0001| SENATE BILL 233 | 0002| 43RD LEGISLATURE - STATE OF NEW MEXICO - SECOND SESSION, 1998 | 0003| INTRODUCED BY | 0004| RAMSAY L. GORHAM | 0005| | 0006| | 0007| | 0008| | 0009| | 0010| AN ACT | 0011| RELATING TO ABORTION; ENACTING THE WOMAN'S RIGHT TO KNOW ACT; | 0012| REQUIRING VOLUNTARY, INFORMED CONSENT AS A PREREQUISITE TO | 0013| ABORTION; PROVIDING EXCEPTIONS; PROVIDING PENALTIES. | 0014| | 0015| BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO: | 0016| Section 1. SHORT TITLE.--This act may be cited as the | 0017| "Woman's Right to Know Act". | 0018| Section 2. DEFINITIONS.--As used in the Woman's Right to | 0019| Know Act: | 0020| A. "abortion" means the use or prescription of any | 0021| instrument, medicine, drug or any other substance or device | 0022| intentionally to terminate the pregnancy of a female known to | 0023| be pregnant with an intention other than to increase the | 0024| probability of a live birth, to preserve the life or health of | 0025| the child after live birth or to remove a dead fetus; | - 1 - 0001| B. "attempt to perform an abortion" means an act, | 0002| or an omission of a statutorily required act, that, under the | 0003| circumstances as the actor believes them to be, constitutes a | 0004| substantial step in a course of conduct planned to culminate | 0005| in the performance of an abortion in New Mexico in violation | 0006| of the Woman's Right to Know Act; | 0007| C. "medical emergency" means any condition that, | 0008| on the basis of the physician's good faith clinical judgment, | 0009| so complicates the medical condition of a pregnant female as | 0010| to necessitate the immediate abortion of her pregnancy to | 0011| avert her death or for which a delay will create serious risk | 0012| of substantial and irreversible impairment of a major bodily | 0013| function; | 0014| D. "physician" means a physician or osteopathic | 0015| physician licensed in New Mexico; and | 0016| E. "probable gestational age of the unborn child" | 0017| means what, in the judgment of the physician, will with | 0018| reasonable probability be the gestational age of the unborn | 0019| child at the time the abortion is planned to be performed. | 0020| Section 3. INFORMED CONSENT.--No abortion shall be | 0021| performed in this state except with the voluntary and informed | 0022| consent of the female upon whom the abortion is to be | 0023| performed. Except in the case of a medical emergency, consent | 0024| to an abortion is voluntary and informed only if: | 0025| A. the female is told the following, by telephone | - 2 - 0001| or in person, by the physician who is to perform the abortion | 0002| or by referring physician, at least twenty-four hours before | 0003| the abortion: | 0004| (1) the name of the physician who will | 0005| perform the abortion; | 0006| (2) the particular medical risks associated | 0007| with the particular abortion procedure to be employed, | 0008| including, when medically accurate, the risks of infection, | 0009| hemorrhage, breast cancer, danger to subsequent pregnancies | 0010| and infertility; | 0011| (3) the probable gestational age of the | 0012| unborn child at the time the abortion is to be performed; and | 0013| (4) the medical risks associated with | 0014| carrying her child to term. | 0015| The information required by this subsection may be | 0016| provided by telephone without conducting a physical | 0017| examination or test of the patient, in which case the | 0018| information required to be provided may be based on facts | 0019| supplied the physician by the female and whatever other | 0020| relevant information is reasonably available to the physician. | 0021| It may not be provided by a tape recording, but shall be | 0022| provided during a consultation in which the physician is able | 0023| to ask questions of the female and the female is able to ask | 0024| questions of the physician. If a physical examination, tests | 0025| or the availability of other information to the physician | - 3 - 0001| subsequently indicates, in the medical judgment of the | 0002| physician, revision of the information previously supplied to | 0003| the patient, that revised information may be communicated to | 0004| the patient at any time prior to the performance of the | 0005| abortion. Nothing in this section may be construed to | 0006| preclude provision of required information in a language | 0007| understood by the patient through a translator; | 0008| B. the female is informed, by telephone or in | 0009| person, by the physician who is to perform the abortion, by a | 0010| referring physician or by an agent of either physician at | 0011| least twenty-four hours before the abortion that: | 0012| (1) medical assistance benefits may be | 0013| available for prenatal care, childbirth and neonatal care; | 0014| (2) the father is liable to assist in the | 0015| support of her child, even in instances in which the father | 0016| has offered to pay for the abortion; and | 0017| (3) she has the right to review the printed | 0018| materials described in Section 4 of the Woman's Right to Know | 0019| Act. | 0020| The physician or the physician's agent shall orally | 0021| inform the female the materials have been provided by the sate | 0022| and that they describe the unborn child and list agencies that | 0023| offer alternatives to abortion. If the female chooses to view | 0024| the materials, they shall either be given to her at least | 0025| twenty-four hours before the abortion or mailed to her at | - 4 - 0001| least seventy-two hours before the abortion by certified mail, | 0002| restricted delivery to addressee, which means the postal | 0003| employee can only deliver the mail to the addressee. | 0004| The information required by this subsection may be | 0005| provided by a tape recording if provision is made to record or | 0006| otherwise register specifically whether the female does or | 0007| does not choose to review the printed materials; | 0008| C. the female certifies in writing, prior to the | 0009| abortion, that the information described in Subsections A and | 0010| B of this section has been furnished her and that she has been | 0011| informed of her opportunity to review the information referred | 0012| to in Paragraph (3) of Subsection B of this section; and | 0013| D. prior to the performance of the abortion, the | 0014| physician who is to perform the abortion or the physician's | 0015| agent receives a copy of the written certification prescribed | 0016| by Subsection C of this section. | 0017| Section 4. PRINTED INFORMATION.-- | 0018| A. Within ninety days after the effective date of | 0019| the Woman's Right to Know Act, the department of health shall | 0020| cause to be published, in English and in each language that is | 0021| the primary language of two percent or more of the state's | 0022| population, the following printed materials in such a way as | 0023| to ensure that the information is easily comprehensible: | 0024| (1) geographically indexed materials designed | 0025| to inform the female of public and private agencies and | - 5 - 0001| services available to assist a female through pregnancy, upon | 0002| childbirth and while the child is dependent, including | 0003| adoption agencies, which shall include a comprehensive list of | 0004| the agencies available, a description of the services they | 0005| offer and a description of the manner, including telephone | 0006| numbers, in which they might be contacted or, at the option of | 0007| department of health, printed materials, including a toll-free | 0008| twenty-four-hour-a-day telephone number that may be called to | 0009| obtain orally, such a list and description of agencies in the | 0010| locality of the caller and of the services they offer; and | 0011| (2) materials designed to inform the female | 0012| of the probable anatomical and physiological characteristics | 0013| of the unborn child at two-week gestational increments from | 0014| the time when a female can be known to be pregnant to full | 0015| term, including any relevant information on the possibility of | 0016| the unborn child's survival and pictures or drawings | 0017| representing the development of unborn children at two-week | 0018| gestational increments, provided that any such pictures or | 0019| drawings must contain the dimensions of the fetus and must be | 0020| realistic and objective, nonjudgmental and designed to convey | 0021| only accurate scientific information about the unborn child at | 0022| the various gestational ages. The material shall also contain | 0023| objective information describing the methods of abortion | 0024| procedures commonly employed, the medical risks commonly | 0025| associated with each such procedure, the possible detrimental | - 6 - 0001| psychological effects of abortion and the medical risks | 0002| commonly associated with each such procedure and the medical | 0003| risks commonly associated with carrying a child to term. | 0004| B. The materials referred to in Subsection A of | 0005| this section shall be printed in a typeface large enough to be | 0006| clearly legible. | 0007| C. The materials required under this section shall | 0008| be available at no cost from the department of health upon | 0009| request and in appropriate number to any person, facility or | 0010| hospital. | 0011| Section 5. PROCEDURE IN CASE OF MEDICAL EMERGENCY.--When | 0012| a medical emergency compels the performance of an abortion, | 0013| the physician shall inform the female, prior to the abortion | 0014| if possible, of the medical indications supporting the | 0015| physician's judgment that an abortion is necessary to avert | 0016| her death or that a twenty-four-hour delay will create serious | 0017| risk of substantial and irreversible impairment of a major | 0018| bodily function. | 0019| Section 6. REPORTING REQUIREMENTS.-- | 0020| A. Within ninety days after the effective date of | 0021| the Woman's Right to Know Act, the department of health shall | 0022| prepare a reporting form for physicians containing a reprint | 0023| of the Woman's Right to Know Act and listing: | 0024| (1) the number of females to whom the | 0025| physician provided the information described in Subsection A | - 7 - 0001| of Section 3 of the Woman's Right to Know Act; of that number, | 0002| the number provided by telephone and the number provided in | 0003| person; and of each of those numbers, the number provided in | 0004| the capacity of a referring physician and the number provided | 0005| in the capacity of a physician who is to perform the abortion; | 0006| (2) the number of females to whom the | 0007| physician or an agent of the physician provided the | 0008| information described in Subsection B of Section 3 of the | 0009| Woman's Right to Know Act; of that number, the number provided | 0010| by telephone and the number provided in person; of each of | 0011| those numbers, the number provided in the capacity of a | 0012| referring physician and the number provided in the capacity of | 0013| a physician who is to perform the abortion; and of each of | 0014| those numbers, the number provided by the physician and the | 0015| number provided by an agent of the physician; | 0016| (3) the number of females who availed | 0017| themselves of the opportunity to obtain a copy of the printed | 0018| information described in Section 4 of the Woman's Right to | 0019| Know Act and the number who did not; and of each of those | 0020| numbers, the number who, to the best of the reporting | 0021| physician's information and belief, went on to obtain the | 0022| abortion; and | 0023| (4) the number of abortions performed by the | 0024| physician in which information otherwise required to be | 0025| provided at least twenty-four hours before the abortion was | - 8 - 0001| not so provided because an immediate abortion was necessary to | 0002| avert the female's death, and the number of abortions in which | 0003| such information was not so provided because a delay would | 0004| create serious risk of substantial and irreversible impairment | 0005| of a major bodily function. | 0006| B. The department of health shall ensure that | 0007| copies of the reporting forms described in Subsection A of | 0008| this section are provided: | 0009| (1) within one hundred twenty days after the | 0010| effective date of the Woman's Right to Know Act, to all | 0011| physicians licensed to practice in this state; | 0012| (2) to each physician who subsequently | 0013| becomes newly licensed to practice in this state, at the same | 0014| time as official notification to the physician that the | 0015| physician is so licensed; and | 0016| (3) by December 1 of each year, other than | 0017| the calendar year in which forms are distributed in accordance | 0018| with Paragraph (1) of this subsection, to all physicians | 0019| licensed to practice in this state. | 0020| C. By February 28 of each year following a | 0021| calendar year in any part of which the Woman's Right to Know | 0022| Act was in effect, each physician who provided, or whose agent | 0023| provided, information to one or more females in accordance | 0024| with Section 3 of the Woman's Right to Know Act during the | 0025| previous calendar year shall submit to the department of | - 9 - 0001| health a copy of the form described in Subsection A of this | 0002| section, with the requested data entered accurately and | 0003| completely. | 0004| D. Reports that are not submitted more than a | 0005| grace period of thirty days following the due date shall be | 0006| subject to a late fee of five hundred dollars ($500) for each | 0007| additional thirty-day period or portion of a thirty-day period | 0008| they are overdue. Any physician required to report in | 0009| accordance with this section who has not submitted a report, | 0010| or has submitted only an incomplete report, more than one year | 0011| following the due date, may, in an action brought by the | 0012| department of health, be directed by a court of competent | 0013| jurisdiction to submit a complete report within a period | 0014| stated by court order or be subject to sanctions for civil | 0015| contempt. | 0016| E. By June 30 of each year the department of | 0017| health shall issue a public report providing statistics for | 0018| the previous calendar year compiled from all of the reports | 0019| covering that year submitted in accordance with this section | 0020| for each of the items listed in Subsection A of this section. | 0021| Each such report shall also provide the statistics for all | 0022| previous calendar years, adjusted to reflect any additional | 0023| information from late or corrected reports. The department | 0024| shall take care to ensure that none of the information | 0025| included in the public reports could reasonably lead to the | - 10 - 0001| identification of any individual provided information in | 0002| accordance with Subsection A, B or C of Section 3 of the | 0003| Woman's Right to Know Act. | 0004| F. The department of health may by rule alter the | 0005| dates established by Paragraph (3) of Subsection B or | 0006| Subsection C or E of this section or consolidate the forms or | 0007| reports described in this section with other forms or reports | 0008| to achieve administrative convenience or fiscal savings or to | 0009| reduce the burden of reporting requirements, so long as | 0010| reporting forms are sent to all licensed physicians in the | 0011| state at least once every year and the report described in | 0012| Subsection E of this section is issued at least once every | 0013| year. | 0014| Section 7. CRIMINAL PENALTIES.--Any person who knowingly | 0015| or recklessly performs or attempts to perform an abortion in | 0016| violation of the Woman's Right to Know Act is guilty of a | 0017| felony. Any physician who knowingly or recklessly submits a | 0018| false report under Subsection C of Section 6 of the Woman's | 0019| Right to Know Act is guilty of a misdemeanor. No penalty may | 0020| be assessed against the female upon whom the abortion is | 0021| performed or attempted to be performed. No penalty or civil | 0022| liability may be assessed for failure to comply with Paragraph | 0023| (3) of Subsection B of Section 3 or that portion of Subsection | 0024| C of Section 3 of the Woman's Right to Know Act requiring a | 0025| written certification that the female has been informed of her | - 11 - 0001| opportunity to review the information referred to in Paragraph | 0002| (3) of Subsection B of Section 3 of the Woman's Right to Know | 0003| Act unless the department of health has made the printed | 0004| materials available at the time the physician or the | 0005| physician's agent is required to inform the female of her | 0006| right to review them. | 0007| Section 8. CIVIL REMEDIES.-- | 0008| A. Any person upon whom an abortion has been | 0009| performed without complying with the Woman's Right to Know | 0010| Act, the father of the unborn child who was the subject of | 0011| such an abortion or the grandparent of such an unborn child | 0012| may maintain an action against the person who performed the | 0013| abortion in knowing or reckless violation of that act for | 0014| actual and punitive damages. Any person upon whom an abortion | 0015| has been attempted without complying with that act may | 0016| maintain an action against the person who attempted to perform | 0017| the abortion in knowing or reckless violation of that act for | 0018| actual and punitive damages. | 0019| B. If the department of health fails to issue the | 0020| public report required by Subsection E of Section 6 of the | 0021| Woman's Right to Know Act, any group of ten or more citizens | 0022| of the state may seek an injunction in a court of competent | 0023| jurisdiction against the secretary of health requiring that a | 0024| complete report be issued within a period stated by the court | 0025| order. Failure to abide by such an injunction shall subject | - 12 - 0001| the secretary to sanctions for civil contempt. | 0002| C. If judgment is rendered in favor of the | 0003| plaintiff in any action described in this section, the court | 0004| shall also render judgment for a reasonable attorney fee in | 0005| favor of the plaintiff against the defendant. If judgment is | 0006| rendered in favor of the defendant and the court finds that | 0007| the plaintiff's suit was frivolous and brought in bad faith, | 0008| the court shall also render judgment for a reasonable attorney | 0009| fee in favor of the defendant against the plaintiff. | 0010| Section 9. PROTECTION OF PRIVACY IN COURT PROCEEDINGS.-- | 0011| In every civil or criminal proceeding or action brought | 0012| pursuant to the Woman's Right to Know Act, the court shall | 0013| rule whether the anonymity of any female upon whom an abortion | 0014| has been performed or attempted shall be preserved from public | 0015| disclosure if she does not give her consent to such | 0016| disclosure. The court, upon motion or sua sponte, shall make | 0017| such a ruling and, upon determining that her anonymity should | 0018| be preserved, shall issue orders to the parties, witnesses and | 0019| counsel and shall direct the sealing of the record and | 0020| exclusion of individuals from courtrooms or hearing rooms to | 0021| the extent necessary to safeguard her identify from public | 0022| disclosure. Each order shall be accompanied by specific | 0023| written findings explaining why the anonymity of the female | 0024| should be preserved from public disclosure, why the order is | 0025| essential to that end, how the order is narrowly tailored to | - 13 - 0001| serve that interest and why no reasonable less restrictive | 0002| alternative exists. In the absence of written consent of the | 0003| female upon whom an abortion has been performed or attempted, | 0004| anyone, other than a public official, who brings an action | 0005| under Subsection A of Section 8 of the Woman's Right to Know | 0006| Act shall do so under a pseudonym. This section does not | 0007| require concealment of the identity of the plaintiff or of | 0008| witnesses from the defendant. | 0009| Section 10. SEVERABILITY.--If any part or application of | 0010| the Woman's Right to Know Act is held invalid, the remainder | 0011| of its application to other situations or persons shall not be | 0012| affected. | 0013|  |