Alabama Abortion Bills 2014

8/12/2019 Alabama Abortion Bills 2014

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Alabama House Bills 490, 494, 489 and 493

Passed by House: 04- FEB- 14

Ref er r ed t o Senat e


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1 HB490

2 158596-1

3 By Representatives McClurkin, Baughn, Rich, Weaver, Hill,

4 Harper, Farley, Johnson (W), Sessions, Wilcox, Roberts,

5 Butler, Williams (D), Nordgren, Collins, Johnson (K), Greer,

6 Henry, Moore (B), Tuggle, Lee, Carns, Wallace, Buttram,

7 Chesteen, Jones and Williams (J)

8 RFD: Health

9 First Read: 13-FEB-14

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1 158596-1:n:02/13/2014:LLR/th LRS2014-808

2

3

4

5

6

7

8 SYNOPSIS: This bill would make it unlawful for a

9 physician to perform an abortion on a pregnant

10 woman after a heartbeat has been detected from the

11 unborn child in accordance with the applicable

12 standards of medical care for determining

13 heartbeats of unborn children. This bill would

14 further require a physician to check for a

15 detectable heartbeat prior to performing an

16 abortion.

17 This bill provides for the definition of

18 abortion for the purposes of this bill, as well as

19 certain types of exceptions.

20 This bill also requires written

21 documentation of the procedure used to determine

22 the existence, if any, of a detectable heartbeat in

23 an unborn child and the results thereof.

24 This bill would provide criminal penalties.

25 Amendment 621 of the Constitution of Alabama

26 of 1901, now appearing as Section 111.05 of the

27 Official Recompilation of the Constitution of

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1 Alabama of 1901, as amended, prohibits a general

2 law whose purpose or effect would be to require a

3 new or increased expenditure of local funds from

4 becoming effective with regard to a local

5 governmental entity without enactment by a 2/3 vote

6 unless: it comes within one of a number of

7 specified exceptions; it is approved by the

8 affected entity; or the Legislature appropriates

9 funds, or provides a local source of revenue, to

10 the entity for the purpose.

11 The purpose or effect of this bill would be

12 to require a new or increased expenditure of local

13 funds within the meaning of the amendment. However,

14 the bill does not require approval of a local

15 governmental entity or enactment by a 2/3 vote to

16 become effective because it comes within one of the

17 specified exceptions contained in the amendment.

18

19 A BILL

20 TO BE ENTITLED

21 AN ACT

22

23 To provide for the Fetal Heartbeat Act; to make it

24 unlawful for a physician to perform an abortion on a pregnant

25 woman after a heartbeat has been detected from the unborn

26 child; to provide for the definition of abortion as referenced

27 herein, as well as certain types of exceptions; to require a

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1 physician to check for a detectable heartbeat from an unborn

2 child prior to performing an abortion as defined herein; to

3 require written documentation of the procedure used to

4 determine the existence, if any, of a detectable heartbeat in

5 an unborn child and the results thereof; to provide criminal

6 penalties; and in connection therewith would have as its

7 purpose or effect the requirement of a new or increased

8 expenditure of local funds within the meaning of Amendment 621

9 of the Constitution of Alabama of 1901, now appearing as

10 Section 111.05 of the Official Recompilation of the

11 Constitution of Alabama of 1901, as amended.

12 BE IT ENACTED BY THE LEGISLATURE OF ALABAMA:

13 Section 1. This act shall be known and may be cited

14 as the Fetal Heartbeat Act.

15 Section 2. An abortion is defined as the use or

16 prescription of any instrument, medicine, drug, or any other

17 substance or device with the intent to terminate the pregnancy

18 of a woman known to be pregnant with knowledge that the

19 termination by those means will with reasonable likelihood

20 cause the death of the unborn child. The use or prescription

21 is not an abortion if done with the intent to save the life or

22 preserve the health of an unborn child, remove a dead unborn

23 child, or to deliver the unborn child prematurely in order to

24 preserve the health of both the mother (pregnant woman) and

25 her unborn child. The term "abortion" as used in these rules,

26 does not include a procedure or act to terminate the pregnancy

27 of a woman with an ectopic pregnancy, nor does it include the

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1 procedure or act to terminate the pregnancy of a woman when

2 the unborn child has a lethal anomaly. For the purposes of

3 this act, a "lethal anomaly" means that the child would die at

4 birth or be stillborn. For the purposes of this act, the term

5 "ectopic pregnancy" means any pregnancy resulting from a

6 fertilized egg that has implanted or attached outside the

7 uterus. The term "ectopic pregnancy" also includes a pregnancy

8 resulting from a fertilized egg implanted inside the cornu of

9 the uterus.

10 Section 3. A physician shall not perform an abortion

11 on a pregnant woman without first determining if the unborn

12 child the pregnant woman is carrying has a detectable

13 heartbeat. The procedure for detecting the heartbeat shall be

14 pursuant to the applicable medical standard of care.

15 Section 4. A physician shall not perform an abortion

16 on a pregnant woman whose unborn child's heartbeat has been

17 detected according to the requirements of this act.

18 Section 5. It is not in violation of this act to

19 perform an abortion on a pregnant woman if a physician has

20 performed a procedure for the presence of a heartbeat in the

21 unborn child utilizing the applicable medical standard of care

22 and that procedure does not reveal a heartbeat in the unborn

23 child. The physician shall document in writing the procedure

24 used to determine the existence of the heartbeat in the unborn

25 child, the date the procedure was performed and the results of

26 the procedure.

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1 Section 6. Notwithstanding that a detectable

2 heartbeat has been determined, it shall not be a violation of

3 this act if an abortion is performed by a physician pursuant

4 to the applicable medical standard of care for treatment of a

5 condition that, absent an abortion, is likely to result in the

6 death of the pregnant woman or is likely to result in

7 substantial and irreversible impairment of a major bodily

8 function of the pregnant woman, not including psychological or

9 emotional conditions.

10 Section 7. A physician who performs a medical

11 procedure which results in an abortion, notwithstanding that a

12 detectable heartbeat has been determined, shall declare in

13 writing that the medical procedure is necessary, and is

14 performed pursuant to the applicable medical standard of care

15 for treatment of a condition that, absent an abortion, is

16 likely to result in the death of the pregnant woman or is

17 likely to result in substantial and irreversible impairment of

18 a major bodily function of the pregnant woman, not including

19 psychological or emotional conditions. A physician shall

20 document in the writing the medical condition of the pregnant

21 woman, the reason why the medical procedure resulting in an

22 abortion was necessary, and the medical rationale for the

23 conclusion that the abortion was necessary to prevent the

24 death of the pregnant woman or substantial and irreversible

25 impact of a major bodily function of the pregnant woman, not

26 including psychological or emotional conditions.

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1 Section 8. Documentation required by this act shall

2 be maintained in the same manner as other similar medical

3 records, such as those used to claim medical reimbursement or

4 used to demonstrate compliance with statutory and regulatory

5 requirements. The documentation shall be maintained for a

6 period of not less than seven years, and copies shall be made

7 available to the affected patient, state health regulators,

8 and state licensure authorities upon request. Records and

9 documentation may be created electronically, maintained

10 electronically, or both, so long as the records are readily

11 reproducible in paper format.

12 Section 9. Nothing in this act shall prohibit the

13 sale, use, prescription, or administration of a measure, drug,

14 or chemical designed for contraceptive purposes.

15 Section 10. It shall be a Class C felony for a

16 physician to fail to perform a procedure to determine the

17 presence of a heartbeat in the unborn child or to perform an

18 abortion on an unborn child whose heartbeat has been

19 determined. The pregnant woman shall not be prosecuted for

20 violation of this act or for conspiracy to violate this act.

21 Section 11. If a physician fails to perform a

22 procedure to determine the heartbeat of the unborn child or

23 performs an abortion of a child having established its

24 heartbeat, he or she shall have his or her license revoked and

25 shall be subject to such additional disciplinary action as

26 shall be determined by the appropriate regulatory authority.

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1 Section 12. Although this bill would have as its


3 expenditure of local funds, the bill is excluded from further

4 requirements and application under Amendment 621, now

5 appearing as Section 111.05 of the Official Recompilation of

6 the Constitution of Alabama of 1901, as amended, because the

7 bill defines a new crime or amends the definition of an

8 existing crime.

9 Section 13. The provisions of this act are

10 severable. If any part of this act is declared invalid or

11 unconstitutional, that declaration shall not effect the part

12 which remains.

13 Section 14. This law shall become effective 30 days

14 after signing by the Governor, or its otherwise becoming law.

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1 HB494

2 158670-4

3 By Representatives Jones, Merrill, Beckman, Williams (J),

4 Shedd, Weaver, Baker, Wallace, Johnson (K), Collins, Nordgren,

5 Hammon, Tuggle, Sessions, Rich, McClurkin, Greer and Henry

6 RFD: Health


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1 ENGROSSED

2

3

4 A BILL

5 TO BE ENTITLED

6 AN ACT

7

8 Relating to the Parental Consent Law; to amend

9 Sections 26-21-1 to 26-21-4, inclusive, and Section 26-21-7,

10 Code of Alabama 1975, and to add Section 26-21-6.1 to the Code

11 of Alabama 1975, to require the signature of a parent, legal

12 guardian, or adoptive parent of a minor to a consent form to

13 be signed in the presence of the abortion provider or agent

14 and to be accompanied with specific identification and

15 evidence, and to provide for certain alternative

16 identification and evidence requirements; to require certain

17 documents proving that a minor is emancipated to be certified

18 by the appropriate issuing authority; to prohibit a parent,

19 legal guardian, custodian, or any other person from coercing a

20 minor to have an abortion performed; to provide that the

21 Department of Public Health develop appropriate forms for the

22 consent and emancipation; to provide for certain civil actions

23 including professional disciplinary actions and license

24 suspension; to provide for the right of intervention; to

25 provide for the appointment of a guardian ad litem to

26 represent the interests of the unborn child during certain

27 proceedings; to provide for certain civil actions based on a

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1 violation of Title 26, Chapter 21, Code of Alabama 1975; and

2 to provide for certain exemptions from liability for

3 physicians.


5 Section 1. Sections 26-21-1 to 26-21-4, inclusive,

6 and Sections 26-21-6 and 26-21-7, Code of Alabama 1975, are

7 amended to read as follows:

8 "26-21-1.

9 "(a) It is the intent of the Legislature in enacting

10 this parental consent provision to further the important and

11 compelling state interests of: (1) protecting minors against

12 their own immaturity, (2) fostering the family structure and

13 preserving it as a viable social unit, and (3) protecting the

14 rights of parents to rear children who are members of their

15 household.

16 "(b) The Legislature finds as fact that: (1)

17 immature minors often lack the ability to make fully informed

18 choices that take account of both immediate and long-range

19 consequences, (2) the medical, emotional, and psychological

20 consequences of abortion are serious and can be lasting,

21 particularly when the patient is immature, (3) the capacity to

22 become pregnant and the capacity for mature judgment

23 concerning the wisdom of an abortion are not necessarily

24 related, (4) parents ordinarily possess information essential

25 to a physician's exercise of his or her best medical judgment

26 concerning the child, and (5) parents who are aware that their

27 minor daughter has had an abortion may better insure that she

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1 receives adequate medical attention after her abortion. The

2 Legislature further finds that parental consultation is

3 usually desirable and in the best interests of the minor.

4 "(c) The Legislature further finds that the United

5 States Supreme Court has held under certain circumstances a

6 minor may seek permission to have an abortion without her

7 parent's consent by petitioning a court. The Legislature

8 enacts a judicial by-pass procedure for the purposes of

9 meeting the Constitutional standard and finds that in order to

10 do substantial justice it is necessary that the Alabama courts

11 be provided guidance in determining appropriate procedure and

12 evidence.

13 "(d) The Legislature further finds the public policy

14 of the State of Alabama is to respect life and provide

15 safeguards to protect life in the criminal, health, and other

16 laws of the State of Alabama; that in respecting and

17 protecting life, there is included the unborn life of a child

18 whose life may be subject to termination before birth by

19 abortion and that when the mother of said unborn life is a

20 minor who seeks an abortion through the judicial by-pass

21 procedure, it is the interest of the State of Alabama to not

22 only establish and protect the rights of the minor mother, but

23 also to protect the state's public policy to protect unborn

24 life; the protection of these interests is done, in part, by

25 requiring judges to make determinations pursuant to the

26 judicial by-pass procedure and to require said judges be

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1 be pregnant, with intent other than to increase the

2 probability of a live birth, to preserve the life or health of

3 the child after live birth, or to remove a dead or dying

4 unborn child knowledge that the termination by those means

5 will with reasonable likelihood cause the death of the unborn

6 child. Such use or prescription is not an abortion if done

7 with the intent to save the life or preserve the health of an

8 unborn child, remove a dead unborn child, or to deliver the

9 unborn child prematurely in order to preserve the health of

10 both the mother (pregnant woman) and her unborn child. The

11 term "abortion" as used herein does not include a procedure or

12 act to terminate the pregnancy of a woman with an ectopic

13 pregnancy, nor does it include the procedure or act to

14 terminate the pregnancy of a woman where the unborn child has

15 a lethal anomaly. For the purposes of this act a "lethal

16 anomaly" means the child would die at birth, or be stillborn.

17 For purposes of this act, the term "ectopic pregnancy" means

18 any pregnancy resulting from a fertilized egg that was

19 implanted or attached outside the uterus. The term "ectopic

20 pregnancy" also includes a pregnancy resulting from a

21 fertilized egg implanted inside the cornu of the uterus.

22 "(4) MEDICAL EMERGENCY. A condition that, absent an

23 abortion performed before the requirements of this act are

24 met, and based on the applicable standard of care, is likely

25 to result in the death of the pregnant woman or is likely to

26 result in substantial irreversible impairment of a major

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1 bodily function of the pregnant woman, not including

2 psychological or emotional conditions.

3 "26-21-3.

4 "(a) Except as otherwise provided in subsections (b)

5 and (e) (d) of this section and Sections 26-21-4 and 26-21-5

6 hereof, no person physician shall perform an abortion upon an

7 unemancipated minor unless he or she the physician or his or

8 her agent first obtains the written consent of either parent

9 or the legal guardian of the minor.

10 "(b) If the minor's pregnancy was caused by sexual

11 intercourse with the minor's natural father, adoptive father,

12 or stepfather or legal guardian, then written notice to the

13 minor's mother by certified mail shall be sufficient.

14 "(c)(b) The person physician who shall perform the

15 abortion or his or her agent shall obtain or be provided with

16 the written consent from either parent or legal guardian

17 stating the names of the minor, parent, or legal guardian,

18 that he or she is informed that the minor desires an abortion

19 and does consent to the abortion, the date, and the consent

20 shall be signed by either parent or legal guardian. The

21 unemancipated minor shall verify on the same form, by her

22 signature and in the presence of such person who shall perform

23 the abortion or his or her agent, that the signature of the

24 parents, parent, or legal guardian is authentic. The consent

25 shall be kept as a part of the minor's patient file for four

26 years. The signatures of the parents, parent, or legal

27 guardian shall be affixed and the information required in this

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1 subsection shall be on a form to be provided by, and shall be

2 written in the presence of, the physician who shall perform

3 the abortion or his or her agent. The parents, parent, or

4 legal guardian shall provide to the physician who shall

5 perform the abortion or his or her agent, evidence of

6 parentage or legal guardianship. For parents or a parent,

7 there shall also be required a certified birth certificate of

8 the minor identifying the minor and the parents or parent. For

9 a legal guardian or adoptive parent, there shall be required a

10 duly certified court order or other official document naming

11 the legal guardian or adoptive parent as such for the minor.

12 If official photographic personal identification has not been

13 issued to any parents, parent, or legal guardian, other

14 official identification shall be acceptable, provided the

15 parents, parent, or legal guardian affirms in writing on the

16 form herein required under oath, with recognition of criminal

17 penalties, that he or she does not possess any photographic

18 identification and that the alternative personal

19 identification provided is his or her identification. The

20 parent, parents or legal guardian signing the consent shall

21 attest with recognition of criminal penalties that he or she

22 is the parent or legal guardian, has not been deprived of

23 primary custody or joint physical custody of the minor by any

24 court of law, and has not given the child up for adoption or

25 otherwise waived parental rights. If the minor does not have a

26 certified birth certificate, an abortion may be performed only

27 if the physician who shall perform the abortion certifies in

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1 writing in the minor's medical record that a medical emergency

2 exists or that there is insufficient time to obtain a

3 certified birth certificate, and provided the minor can

4 provide other government issued identification. The parents,

5 parent, or minor shall obtain a certified birth certificate as

6 soon thereafter as possible and provide a certified copy to

7 the physician who performed the abortion or his or her agent,

8 and if it is not received within 90 days, he or she shall

9 report the failure to the State of Alabama Department of

10 Public Health on a form provided by the department. Any

11 certified document, a photocopy of the personal

12 identification, and any other documentation required by this

13 subsection shall be attached to the completed consent form and

14 shall be kept as a part of the minor's patient file for four

15 years. All signatures required by this act by the minor,

16 parent, parents, legal guardian, physician or other person

17 shall be attested by a notary public.

18 "(d)(c) If the minor is emancipated, the person

19 physician who shall perform the abortion or his or her agent

20 shall obtain a written statement form stating the name of the

21 emancipated minor, that the minor is emancipated, the type of

22 emancipation, and the date, and the form shall be signed by

23 the emancipated minor. The written statement form shall be

24 signed in the presence of the person physician who shall

25 perform the abortion or his or her agent and witnessed by him

26 or her the physician or the agent. The emancipated minor shall

27 also provide a license or certificate of marriage, judgment,

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1 or decree of divorce, order of emancipation or relieving her

2 of the disabilities of nonage, or other court document

3 evidencing her marriage, divorce, or emancipation. Any such

4 document shall be a copy of the original, duly certified by

5 the appropriate court. A copy of any such Such certified

6 document shall be attached to the written statement form and

7 kept as a part of the minor's patient file for four years.

8 "(e)(d) A minor, including a ward of the state, who

9 elects not to seek or does not or cannot for any reason,

10 including unavailability or refusal by either or both parents

11 or legal guardian, obtain consent from either of her parents

12 or legal guardian under this section, may petition, on her own

13 behalf, the juvenile court, or court of equal standing, in the

14 county in which the minor resides or in the county in which

15 the abortion is to be performed for a waiver of the consent

16 requirement of this section pursuant to the procedure of

17 Section 26-21-4.

18 "(e) A parent, legal guardian, custodian, or any

19 other person, shall not coerce a minor to have an abortion

20 performed.

21 "(f) The Department of Public Health shall propose

22 within 90 days of the effective date of this act, the forms

23 required in subsections (b) and (c).

24 "26-21-4.

25 "(a) A minor who elects not to seek or does not or

26 cannot for any reason, obtain consent from either of her

27 parents or legal guardian, may petition, on her own behalf,

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1 the juvenile court, or the court of equal standing, in the

2 county in which the minor resides or in the county in which

3 the abortion is to be performed for a waiver of the consent

4 requirement of this chapter. Notice by the court to the

5 minor's parents, parent, or legal guardian shall not be

6 required or permitted. The requirements and procedures under

7 this chapter shall apply and are available only to minors

8 whether or not they who are residents of this state.

9 "(b) The minor may participate in proceedings in the

10 court on her own behalf. The court shall advise her that she

11 has a right to be represented by an attorney and that if she

12 is unable to pay for the services of an attorney one will be

13 appointed for her. If the court appoints an attorney to

14 represent her, such attorney shall be compensated as provided

15 in Section 15-12-21. If the minor petitioner chooses to

16 represent herself, such pleadings, documents, or evidence that

17 she may file with the court shall be liberally construed by

18 the court so as to do substantial justice. Hearsay evidence

19 shall be admissible.

20 "(c) The court shall insure that the minor is given

21 assistance in preparing and filing the petition and shall

22 insure that the minor's identity is kept confidential. Such

23 assistance may be provided by court personnel including intake

24 personnel of juvenile probation services. The minor's identity

25 shall be kept confidential, but her identity may be made known

26 to the judge, any guardian ad litem, any representative of the

27 Attorney General's Office, appropriate court personnel, any

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1 witness who has a need to know the minor's identity, or any

2 other person determined by the court who needs to know. Any

3 person who is given the identity of the minor shall keep her

4 name confidential and shall not give it to any other person,

5 unless otherwise ordered by the court.

6 "(d) The petition required in Section 26-21-3(e)(d)

7 shall be made under oath and shall include all of the

8 following:

9 "(1) A statement that the petitioner is pregnant;

10 "(2) A statement that the petitioner is unmarried,

11 under 18 years of age, and unemancipated;

12 "(3) A statement that the petitioner wishes to have

13 an abortion without the consent of either parent or legal

14 guardian.

15 "(4) An allegation of either or both of the

16 following:

17 "a. That the petitioner is sufficiently mature and

18 well enough informed to intelligently decide whether to have

19 an abortion without the consent of either of her parents or

20 legal guardian.

21 "b. That one or both of her parents or her guardian

22 has engaged in a pattern of physical, sexual, or emotional

23 abuse against her, or that the consent of her parents, parent

24 or legal guardian otherwise is not in her best interest.

25 "(5) A statement as to whether the petitioner has

26 retained an attorney and the name, address, and telephone

27 number of her attorney.

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1 "(e) Court proceedings shall be given such

2 precedence over other pending matters as is necessary to

3 insure that the court may reach a decision promptly, but in no

4 case, except as provided herein, shall the court fail to rule

5 within 72 48 hours of the time the petition is filed,

6 Saturdays, Sundays, and legal holidays excluded. Provided,

7 however, this time requirement may be extended on the request

8 of the minor or any other participant in the proceeding, or by

9 order of the court for the purpose of obtaining further

10 testimony or evidence necessary for it to make an informed

11 decision and to do substantial justice. If a juvenile court

12 judge is not available for the hearing provided herein, the

13 clerk of the court in which the petition was filed shall

14 forthwith notify the presiding circuit court judge and the

15 presiding circuit court judge of the circuit shall immediately

16 appoint a district or circuit court level judge to hear the

17 petition.

18 "(f) Except as otherwise required by the section,

19 this court shall adhere to the Rules of Juvenile Procedure,

20 the Rules of Civil Procedure and Rules of Evidence required of

21 Alabama courts. The court shall assure that it is presented

22 sufficient probative evidence upon which to make its findings,

23 either granting or denying the minor's petition. If the court

24 determines at the initial hearing on the petition that

25 additional evidence or testimony is necessary, the court may

26 adjourn the hearing and issue instanter subpoenas or otherwise

27 permit any party or participant in the hearing to bring before

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1 the court admissible evidence or testimony either in support

2 of or against the petition.

3 "(f)(g) The required consent shall be waived if the

4 court finds either:

5 "(1) That the minor is mature and well-informed

6 enough to make the abortion decision on her own; or

7 "(2) That performance of the abortion would be in

8 the best interest of the minor.

9 "(h) In determining if either of the requirements in

10 subsection (g) are met, the court shall require that the minor

11 provide probative and admissible evidence that she has been

12 informed and understands the medical procedure of abortion and

13 its consequences and that she has been informed and counseled

14 by a qualified person as to the alternatives to abortion. She

15 shall explain each of the foregoing to the court and the court

16 shall be satisfied that she is making an informed judgment and

17 shall document its finding in its order. The minor shall

18 present such additional probative evidence to the court of her

19 maturity that demonstrates to the court that she has

20 sufficient experience with and understanding of life which

21 enables her to make mature and informed decisions. Further,

22 the minor may provide to the court a substantive explanation

23 of why she cannot consult with her parent, parents, or legal

24 guardian to assist her in making the decision. It shall not be

25 sufficient that the court find the minor mature because she

26 has requested relief from the court, but rather the totality

27 of the evidence must be probative and of such weight to prove

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1 that the minor is mature and well-informed enough to make the

2 abortion decision on her own, or that the performance of the

3 abortion will be in her best interest. Uncorroborated legal

4 conclusions by the minor shall not be sufficient to support a

5 determination by the court to grant her petition. In the event

6 of a denial of the petition by the court, the minor may

7 re-file the petition once for a de novo hearing with the

8 court.

9 "(i) The court shall immediately notify the Attorney

10 General's Office of the filing of the petition on the day of

11 such filing and the Attorney General or his or her

12 representative shall participate as an advocate for the state

13 to examine the petitioner and any witnesses, and to present

14 evidence for the purpose of providing the court with a

15 sufficient record upon which to make an informed decision and

16 to do substantial justice.

17 "(j) In the court's discretion, it may appoint a

18 guardian ad litem for the interests of the unborn child of the

19 petitioner who shall also have the same rights and obligations

20 of participation in the proceeding as given to the Attorney

21 General. The guardian ad litem shall further have the

22 responsibility of assisting and advising the court so the

23 court may make an informed decision and do substantial

24 justice. The guardian ad litem shall be compensated as

25 provided in Section 15-12-21.

26 "(k) Either the Attorney General or his or her

27 representative, or any other party in the proceeding may

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1 request the court for additional time either before the

2 hearing has begun or during the hearing, if justice requires,

3 to obtain evidence, subpoena witnesses, or to obtain and

4 present any evidence or information which will be necessary

5 and appropriate for the court to make an informed decision. In

6 any event, any such delay shall not be more than one business

7 day for which the applicable court is open to the public,

8 unless justice requires an extension thereof. The length of

9 time for any such delay and the information, evidence, or

10 subpoena sought shall be within the sound discretion of the

11 trial court subject to the time constraints of the petitioner

12 related to her medical condition.

13 "(l) Although the court shall not be required or

14 permitted to contact the minor's parent, parents, or legal

15 guardian, in the event that the minor's parent, parents, or

16 legal guardian are otherwise aware of the by-pass proceeding,

17 they, he, or she shall be given notice of and be permitted to

18 participate in the proceeding and be represented by counsel

19 with all of the rights and obligations of any party to the

20 proceeding.

21 "(g)(m) A court that conducts proceedings under this

22 section shall issue written and specific factual findings and

23 legal conclusions supporting its decision and shall order that

24 a confidential record of the evidence be maintained for at

25 least four years. A transcript of the proceedings shall be

26 recorded and if there is an appeal as provided in subsection

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1 (h) (n), a transcript of the proceedings shall be prepared

2 forthwith.

3 "(h)(n) An expedited confidential and anonymous

4 appeal shall be available to any minor to whom the court

5 denies a waiver of consent, the Attorney General, and any

6 guardian ad litem, or the parent, parents, or legal guardian

7 of the minor. If notice of appeal is given, the record of

8 appeal shall be completed and the appeal shall be perfected

9 within five days from the filing of the notice of appeal.

10 Briefs shall not be required but may be permitted. Because

11 time may be of the essence regarding the performance of the

12 abortion, the Alabama Supreme Court shall issue promptly such

13 additional rules as it deems are necessary to insure that

14 appeals under this section are handled in an expeditious,

15 confidential and anonymous manner.

16 "(i)(o) All proceedings under this chapter shall be

17 confidential and anonymous. In all pleadings or court

18 documents, the minor shall be identified by initials only.

19 "(j)(p) No fees or costs shall be required of any

20 minor who avails herself of the procedures provided by this

21 section.

22 "(q) proceedings under this section and with the

23 consent of the minor for whom such proceedings are conducted,

24 the court may refer for prosecution any criminal charge that

25 may be known to said court, including, but not limited to,

26 statutory rape.

27 "26-21-6.

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1 (a)(1) Any person who intentionally performs or

2 causes to be performed an abortion in violation of the

3 provisions of this chapter or intentionally fails to conform

4 to any requirement of this chapter, shall be guilty of a Class

5 A misdemeanor. Any person found guilty under this section

6 shall immediately forfeit any professional license they may

7 hold.

8 (2) Any conviction of any person for any failure to

9 comply with the requirements of this chapter shall result in

10 the automatic immediate suspension of the person's

11 professional license for a period of at least one year and

12 shall be reinstated after that time only on such conditions as

13 the appropriate regulatory or licensing body shall require to

14 insure compliance with this chapter.

15 (b) In addition to whatever remedies are available

16 under the common or statutory law of this state, failure to

17 comply with the requirements of this chapter shall provide a

18 basis for professional disciplinary action under any

19 applicable statutory or regulatory procedure for the

20 suspension or revocation of any license for physicians,

21 psychologists, licensed social workers, licensed professional

22 counselors, registered nurses, or other licensed or regulated

23 persons.

24 "26-21-7.

25 "(a) No physician who complies with the parental

26 consent requirement(s) requirements of this chapter shall be

27 liable in any manner to the minor upon whom the abortion was

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1 performed for any claim whatsoever arising out of or based on

2 the disclosure of any information concerning the medical

3 condition of such minor to her parent(s) or legal guardian(s);

4 provided that parent, parents, or legal guardian.

5 Notwithstanding the foregoing, a physician who performs an

6 abortion pursuant to a court order obtained under the

7 provisions of this chapter, shall not disclose any information

8 regarding same to the parent(s) or legal guardian(s) parent,

9 parents, or legal guardian of the minor unless such disclosure

10 is made pursuant to a court order. In no event shall the

11 physician be under any duty to initiate proceedings in any

12 court to secure a waiver of the parental consent requirement

13 on behalf of any minor who has requested that an abortion be

14 performed.

15 "(b) Any physician who complies with this chapter

16 may not be held civilly liable to his or her patient for

17 failure to obtain consent to the abortion required by this

18 chapter.

19 "(c) A physician or his or her agent who

20 demonstrates compliance with the requirements of this chapter

21 shall not bear criminal or civil liability for the deliberate,

22 intentional, or willful action by the minor or any other

23 person acting in concert with or on behalf of the minor to

24 present fabricated, altered, forged, or counterfeit

25 identification, certificates, or other documentation to

26 satisfy the parental consent requirements of this chapter."

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1 Section 2. Section 26-21-6.1 is added to Chapter 21,

2 Title 26, Code of Alabama 1975, as follows:

3 26-21-6.1.

4 In addition to whatever remedies are available under

5 the common or statutory law of this state, failure to comply

6 with the requirements of this chapter shall provide a basis

7 for a civil action for compensatory and/or punitive damages.

8 Any criminal conviction under this chapter shall be admissible

9 in a civil suit as prima facie evidence of a failure to obtain

10 an informed consent or parental or judicial consent. The civil

11 action may be based on a claim that the action was a result of

12 simple negligence, gross negligence, wantonness, willfulness,

13 intention, or breach of other legal standard of care. The

14 Medical Liability Act of 1987 shall not apply to any civil

15 causes of action brought pursuant to this act.

16 Section 3. The provisions of this act are severable.

17 If any part of this act is declared invalid or


19 which remains.

20 Section 4. This act shall become effective on the

21 first day of the third month following its passage and

22 approval by the Governor, or its otherwise becoming law.

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1

2

House of Representatives3

Read for the first time and re-45 ferred to the House of Representa-

tives committee on Health .........6 . 13-FEB-14......

7

Read for the second time and placed89 on the calendar with 1 substitute

and................................10 . 25-FEB-14......

11

Read for the third time and passed12as amended.........................13 . 04-MAR-14......

Yeas 82, Nays 18, Abstains 014

1516 Jeff Woodard17 Clerk18

Page 20


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1 HB489

2 158594-1

3 By Representatives Henry, Johnson (K), Collins, Carns,

4 Williams (D), Butler, Roberts, Wilcox, Sessions, Laird,

5 Bridges, Baughn, Hammon, Lee, Farley, Standridge, Chesteen,

6 Baker, Drake, Brown, Holmes (M), Faust, Jones, Moore (B),

7 Merrill, McMillan, Greer, Patterson, Tuggle and Johnson (W)

8 RFD: Health


Page 0


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1 158594-1:n:02/13/2014:PMG/th LRS2014-809

2

3

4

5

6

7

8 SYNOPSIS: Under existing law, a physician or other

9 qualified person is required to provide certain

10 prescribed materials to a woman at least 24 hours

11 before the performance of an abortion.

12 This bill would require a physician or other

13 qualified person to provide the prescribed

14 materials to a woman at least 48 hours before the

15 performance of an abortion.

16

17 A BILL

18 TO BE ENTITLED

19 AN ACT

20

21 Relating to the Woman's Right to Know Act; to amend

22 Section 26-23A-4, Code of Alabama 1975, to require a physician

23 or qualified person to provide the materials prescribed under

24 Sections 26-23A-4 and 26-23A-5, Code of Alabama 1975, to a

25 woman at least 48 hours before the performance of an abortion.


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1 Section 1. Section 26-23A-4, Code of Alabama 1975,

2 is amended to read as follows:

3 "26-23A-4.

4 "Except in the case of a medical emergency, no

5 abortion shall be performed or induced without the voluntary

6 and informed consent of the woman upon whom the abortion is to

7 be performed or induced. Except in the case of a medical

8 emergency, consent to an abortion is voluntary and informed if

9 and only if:

10 "(a) At least 24 48 hours before the abortion, the

11 physician who is to perform the abortion, the referring

12 physician, or a qualified person has informed and provided the

13 woman in person, or by return receipt certified mail

14 restricted delivery, and if by mail, again in person prior to

15 the abortion, a copy of the printed materials in Section

16 26-23A-5 which list agencies that offer assistance, adoption

17 agencies, development of the unborn child, methods and risks

18 of abortion and childbirth, father's obligations, and

19 alternatives to abortion. Mailing of the materials in Section

20 26-23A-5 may be arranged by telephone.

21 "(b) Prior to an abortion, the physician who is to

22 perform the abortion, the referring physician, or a qualified

23 person has informed the woman in person:

24 "(1) The name of the physician who will perform the

25 abortion in writing or a business card.

26 "(2) The nature of the proposed abortion method and

27 associated risks and alternatives that a reasonable patient

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1 would consider material to the decision of whether or not to

2 undergo the abortion.

3 "(3) The probable gestational age of the unborn

4 child at the time the abortion is to be performed, and the

5 probable anatomical and physiological characteristics of the

6 unborn child at the time the abortion is to be performed. If

7 the unborn child is viable or has reached a gestational age of

8 more than 19 weeks, that:

9 "a. The unborn child may be able to survive outside

10 the womb.

11 "b. The woman has the right to request the physician

12 to use the method of abortion that is most likely to preserve

13 the life of the unborn child, provided such abortion is not

14 otherwise prohibited by law.

15 "c. If the unborn child is born alive, the attending

16 physician has the legal obligation to take all reasonable

17 steps necessary to maintain the life and health of the child.

18 "(4) The physician who is to perform the abortion or

19 the referring physician is required to perform an ultrasound

20 on the unborn child before the abortion. The woman has a right

21 to view the ultrasound before an abortion. The woman shall

22 complete a required form to acknowledge that she either saw

23 the ultrasound image of her unborn child or that she was

24 offered the opportunity and rejected it.

25 "(5) She has the right to view the videotape and

26 ultrasound of her unborn child as described in Section

27 26-23A-6.

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1 "(6) Any need for anti-Rh immune globulin therapy,

2 and if she is Rh negative, the likely consequences of refusing

3 such therapy and the cost of the therapy.

4 "(7) She cannot be forced or required by anyone to

5 have an abortion. She is free to withhold or withdraw her

6 consent for an abortion without affecting her right to future

7 care or treatment and without the loss of any state or

8 federally funded benefits to which she might otherwise be

9 entitled.

10 "(c) The woman shall complete and sign a form that

11 she has received the information of subsections (a) and (b),

12 and does provide her informed consent for an abortion on her

13 unborn child.

14 "(d) Prior to the performance of an abortion, the

15 physician who is to perform the abortion or his or her agent

16 shall receive the signed receipt of the certified mail dated

17 24 48 hours before the abortion, if mailed, and the signed

18 forms that she has received the information of subsections (a)

19 and (b) before the abortion, had the opportunity to view the

20 video and the ultrasound of her unborn child, and provided her

21 informed consent for an abortion. The abortion facility shall

22 retain the signed receipt, signed forms, and the ultrasound in

23 the woman's medical file for the time required by law, but not

24 less than four years."

25 Section 2. This act shall become effective 30 days

26 following its passage and approval by the Governor, or its

27 otherwise becoming law.

Page 4


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Page 5


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1 HB493

2 158666-2

3 By Representative Wallace

4 RFD: Health


Page 0


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1 ENGROSSED

2

3

4 A BILL

5 TO BE ENTITLED

6 AN ACT

7

8 To provide for the Perinatal Hospice Information

9 Act; to require that a pregnant woman may not receive an

10 abortion based on a lethal fetal anomaly unless she is made

11 aware of the option of perinatal hospice services; to

12 prescribe civil sanctions and criminal penalties for

13 violations of the act; and in connection therewith would have

14 as its purpose or effect the requirement of a new or increased

15 expenditure of local funds within the meaning of Amendment 621

16 of the Constitution of Alabama of 1901, now appearing as

17 Section 111.05 of the Official Recompilation of the

18 Constitution of Alabama of 1901, as amended.


20 Section 1. This act may be known as the "Perinatal

21 Hospice Information Act."

22 Section 2. (a) The Legislature hereby finds the

23 following:

24 (1) As prenatal diagnoses improve, increasingly more

25 lethal fetal anomalies are diagnosed earlier in pregnancy.

26 (2) Currently, parents are often given minimal

27 options, to terminate the pregnancy or simply to wait for the

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1 child to die. The majority of parents choose to terminate the

2 pregnancy. Only 20 percent of parents decide to continue the

3 pregnancy.

4 (3) Studies indicate that choosing to terminate the

5 pregnancy can pose severe, long-term psychological risks for

6 the woman, including the chance of posttraumatic stress,

7 depression, and anxiety. On the other hand, parents who choose

8 to continue the pregnancy in the supportive, compassionate

9 care of a perinatal hospice team report being emotionally and

10 spiritually prepared for the death of their child.

11 (4) Studies reveal that when given the option, at

12 least 80 to 87 percent of parents choose to continue the

13 pregnancy in the supportive environment of perinatal hospice

14 care.

15 (b) Based on the findings in subsection (a), it is

16 the purpose of this act to:

17 (1) Guarantee that women considering abortion after

18 the diagnosis of a lethal fetal anomaly are presented with

19 information on the option of perinatal hospice care.

20 (2) Ensure that any abortion-related choice made by

21 a woman whose unborn child has been diagnosed with a lethal

22 fetal anomaly has been fully informed.

23 Section 3. As used in this act, the following terms

24 shall have the following meanings:

25 (1) ABORTION. The use or prescription of any

26 instrument, medicine, drug, or any other substance or device

27 with the intent to terminate the pregnancy of a woman known to

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1 be pregnant with knowledge that the termination by those means

2 will with reasonable likelihood cause the death of the unborn

3 child. Such use or prescription is not an abortion if done

4 with the intent to save the life or preserve the health of an

5 unborn child, remove a dead unborn child, or to deliver the

6 unborn child prematurely in order to preserve the health of

7 both the pregnant woman and her unborn child. The term

8 abortion, as used in this act, does not include a procedure or

9 act to terminate the pregnancy of a woman with an ectopic

10 pregnancy. As used herein, the term ectopic pregnancy means

11 any pregnancy resulting from a fertilized egg that has

12 implanted or attached outside the uterus. The term ectopic

13 pregnancy also includes a pregnancy resulting from a

14 fertilized egg implanted inside the cornu of the uterus.

15 (2) DEPARTMENT. The Department of Public Health of

16 the State of Alabama.

17 (3) LETHAL FETAL ANOMALY. A fetal condition

18 diagnosed before birth that, with reasonable certainty, will

19 result in the death of the unborn child within three months

20 after birth.

21 (4) MEDICAL EMERGENCY. A condition which, on the

22 basis of a physician's good faith clinical judgment, so

23 complicates the medical condition of a pregnant woman as to

24 necessitate the immediate termination of her pregnancy to

25 avert her death or for which a delay will create serious risk

26 of substantial and irreversible impairment of a major bodily

27 function.

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1 (5) PERINATAL HOSPICE. Comprehensive support

2 provided to a pregnant woman who has an unborn child that has

3 been diagnosed with a lethal fetal anomaly, as well as to such

4 woman's family, that includes support from the time of

5 diagnosis through the time of birth and death of the infant

6 and through the postpartum period. Supportive care may

7 include, but is not limited to, counseling and medical care by

8 maternal-fetal medical specialists, obstetricians,

9 neonatologists, anesthesia specialists, clergy, social

10 workers, and specialty nurses focused on alleviating fear and

11 ensuring that the woman and her family experience the life and

12 death of their child in a comfortable and supportive

13 environment.

14 (6) PHYSICIAN. Any person licensed to practice

15 medicine in this state. The term includes medical doctors and

16 doctors of osteopathy.

17 Section 4. (a) No abortion shall be performed or

18 induced, or attempted to be performed or induced, without the

19 voluntary and informed consent of the woman upon whom the

20 abortion is to be performed or induced. Except in the case of

21 a medical emergency, consent to an abortion is voluntary and

22 informed if, and only if, at least 48 hours before the

23 abortion:

24 (1) In the case of a woman seeking an abortion of

25 her unborn child diagnosed with a lethal fetal anomaly, the

26 physician who is to perform the abortion or the referring

27 physician has informed the woman, orally and in-person, that

Page 4


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1 perinatal hospice services are available and has offered this

2 care as an alternative to abortion.

3 (2) In the case of a woman seeking an abortion of

4 her unborn child diagnosed with a lethal fetal anomaly, the

5 woman is provided, at no cost, a list of perinatal hospice

6 programs available both in this state and nationally, prepared

7 by the department and organized geographically by location,

8 and the woman is also informed that such materials are

9 available on the department's website.

10 (b) If perinatal hospice services are declined in

11 favor of abortion, the woman must certify in writing both her

12 decision to forgo such services and proceed with the abortion

13 and that she received the materials listed in subdivision (2)

14 of subsection (a).

15 Section 5. The department shall cause to be

16 published the printed materials described in Section 4 within

17 60 days after this act becomes law. The department shall also

18 publish the printed materials described in Section 4 on the

19 department's website within 60 days after this act becomes

20 law. Such materials shall include, but not be limited to, a

21 comprehensive list of the perinatal hospice agencies

22 available, a description of the services such agencies offer,

23 and a description of the manner in which such agencies may be

24 contacted.

25 Section 6. The department may adopt rules and

26 procedures as necessary to implement the provisions and

27 directives of this act.

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1 Section 7. (a) Any person who intentionally,

2 knowingly, or recklessly violates or attempts to violate this

3 act shall be guilty on a first offense of a Class B

4 misdemeanor, on a second offense of a Class A misdemeanor, and

5 on a third or subsequent offense of a Class C felony. No

6 penalty under this act may be assessed against the female upon

7 whom the abortion is performed or attempted to be performed.

8 (b) In addition to whatever remedies are available

9 under the common or statutory law of this state, failure to

10 comply with the requirements of this chapter shall:

11 (1) Provide a basis for a civil action for

12 compensatory and punitive damages. Any conviction under this

13 act shall be admissible in a civil suit as prima facie

14 evidence of a failure to obtain an informed consent. The civil

15 action may be based on a claim that the act was a result of

16 simple negligence, gross negligence, wantonness, willfulness,

17 intention, or other legal standard of care.

18 (2) Provide a basis for professional disciplinary

19 action under any applicable statutory or regulatory procedure

20 for the suspension or revocation of any license for physicians

21 or other applicable regulated persons. A conviction of any

22 person for any failure to comply with the requirements of this

23 act which constitutes a second offense of the provisions of

24 this act shall result in the automatic suspension of his or

25 her license for a period of at least one year and shall be

26 reinstated after that time only on such conditions as the

Page 6


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1 appropriate regulatory or licensing body shall require to

2 insure compliance with this act.

3 (3) If a civil judgment is rendered in favor of a

4 plaintiff in any action described in this act, the court shall

5 award reasonable attorney's fees in favor of the plaintiff. If

6 a civil judgment is rendered in favor of the defendant in any

7 action described in this act, the court shall, upon a

8 determination that the plaintiff's suit was frivolous and

9 brought in bad faith, award reasonable attorney's fees in

10 favor of the defendant.

11 Section 8. The provisions of this act are severable.

12 If any part of this act is declared invalid or


14 which remains.

15 Section 9. Although this bill would have as its


17 expenditure of local funds, the bill is excluded from further

18 requirements and application under Amendment 621 because the

19 bill defines a new crime or amends the definition of an

20 existing crime.

21 Section 10. This act shall become effective on the

22 first day of the third month following its passage and signing

23 by the Governor, or its otherwise becoming law.

Page 7


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1

2

House of Representatives3

Read for the first time and re-45 ferred to the House of Representa-

tives committee on Health .........6 . 13-FEB-14......

7

Read for the second time and placed8on the calendar....................9 . 25-FEB-14

......

10

Read for the third time and passed11as amended.........................12 . 04-MAR-14......

Yeas 73, Nays 24, Abstains 013

1415 Jeff Woodard16 Clerk17

Documents

Alabama Abortion Bills 2014