Prevention of Coerced and Unsafe Abortions Act
See supporting fact sheets and
affidavits here
The
list of risk factors in section 3 is mostly taken
verbatim from the 2008 report of the APA Task
Force on Abortion and Mental Health.
Be it enacted by the General Assembly of
this STATE, as follows:
Section X, Chapter X (governing medical negligence or
informed consent), is amended by adding thereto one new
section, to be known as section New SECTION, to read as
follows:
1. Name of Act and Legislative Findings
This section shall be known and may be cited as the "Prevention of Coerced and Unsafe Abortions Act" [or the "Negligent Screening Act].
The Legislature hereby finds and declares:
(1) That the existing standard of care for pre-abortion screening and counseling is not always adequate to protect the health needs of women;
(2) That clarifying the minimum standard of care for pre-abortion screening and counseling in statute is a practical means of protecting the well-being of women and may better ensure that abortion doctors are sufficiently aware of each patient's risk profile so they may give each patient a well-informed medical opinion regarding her unique case;
(3) That providing right to redress against non-physicians who perform illegal abortions or encourage self-abortions is an important means of protecting women's health;
(4) That certain subgroups of women who are at higher risk of experiencing negative reactions associated with abortion can be identified by screening for pre-existing risk factors, including, but not limited to, the perception of feeling pressured to have an abortion, a prior history of mental illness, negative moral beliefs about abortion, and other statistically significant risk factors;
(5) That large scale record based studies have shown that compared to women who carry to term, the risk of death associated with abortion is significantly higher than the risk of death associated with childbirth;
(6) That there are few, if any, statistically validated benefits associated with abortion, and therefore, given the lack of proven benefits and the abundance of associated risks, the hypothesis that induced abortion provides more benefits than risks is still unproven, and abortion may therefore rightly be considered an unproven, experimental treatment;
(7) That "the abortion decision in all its aspects is inherently, and primarily, a medical decision, and basic responsibility for it must rest with the physician," as declared in Roe v Wade and furthermore, that only an irresponsible physician would recommend or perform an abortion without first evaluating each individual patient's unique risk profile to determine if the option of abortion is more likely to produce benefits than risks, or more risks than benefits, or if the risks are negligible;
(8) That collection of data regarding the frequency of women being pressured into abortions and the distribution of risk factors, follow up, and complication rates may contribute improved medical care and public health policies.
(9) That many women report that their abortion providers paternalistically withheld information about risks and risk factors. Peer reviewed studies also a high degree of dissatisfaction with abortion counseling and that 95% of women desire information about all risks, and about 1 in 4 women report that risks that may occur rarely, in only 1 in 1,000 to 1 in 10,0000 cases, may be relevant to their decision.
(10) That it is within the resources of organizations such as Planned Parenthood of America, the National Abortion Federation, the American College of Obstetrics and Gynecology, which train and advise physicians in regard to research findings related to abortion procedures to conduct literature reviews which would produce and maintain up to date checklists of statistically validated risk factors and abortion associated risks. It is also within their means to provide such information in the form of printed or computerized checklists which would make the full disclosures of all risks that may be relevant to a reasonable patient in accord with each patients individual risk profile. Alternatively, insurance companies could maintain and provide computerized screening and disclosure programs which would assure adequate screening and disclosure in order to mitigate liability risks.
(11) Improved pre-abortion screening will benefit individual women and public health by reducing (a) unwanted abortions consented to under duress, (b) unsafe abortions among specific subgroups of high risk patients, and (c) unbeneficial abortions which are predictably unlikely to produce the benefits some women seek and which women are more likely to profoundly regret.
(12) That the problem of increasing health care costs, as addressed by U.S. Preventive Services Task Force initiative and an increasing emphasis on evidence based medicine, underscores the importance of avoiding medical procedures, including abortion, when the procedure either (a) has been shown to not produce the positive effects sought by the patient or (b) produces negative health effects which are greater than any benefits.
(13) That a minimum standard of care for pre-abortion screening and counseling is appropriate and necessary to safeguard the health interests of women and to reduce the incidence of abortions which are unsafe, unwanted, or unnecessary which women may subsequently regret.
2. Definitions
As used in this section, the following terms mean:
(1) "Abortion", the use or prescription of any
instrument, medicine, drug, or any other substance
or device to terminate the pregnancy of a woman 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) "Abortion provider", any physician or entity
that performs or provides abortions. For purposes of
this section, abortion provider shall also include
any entity that refers for abortions as a normal
part of their business at least ten times per year;
(3) "Complications associated with abortion" means
any medically credible adverse physical,
psychological, or emotional reaction that is
significantly associated with abortion.
(4) "Medical emergency", that condition which, on
the basis of the physician's reasonable clinical
judgment, so complicates the medical condition of
the pregnant woman as to necessitate an immediate
abortion to avert the death of the mother or for
which a twenty-four-hour delay will create grave
peril of immediate and irreversible loss of a major
bodily function;
(5) "Negligible risks", risks that a reasonable
patient would consider to be immaterial to a
decision to undergo an elective medical procedure;
(6) "Physician", any person licensed under chapter
334 to practice in this state, including medical
doctors and doctors of osteopathy;
(7) "Qualified person", a licensed physician or an
agent of the abortion provider who is a licensed
psychologist, licensed social worker, licensed
professional counselor, or licensed registered
nurse;
(8) "Relative risk rates" of abortion
means any medically credible relative risk rate or
odds ratio for any adverse physical, psychological,
or emotional reaction significantly associated with
abortion.
(9) Self-induced abortion means any abortion or menstrual extraction attempted or completed by a pregnant woman on her own body without a prescription from a licensed physician.
3. Negligent Pre-Abortion Screening and Counseling
In addition to any other requirements under state law, it is an act of medical negligence to perform or refer for an abortion, except in the case of medical emergency, unless all of the following are true:
(a) Evaluated the pregnant woman in person to identify the presence risk factors associated with complications associated with abortion, the list including, at least the following risk factors:
(1) perceived pressure from others to terminate a pregnancy;
(2) perceived opposition to the abortion from partners, family, and/or friends;
(3) lack of perceived social support from others;
(4) low self-esteem, a pessimistic outlook, low-perceived control over life;
(5) a history of mental health problems prior to the pregnancy;
(6) feelings of stigma;
(7) perceived need for secrecy;
(8) use of avoidance and denial coping strategies;
(9) feelings of commitment to the pregnancy;
(10) ambivalence about the abortion decision;
(11) low perceived ability to cope with the abortion prior to its occurrence;
(12) abortion after the first trimester;
(13) a history of prior abortion;
(14) the woman views an abortion to be in conflict with her personal or religious values;
(15) the woman is twenty-two years old or younger;
(16) the woman has a family history of breast cancer; and
(b) Informed the pregnant woman and the
physician who is to perform the abortion of the
results of the evaluation in writing. The
written evaluation shall include, at a minimum,
the age of the woman, the research questions
described in subsection 5.11, the stated reason or
reasons for requesting the abortion, a
description of any perceived pressures
identified in subsection (a) in a manner that
does not reveal any personal identifying
information, a checklist identifying both the
positive and negative results of the evaluation
for each risk factor associated with abortion,
and the licensed person's written
certification that the pregnant woman was
informed of the risk factors associated with
abortion as discussed;
(c) Retained a copy of the written evaluation
results in the pregnant woman's permanent
record, with said copy including the woman's
written certification that she personally
discussed the risk factors and any associated
complications with the licensed person who
signed the written certification.
(2) If any risk factors associated with abortion
were identified, the pregnant woman was informed of
the following in such manner and detail that a
reasonable person would consider material to a
decision of undergoing an elective medical
procedure. The requirement of this section may be met by
providing the woman with at least one hour to review
the information described in this section in the
form of either a printed or electronic document. If
viewed in the form of an electronic document, the
patient shall be notified of the option to receive a
printed copy.
(3) After review of the written evaluation in subsection, the physician performing the abortion has formed a reasonable medical judgment, documented in the permanent record and disclosed in person to the woman at least one hour prior to performing the abortion, that:
(a) The preponderance of medically credible studies demonstrates that the
physical and psychological risks associated with
abortion for patients with risk factors similar
to the patient's risk factors are negligible
risks; or
(b) Continuance of the pregnancy would involve
greater risk of injury to the physical or mental health
of the pregnant woman than if the
pregnancy were terminated by induced abortion;
or
(c) Continuance of the pregnancy would involve
less risk of injury to the physical or mental health
of the pregnant woman than if the pregnancy
were terminated by induced abortion.
(4) A copy of the written evaluation with the date of the abortion and any other information that might personally identify the woman, her partner, or her family redacted by the physician or the reporting medical facility, has been filed with the Department of Health within sixty days after the abortion. The filed form shall include a code or number allowing either the patient or physician to match their copy of the evaluation with the copy filed with the Department of Health.
The Department of Health and Human Services shall disseminate a model form that physicians, psychiatrists, psychologists, mental health practitioners, physician assistants, registered nurses, or social workers licensed under the Uniform Credentialing Act may use as the written evaluation of risk factors including any physical, psychological, or situational factors required by this section, but any lack or unavailability of such a model form or list shall not affect the duties of the physician, psychiatrist, psychologist, mental health practitioner, physician assistant, registered nurse, or social worker licensed under the Uniform Credentialing Act set forth in this section. A bibliography of citations relied upon in developing the form shall also be made available .
4. Civil Remedies.
(1) In addition to other remedies available under state law, the intentional, knowing, or negligent failure to comply with the requirements of this section shall provide a basis for the following:
(a) Each violation of this section shall entitle the
woman or her survivors to ten thousand dollars for
each failure to screen for a risk factor and for
each failure to inform her of associated
complications plus actual damages and reasonable
attorney's fees and costs;
(b) Recovery for the woman for the death of her
unborn child in a wrongful death action under
section <identify section number here>, whether or
not the unborn child was viable at the time of the
abortion, upon proving by a preponderance of
evidence that the abortion provider knew or should
have known that the patient's consent to the
abortion was not informed or not fully voluntary.
(2) Any action for civil remedies based on a failure
to comply with the requirements of this section
shall be brought no later than two years after the
screening and assessment required in subsection 3 of
this section, or two years after the date the woman
becomes or should have been aware that the abortion
was the probable or contributory cause of a physical
or emotional complication and has recovered from any
psychological complications which may have impeded
the patient's ability to seek or cooperate with
counsel to pursue a civil remedy.
(3) Notwithstanding the provisions of subdivision
(2) of this subsection, in the case of a woman who
has died within one year of the abortion, any action
under this section shall be brought within two years
of her death.
(4) In a civil action involving this section:
(a) In determining liability and validity of
consent, the failure to comply with the requirements
of subsection 3 of this section shall create the
presumption that the plaintiff would not have
undertaken the recommended abortion had subsection 3
of this section been complied with by the physician;
(b) The absence of physical injury shall not
preclude an award of noneconomic damages including
pain, suffering, inconvenience, mental suffering,
emotional distress, psychological trauma, loss of
society or companionship, loss of consortium, injury
to reputation, or humiliation associated with the
abortion;
(c) The fact that a physician does not perform
elective abortions, or has not in the past, shall
not automatically disqualify that physician from
being an expert witness. A licensed obstetrician or
family practitioner who regularly helps women in
resolving pregnancy-related medical matters shall
presumptively be qualified to testify as an expert
on the screening, counseling, management, and
treatment of unwanted or problem pregnancies;
(d) The failure to comply with the requirements of
subsection 3 of this section shall create the
presumption that the negligence was willful and
wanton unless the defendant proved by a
preponderance of evidence that a lesser mental state
in fact applied;
(e) Any waiver of the evaluations and notices
provide for in in subsection 3 of this section is
void and unenforceable;
(5) It shall be an affirmative defense to allegations of inadequate disclosure under the standards and requirements of subsection 3 of this section that the defendants omitted the contested information because:
(a) Statistically validated surveys of the general
population of women of reproductive age, conducted
within three years before or after the contested
abortion, demonstrates that less than five percent
of women would consider the contested information to
be plausible and relevant to an abortion decision; or
(b) In the reasonable medical judgment of two
licensed psychiatrists who examined the patient
prior to the abortion, disclosure of the contested
information would most likely have been the
immediate and direct cause of a severe adverse
effect on the physical health of the patient.
(6) It shall be an affirmative defense to allegations of inadequate screening under the standards and requirements of subsection 3 of this section that the defendants failed to screen for the contested information because no peer reviewed study was published after 1973, in the English language, in a journal indexed by the United States National Library of Medicine's search services (PubMed or MEDLINE) or the index PsychInfo, showing that alleged indicators and contraindicators, and risk factors are significantly associated with complications associated with abortion, wherein the statistical test for a significant association being such that there is less than a five percent probability (P < .05) that the reported association was due to chance.
(7) If the physician provided a minor patient with an abortion without the informed consent of the minor's legal guardian, the burden of proving that the minor woman was capable of maturely and independently evaluating the information given to her in the disclosure process, that the minor woman was capable of making a voluntary and informed choice, and that all aspects of the screening and disclosure were adequate shall fall upon the abortion provider.
(8) In addition to the other remedies available
under common or statutory law of this state, a woman
or her survivors shall have a cause of action for
reckless endangerment against any person who attempts or completes an
abortion on the pregnant woman or aids or abets the
commission of a self-induced abortion, with the
exception of a person who is a licensed physician or
a licensed pharmacist filling a prescription. Proof of
injury shall not be required to recover an award for
reckless endangerment or wrongful death under this
subdivision and the minimum award for damages under
this subdivision shall be eight hundred thousand
dollars, plus reasonable costs and attorney's fees.
5. Abortion Reporting Form (optional)
The Department of Health and Human Services shall prescribe an abortion reporting form which shall be used for the reporting of every abortion performed in this state. Such form shall include the following items:
- The age of the pregnant woman;
- The location of the facility where the abortion was performed;
- The type of procedure performed;
- Complications, if any;
- The name of the attending physician;
- The pregnant woman's obstetrical history regarding previous pregnancies, abortions, and live births;
- The stated reason or reasons for which the abortion was requested;
- The state of the pregnant woman's legal residence;
- The length and weight of the aborted child, when measurable;
- Whether or not the woman returned to the clinic for the scheduled follow up(s).
- Not less than five and no more than ten research questions developed by the Department of Health which may be useful for researchers to better understand the risk factors for and effects of abortion. These questions should be periodically reviewed and altered to advance research into the causes and consequences of abortion.
The completed form shall be signed by the attending physician and sent to the department within thirty days after each reporting month. The completed form shall be an original, typed or written legibly in durable ink, and shall not be deemed complete unless the omission of any item of information required shall have been disclosed or satisfactorily accounted for. Carbon copies shall not be acceptable. The abortion reporting form shall not include the name of the person upon whom the abortion was performed. The abortion reporting form shall be confidential and shall not be revealed except upon the order of a court of competent jurisdiction in a civil or criminal proceeding
The completed form shall be accompanied by a
copy of the written evaluation described in
Section 3, with the date of the abortion and any
other information that might personally identify
the woman, her partner, or her family redacted
by the physician or the reporting medical
facility. The Department shall maintain files
containing these written evaluations in lots
spanning a three month period. After each three
month period, these lots shall be made available
to researchers seeking to aggregate the
information collected, provided the researchers
shall sign a non-disclosure agreement, prepared
by the Department, precluding the use of the
written evaluations to attempt to identify any
individual.
6. Abortion Information Depository (optional)
The Department of Health and Human Services shall make available on its Internet web site an Abortion Information Depository which shall include, in both an HTML format and in a downloadable portable document format (pdf), the information described in this section.
The Department is not required to engage in a proactive search for studies described in this section, but shall be required to maintain an updated list of information based only on qualified studies meeting the required definitions for inclusion which have been submitted for inclusion by third parties.
A qualified study is one which has been published in the English language in a peer-reviewed journal indexed by the United States National Library of Medicine's search services (PubMed or MEDLINE) or in any peer-reviewed journal included in PsycINFO after 1972, and which furthermore includes at least one finding that has been statistically tested finding such that there is less than a five percent probability (P < .05) that the identified statistical association is due to chance.
The Abortion Information Depository shall include directions for mailing the required information for nominating a qualified study and for submitting material summarizing qualified studies, and shall also provide a means for interested persons to nominate studies or submit summary materials by electronic submission process.
Nominations and submissions shall at a minimum include the complete citation and identification of at least one statistically significant risk factor or at least one statistically significant relative risk in order to assist the Department in determining if the minimum standards for inclusion are met. The electronic submission process shall also include an option for submitting a hyperlink to the study or an abstract of the study, or for uploading a copy of the published study.
Within 30 days of receiving a third party submission, the Department shall attempt to notify the third party either that the submitted citation has been added to the appropriate online bibliographic listing or shall be given notice regarding which of the conditions for qualifying studies were not met.
The Abortion Information Depository shall include:
(1) A bibliographic listing of all qualifying
studies, including any provided hyperlinks to
the abstract or complete study, provided the
link does not violate copyright law.
(2) Copies of
any documents submitted to the
Abortion Information Depository that include a
forest plot
of statistically significant (p<.05) relative risk rates of abortion
from qualified studies, with a
citation to the study reporting each relative
risk rate, a true and accurate description of each risk and the
population sample to which the reported risk
rate applies, and optionally a copy of the
abstract(s) of the qualified studies relied
upon.
(3) A copy of the informed consent material prepared under the State's informed consents statute (if any).
(4) A listing of social services offering assistance to pregnant women.
7. Construction.
(2) It is not the intention of this section to make lawful an abortion that is otherwise unlawful or to make unlawful an abortion that is otherwise lawful.
(3) Nothing in this section shall be construed as defining the standard of care for any medical procedures other than induced abortion.
(4) A violation of Section 3 or 5 shall shall not provide
grounds for any criminal action or disciplinary action by
any State agency or State licensing authority against the
physician or persons acting under the physician's direction
or against a licensed medical facility, hospital, health
care facility, or parent corporation of the health care
facility.
8. Severable.
If any portion of this act is enjoined and
subsequently upheld, the statute of limitations for
filing civil suit under this section shall be tolled
during the period for which the injunction is
pending and for four years thereafter.
Supporting Affidavits
Sworn Declarations of Abortion Patients - Including patients of Planned Parenthood and, or residents of Nebraska