2014 North Dakota Century Code Title 14 Domestic Relations and Persons Chapter 14-02.1 Abortion Control Act
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CHAPTER 14-02.1
ABORTION CONTROL ACT
14-02.1-01. Purpose.
The purpose of this chapter is to protect unborn human life and maternal health within
present constitutional limits. It reaffirms the tradition of the state of North Dakota to protect every
human life whether unborn or aged, healthy or sick.
14-02.1-02. Definitions.
As used in this chapter:
1. "Abortion" means the act of using or prescribing any instrument, medicine, drug, or
any other substance, device, or means with the intent to terminate the clinically
diagnosable intrauterine pregnancy of a woman, including the elimination of one or
more unborn children in a multifetal pregnancy, with knowledge that the termination by
those means will with reasonable likelihood cause the death of the unborn child. Such
use, prescription, or means is not an abortion if done with the intent to:
a. Save the life or preserve the health of the unborn child;
b. Remove a dead unborn child caused by spontaneous abortion; or
c. Treat a woman for an ectopic pregnancy.
2. "Abortion facility" means a clinic, ambulatory surgical center, physician's office, or any
other place or facility in which abortions are performed or prescribed, other than a
hospital.
3. "Abortion-inducing drug" means a medicine, drug, or any other substance prescribed
or dispensed with the intent of causing an abortion.
4. "Down syndrome" refers to a chromosome disorder associated with an extra
chromosome twenty-one, in whole or in part, or an effective trisomy for chromosome
twenty-one.
5. "Drug label" means the pamphlet accompanying an abortion-inducing drug which
outlines the protocol tested and authorized by the federal food and drug administration
and agreed upon by the drug company applying for the federal food and drug
administration authorization of that drug. Also known as "final printing labeling
instructions", drug label is the federal food and drug administration document that
delineates how a drug is to be used according to the federal food and drug
administration approval.
6. "Fertilization" means the fusion of a human spermatozoon with a human ovum.
7. "Genetic abnormality" means any defect, disease, or disorder that is inherited
genetically. The term includes any physical disfigurement, scoliosis, dwarfism, Down
syndrome, albinism, amelia, or any other type of physical or mental disability,
abnormality, or disease.
8. "Hospital" means an institution licensed by the state department of health under
chapter 23-16 and any hospital operated by the United States or this state.
9. "Human being" means an individual living member of the species of homo sapiens,
including the unborn human being during the entire embryonic and fetal ages from
fertilization to full gestation.
10. "Infant born alive" means a born child which exhibits either heartbeat, spontaneous
respiratory activity, spontaneous movement of voluntary muscles or pulsation of the
umbilical cord if still attached to the child.
11. "Informed consent" means voluntary consent to abortion by the woman upon whom
the abortion is to be performed or induced provided that:
a. The woman is told the following by the physician who is to perform the abortion,
by the referring physician, or by the physician's agent, at least twenty-four hours
before the abortion:
(1) The name of the physician who will perform the abortion;
(2) The abortion will terminate the life of a whole, separate, unique, living
human being;
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The particular medical risks associated with the particular abortion
procedure to be employed including, when medically accurate, the risks of
infection, hemorrhage, danger to subsequent pregnancies, and infertility;
(4) The probable gestational age of the unborn child at the time the abortion is
to be performed; and
(5) The medical risks associated with carrying her child to term.
b. The woman is informed, by the physician or the physician's agent, at least
twenty-four hours before the abortion:
(1) That medical assistance benefits may be available for prenatal care,
childbirth, and neonatal care and that more detailed information on the
availability of that assistance is contained in the printed materials given to
her as described in section 14-02.1-02.1;
(2) That the printed materials given to her and described in section
14-02.1-02.1 describe the unborn child and list agencies that offer
alternatives to abortion;
(3) That the father is liable to assist in the support of her child, even in
instances in which the father has offered to pay for the abortion; and
(4) That she is free to withhold or withdraw her consent to the abortion at any
time 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.
c. The woman certifies in writing, prior to the abortion, that the information described
in subdivisions a and b has been furnished to her.
d. Before the performance of the abortion, the physician who is to perform or induce
the abortion or the physician's agent receives a copy of the written certification
prescribed by subdivision c.
e. The physician has not received or obtained payment for a service provided to a
patient who has inquired about an abortion or has scheduled an abortion before
the twenty-four-hour period required by this section.
"Medical emergency" means a condition that, in reasonable medical judgment, so
complicates the medical condition of the pregnant woman that it necessitates an
immediate abortion of her pregnancy without first determining postfertilization age to
avert her death or for which the delay necessary to determine postfertilization age will
create serious risk of substantial and irreversible physical impairment of a major bodily
function, not including psychological or emotional conditions. A condition may not be
deemed a medical emergency if based on a claim or diagnosis that the woman will
engage in conduct that she intends to result in her death or in substantial and
irreversible physical impairment of a major bodily function.
"Physician" means an individual who is licensed to practice medicine or osteopathy
under chapter 43-17 or a physician who practices in the armed services of the United
States or in the employ of the United States.
"Postfertilization age" means the age of the unborn child as calculated from
fertilization.
"Probable gestational age of the unborn child" means what, in reasonable medical
judgment, will with reasonable probability be the gestational age of the unborn child at
the time the abortion is planned to be performed.
"Probable postfertilization age of the unborn child" means what, in reasonable medical
judgment, will with reasonable probability be the postfertilization age of the unborn
child at the time the abortion is planned to be performed or induced.
"Reasonable medical judgment" means a medical judgment that would be made by a
reasonably prudent physician, knowledgeable about the case and the treatment
possibilities with respect to the medical conditions involved.
"Unborn child" means the offspring of human beings from conception until birth.
"Viable" means the ability of an unborn child to live outside the mother's womb, albeit
with artificial aid.
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14-02.1-02.1. Printed information - Referral service.
1. The state department of health shall publish in English, and in every other language
that the department determines is the primary language of a significant number of
state residents, 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 the child is dependent, including adoption agencies.
The materials must include a comprehensive list of the agencies available, a
description of the services they offer and a description of the manner, including
telephone numbers, in which they might be contacted, or, at the option of the
department, printed materials, including a toll-free, twenty-four-hour-a-day
telephone number that 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. The
materials must state that it is unlawful for any individual to coerce a woman to
undergo an abortion and that if a minor is denied financial support by the minor's
parent, guardian, or custodian due to the minor's refusal to have an abortion
performed, the minor is deemed to be emancipated for the purposes of eligibility
for public assistance benefits, except that those benefits may not be used to
obtain an abortion. The materials also must state 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 and that the law permits adoptive parents to
pay costs of prenatal care, childbirth, and neonatal care. The materials must
include the following statement: 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
your child for adoption. The state of North Dakota strongly urges you to contact
one or more of these agencies before making a final decision about abortion. The
law requires that your physician or your physician's agent give you the
opportunity to call agencies like these before you undergo an abortion.
b. Materials, published in a booklet format, designed to inform the woman of the
probable anatomical and physiological characteristics of the unborn child at
two-week gestational increments from the time when a woman can be known to
be pregnant to full term, including any relevant information on the possibility of
the survival of the unborn child and color photographs of the development of an
unborn child at two-week gestational increments. The descriptions must include
information about brain and heart function, the presence of external members
and internal organs during the applicable states of development, and any relevant
information on the possibility of the unborn child's survival. The materials must be
objective, nonjudgmental, and designed to convey only accurate scientific
information about the unborn child at the various gestational ages. The materials
required under this subsection must be reviewed, updated, and reprinted as
needed.
c. Materials that include information on the support obligations of the father of a
child who is born alive, including the father's legal duty to support his child, which
may include child support payments and health insurance, and the fact that
paternity may be established by the father's signature on an acknowledgment of
paternity or by court action. The printed material must also state that more
information concerning paternity establishment and child support services and
enforcement may be obtained by calling state or county public assistance
agencies.
d. Materials that contain objective information describing the various surgical and
drug-induced methods of abortion as well as the immediate and long-term
medical risks commonly associated with each abortion method, including the
risks of infection, hemorrhage, cervical or uterine perforation or rupture, danger to
subsequent pregnancies, the possible increased risk of breast cancer, the
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possible adverse psychological effects associated with an abortion, and the
medical risks associated with carrying a child to term.
The materials required under subsection 1 must be available at no cost from the state
department of health upon request and in appropriate number to any person, facility, or
hospital, and, except for copyrighted material, must be available on the department's
internet website. The department may make the copyrighted material available on its
internet website if the department pays the copyright royalties.
14-02.1-02.2. Abortion report form.
The state department of health shall prepare an abortion compliance report form and an
abortion data report form to be used by the physician for each abortion performed, as required
by section 14-02.1-07. The abortion compliance report form must include a checklist designed
to confirm compliance with all provisions of this chapter, chapter 14-02.3, chapter 14-02.6, and
section 23-16-14. The abortion data report form must include the data called for in the United
States standard report of induced termination of pregnancy as recommended by the national
center for health statistics.
14-02.1-03. Consent to abortion - Notification requirements.
1. No physician shall perform an abortion unless prior to such performance the physician
certified in writing that the woman gave her informed consent as defined and provided
in section 14-02.1-02 and shall certify in writing the pregnant woman's marital status
and age based upon proof of age offered by her. Before the period of pregnancy when
the unborn child may reasonably be expected to have reached viability, an abortion
may not be performed upon an unemancipated minor unless the attending physician
certifies in writing that each of the parents of the minor requesting the abortion has
been provided by the physician in person with the information provided for in section
14-02.1-02 at least twenty-four hours before the minor's consent to the performance of
abortion or unless the attending physician certifies in writing that the physician has
caused materials of section 14-02.1-02 to be posted by certified mail to each of the
parents of the minor separately to the last-known addresses at least forty-eight hours
prior to the minor's consent to the performance of abortion. If a parent of the minor has
died or rights and interests of that parent have been legally terminated, this subsection
applies to the sole remaining parent. When both parents have died or the rights and
interests of both parents have been legally terminated, this subsection applies to the
guardian or other person standing in loco parentis. Notification by the attending
physician is not required if the minor elects not to allow the notification of one or both
parents or her guardian and the abortion is authorized by the juvenile court in
accordance with section 14-02.1-03.1. None of the requirements of this subsection
apply in the case of a medical emergency, except that when a medical emergency
compels the performance of an abortion, the physician shall inform the woman, before
the abortion if possible, of the medical indications supporting the physician's judgment
that an abortion is necessary to avert her death or for which a twenty-four-hour delay
will create grave peril of immediate and irreversible loss of major bodily function, and
shall certify those indications in writing.
2. Subsequent to the period of pregnancy when the unborn child may reasonably be
expected to have reached viability, no abortion, other than an abortion necessary to
preserve her life, or because the continuation of her pregnancy will impose on her a
substantial risk of grave impairment of her physical or mental health, may be
performed upon any woman in the absence of:
a. The written consent of her husband unless her husband is voluntarily separated
from her; or
b. The written consent of a parent, if living, or the custodian or legal guardian of the
woman, if the woman is unmarried and under eighteen years of age.
3. No executive officer, administrative agency, or public employee of the state of North
Dakota or any local governmental body has power to issue any order requiring an
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abortion, nor shall any such officer or entity coerce any woman to have an abortion,
nor shall any other person coerce any woman to have an abortion.
14-02.1-03.1. Parental consent or judicial authorization for abortion of unmarried
minor - Statement of intent.
The legislative assembly intends to encourage unmarried pregnant minors to seek the
advice and counsel of their parents when faced with the difficult decision of whether or not to
bear a child, to foster parental involvement in the making of that decision when parental
involvement is in the best interests of the minor and to do so in a manner that does not unduly
burden the right to seek an abortion.
1. No person may knowingly perform an abortion upon a pregnant woman under the age
of eighteen years unless:
a. The attending physician has secured the written consent of the minor woman and
both parents, if living, or the surviving parent if one parent is deceased, or the
custodial parent if the parents are separated or divorced, or the legal guardian or
guardians if the minor is subject to guardianship;
b. The minor woman is married and the attending physician has secured her
informed written consent; or
c. The abortion has been authorized by the juvenile court in accordance with the
provisions of this section.
2. Any pregnant woman under the age of eighteen or next friend is entitled to apply to the
juvenile court for authorization to obtain an abortion without parental consent. All
proceedings on such application must be conducted in the juvenile court of the county
of the minor's residence before a juvenile judge or referee, if authorized by the juvenile
court judge in accordance with the provisions of chapter 27-05, except that the
parental notification requirements of chapter 27-20 are not applicable to proceedings
under this section. A court may change the venue of proceedings under this section to
another county only upon finding that a transfer is required in the best interests of the
minor. All applications in accordance with this section must be heard by a juvenile
judge or referee within forty-eight hours, excluding Saturdays and Sundays, of receipt
of the application. The juvenile judge or referee shall find by clear and convincing
evidence:
a. Whether or not the minor is sufficiently mature and well informed with regard to
the nature, effects, and possible consequences of both having an abortion and
bearing her child to be able to choose intelligently among the alternatives.
b. If the minor is not sufficiently mature and well informed to choose intelligently
among the alternatives without the advice and counsel of her parents or guardian,
whether or not it would be in the best interests of the minor to notify her parents
or guardian of the proceedings and call in the parents or guardian to advise and
counsel the minor and aid the court in making its determination and to assist the
minor in making her decision.
c. If the minor is not sufficiently mature and well informed to choose intelligently
among the alternatives and it is found not to be in the best interests of the minor
to notify and call in her parents or guardian for advice and counsel, whether an
abortion or some other alternative would be in the best interests of the minor.
3. All proceedings in connection with this section must be kept confidential and the
identity of the minor must be protected in accordance with provisions relating to all
juvenile court proceedings. This section does not limit the release, upon request, of
statistical information regarding applications made under this section and their
disposition.
4. The court shall keep a stenographic or mechanically recorded record of the
proceedings which must be maintained on record for forty-eight hours following the
proceedings. If no appeal is taken from an order of the court pursuant to the
proceedings, the record of the proceedings must be sealed as soon as practicable
following such forty-eight-hour period.
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Following the hearing and the court's inquiry of the minor, the court shall issue one of
the following orders:
a. If the minor is sufficiently mature and well informed concerning the alternatives
and without the need for further information, advice, or counseling, the court shall
issue an order authorizing a competent physician to perform the abortion
procedure on the minor.
b. If the minor is not sufficiently mature and well informed, the court may:
(1) Issue an order to provide the minor with any necessary information to assist
her in her decision if the minor is mature enough to make the decision but
not well informed enough to do so.
(2) Issue an order to notify the minor's parents or guardian of the pendency of
the proceedings and calling for their attendance at a reconvening of the
hearing in order to advise and counsel the minor and assist the court in
making its determination if the court finds that to do so would be in the best
interests of the minor.
(3) Issue an order authorizing an abortion by a competent physician if the court
has determined that it would not be in the best interests of the minor to call
in her parents or guardian but has found that it would be in the minor's best
interests to authorize the abortion.
The minor or next friend may appeal the determination of the juvenile court directly to
the state supreme court. In the event of such an appeal, any and all orders of the
juvenile court must be automatically stayed pending determination of the issues on
appeal. Any appeal taken pursuant to this section by anyone other than the minor or
next friend must be taken within forty-eight hours of the determination of the juvenile
court by the filing of written notice with the juvenile court and a written application in
the supreme court. Failure to file notice and application within the prescribed time
results in a forfeiture of the right to appeal and render the juvenile court order or orders
effective for all intents and purposes.
Upon receipt of written notice of appeal, the juvenile court shall immediately cause to
be transmitted to the supreme court the record of proceedings had in the juvenile
court.
An application for appeal pursuant to this section must be treated as an expedited
appeal by the supreme court and must be set down for hearing within four days of
receipt of the application, excluding Saturdays and Sundays.
The hearing, inquiry, and determination of the supreme court must be limited to a
determination of the sufficiency of the inquiry and information considered by the
juvenile court and whether or not the order or orders of the juvenile court accord with
the information considered with respect to the maturity and information available to the
minor and the best interests of the minor as determined by the juvenile court. The
determination of the juvenile court may not be overturned unless found to be clearly
erroneous.
After hearing the matter the supreme court shall issue its decision within twenty-four
hours.
Within forty-eight hours of the hearing by the supreme court, the record of the juvenile
court must be returned to the juvenile court and the juvenile court shall seal it at the
earliest practicable time.
Nothing in this section may be construed to prevent the immediate performance of an
abortion on an unmarried minor woman in an emergency where such action is
necessary to preserve her life and no physician may be prevented from acting in good
faith in such circumstances or made to suffer any sanction thereby other than those
applicable in the normal course of events to the general review of emergency and
nonemergency medical procedures.
Nothing in this section may be construed to alter the effects of any other section of this
chapter or to expand the rights of any minor to obtain an abortion beyond the limits to
such rights recognized under the Constitution of the United States or under other
provisions of this code.
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14-02.1-03.2. Civil damages for performance of abortions without informed consent.
Any person upon whom an abortion has been performed without informed consent as
required by sections 14-02.1-02, 14-02.1-02.1, subsection 1 of section 14-02.1-03,
14-02.1-03.2, and 14-02.1-03.3 may maintain an action against the person who performed the
abortion for ten thousand dollars in punitive damages and treble whatever actual damages the
plaintiff may have sustained. Any person upon whom an abortion has been attempted without
complying with sections 14-02.1-02, 14-02.1-02.1, subsection 1 of section 14-02.1-03,
14-02.1-03.2, and 14-02.1-03.3 may maintain an action against the person who attempted to
perform the abortion for five thousand dollars in punitive damages and treble whatever actual
damages the plaintiff may have sustained.
14-02.1-03.3. Privacy of woman upon whom an abortion is performed or attempted.
In every proceeding or action brought under section 14-02.1-03.2, the court shall rule
whether the anonymity of any woman upon whom an abortion is performed or attempted should
be preserved from public disclosure if she does not give her consent to such disclosure. The
court, upon motion or sua sponte, shall make such a ruling and, upon determining that her
anonymity should be preserved, shall issue orders to the parties, witnesses, and counsel, and
shall direct the sealing of the record and exclusion of individuals from courtrooms or hearing
rooms, to the extent necessary to safeguard her identity from public disclosure. Each such order
must be accompanied by specific written findings explaining why the anonymity of the woman
should be preserved from public disclosure, why the order is essential to that end, how the order
is narrowly tailored to serve that interest, and why no reasonable less restrictive alternative
exists. This section may not be construed to conceal the identity of the plaintiff or of witnesses
from the defendant.
14-02.1-03.4. Required notice at abortion facility.
1. Any abortion facility that performs abortions shall display signs that contain exclusively
the following words: "NOTICE: No one can force you to have an abortion. It is against
the law for a spouse, a boyfriend, a parent, a friend, a medical care provider, or any
other person to in any way force you to have an abortion."
2. The signs must be located so that the signs can be read easily and in areas that
ensure maximum visibility to women at the time a woman gives consent to an abortion.
3. The display of signs pursuant to this section does not discharge any other legal duty of
an abortion facility or physician.
4. The state department of health shall make the signs required by this section available
for download in a printable format on its internet website.
14-02.1-03.5. Abortion-inducing drugs.
1. For purposes of this chapter, an abortion accomplished by the use of an
abortion-inducing drug is deemed to occur when the drug is prescribed, in the case of
a prescription, or when the drug is administered directly to the woman by the
physician.
2. It is unlawful to knowingly give, sell, dispense, administer, otherwise provide, or
prescribe any abortion-inducing drug to a pregnant woman for the purpose of inducing
an abortion in that pregnant woman, or enabling another person to induce an abortion
in a pregnant woman, unless the person who gives, sells, dispenses, administers, or
otherwise provides or prescribes the abortion-inducing drug is a physician, and the
provision or prescription of the abortion-inducing drug satisfies the protocol tested and
authorized by the federal food and drug administration and as outlined in the label for
the abortion-inducing drug.
3. Every pregnant woman to whom a physician gives, sells, dispenses, administers,
otherwise provides, or prescribes any abortion-inducing drug must be provided with a
copy of the drug's label.
4. Any physician who gives, sells, dispenses, administers, prescribes, or otherwise
provides an abortion-inducing drug shall enter a signed contract with another physician
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5.
who agrees to handle emergencies associated with the use or ingestion of the
abortion-inducing drug. The physician shall produce the signed contract on demand by
the patient, the state department of health, or a criminal justice agency. Every pregnant
woman to whom a physician gives, sells, dispenses, administers, prescribes, or
otherwise provides any abortion-inducing drug must be provided the name and
telephone number of the physician who will be handling emergencies and the hospital
at which any emergencies will be handled. The physician who contracts to handle
emergencies must have active admitting privileges and gynecological and surgical
privileges at the hospital designated to handle any emergencies associated with the
use or ingestion of the abortion-inducing drug.
When an abortion-inducing drug or chemical is used for the purpose of inducing an
abortion, the drug or chemical must be administered by or in the same room and in the
physical presence of the physician who prescribed, dispensed, or otherwise provided
the drug or chemical to the patient.
14-02.1-04. Limitations on the performance of abortions - Penalty.
1. An abortion may not be performed by any person other than a physician who is using
applicable medical standards and who is licensed to practice in this state. All
physicians performing abortion procedures must have admitting privileges at a hospital
located within thirty miles [42.28 kilometers] of the abortion facility and staff privileges
to replace hospital on-staff physicians at that hospital. These privileges must include
the abortion procedures the physician will be performing at abortion facilities. An
abortion facility must have a staff member trained in cardiopulmonary resuscitation
present at all times when the abortion facility is open and abortions are scheduled to
be performed.
2. After the first twelve weeks of pregnancy but prior to the time at which the unborn child
may reasonably be expected to have reached viability, no abortion may be performed
in any facility other than a licensed hospital.
3. After the point in pregnancy when the unborn child may reasonably be expected to
have reached viability, no abortion may be performed except in a hospital, and then
only if in the medical judgment of the physician the abortion is necessary to preserve
the life of the woman or if in the physician's medical judgment the continuation of her
pregnancy will impose on her a substantial risk of grave impairment of her physical or
mental health.
An abortion under this subsection may only be performed if the above-mentioned
medical judgment of the physician who is to perform the abortion is first certified by the
physician in writing, setting forth in detail the facts upon which the physician relies in
making this judgment and if this judgment has been concurred in by two other licensed
physicians who have examined the patient. The foregoing certification and
concurrence is not required in the case of an emergency when the abortion is
necessary to preserve the life of the patient.
4. An abortion facility may not perform an abortion on a woman without first offering the
woman an opportunity to receive and view at the abortion facility or another facility an
active ultrasound of her unborn child. The offer and opportunity to receive and view an
ultrasound must occur at least twenty-four hours before the abortion is scheduled to be
performed. The active ultrasound image must be of a quality consistent with standard
medical practice in the community, contain the dimensions of the unborn child, and
accurately portray the presence of external members and internal organs, including
the heartbeat, if present or viewable, of the unborn child. The auscultation of the fetal
heart tone must be of a quality consistent with standard medical practice in the
community. The abortion facility shall document the woman's response to the offer,
including the date and time of the offer and the woman's signature attesting to her
informed decision.
5. Any physician who performs an abortion without complying with the provisions of this
section is guilty of a class A misdemeanor.
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6.
It is a class B felony for any person, other than a physician licensed under chapter
43-17, to perform an abortion in this state.
14-02.1-04.1. Prohibition - Sex-selective abortion - Abortion for genetic abnormality Penalty.
1. Notwithstanding any other provision of law, a physician may not intentionally perform
or attempt to perform an abortion with knowledge that the pregnant woman is seeking
the abortion solely:
a. On account of the sex of the unborn child; or
b. Because the unborn child has been diagnosed with either a genetic abnormality
or a potential for a genetic abnormality.
2. Any physician who performs an abortion in violation of this section is guilty of a class A
misdemeanor.
14-02.1-05. Preserving life of a viable child - Penalty.
An abortion of a viable child may be performed only when there is in attendance a physician
other than the physician performing the abortion who shall take control and provide immediate
medical care for the viable child born as a result of the abortion. The physician performing it,
and subsequent to the abortion, the physician required by this section to be in attendance, shall
take all reasonable steps in keeping with good medical practice, consistent with the procedure
used, to preserve the life and health of the unborn child. Failure to do so is a class C felony.
14-02.1-05.1. Determination of detectable heartbeat in unborn child before abortion Exception.
1. Except when a medical emergency exists that prevents compliance with this
subsection, an individual may not perform an abortion on a pregnant woman before
determining, in accordance with standard medical practice, if the unborn child the
pregnant woman is carrying has a detectable heartbeat. Any individual who performs
an abortion on a pregnant woman based on the exception in this subsection shall note
in the pregnant woman's medical records that a medical emergency necessitating the
abortion existed.
2. If a physician performs an abortion on a pregnant woman before determining if the
unborn child the pregnant woman is carrying has a detectable heartbeat, that
physician is subject to disciplinary action under section 43-17-31.
14-02.1-05.2. Abortion after detectable heartbeat in unborn child prohibited Exception - Penalty.
1. Notwithstanding any other provision of law, an individual may not knowingly perform
an abortion on a pregnant woman with the specific intent of causing or abetting the
termination of the life of the unborn child the pregnant woman is carrying and whose
heartbeat has been detected according to the requirements of section 14-02.1-05.1.
2. a. An individual is not in violation of subsection 1 if that individual performs a
medical procedure designed to or intended, in that individual's reasonable
medical judgment, to prevent the death of a pregnant woman, to prevent a
serious risk of the substantial and irreversible impairment of a major bodily
function of the pregnant woman, or to save the life of an unborn child.
b. Any individual who performs a medical procedure as described in subsection 1
shall declare in writing, under penalty of perjury, that the medical procedure is
necessary, to the best of that individual's reasonable medical judgment, to
prevent the death of the pregnant woman or to prevent a serious risk of the
substantial and irreversible impairment of a major bodily function of the pregnant
woman. That individual also shall provide in that written document, under penalty
of perjury, the medical condition of that pregnant woman that the medical
procedure performed as described in subdivision a assertedly will address, and
the medical rationale for the conclusion that the medical procedure is necessary
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4.
5.
to prevent the death of the pregnant woman or to prevent a serious risk of the
substantial and irreversible impairment of a major bodily function of the pregnant
woman.
c. The individual who performs a medical procedure as described in subdivision a
shall place the written documentation required under subdivision b in the
pregnant woman's medical records and shall maintain a copy of the written
documentation in the individual's own records for at least seven years.
An individual is not in violation of subsection 1 if that individual has performed an
examination for the presence of a heartbeat in the unborn child utilizing standard
medical practice and that examination does not reveal a heartbeat in the unborn child
or the individual has been informed by a physician who has performed the examination
for the unborn child's heartbeat that the examination did not reveal a heartbeat in the
unborn child.
It is a class C felony for an individual to willingly perform an abortion in violation of
subsection 1. The pregnant woman upon whom the abortion is performed in violation
of subsection 1 may not be prosecuted for a violation of subsection 1 or for conspiracy
to violate subsection 1.
This section does not prohibit the sale, use, prescription, or administration of a
measure, drug, or chemical designed for contraceptive purposes.
14-02.1-05.3. Determination of postfertilization age - Abortion of unborn child of
twenty or more weeks postfertilization age prohibited.
1. The purpose of this section is to protect the state's compelling interest in the unborn
human life from the time the unborn child is capable of feeling pain.
2. Except in the case of a medical emergency, an abortion may not be performed or
induced or be attempted to be performed or induced unless the physician performing
or inducing the abortion has first made a determination of the probable postfertilization
age of the unborn child or relied upon such a determination made by another
physician. In making the determination, the physician shall make those inquiries of the
woman and perform or cause to be performed the medical examinations and tests as
a reasonably prudent physician, knowledgeable about the case and the medical
conditions involved, would consider necessary to perform in making an accurate
diagnosis with respect to postfertilization age.
3. Except in the case of a medical emergency, a person may not perform or induce or
attempt to perform or induce an abortion upon a woman when it has been determined,
by the physician performing or inducing or attempting to perform or induce the abortion
or by another physician upon whose determination that physician relies, that the
probable postfertilization age of the woman's unborn child is twenty or more weeks.
14-02.1-06. Soliciting abortions.
Repealed by S.L. 1999, ch. 50, § 79.
14-02.1-07. Records required - Reporting of practice of abortion.
1. Records:
a. All abortion facilities and hospitals in which abortions are performed shall keep
records, including admission and discharge notes, histories, results of tests and
examinations, nurses' worksheets, social service records, and progress notes,
and shall further keep a copy of all written certifications provided for in this
chapter as well as a copy of the constructive notice forms, consent forms, court
orders, abortion data reports, adverse event reports, abortion compliance reports,
and complication reports. All abortion facilities shall keep the following records:
(1) The number of women who availed themselves of the opportunity to receive
and view an ultrasound image of their unborn children pursuant to section
14-02.1-04, and the number who did not; and of each of those numbers, the
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2.
number who, to the best of the reporting abortion facility's information and
belief, went on to obtain the abortion.
(2) Postfertilization age:
(a) If a determination of probable postfertilization age was not made, the
basis of the determination that a medical emergency existed.
(b) If the probable postfertilization age was determined to be twenty or
more weeks and an abortion was performed, the basis of the
determination that a medical emergency existed.
b. The medical records of abortion facilities and hospitals in which abortions are
performed and all information contained therein must remain confidential and
may be used by the state department of health only for gathering statistical data
and ensuring compliance with the provisions of this chapter.
c. Records must be maintained in the permanent files of the hospital or abortion
facility for a period of not less than seven years.
Reporting:
a. An individual abortion compliance report and an individual abortion data report for
each abortion performed upon a woman must be completed by her attending
physician. The abortion data report must be confidential and may not contain the
name of the woman. The abortion data report must include the data called for in
the United States standard report of induced termination of pregnancy as
recommended by the national center for health statistics.
b. All abortion compliance reports must be signed by the attending physician within
twenty-four hours and submitted to the state department of health within ten
business days from the date of the abortion. All abortion data and complication
reports must be signed by the attending physician and submitted to the state
department of health within thirty days from the date of the abortion. If a physician
provides an abortion-inducing drug to another for the purpose of inducing an
abortion and the physician knows that the individual experiences during or after
the use an adverse event, the physician shall provide a written report of the
adverse event within thirty days of the event to the state department of health and
the federal food and drug administration via the medwatch reporting system. For
purposes of this section, "adverse event" is defined based upon the federal food
and drug administration criteria given in the medwatch reporting system. If a
determination of probable postfertilization age was not made, the abortion
compliance report must state the basis of the determination that a medical
emergency existed. If the probable postfertilization age was determined to be
twenty or more weeks and an abortion was performed, the abortion compliance
report must state the basis of the determination that a medical emergency
existed.
c. A copy of the abortion report, any complication report, and any adverse event
report must be made a part of the medical record of the patient at the facility or
hospital in which the abortion was performed. In cases when post-abortion
complications are discovered, diagnosed, or treated by physicians not associated
with the facility or hospital where the abortion was performed, the state
department of health shall forward a copy of the report to that facility or hospital to
be made a part of the patient's permanent record.
d. The state department of health is responsible for collecting all abortion
compliance reports, abortion data reports, complication reports, and adverse
event reports and collating and evaluating all data gathered from these reports
and shall annually publish a statistical report based on data from abortions
performed in the previous calendar year. All abortion compliance reports received
by the state department of health are public records. Except for disclosure to a
law enforcement officer or state agency, the department may not disclose an
abortion compliance report without first removing any individually identifiable
health information and any other demographic information, including race, marital
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e.
status, number of previous live births, and education regarding the woman upon
whom the abortion was performed.
The state department of health shall report to the attorney general any apparent
violation of this chapter.
14-02.1-07.1. Forms.
The state department of health shall make available to physicians, hospitals, and all
abortion facilities the forms required by this chapter.
14-02.1-08. Protection of infant born alive - Penalty.
1. A person is guilty of a class C felony if the person knowingly, or negligently, causes the
death of an infant born alive.
2. Whenever an unborn child who is the subject of abortion is born alive and is viable, it
becomes an abandoned and deprived child, unless:
a. The termination of the pregnancy is necessary to preserve the life of the mother;
or
b. The mother and her spouse, or either of them, have agreed in writing in advance
of the abortion, or within seventy-two hours thereafter, to accept the parental
rights and responsibilities for the unborn child if it survives the abortion
procedure.
14-02.1-09. Humane disposal of nonviable unborn child.
The physician performing the abortion, if performed outside of a hospital, must see to it that
the unborn child is disposed of in a humane fashion under regulations established by the state
department of health. A licensed hospital in which an abortion is performed must dispose of a
dead unborn child in a humane fashion in compliance with regulations promulgated by the state
department of health.
14-02.1-10. Concealing stillbirth or death of infant - Penalty.
It is a class A misdemeanor for a person to conceal the stillbirth of a fetus or to fail to report
to a physician or to the county coroner the death of an infant under two years of age.
14-02.1-11. General penalty.
A person violating any provision of this chapter for which another penalty is not specifically
prescribed is guilty of a class A misdemeanor. Any person willfully violating a rule or regulation
promulgated under this chapter is guilty of an infraction.
14-02.1-12. Short title.
This chapter may be cited as the North Dakota Abortion Control Act.
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