GENERAL ASSEMBLY OF NORTH CAROLINA

SESSION 1995

H	3 

HOUSE BILL 624
Committee Substitute Favorable 6/26/95
Committee Substitute #2 Favorable 7/24/95

Short Title:  Abortion/Right to Know.	(Public)

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Sponsors:

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Referred to:

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March 29, 1995

A BILL TO BE ENTITLED
AN ACT TO REQUIRE A TWENTY-FOUR HOUR WAITING PERIOD AND THE INFORMED CONSENT OF A PREGNANT WOMAN BEFORE ABORTION  MAY BE PERFORMED, TO REQUIRE PHYSICIANS TO INFORM WOMEN OF MEDICAL RISKS, GESTATIONAL AGE, THE NAME OF THE PHYSICIAN PERFORMING THE ABORTION, AND CERTAIN OTHER INFORMATION, AND TO REQUIRE CERTAIN PRINTED MATERIALS AND REPORTS.
The General Assembly of North Carolina enacts:
Section 1.  Chapter 90 of the General Statutes is amended by adding the following new Article to read:
"ARTICLE 1E.
"Woman's Right to Know Act.
"§ 90-21.25.  Short title.
This act shall be known and may be cited as the Woman's Right to Know Act.
"§ 90-21.26.  Definitions.
As used in this Article, unless the context clearly requires otherwise, the term:
(1)	'Abortion' means the use or prescription of any instrument, medicine, drug, or any other substance or device intentionally to terminate the pregnancy of a woman known to be pregnant with an intention other than to increase the probability of a live birth, to preserve the life or health of the child after live birth, or to remove a dead fetus.
(2)	'Attempt to perform an abortion' means an act, or an omission of a statutorily required act, that, under the circumstances as the actor believes them to be, constitutes a substantial step in a course of conduct planned to culminate in the performance of an abortion in North Carolina in violation of this Article.
(3)	'Department' means the Department of Human Resources.
(4)	'Medical emergency' means that condition which, on the basis of the physician's good faith clinical judgment, so complicates the medical condition of a pregnant woman as to necessitate the immediate abortion of her pregnancy to avert her death or for which a delay will create serious risk of substantial and irreversible impairment of one or more of her major bodily functions.
(5)	'Medical risks' means risks and hazards, both physical and emotional.
(6)	'Physician' means an individual licensed to practice medicine or osteopathy in accordance with this Chapter.
(7)	'Probable gestational age' means what, in the judgment of the physician, will with reasonable probability be the gestational age of the unborn child at the time the abortion is planned to be performed.
"§ 90-21.27.  Informed consent to abortion.
No abortion shall be performed upon a woman in this State without her voluntary and informed consent.  Except in the case of a medical emergency, consent to an abortion is voluntary and informed only if all of the following conditions are satisfied:
(1)	At least 24 hours prior to the abortion, the physician who is to perform the abortion or the referring physician has orally informed the woman of all of the following:
a.	The particular medical risks associated with the particular abortion procedure to be employed including, when medically accurate, the risks of infection, hemorrhage, breast cancer, danger to subsequent pregnancies, and infertility.
b.	The name of the physician who will perform the abortion.
c.	The medical risks associated with carrying the child to term.
d.	The probable gestational age of the unborn child at the time the abortion is to be performed.
e.	If the physician who is to perform the abortion has no liability insurance for malpractice in the performance or attempted performance of an abortion, that information shall be communicated.
f.	If the physician who will perform the abortion has no local hospital admitting privileges, that information shall be communicated.
		The information required by this subdivision may be provided by telephone without conducting a physical examination or tests of the patient, in which case the required information may be based on facts supplied by the woman to the physician.  The information required by this section may not be provided by a tape recording but must be provided during a consultation in which the physician is able to ask questions of the woman and the woman is able to ask questions of the physician.  If a physical examination, tests, or the availability of other information to the physician subsequently indicate, in the medical judgment of the physician, a revision of the information previously supplied to the patient, that revised information may be communicated to the patient at any time prior to the performance of the abortion.  Nothing in this section may be construed to preclude provision of required information in a language understood by the patient through a translator.
(2)	The physician who is to perform the abortion, the referring physician, or an agent of either physician informs the woman, by telehone or in person, of each of the following at least 24 hours before the abortion:
a.	That medical assistance benefits may be available for prenatal care, childbirth, and neonatal care.
b.	That the father is liable to assist in the support of the child, even if the father has offered to pay for the abortion.
c.	That the woman has the right to review the printed materials described in G.S. 90-21.28(a).  The physician or the physician's agent shall orally inform the woman that the materials have been provided by the Department and that they describe the unborn child and list agencies which offer alternatives to abortion.  If the woman chooses to view the materials, they shall either be given to her at least 24 hours before the abortion or mailed to her at least 72 hours before the abortion by certified mail, restricted delivery to addressee.
		The information required by this subdivision may be provided by a tape recording if provision is made to record or otherwise register specifically whether the woman does or does not choose to review the printed materials.
(3)	The woman certifies in writing, prior to the abortion, that the information described in subdivisions (1) and (2) of this subsection has been furnished her and that she has been informed of her opportunity to review the information referred to in sub-subdivision c. of subdivision (2) of this section.  The original of this certification shall be maintained in the woman's medical records and a copy shall be given to her.
(4)	Prior to the performance of the abortion, the physician who is to perform the abortion or the physician's agent receives a copy of the written certification required by subdivision (3) of this section.
"§ 90-21.28.  Printed information required.
(a)	The Department shall publish the following printed materials in English and Spanish in a manner that ensures that the information is easily comprehensible:
(1)	Geographically indexed materials designed to inform a woman of public and private agencies and services available to assist her through pregnancy, upon childbirth, and while the child is dependent, including adoption agencies.  The information shall include a comprehensive list of the agencies available, a description of the services they offer, and a description of the manner, including telephone numbers, in which they might be contacted.  The printed materials may also include a toll-free, 24-hour-a-day telephone number which may be called to obtain an oral list and description of agencies in the locality of the caller and of the services they offer.
(2)	Materials designed to 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 until full term, including any relevant information on the possibility of the unborn child's survival and pictures or drawings representing the development of unborn children at two-week gestational increments.  The pictures or drawings must contain the dimensions of the fetus and must be realistic and appropriate for the stage of pregnancy depicted.  The materials shall be objective, nonjudgmental, and designed to convey only accurate scientific information about the unborn child at the various gestational ages.  The material shall also contain objective information describing the methods of abortion procedures employed, the medical risks associated with each procedure, the possible detrimental psychological effects of abortion, and the medical risks associated with each procedure, and the medical risks associated with carrying a fetus to term.
(b)	The materials referred to in subsection (a) of this section shall be printed in a typeface large enough to be clearly legible.
(c)	The materials 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.
"§ 90-21.29.  Procedure in case of medical emergency.
When a medical emergency compels the performance of an abortion, the physician shall inform the woman, prior to the abortion if possible, of the medical indications supporting the physician's judgment that an abortion is necessary to avert her death or that a 24-hour delay will create serious risk of substantial and irreversible impairment of a major bodily function.
"§ 90-21.30.  Reporting requirements.
(a)	The Department shall prepare a reporting form for physicians listing all of the following:
(1)	The number of women to whom the physician provided the information described in G.S. 90-21.27(1) and of that number, the number provided by telephone and the number provided in person; and of each of those numbers, the number provided in the capacity of a referring physician and the number provided in the capacity of a physician who is to perform the abortion.
(2)	The number of women to whom the physician or the physician's agent provided the information described in G.S. 90-21.27(2) and of that number, the number provided by telephone and the number provided in person; of each of those numbers, the number provided by a referring physician and the number provided by the physician who is to perform the abortion; and of each of those numbers, the number provided by the physician and the number provided by an agent of the physician.
(3)	The number of women who availed themselves of the opportunity to obtain a copy of the printed information described in G.S. 90-21.28 and the number who did not, and of each of those numbers, the number who, to the best of the reporting physician's information and belief, obtained the abortion.
(4)	The number of abortions performed by the physician in which information otherwise required to be provided at least 24 hours before the abortion was not so provided because an immediate abortion was necessary to avert the woman's death, and the number of abortions in which such information was not so provided because a delay would create serious risk of substantial and irreversible impairment of a major bodily function.
(b)	The Department shall ensure that copies of the reporting forms described in this section are provided to each of the following:
(1)	Each physician newly licensed to practice in this State at the same time as official notification to that physician that the physician is licensed.
(2)	By December 1 of each year, to all physicians licensed to practice in this State.
(c)	By March 1 of each year following a calendar year in any part of which this Article was in effect, each physician who provided, or whose agent provided, information to one or more women in accordance with G.S. 90-21.27 during the previous calendar year shall submit to the Department a copy of the form described in this section with the requested data entered accurately and completely.
(d)	Reports that are not submitted within 30 days following the due date of the report shall be subject to a late fee of five hundred dollars ($500.00) for each additional 30-day period or portion of a 30-day period the report is overdue.  Any physician required to report in accordance with this section who has not submitted a report, or has submitted only an incomplete report, more than one year following the due date of the report may, in an action brought by the Department, be directed by a court of competent jurisdiction to submit a complete report within a period stated by court order or be subject to sanctions for civil contempt.
(e)	By June 30 of each year, the Department shall issue a public report providing statistics for the previous calendar year compiled from all of the reports covering that year submitted in accordance with this section for each of the items listed in subsection (a) of this section.  Each report shall also provide the statistics for all previous calendar years, adjusted to reflect any additional information from late or corrected reports.  The Department shall ensure that none of the information included in the public reports could reasonably lead to the identification of any individual provided information in accordance with this Article.
(f)	The Department may adopt rules to alter the dates established by this section or to consolidate forms or reports required by this section to achieve administrative convenience or fiscal savings or to reduce the burden of reporting requirements, so long as reporting forms are sent to all licensed physicians in this State at least once every year and the report required under subsection (e) of this section is issued at least once every year.
"§ 90-21.31.  Criminal penalties.
Any person who knowingly or recklessly performs or attempts to perform an abortion in violation of this Article shall be guilty of a Class 1 misdemeanor.  Any physician who knowingly or recklessly submits a false report under G.S. 90-21.30 shall be guilty of a Class 1 misdemeanor.  No penalty may be assessed against the woman upon whom the abortion is performed or attempted to be performed.
"§ 90-21.32.  Protection of privacy in court proceedings.
In every civil or criminal proceeding or action brought under this Article, the court may rule whether the anonymity of any woman upon whom an abortion has been performed or attempted shall be preserved from public disclosure if she does not give her consent to disclosure.  The court, upon its own motion or upon motion of a party, and upon determining that the woman's anonymity should be preserved, shall issue appropriate orders to the parties, witnesses, and counsel.  Nothing in this section shall be construed to conceal from the defendant the identity of the plaintiff in a civil case or the identity of the victim in a criminal case.
"§ 90-21.33.  Civil remedies.
(a)	Any person upon whom an abortion has been performed or attempted to be performed may maintain an action against the person who performed or attempted to perform the abortion in knowing or reckless violation of this Article for actual damages and, to the extent allowed by law, for punitive damages.
(b)	If judgment is rendered in favor of the plaintiff in any action authorized under this section, the court shall also render judgment for reasonable attorneys' fees in favor of the plaintiff against the defendant.  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, then the court shall render judgment for reasonable attorneys' fees in favor of the defendant against the plaintiff."
Sec. 2.  If any provision, word, phrase, or clause of this act or the application thereof to any person or circumstance is held invalid, the invalidity shall not affect the provisions, words, phrases, clauses, or applications of this act which can be given effect without the invalid provision, word, phrase, clause, or application and, to this end, the provisions, words, phrases, and clauses of this act are declared to be severable.
Sec. 3.  This act becomes effective December 1, 1995, and applies to offenses committed and causes of action arising on or after that date.