2009 Louisiana Laws TITLE 40 Public health and safety :: RS 40:1299.35.6 Woman's right to know

§1299.35.6.  Woman's Right To Know

A.  Legislative findings and purposes.  The Legislature of Louisiana finds that:

(1)  Act No. 435 of the 1978 Regular Session of the Legislature required the obtaining of the informed consent of a pregnant woman to the performance of an abortion.  This law was declared unconstitutional in the cases of Margaret S. v. Edwards, and in Margaret S. v. Treen.

(2)  By Act No. 435 of the 1978 Regular Session of the Legislature (R.S. 40:1299.35.7) a twenty-four-hour waiting period was required between the signing of an informed consent and the performance of an abortion.  This law was repealed by Act No. 418 of the 1980 Regular Session of the Legislature because of the decision of the federal court in Margaret S. v. Edwards.

(3)  Subsequent to the above-referenced court decisions and legislative enactments, the United States Supreme Court has rendered a decision in the case of Planned Parenthood of Pennsylvania v. Casey, which upheld the constitutionality of the Pennsylvania law which required informed consent, parental consent, and a twenty-four-hour waiting period prior to an abortion, and which decision has therefore impliedly overruled the decisions in the Margaret S. cases.

(4)  The judicial obstacles to such legislation now having been removed by virtue of the Casey decision, the legislature finds that it is in the public interest and in furtherance of the general health and welfare of the citizens of this state to reenact provisions of law similar to those heretofore either declared unconstitutional or repealed for the following reasons:

(a)  It is essential to the psychological and physical well-being of a woman considering an abortion that she receive complete and accurate information on her alternatives.

(b)  The knowledgable exercise of a woman's decision to have an abortion depends on the extent to which the woman receives sufficient information to make an informed choice between two alternatives, giving birth or having an abortion.

(c)  The vast majority of all abortions are performed in clinics devoted solely to providing abortions and family planning services.  Most women who seek abortions at these facilities do not have any relationship with the physician who performs the abortion, before or after the procedure.  They do not return to the facility for postsurgical care.  In most instances, the woman's only actual contact with the physician occurs simultaneously with the abortion procedure, with little opportunity to receive counseling concerning her decision.

(d)  The decision to abort "is an important, and often a stressful one, and it is desirable and imperative that it be made with full knowledge of its nature and consequences", Planned Parenthood v. Danforth.

(e)  "The medical, emotional, and psychological consequences of an abortion are serious and can be lasting...", H. L. v. Matheson.

(f)  Abortion facilities or providers offer only limited and/or impersonal counseling opportunities.

(g)  Many abortion facilities or providers hire untrained and unprofessional "counselors" whose primary goal is to sell abortion services.

(5)  Based on the above findings, it is the purpose of this Act to:

(a)  Ensure that every woman considering an abortion receive complete information on her alternatives and that every woman submitting to an abortion do so only after giving her voluntary and informed consent to the abortion procedure.

(b)  Protect unborn children from a woman's uninformed decision to have an abortion.

(c)  Reduce "the risk that a woman may elect an abortion only to discover later, with devastating psychological consequences, that her decision was not fully informed",  Planned Parenthood v. Casey.

(d)  Ensure that every woman considering an abortion receive complete information regarding the availability of anesthesia or analgesics that would eliminate or alleviate organic pain to the unborn child that could be caused by the particular method of abortion to be employed.

B.  Informed consent; requirements.  After a woman is determined to be pregnant, no abortion shall be performed or induced without the voluntary and informed consent of the woman upon whom the abortion is to be performed or induced.  Except in the case of a medical emergency, consent to an abortion is voluntary and informed if and only if:

(1)  At least twenty-four hours before the abortion, the physician who is to perform the abortion or the referring physician has informed the woman, orally and in person, of:

(a)  The name of the physician who will perform the abortion.

(b)  A description of the proposed abortion method and of those risks (including risks to the woman's reproductive health) and alternatives to the abortion that a reasonable patient would consider material to the decision of whether or not to undergo the abortion.

(c)  The probable gestational age of the unborn child at the time the abortion is to be performed;  and, if the unborn child is viable or has reached the gestational age of twenty-four weeks and the abortion may be otherwise lawfully performed under existing law, that:

(i)  The unborn child may be able to survive outside the womb.

(ii)  The woman has the right to request the physician to use the method of abortion that is most likely to preserve the life of the unborn child.

(iii)  If the unborn child is born alive, that attending physicians have the legal obligation to take all reasonable steps necessary to maintain the life and health of the child.

(d)  The probable anatomical and physiological characteristics of the unborn child at the time the abortion is to be performed.

(e)  The medical risks associated with carrying her child to term.

(f)  Any need for anti-Rh immune globulin therapy, if she is Rh negative, the likely consequences of refusing such therapy, and a good faith estimate of the cost of the therapy.

(g)  The availability of anesthesia or analgesics to alleviate or eliminate organic pain to the unborn child that could be caused by the method of abortion to be employed.

(h)  The option of reviewing and receiving an explanation of an obstetric  ultrasound image of the unborn child.  Nothing contained in this Subparagraph shall require a woman to view or receive an explanation of the obstetric ultrasound images.  Neither the physician or the woman shall be penalized should the woman choose not to view or receive an explanation of the obstetric ultrasound images.

(2)(a)  At least twenty-four hours before the abortion, the physician who is to perform the abortion, the referring physician, or a qualified person has informed the woman, orally and in person, that:

(i)  Medical assistance benefits may be available for prenatal care, childbirth, and neonatal care, and that more detailed information on the availability of such assistance is contained in the printed materials which shall be given to her and described in this Section.

(ii)  The printed materials describe the unborn child and list agencies which offer alternatives to abortion.

(iii)  The father of the unborn child is liable to assist in the support of her child, even in instances where he has offered to pay for the abortion.  In the case of rape, this information may be omitted.

(iv)  She is free to withhold or withdraw her consent to the abortion at any time before or during the abortion without affecting her right to future care or treatment and without the loss of any state or federally funded benefits to which she might otherwise be entitled.

(b)  For purposes of this Paragraph, "qualified person" shall mean an agent of the physician who is a psychologist, licensed social worker, licensed professional counselor, registered nurse, or physician.

(3)  The information required by this Section is provided to the woman individually and in a private room to protect her privacy and maintain the confidentiality of her decision, to ensure that the  information focuses on her individual circumstances, and that she has an adequate opportunity to ask questions.

(4)  At least twenty-four hours before the abortion, the woman is given a copy of the printed materials described in this Section by the physician who is to perform the abortion, the referring physician, or a qualified person as defined in Subparagraph (2)(b) of this Subsection.  If the woman is unable to read the materials, they shall be read to her.  If the woman asks questions concerning any of the information or materials, answers shall be provided to her in her own language.  If an interpreter is necessary, the cost of such interpreter shall be borne by the state of Louisiana.

(5)  The woman certifies in writing on a form provided by the Department of Health and Hospitals, prior to the abortion, that the information and materials required to be provided under this Section have been provided.  All physicians who perform abortions shall report the total number of certifications received monthly to the department.  The department shall make the number of certifications received available on an annual basis.

(6)  Prior to the performance of the abortion, the physician who is to perform the abortion or his agent receives a copy of the written certification required by this Section.

(7)  The woman is not required to pay any amount for the abortion procedures until the twenty-four-hour period has expired.

C.(1)  Publication of materials.  The Department of Health and Hospitals shall cause to be published in English, within ninety days after June 20, 1995, and shall update on an annual basis, the following easily comprehensible printed materials:

(a)  Geographically indexed materials designed to inform the woman of public and private agencies and services available to assist a woman through pregnancy, upon childbirth, and while her child is dependent, including but not limited to adoption agencies.  The materials shall include a comprehensive list of the agencies, a description of the services they offer, and the telephone number and addresses of the agencies, and inform the woman about available medical assistance benefits for prenatal care, childbirth, and neonatal care, and about the support obligations of the father of a child who is born alive.  The department shall ensure that the materials described in this Section are comprehensive and do not directly or indirectly promote, exclude, or discourage the use of any agency or service described in this Section.  The materials shall also contain a toll-free, all-hours-a-day telephone number which may be called to obtain orally such a list and description of agencies in the locality of the caller and of the services they offer.  Such toll-free telephone number shall be funded by the Department of Health and Hospitals.  The materials shall state that it is unlawful for any individual to coerce a woman to undergo an abortion, that any physician who performs an abortion upon a woman without her informed consent may be liable to her for damages in a civil action at law, and that the law permits adoptive parents to pay costs of prenatal care, childbirth, and neonatal care.  The materials shall include the following statements:

(i)  "There are many public and private agencies willing and able to help you to carry your child to term, and to assist you and your child after your child is born, whether you choose to keep your child or to place her or him for adoption.  The state of Louisiana strongly urges you to contact them before making a final decision about abortion.  The law requires that your physician or his agent give you the opportunity to call agencies like these before you undergo an abortion."

(ii)  "By twenty weeks gestation, the unborn child has the physical structures necessary to experience pain.  There is evidence that by twenty weeks gestation unborn children seek to evade certain stimuli in a manner which in an infant or an adult would be interpreted to be a response to pain.  Anesthesia is routinely administered to unborn children who are twenty weeks gestational age or older who undergo prenatal surgery."

(b)  Materials that inform the pregnant woman of the probable anatomical and physiological characteristics of the unborn child at two-week gestational increments from fertilization to full term, including color pictures or drawings representing the development of unborn children at two-week gestational increments, and any relevant information on the possibility of the unborn child's survival; provided that any such color pictures or drawings must contain the dimensions of the unborn child and must be realistic.  The materials shall be objective, nonjudgmental, and designed to convey only accurate scientific information about the unborn child at the various gestational ages.  The material shall also contain objective information describing the methods of abortion procedures commonly employed, the medical risks commonly associated with each such procedure, and the medical risks commonly associated with carrying a child to term.

(c)  A certification form to be used by physicians or their agents as provided in Paragraph B(5) of this Section, which will list all the items of information which are to be given to women by physicians or their agents as required by this Section.

(2)  The materials shall be printed in a typeface large enough to be clearly legible.

(3)  The materials required under this Section shall be available at no cost from the department upon request and in appropriate number to any person, facility, or hospital.

(4)  The department shall promulgate rules and regulations relative to the appropriate number and methods of reporting at no cost.

D.  Medical emergency.  Where a medical emergency compels the performance of an abortion, the physician shall orally inform the woman, before the abortion, if possible, of the medical indications supporting his judgment that an abortion is necessary to avert her death or to avert substantial and irreversible impairment of a major bodily function.

E.  Reporting requirements.  Any physician who has provided the information and materials to any woman in accordance with the requirements of this Section shall provide to the department:

(1)  With respect to a woman upon whom an abortion is performed, all information as required by R.S. 40:1299.35.10 as well as the date upon which the information and materials required to be provided under this Section were provided, as well as an executed copy of the certification form required by Paragraph B(5) of this Section.

(2)  With respect to any woman to whom the information and materials have been provided in accordance with this Section, but upon whom the physician has not performed an abortion, the name and address of the facility where the required information was provided and the information as required by R.S. 40:1299.35.10(A)(1) and (4) through (18) inclusive, and if executed by the woman, a copy of the certification form required by Paragraph B(5) of this Section.

F.  Criminal penalties.

(1)  Any person who intentionally, knowingly, or recklessly fails to comply with all the requirements of this Section shall be subject to the penalties provided in R.S. 40:1299.35.18.

(2)  No physician shall be guilty of violating this Section if he or she can demonstrate, by a preponderance of the evidence, that he or she reasonably believed that furnishing the required information would have resulted in a severely adverse effect on the physical or mental health of the pregnant woman.

G.  Civil penalties.  In addition to whatever remedies are otherwise available under the law of this state, failure to comply with the requirements of this Section shall:

(1)  Provide a basis for a civil malpractice action.  Any intentional violation of this Section shall be admissible in a civil suit as prima facie evidence of a failure to obtain an informed consent.  When requested, the court shall allow a woman to proceed using solely her initials or a pseudonym and may close any proceedings in the case and enter other protective orders to preserve the privacy of the woman upon whom the abortion was performed.

(2)  Provide a basis for professional disciplinary action under R.S. 37:1261 et seq.

(3)  Provide a basis for recovery for the woman for the death of her unborn child under Louisiana Civil Code Article 2315.2, whether or not the unborn child was viable at the time the abortion was performed, or was born alive.

H.  Limitation on civil liability.  Any physician who complies with the provisions of this Section may not be held civilly liable to his patient for failure to obtain informed consent to the abortion under this Section.  Any and all other rights and remedies are preserved to the patient.

I.  Severability.  The provisions of the Act which originated as House Bill No. 2246 of the 1995 Regular Session of the Legislature are declared to be severable, and if any provision, word, phrase, or clause of the Act or the application thereof to any person shall be held invalid, such invalidity shall not affect the validity of the remaining portions of the Act.

J.  Construction.

(1)  Nothing in this Section shall be construed as creating or recognizing a right to abortion.

(2)  It is not the intention of this Section to make lawful an abortion that is unlawful on June 20, 1995, or which later becomes unlawful.

K.  Right of intervention.  The author and coauthors who sponsored or cosponsored the Act which originated as House Bill No. 2246 of the 1995 Regular Session of the Legislature in his or her official standing and capacity shall intervene as a matter of right in any case in which the constitutionality of this Section is challenged.

Added by Acts 1978, No. 435, §1.  Amended by Acts 1980, No. 418, §1; Acts 1981, No. 774, §1, eff. July 23, 1981; Acts 1995, No. 648, §1, eff. June 20, 1995; Acts 2007, No. 282, §1.