Citations Affected: IC 16-18; IC 16-34; IC 27-8.
Effective: July 1, 2011.
January 12, 2011, read first time and referred to Committee on Public Health.
February 3, 2011, reassigned to Committee on Public Policy.
February 17, 2011, amended, reported _ Do Pass.
the first trimester but before the earlier of viability of the fetus or 20 weeks of postfertilization age of the fetus (current law requirements are based on viability of the fetus). Requires that a physician determine the postfertilization age of a fetus before performing an abortion, and allows for the discipline of a physician who fails to do this in certain circumstances. Adds information that a pregnant woman must be informed of orally and in writing (current law requires that the information be given only orally) before an abortion may be performed concerning the physician, risks involved, information concerning the fetus, available assistance, and existing law. Requires a pregnant woman seeking an abortion to view fetal ultrasound imaging unless the pregnant woman states in writing that the pregnant woman does not want to view the fetal ultrasound imaging. Requires a physician who performs an abortion to: (1) have admitting privileges at a hospital in the county or in a contiguous county to the county where the abortion is performed; or (2) enter into an agreement with a physician who has admitting privileges in the county or contiguous county; and notify the patient of the hospital location where the patient can receive follow-up care by the physician. Requires the state department of health to develop materials to be provided to a pregnant woman setting forth certain information and to post the materials on the state department's web site. Creates a cause of action for a pregnant woman or the biological father of the fetus for actual and punitive damages if a physician recklessly, knowingly, or intentionally performs or attempts to perform an abortion in violation of the law. Provides for injunctive relief for specified individuals against a physician to prevent the physician from performing further abortions that violate the law. Creates the special litigation defense fund to provide reimbursement of the costs and expenses incurred by the attorney general in defending the constitutionality of this act, and continuously appropriates the fund. Provides for severability of provisions if a court determines that any of the law is unconstitutional, and specifies prior law returns to effect if the amended law is found by the court to be unconstitutional. Prohibits qualified health plans under the federal health care reform law from providing coverage for abortion.
A BILL FOR AN ACT to amend the Indiana Code concerning
health and to make an appropriation.
AS A NEW SECTION TO READ AS FOLLOWS [EFFECTIVE JULY
1, 2011]: Sec. 9. (a) The general assembly finds the following:
(1) There is substantial medical evidence that a fetus at twenty
(20) weeks of postfertilization age has the physical structures
necessary to experience pain.
(2) There is substantial medical evidence that a fetus of at
least twenty (20) weeks of postfertilization age seeks to evade
certain stimuli in a manner similar to an infant's or adult's
response to pain.
(3) Anesthesia is routinely administered to a fetus of at least
twenty (20) weeks of postfertilization age when prenatal
surgery is performed.
(4) A fetus has been observed to exhibit hormonal stress
responses to painful stimuli earlier than at twenty (20) weeks
of postfertilization age.
(b) Indiana asserts a compelling state interest in protecting the
life of a fetus from the state at which substantial medical evidence
indicates that the fetus is capable of feeling pain.
physician the written consent of her parent or legal guardian
if required under section 4 of this chapter.
(2) After the first trimester of pregnancy and before the earlier of
viability of the fetus or twenty (20) weeks of postfertilization
age, for reasons based upon the professional, medical judgment
of the pregnant woman's physician if:
(A) all the circumstances and provisions required for legal
abortion during the first trimester are present and adhered to;
and
(B) the abortion is performed in a hospital or ambulatory
outpatient surgical center (as defined in IC 16-18-2-14).
(3) Except as provided in subsection (b), at the earlier of
viability of the fetus or twenty (20) weeks of postfertilization
age and any time after, viability of the fetus, for reasons based
upon the professional, medical judgment of the pregnant woman's
physician if:
(A) all the circumstances and provisions required for legal
abortion before the earlier of viability of the fetus or twenty
(20) weeks of postfertilization age are present and adhered
to;
(B) the abortion is performed in compliance with section 3 of
this chapter; and
(C) before the abortion the attending physician shall certify in
writing to the hospital in which the abortion is to be
performed, that in the attending physician's professional,
medical judgment, after proper examination and review of the
woman's history, the abortion is necessary to prevent a
substantial permanent impairment of the life or physical health
of the pregnant woman. All facts and reasons supporting the
certification shall be set forth by the physician in writing and
attached to the certificate.
(b) A person may not knowingly or intentionally perform a partial
birth abortion unless a physician reasonably believes that:
(1) performing the partial birth abortion is necessary to save the
mother's life; and
(2) no other medical procedure is sufficient to save the mother's
life.
emergency, consent to an abortion is voluntary and informed only if the
following conditions are met:
(1) At least eighteen (18) hours before the abortion and in the
presence of the pregnant woman, the physician who is to perform
the abortion, the referring physician or a physician assistant (as
defined in IC 25-27.5-2-10), an advanced practice nurse (as
defined in IC 25-23-1-1(b)), or a midwife (as defined in
IC 34-18-2-19) to whom the responsibility has been delegated by
the physician who is to perform the abortion or the referring
physician has orally informed the pregnant woman orally and in
writing of the following:
(A) The name of the physician performing the abortion, the
physician's medical license number, and an emergency
telephone number where the physician or the physician's
designee may be contacted on a twenty-four (24) hour a
day, seven (7) day a week basis.
(B) That follow-up care by the physician or the physician's
designee is available on an appropriate and timely basis
when clinically necessary.
(B) (C) The nature of the proposed procedure. or treatment.
(C) (D) The risks of and alternatives to the procedure, or
treatment. including:
(i) the risk of infection and hemorrhage;
(ii) the potential danger to a subsequent pregnancy;
(iii) the potential danger of infertility; and
(iv) the possibility of increased risk of breast cancer
following an induced abortion and the natural protective
effect of a completed pregnancy in avoiding breast
cancer.
(E) That human physical life begins when a human ovum
is fertilized by a human sperm.
(D) (F) The probable gestational age of the fetus at the time
the abortion is to be performed, including: an offer to
provide:
(i) a picture or drawing of a fetus;
(ii) the dimensions of a fetus; and
(iii) relevant information on the potential survival of an
unborn fetus;
at this stage of development.
(G) That medical evidence shows that a fetus can feel pain
at or before twenty (20) weeks of postfertilization age.
(E) (H) The medical risks associated with carrying the fetus to
term.
(F) (I) The availability of fetal ultrasound imaging and
auscultation of fetal heart tone services to enable the pregnant
woman to view the image and hear the heartbeat of the fetus
and how to obtain access to these services.
(J) That the pregnancy of a child less than fifteen (15)
years of age may constitute child abuse under Indiana law
and must be reported to the department of child services
or the local law enforcement agency under IC 31-33-5.
(2) At least eighteen (18) hours before the abortion, the pregnant
woman will be orally informed orally and in writing of the
following:
(A) That medical assistance benefits may be available for
prenatal care, childbirth, and neonatal care from the county
office of the division of family resources.
(B) That the father of the unborn fetus is legally required to
assist in the support of the child. In the case of rape, the
information required under this clause may be omitted.
(C) That adoption alternatives are available and that adoptive
parents may legally pay the costs of prenatal care, childbirth,
and neonatal care.
(D) That there are physical risks to the pregnant woman in
having an abortion, both during the abortion procedure
and after.
(E) That Indiana has enacted the safe haven law under
IC 31-34-2.5.
(F) That materials developed by the state department in
section 1.5 of this chapter:
(i) will be provided to the pregnant woman by the
physician providing the abortion as a hard copy;
(ii) are available on the state department's Internet web
site;
(iii) provide scientific information about the unborn
child; and
(iv) list agencies in the area that offer alternatives to
abortion, including agencies that offer alternatives to
abortion at no cost to the pregnant woman.
(3) The pregnant woman certifies in writing, before the abortion
is performed, that:
(A) the information required by subdivisions (1) and (2) has
been provided to the pregnant woman;
(B) the pregnant woman has been offered the opportunity
to view the fetal ultrasound imaging and hear the
auscultation of the fetal heart tone if the fetal heart tone is
audible and that the woman has:
(i) viewed or refused to view the offered fetal ultrasound
imaging; and
(ii) listened to or refused to listen to the offered
auscultation of the fetal heart tone if the fetal heart tone
is audible; and
(C) the pregnant woman has been given a written copy of
the printed materials described in section 1.5 of this
chapter.
(b) Before an abortion is performed, the pregnant woman may, upon
the pregnant woman's request, shall view the fetal ultrasound imaging
and hear the auscultation of the fetal heart tone if the fetal heart tone is
audible unless the pregnant woman certifies in writing, before the
abortion is performed, that the pregnant woman does not want to
view the fetal ultrasound imaging.
carrying the child to term.
(4) Information that medical assistance benefits may be
available for prenatal care, childbirth, and neonatal care.
(5) Information that the biological father is liable for
assistance in support of the child, regardless of whether the
biological father has offered to pay for an abortion.
(6) A list of public and private agencies that provide
assistance to women throughout pregnancy, childbirth, and a
child's dependency. For purposes of this subdivision,
"assistance" includes pregnancy prevention counseling and
medical referrals for obtaining pregnancy prevention
medications or devices. The list must include the following:
(A) Geographically indexed materials to allow a pregnant
woman to find the services available near the pregnant
woman's residence.
(B) Identification of services that are provided at no cost to
the pregnant woman.
(C) The following information about each adoption agency
in Indiana:
(i) A description of the services provided by the agency.
(ii) Contact information for the adoption agency,
including the agency's telephone number.
(D) Information regarding telephone 211 dialing code
services for accessing human services as described in
IC 8-1-19.5, and the types of services that are available
through this service.
(c) In complying with subsection (b)(6)(C), the state department
shall consult with the recognized 211 service providers and the
Indiana utility regulatory commission as required by IC 8-1-19.5-9.
writing is not retracted before the abortion, the child, if born alive, shall
immediately upon birth become a ward of the department of child
services.
weeks:
(A) whether the method of abortion used was a method,
that in the reasonable judgment of a physician, would
provide the best opportunity for the fetus to survive; and
(B) the basis for the determination that the pregnant
woman had a condition described in this chapter that
required the abortion to avert the death of or serious
impairment to the pregnant woman.
(7) The mother's obstetrical history, including dates of other
abortions, if any.
(8) The results of pathological examinations if performed.
(9) Information as to whether the fetus was delivered alive.
(10) Records of all maternal deaths occurring within the health
facility where the abortion was performed.
(b) The form provided for in subsection (a) shall be completed by
the physician performing the abortion and shall be transmitted to the
state department not later than July 30 for each abortion performed in
the first six (6) months of that year and not later than January 30 for
each abortion performed for the last six (6) months of the preceding
year. Each failure to file the form on time as required is a Class B
misdemeanor.
(c) Not later than June 30 of each year, the state department
shall compile a public report providing the following:
(1) Statistics for the previous calendar year from the
information submitted under this section.
(2) Statistics for previous calendar years compiled by the state
department under this subsection, with updated information
for the calendar year that was submitted to the state
department after the compilation of the statistics.
The state department shall ensure that no identifying information
of a pregnant woman is contained in the report.
have an abortion performed by a physician who violates this
chapter.
(2) A spouse, parent, sibling, guardian, or health care
provider of a pregnant woman described in subdivision (1).
(3) The attorney general.
(4) A county attorney with appropriate jurisdiction.
(c) If a judgment is rendered in favor of the plaintiff in an action
described in this section, the court shall also order the defendant
to render reasonable attorney's fees on behalf of the plaintiff.
(d) If a judgment is rendered in favor of the defendant in an
action described in this section and the court determines that the
lawsuit was frivolous and brought in bad faith, the court shall
order the plaintiff to render reasonable attorney's fees on behalf of
the defendant.