Bill Text: MI HB4433 | 2011-2012 | 96th Legislature | Introduced
Bill Title: Health; abortion; performance of a diagnostic ultrasound examination on woman seeking an abortion; require, and require use of most technologically advanced equipment on site. Amends secs. 17014 & 17015 of 1978 PA 368 (MCL 333.17014 & 333.17015).
Spectrum: Moderate Partisan Bill (Republican 24-3)
Status: (Introduced - Dead) 2011-03-16 - Printed Bill Filed 03/16/2011 [HB4433 Detail]
Download: Michigan-2011-HB4433-Introduced.html
HOUSE BILL No. 4433
March 15, 2011, Introduced by Reps. Johnson, LaFontaine, Hooker, Callton, Damrow, Scott, Heise, Walsh, McBroom, Zorn, Muxlow, Cotter, Horn, Franz, Shirkey, Brunner, Yonker, Kurtz, Price, Somerville, LeBlanc, Opsommer, Shaughnessy, Haines, Roy Schmidt, Denby and Huuki and referred to the Committee on Health Policy.
A bill to amend 1978 PA 368, entitled
"Public health code,"
by amending sections 17014 and 17015 (MCL 333.17014 and 333.17015),
section 17014 as amended by 2002 PA 685 and section 17015 as
amended by 2006 PA 77.
THE PEOPLE OF THE STATE OF MICHIGAN ENACT:
Sec. 17014. The legislature recognizes that under federal
constitutional law, a state is permitted to enact persuasive
measures that favor childbirth over abortion, even if those
measures do not further a health interest. Sections 17015 and 17515
are nevertheless designed to provide objective, truthful
information, and are not intended to be persuasive. The legislature
finds that the enactment of sections 17015 and 17515 is essential
for all of the following reasons:
(a) The knowledgeable 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 regarding
abortion.
(b) The decision to obtain an abortion is an important and
often stressful one, and it is in the state's interest that the
decision be made with full knowledge of its nature and
consequences.
(c) Enactment of sections 17015 and 17515 is necessary to
ensure that, before an abortion, a woman is provided information
regarding her available alternatives, and to ensure that a woman
gives her voluntary and informed consent to an abortion.
(d) The receipt of accurate information about abortion and its
alternatives is essential to the physical and psychological well-
being of a woman considering an abortion.
(e) Because many abortions in this state are performed in
clinics devoted solely to providing abortions, women who seek
abortions at these clinics normally do not have a prior patient-
physician relationship with the physician performing the abortion
nor do these women continue a patient-physician relationship with
the physician after the abortion. In many instances, the woman's
only actual contact with the physician performing the abortion
occurs simultaneously with the abortion procedure, with little
opportunity to receive counsel concerning her decision.
Consequently, certain safeguards are necessary to protect a woman's
opportunity to select the option best suited to her particular
situation.
(f) This state has an interest in protecting women and,
subject to United States constitutional limitations and supreme
court decisions, this state has an interest in protecting the
fetus.
(g) Providing a woman with factual, medical, and biological
information about the fetus she is carrying is essential to
safeguard the state's interests described in subdivision (f). The
dissemination of the information set forth in sections 17015 and
17515 is necessary due to the irreversible nature of the act of
abortion and the often stressful circumstances under which the
abortion decision is made.
(h) Because abortion services are marketed like many other
commercial enterprises, and nearly all abortion providers advertise
some free services, including pregnancy tests and counseling, the
legislature finds that consumer protection should be extended to
women contemplating an abortion decision by delaying any financial
transactions until after a 24-hour waiting period. Furthermore,
since the legislature and abortion providers have determined that a
woman's right to give informed consent to an abortion can be
protected by means other than the patient having to travel to the
abortion facility during the 24-hour waiting period, the
legislature finds that abortion providers do not have a legitimate
claim of necessity in obtaining payments during the 24-hour waiting
period.
(i) The safeguards that will best protect a woman seeking
advice concerning abortion include the following:
(i) Private, individual counseling, including dissemination of
certain information, as the woman's individual circumstances
dictate, that affect her decision of whether to choose an abortion.
(ii) A 24-hour waiting period between a woman's receipt of that
information provided to assist her in making an informed decision,
and the actual performance of an abortion, if she elects to undergo
an abortion. A 24-hour waiting period affords a woman, in light of
the information provided by the physician or a qualified person
assisting the physician, an opportunity to reflect on her decision
and to seek counsel of family and friends in making her decision.
(iii) The performance of a diagnostic ultrasound examination of
the fetus at least 2 hours before an abortion is performed with the
woman given the option to view the active ultrasound image of the
fetus, hear the fetal heartbeat, receive a physical picture of the
ultrasound image of the fetus, and hear an explanation of the
ultrasound image of the fetus. The performance of a diagnostic
ultrasound examination of the fetus, now a standard practice at
abortion facilities, protects the health of the woman seeking an
abortion by verifying an intrauterine pregnancy, as undiagnosed
ectopic pregnancies can result in potentially fatal complications
and infertility. The performance of a diagnostic ultrasound
examination of the fetus further protects the interests of the
woman seeking an abortion by assessing the viability of the fetus
and confirming the approximate gestational age of the fetus, as
this information is necessary in order to determine appropriate
medical care for the woman seeking an abortion.
(j) The safeguards identified in subdivision (i) advance a
woman's interests in the exercise of her discretion to choose or
not to choose an abortion, and are justified by the objectives and
interests of this state to protect the health of a pregnant woman
and, subject to United States constitutional limitations and
supreme court decisions, to protect the fetus.
Sec. 17015. (1) Subject to subsection (10), a physician shall
not perform an abortion otherwise permitted by law without the
patient's informed written consent, given freely and without
coercion.
(2) For purposes of this section:
(a) "Abortion" means the intentional use of an instrument,
drug, or other substance or device to terminate a woman's pregnancy
for a purpose other than to increase the probability of a live
birth, to preserve the life or health of the child after live
birth,
or to remove a dead fetus
that has died as a result of
natural causes, accidental trauma, or a criminal assault on the
pregnant woman. Abortion does not include the use or prescription
of a drug or device intended as a contraceptive.
(b) "Fetus" means an individual organism of the species homo
sapiens in utero.
(c) "Local health department representative" means a person,
who meets 1 or more of the licensing requirements listed in
subdivision
(f) (g) and who is employed by, or under contract to
provide services on behalf of, a local health department.
(d) "Medical emergency" means that condition which, on the
basis of the physician's good faith clinical judgment, so
complicates the medical condition of a pregnant woman as to
necessitate the immediate abortion of her pregnancy to avert her
death or for which a delay will create serious risk of substantial
and irreversible impairment of a major bodily function.
(e) "Medical service" means the provision of a treatment,
procedure, medication, examination, diagnostic test, assessment, or
counseling, including, but not limited to, a pregnancy test,
ultrasound, pelvic examination, or an abortion.
(f) "Most technologically advanced ultrasound equipment
available at that location" means ultrasound imaging equipment that
meets both of the following requirements:
(i) Is capable of providing the most visibly clear image of the
gross anatomical development of the fetus and the most audible
fetal heartbeat.
(ii) Is present in the clinical area within a building where
the patient counseling, preoperative procedures, and abortion are
to be performed and that is under the supervision and discretion of
the attending physician or qualified person assisting the physician
to utilize for diagnostic or operative purposes.
(g) (f)
"Qualified person assisting
the physician" means
another physician or a physician's assistant licensed under this
part or part 175, a fully licensed or limited licensed psychologist
licensed under part 182, a professional counselor licensed under
part 181, a registered professional nurse or a licensed practical
nurse licensed under part 172, or a social worker licensed under
part 185.
(h) (g)
"Probable gestational age of
the fetus" means the
gestational age of the fetus at the time an abortion is planned to
be performed.
(i) (h)
"Provide the patient with a
physical copy" means
confirming that the patient accessed the internet website described
in subsection (5) and received a printed valid confirmation form
from the website and including that form in the patient's medical
record or giving a patient a copy of a required document by 1 or
more of the following means:
(i) In person.
(ii) By registered mail, return receipt requested.
(iii) By parcel delivery service that requires the recipient to
provide a signature in order to receive delivery of a parcel.
(iv) By facsimile transmission.
(3) Subject to subsection (10), a physician or a qualified
person assisting the physician shall do all of the following not
less than 24 hours before that physician performs an abortion upon
a patient who is a pregnant woman:
(a) Confirm that, according to the best medical judgment of a
physician, the patient is pregnant, and determine the probable
gestational age of the fetus.
(b) Orally describe, in language designed to be understood by
the patient, taking into account her age, level of maturity, and
intellectual capability, each of the following:
(i) The probable gestational age of the fetus she is carrying.
(ii) Information about what to do and whom to contact should
medical complications arise from the abortion.
(iii) Information about how to obtain pregnancy prevention
information through the department of community health.
(c) Provide the patient with a physical copy of the written
summary described in subsection (11)(b) that corresponds to the
procedure the patient will undergo and is provided by the
department of community health. If the procedure has not been
recognized by the department, but is otherwise allowed under
Michigan law, and the department has not provided a written summary
for that procedure, the physician shall develop and provide a
written summary that describes the procedure, any known risks or
complications of the procedure, and risks associated with live
birth and meets the requirements of subsection (11)(b)(iii) through
(vii).
(d) Provide the patient with a physical copy of a medically
accurate depiction, illustration, or photograph and description of
a fetus supplied by the department of community health pursuant to
subsection (11)(a) at the gestational age nearest the probable
gestational age of the patient's fetus.
(e) Provide the patient with a physical copy of the prenatal
care and parenting information pamphlet distributed by the
department of community health under section 9161.
(4) The requirements of subsection (3) may be fulfilled by the
physician or a qualified person assisting the physician at a
location other than the health facility where the abortion is to be
performed. The requirement of subsection (3)(a) that a patient's
pregnancy be confirmed may be fulfilled by a local health
department under subsection (18). The requirements of subsection
(3) cannot be fulfilled by the patient accessing an internet
website other than the internet website described in subsection (5)
that is maintained through the department.
(5) The requirements of subsection (3)(c) through (e) may be
fulfilled by a patient accessing the internet website maintained
and operated through the department and receiving a printed, valid
confirmation form from the website that the patient has reviewed
the information required in subsection (3)(c) through (e) at least
24 hours before an abortion being performed on the patient. The
website shall not require any information be supplied by the
patient. The department shall not track, compile, or otherwise keep
a record of information that would identify a patient who accesses
this website. The patient shall supply the valid confirmation form
to the physician or qualified person assisting the physician to be
included in the patient's medical record to comply with this
subsection.
(6) Subject to subsection (10), before obtaining the patient's
signature on the acknowledgment and consent form, a physician
personally and in the presence of the patient shall do all of the
following:
(a) Provide the patient with the physician's name and inform
the patient of her right to withhold or withdraw her consent to the
abortion at any time before performance of the abortion.
(b) Orally describe, in language designed to be understood by
the patient, taking into account her age, level of maturity, and
intellectual capability, each of the following:
(i) The specific risk, if any, to the patient of the
complications that have been associated with the procedure the
patient will undergo, based on the patient's particular medical
condition and history as determined by the physician.
(ii) The specific risk of complications, if any, to the patient
if she chooses to continue the pregnancy based on the patient's
particular medical condition and history as determined by a
physician.
(7) To protect a patient's privacy, the information set forth
in subsection (3) and subsection (6) shall not be disclosed to the
patient in the presence of another patient.
(8)
If at any time prior to Not
less than 2 hours before any
preoperative sedative or anesthetic medications are administered,
before the patient signs the consent form described in subsection
(11)(c),
and before the performance of an
abortion, a patient
undergoes
an ultrasound examination, or a physician determines that
ultrasound
imaging will be used during the course of a patient's
abortion,
the physician or qualified person
assisting the physician
shall
provide the patient with the opportunity to view or decline
to
view an active ultrasound image of the fetus, and perform a
diagnostic ultrasound examination in order to verify an
intrauterine pregnancy, assess viability of the fetus, confirm
gestational age of the fetus, and ensure fully informed consent to
the abortion. The physician or qualified person assisting the
physician shall ensure that the ultrasound screen is turned toward
the patient to enable her to easily view the active ultrasound
image of the fetus; shall inform the patient that the active
ultrasound image of the fetus is visible and she may view the image
on the ultrasound screen if she desires; shall provide the patient
with the opportunity to hear or decline to hear the fetal heartbeat
as confirmation of a viable pregnancy; shall offer to provide the
patient with a physical picture of the ultrasound image of the
fetus; prior
to the performance of the abortion. and shall offer to
provide the patient with an oral explanation of the ultrasound
image of the fetus. In complying with this subsection, the
physician or qualified person assisting the physician shall ensure
that the most technologically advanced ultrasound equipment
available at that location is used for the ultrasound examination,
for the patient's viewing an active ultrasound image, for the
patient's hearing the fetal heartbeat, and for creating the
physical picture of the ultrasound image. The physician or
qualified person assisting the physician shall ensure that the
ultrasound image of the fetus and the fetal heart tones are of a
quality consistent with the current medical standard of care for
prenatal diagnostic purposes given the patient's gestational stage
of pregnancy and the equipment used. Before performing an abortion
on a patient who is a pregnant woman, a physician or a qualified
person assisting the physician shall do all of the following:
(a) Obtain the patient's signature on the acknowledgment and
consent form described in subsection (11)(c) confirming that she
has received the information required under subsection (3).
(b) Provide the patient with a physical copy of the signed
acknowledgment and consent form described in subsection (11)(c).
(c) Retain a copy of the signed acknowledgment and consent
form described in subsection (11)(c) and, if applicable, a copy of
the pregnancy certification form completed under subsection
(18)(b), in the patient's medical record.
(d) Retain a physical picture of the ultrasound image of the
fetus from the diagnostic ultrasound examination performed under
this subsection, which ultrasound image verifies intrauterine
pregnancy and confirms gestational age of the fetus.
(9) This subsection does not prohibit notifying the patient
that payment for medical services will be required or that
collection of payment in full for all medical services provided or
planned may be demanded after the 24-hour period described in this
subsection has expired. A physician or an agent of the physician
shall not collect payment, in whole or in part, for a medical
service provided to or planned for a patient before the expiration
of 24 hours from the time the patient has done either or both of
the following, except in the case of a physician or an agent of a
physician receiving capitated payments or under a salary
arrangement for providing those medical services:
(a) Inquired about obtaining an abortion after her pregnancy
is confirmed and she has received from that physician or a
qualified person assisting the physician the information required
under subsection (3)(c) and (d).
(b) Scheduled an abortion to be performed by that physician.
(10) If the attending physician, utilizing his or her
experience, judgment, and professional competence, determines that
a medical emergency exists and necessitates performance of an
abortion before the requirements of subsections (1), (3), and (6)
can be met, the physician is exempt from the requirements of
subsections (1), (3), and (6), may perform the abortion, and shall
maintain a written record identifying with specificity the medical
factors upon which the determination of the medical emergency is
based.
(11) The department of community health shall do each of the
following:
(a) Produce medically accurate depictions, illustrations, or
photographs of the development of a human fetus that indicate by
scale the actual size of the fetus at 2-week intervals from the
fourth week through the twenty-eighth week of gestation. Each
depiction, illustration, or photograph shall be accompanied by a
printed description, in nontechnical English, Arabic, and Spanish,
of the probable anatomical and physiological characteristics of the
fetus at that particular state of gestational development.
(b) Subject to subdivision (g), develop, draft, and print, in
nontechnical English, Arabic, and Spanish, written standardized
summaries, based upon the various medical procedures used to abort
pregnancies, that do each of the following:
(i) Describe, individually and on separate documents, those
medical procedures used to perform abortions in this state that are
recognized by the department.
(ii) Identify the physical complications that have been
associated with each procedure described in subparagraph (i) and
with live birth, as determined by the department. In identifying
these complications, the department shall consider the annual
statistical
report required under section 2835(6) 2835, and shall
consider studies concerning complications that have been published
in a peer review medical journal, with particular attention paid to
the design of the study, and shall consult with the federal centers
for
disease control and prevention, the American college congress
of obstetricians and gynecologists, the Michigan state medical
society, or any other source that the department determines
appropriate for the purpose.
(iii) State that as the result of an abortion, some women may
experience depression, feelings of guilt, sleep disturbance, loss
of interest in work or sex, or anger, and that if these symptoms
occur and are intense or persistent, professional help is
recommended.
(iv) State that not all of the complications listed in
subparagraph (ii) may pertain to that particular patient and refer
the patient to her physician for more personalized information.
(v) Identify services available through public agencies to
assist the patient during her pregnancy and after the birth of her
child, should she choose to give birth and maintain custody of her
child.
(vi) Identify services available through public agencies to
assist the patient in placing her child in an adoptive or foster
home, should she choose to give birth but not maintain custody of
her child.
(vii) Identify services available through public agencies to
assist the patient and provide counseling should she experience
subsequent adverse psychological effects from the abortion.
(c) Develop, draft, and print, in nontechnical English,
Arabic, and Spanish, an acknowledgment and consent form that
includes only the following language above a signature line for the
patient:
"I, _____________________________ , hereby authorize Dr.
__________________ ("the physician") and any assistant designated
by the physician to perform upon me the following operation(s) or
procedure(s):
______________________________________________________________
(Name of operation(s) or procedure(s))
______________________________________________________________
A. I understand that I am approximately _____ weeks pregnant.
I consent to an abortion procedure to terminate my pregnancy. I
understand that I have the right to withdraw my consent to the
abortion procedure at any time prior to performance of that
procedure.
B. I acknowledge that at least 24 hours before the scheduled
abortion I have received a physical copy of each of the following:
1. (a)
A medically accurate depiction,
illustration, or
photograph of a fetus at the probable gestational age of the fetus
I am carrying.
2. (b)
A written description of the
medical procedure that
will be used to perform the abortion.
3. (c)
A prenatal care and parenting
information pamphlet.
C. If any of the above listed documents listed in paragraph B
were transmitted by facsimile, I certify that the documents were
clear and legible.
D. I acknowledge that at least 2 hours before the scheduled
abortion, the physician or qualified person assisting the physician
has performed a diagnostic ultrasound examination and has done all
of the following:
1. Provided me with an opportunity to view or decline to view
the active ultrasound image of the fetus.
2. Provided me with an opportunity to hear or decline to hear
the fetal heartbeat.
3. Offered to provide me with a physical picture of the
ultrasound image of the fetus.
4. Offered an oral explanation of the ultrasound image of the
fetus.
E. I acknowledge that the physician who will perform the
abortion has orally described all of the following to me:
1. (i) The
specific risk to me, if any, of the complications
that have been associated with the procedure I am scheduled to
undergo.
2. (ii) The
specific risk to me, if any, of the complications
if I choose to continue the pregnancy.
F. I acknowledge that I have received all of the following
information:
1. (d)
Information about what to do and
whom to contact in the
event that complications arise from the abortion.
2. (e)
Information pertaining to available
pregnancy related
services.
G. I have been given an opportunity to ask questions about the
operation(s) or procedure(s).
H. I certify that I have not been required to make any
payments for an abortion or any medical service before the
expiration of 24 hours after I received the written materials
listed
in paragraphs (a), (b), and (c) paragraph
B above, or 24
hours after the time and date listed on the confirmation form if
paragraphs
(a), (b), and (c) were the
information described in
paragraph B was viewed from the state of Michigan internet
website.".
(d) Make available to physicians through the Michigan board of
medicine and the Michigan board of osteopathic medicine and
surgery, and any person upon request the copies of medically
accurate depictions, illustrations, or photographs described in
subdivision
(a), the written standardized written summaries
described in subdivision (b), the acknowledgment and consent form
described in subdivision (c), the prenatal care and parenting
information pamphlet described in section 9161, and the pregnancy
certification form described in subdivision (f).
(e) The department shall not develop written standardized
summaries for abortion procedures under subdivision (b) that
utilize medication that has not been approved by the United States
food and drug administration for use in performing an abortion.
(f) Develop, draft, and print a certification form to be
signed by a local health department representative at the time and
place a patient has a pregnancy confirmed, as requested by the
patient, verifying the date and time the pregnancy is confirmed.
(g) Develop and maintain an internet website that allows a
patient considering an abortion to review the information required
in subsection (3)(c) through (e). After the patient reviews the
required information, the department shall assure that a
confirmation form can be printed by the patient from the internet
website that will verify the time and date the information was
reviewed. A confirmation form printed under this subdivision
becomes invalid 14 days after the date and time printed on the
confirmation form.
(h) Include on the informed consent website developed under
subdivision (g) a list of health care providers, facilities, and
clinics that offer to perform ultrasounds free of charge. The list
shall be organized geographically and shall include the name,
address, and telephone number of each health care provider,
facility, and clinic.
(12) A physician's duty to inform the patient under this
section does not require disclosure of information beyond what a
reasonably well-qualified physician licensed under this article
would possess.
(13) A written consent form meeting the requirements set forth
in this section and signed by the patient is presumed valid. The
presumption created by this subsection may be rebutted by evidence
that establishes, by a preponderance of the evidence, that consent
was obtained through fraud, negligence, deception,
misrepresentation, coercion, or duress.
(14) A completed certification form described in subsection
(11)(f) that is signed by a local health department representative
is presumed valid. The presumption created by this subsection may
be rebutted by evidence that establishes, by a preponderance of the
evidence, that the physician who relied upon the certification had
actual knowledge that the certificate contained a false or
misleading statement or signature.
(15) This section does not create a right to abortion.
(16) Notwithstanding any other provision of this section, a
person shall not perform an abortion that is prohibited by law.
(17) If any portion of this act or the application of this act
to any person or circumstances is found invalid by a court, that
invalidity does not affect the remaining portions or applications
of the act that can be given effect without the invalid portion or
application, if those remaining portions are not determined by the
court to be inoperable.
(18) Upon a patient's request, each local health department
shall:
(a) Provide a pregnancy test for that patient to confirm the
pregnancy as required under subsection (3)(a) and determine the
probable gestational stage of the fetus. The local health
department need not comply with this subdivision if the
requirements of subsection (3)(a) have already been met.
(b) If a pregnancy is confirmed, ensure that the patient is
provided with a completed pregnancy certification form described in
subsection (11)(f) at the time the information is provided.
(19) The identity and address of a patient who is provided
information or who consents to an abortion pursuant to this section
is confidential and is subject to disclosure only with the consent
of the patient or by judicial process.
(20) A local health department with a file containing the
identity and address of a patient described in subsection (19) who
has been assisted by the local health department under this section
shall do both of the following:
(a) Only release the identity and address of the patient to a
physician or qualified person assisting the physician in order to
verify the receipt of the information required under this section.
(b) Destroy the information containing the identity and
address of the patient within 30 days after assisting the patient
under this section.
