  CIVIL REMEDIES.--
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0008|               A.  Any person upon whom an abortion has been
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0009|     performed without complying with the Woman's Right to Know
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0010|     Act, the father of the unborn child who was the subject of
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0011|     such an abortion or the grandparent of such an unborn child
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0012|     may maintain an action against the person who performed the
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0013|     abortion in knowing or reckless violation of that act for
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0014|     actual and punitive damages.  Any person upon whom an abortion
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0015|     has been attempted without complying with that act may
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0016|     maintain an action against the person who attempted to perform
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0017|     the abortion in knowing or reckless violation of that act for
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0018|     actual and punitive damages.
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0019|               B.  If the department of health fails to issue the
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0020|     public report required by Subsection E of Section 6 of the
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0021|     Woman's Right to Know Act, any group of ten or more citizens
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0022|     of the state may seek an injunction in a court of competent
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0023|     jurisdiction against the secretary of health requiring that a
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0024|     complete report be issued within a period stated by the court
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0025|     order.  Failure to abide by such an injunction shall subject
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0001|     the secretary to sanctions for civil contempt.
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0002|               C.  If judgment is rendered in favor of the
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0003|     plaintiff in any action described in this section, the court
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0004|     shall also render judgment for a reasonable attorney fee in
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0005|     favor of the plaintiff against the defendant.  If judgment is
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0006|     rendered in favor of the defendant and the court finds that
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0007|     the plaintiff's suit was frivolous and brought in bad faith,
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0008|     the court shall also render judgment for a reasonable attorney
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0009|     fee in favor of the defendant against the plaintiff.
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0010|          Section 9.  PROTECTION OF PRIVACY IN COURT PROCEEDINGS.--
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0011|     In every civil or criminal proceeding or action brought
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0012|     pursuant to the Woman's Right to Know Act, the court shall
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0013|     rule whether the anonymity of any female upon whom an abortion
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0014|     has been performed or attempted shall be preserved from public
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0015|     disclosure if she does not give her consent to such
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0016|     disclosure.  The court, upon motion or sua sponte, shall make
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0017|     such a ruling and, upon determining that her anonymity should
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0018|     be preserved, shall issue orders to the parties, witnesses and
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0019|     counsel and shall direct the sealing of the record and
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0020|     exclusion of individuals from courtrooms or hearing rooms to
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0021|     the extent necessary to safeguard her identify from public
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0022|     disclosure.  Each order shall be accompanied by specific
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0023|     written findings explaining why the anonymity of the female
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0024|     should be preserved from public disclosure, why the order is
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0025|     essential to that end, how the order is narrowly tailored to
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0001|     serve that interest and why no reasonable less restrictive
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0002|     alternative exists.  In the absence of written consent of the
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0003|     female upon whom an abortion has been performed or attempted,
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0004|     anyone, other than a public official, who brings an action
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0005|     under Subsection A of Section 8 of the Woman's Right to Know
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0006|     Act shall do so under a pseudonym.  This section does not
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0007|     require concealment of the identity of the plaintiff or of
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0008|     witnesses from the defendant.
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0009|          Section 10.  SEVERABILITY.--If any part or application of
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0010|     the Woman's Right to Know Act is held invalid, the remainder
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0011|     of its application to other situations or persons shall not be
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0012|     affected.
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0013|                              
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