Second Regular Session Seventieth General Assembly STATE OF COLORADO INTRODUCED LLS NO. 16-0233.01 Michael Dohr x4347 HOUSE BILL 16-1218 HOUSE SPONSORSHIP Saine, Neville P., Humphrey, Windholz, Priola, Everett, Navarro, Nordberg, Ransom SENATE SPONSORSHIP Neville T., Woods, Holbert, Lambert, Grantham, Marble, Lundberg, Baumgardner House Committees Senate Committees Health, Insurance, & Environment A BILL FOR AN ACT Concerning the creation of the "Women's Reproductive Information Guarantee for Health and Transparency (RIGHT) Act". Bill Summary (Note: This summary applies to this bill as introduced and does not reflect any amendments that may be subsequently adopted. If this bill passes third reading in the house of introduction, a bill summary that applies to the reengrossed version of this bill will be available at http://www.leg.state.co.us/billsummaries.) The bill ensures that women are fully and accurately informed about their personal medical conditions regarding their pregnancies and health care options. Current medical procedures already use ultrasound technology to provide information regarding the gestational age of child in utero. The bill ensures that women have the opportunity to see or forego the opportunity to see the ultrasound. The bill allows women the opportunity to find a provider of ultrasound technology that will provide the service free of charge. The bill requires that a woman provide voluntary and informed consent to an abortion. The bill describes the information that constitutes voluntary and informed consent that the physician performing the abortion provides to the woman. The bill requires the abortion provider to provide certain information to the woman at least 24 hours prior to performing an abortion. The bill creates a civil right of action for noncompliance with the requirements, making a physician's noncompliance with the requirements unprofessional conduct and a violation of the requirements a crime. Be it enacted by the General Assembly of the State of Colorado: SECTION 1. In Colorado Revised Statutes, add part 4 to article 6 of title 25 as follows: PART 4 INFORMED DECISION-MAKING 25-6-401. Short title. The short title of this part 4 is the "Women's Reproductive Information Guarantee for Health and Transparency (RIGHT) Act". 25-6-402. Legislative declaration. (1) The general assembly finds that: (a) Current medical procedures involving surgery or women's pregnancies require the use of an ultrasound or other endoscopic procedure to ensure accurate prognosis; (b) Ultrasound technology is generally accepted in the medical community as an efficient and accurate means of examining the health of both internal organs and unborn children; (c) Approximately sixteen thousand abortions each year are performed without full disclosure to pregnant women regarding accurate information provided by ultrasound technology; (d) Ectopic pregnancies that are undetected during abortion present a danger to the life of the mother; (e) Every year thousands of unborn children are aborted while the mother is denied the opportunity to see the unborn child for herself; (f) Lack of transparency on the part of abortion providers creates unawareness on behalf of the expectant mother regarding the gestational age and development of her unborn child; (g) Unawareness and lack of educational information regarding unborn children is a contributing factor to the number of abortions performed in Colorado for no other reason than a minor physical disability or the inconvenience of an "unplanned" pregnancy; and (h) Women who are shown ultrasound pictures can make an informed, educated health care decision based on scientific information made available through ultrasound technology. (2) Based on the findings in subsection (1) of this section, the general assembly declares it is the purpose of this part 4 to: (a) Ensure that each woman considering an abortion has the opportunity to receive complete information on the reality and status of her pregnancy and of her fetus and that each woman submitting to an abortion do so only after giving her voluntary and informed consent to the abortion procedure; (b) Protect the fetus from a woman's uninformed decision to have an abortion; (c) Reduce "the risk that a woman may elect an abortion, only to discover later, with devastating psychological consequences, that her decision was not fully informed", as stated by the United States supreme court in Planned Parenthood v. Casey, 505 U.S. 833, 882 (1992); and (d) Adopt the construction of the term "medical emergency" accepted by the United States supreme court in Planned Parenthood v. Casey, 505 U.S. 833 (1992). 25-6-403. Definitions. As used in this part 4, unless the context otherwise requires: (1) "Abortion" means the act of using or prescribing any instrument, medicine, drug, or any other substance, device, or means with the intent to terminate the pregnancy of a woman with knowledge or reason to believe that the termination by those means will cause the death of the unborn child. Such use, prescription, or means is not an abortion if done with the intent to: (a) Save the life or preserve the health of an unborn child; (b) Remove a dead unborn child who did not die as a result of an intentional, knowing, or reckless action to terminate a pregnancy; or (c) Remove an ectopic pregnancy. (2) "Abortion provider" means: (a) A physician performing or inducing an abortion; or (b) A person employed at or by the facility where the abortion is to be performed or induced and will physically assist in the procedure; or (c) A person employed at the facility who is designated for administrative duties directly concerning the patient. (3) "Fetal sac" means the structure surrounding the fetus that can be used to determine if an intrauterine pregnancy exists. (4) "Medical emergency" means a condition that so complicates the medical condition of a pregnant woman as to necessitate the immediate termination of her pregnancy to avert her death or for which a delay will create serious risk of substantial and irreversible impairment of a major bodily function. (5) "Viable pregnancy" means a pregnancy in which a fetal sac is located inside the uterus and a fetal heartbeat is detectable within the fetal sac. 25-6-404. Informed consent. (1) An abortion shall not be performed or induced without the voluntary and informed consent of the woman upon whom the abortion is performed or induced. Except in the case of a medical emergency, consent to an abortion is voluntary and informed only if at least twenty-four hours before the abortion, the physician who is to perform the abortion has informed the woman, orally and in writing, of the following: (a) The name of the physician who will perform the abortion; (b) A thorough and accurate description of the proposed method for performing the abortion, including information on the probable gestational age of the unborn child at the time the abortion is to be performed and the probable anatomical and physiological characteristics of an unborn child at that age; (c) A description of immediate and long-term physical and psychological risks involved in the abortion procedure, including but not limited to the risks of infection, hemorrhage, cervical or uterine perforation, and infertility, and risks to subsequent pregnancies; (d) A description of alternatives to abortion, including the availability of adoption alternatives and the availability of financial help from adoptive parents and other sources for prenatal care, child birth, and neonatal care expenses; (e) A description of medical assistance benefits that may be available for prenatal care, childbirth, and neonatal care, together with the names and contact information for individuals and organizations that may be willing to assist with the costs involved in carrying the pregnancy to term, and information on the liability of the father for child support and other expenses; and (f) Any other medical or other information that a reasonable patient would consider material to the decision of whether or not to have an abortion. (2) At least twenty-four hours prior to the abortion, the abortion provider shall provide the woman, in writing and, when applicable, orally: (a) (I) The opportunity to receive a picture of a current ultrasound of the unborn child portraying the entire body of the unborn child, including: (A) An oral description of all relevant features of the ultrasound, with audible heartbeat if present; (B) Upon request and without additional charge, a photograph or print of the ultrasound, of a quality consistent with the current standard medical practice; (C) A written and oral description stating whether or not the woman has a viable pregnancy, the location of the fetal sac, and the presence or absence of a heartbeat. If the pregnancy is not viable, the abortion provider shall advise the woman that she will miscarry with no further intervention unless the abortion provider has evidence to the contrary. (D) In order to provide the possibility of a second opinion, a list of all known ultrasound providers within a ten-mile radius of the abortion provider, or if there are no such ultrasound providers within a ten-mile radius of the abortion provider, a list of all known ultrasound providers within a fifty-mile radius of the abortion provider. (II) If the abortion provider refuses to comply with this paragraph (a), the abortion provider shall give the woman a list of providers who will provide a free ultrasound and comply with the provisions of this paragraph (a) at least twenty-four hours before the abortion is performed and shall post a public notice stating that the facility does not provide ultrasounds and is not a medical facility. (b) The probable gestational age of the unborn child, including a fetal development chart with color photographs specifying within a four-week increment the age of the unborn child and showing each succeeding four-week increment during the pregnancy; (c) A description of the development of the child's nerve endings and the child's ability to feel pain at each stage of development; (d) A statement that the woman is free to withhold or withdraw her consent to the abortion at any time without affecting her right to care or treatment in the future and without the loss of any state or federal benefits to which she might otherwise be entitled; and (e) Any other medical or other information that a reasonable patient would consider material to the decision of whether or not to have an abortion. (3) (a) The abortion provider shall provide the information required in this section individually in a private room, and the woman shall be provided with an adequate opportunity to ask questions and receive answers she can understand. (b) If the woman is unable to read the written materials required to be provided to her under the provisions of this section, the abortion provider shall read the materials to her and, if necessary, shall explain the materials in a way that is understandable to her. (c) After the abortion provider has complied with each of the requirements of this section, the woman shall sign separate statements attesting to the completion of the requirements. The abortion provider shall, under oath and under penalty of perjury, sign separate statements that he or she has complied with each of the requirements of this section. (d) An abortion provider shall not accept payment or legally or otherwise bind a woman to make payment for the performance or inducing of an abortion prior to the expiration of twenty-four hours from the abortion provider's fulfillment of all of the provisions of this section. (4) A person who recklessly violates any provision of this section, or who performs an abortion with reason to believe such an abortion is a violation of this section, commits an unclassified misdemeanor and shall be fined not more than one thousand dollars for each violation. (5) Nothing in this section shall be construed to prevent the pregnant woman from not listening to the sounds detected by the fetal heart monitor or from not viewing the images displayed on the ultrasound screen. 25-6-405. Civil cause of action. A person who suffers a loss or injury as a result of a violation of this part 4 by an abortion provider may bring a cause of action against the abortion provider for damages, punitive damages, treble damages, and such equitable remedies as the court may deem appropriate. 25-6-406. Preemption and severability. (1) This part 4 shall not be construed to preempt or supersede any provision of law or any provision of law that is more restrictive than the provisions of this part 4, or create or recognize any right to an abortion, or to sanction, approve of, or expand in any way the legality of abortion. (2) The provisions of this part 4 are severable. If any provision of this part 4, or word, phrase, or application thereof, is found to be invalid, that invalidity shall not affect the validity of the provisions or applications not found to be invalid in this part 4. SECTION 2. In Colorado Revised Statutes, 12-36-117, add (1) (nn) as follows: 12-36-117. Unprofessional conduct. (1) "Unprofessional conduct" as used in this article means: (nn) A violation of part 4 of article 6 of title 25, C.R.S. SECTION 3. Effective date - applicability. This act takes effect upon passage and applies to offenses or actions committed on or after said date. SECTION 4. Safety clause. The general assembly hereby finds, determines, and declares that this act is necessary for the immediate preservation of the public peace, health, and safety.