Rep. Norm Thurston — Voting Record

Bill

Number

H.B. 364 Fifth Substitute (2020GS)

Sponsor

Rep. Christiansen, S.

Final action

House/ filed 3/12/2020

Outcome

Failed / filed without passage

Summary

What it does

• This bill:
• requires a medical professional to do the following before a pregnant woman may give informed consent to an abortion:
• perform an ultrasound on the pregnant woman;
• describe the images produced by the ultrasound;
• make audible the fetal heartbeat, if possible; and
• provide written confirmation to the pregnant woman stating that the medical professional complied with the requirements;
• provides that a pregnant woman may choose not to view the images produced by the ultrasound and not to listen to the fetal heartbeat;
• adds certain record keeping requirements for a physician performing an abortion;
• imposes a fine on a physician that performs an abortion on a pregnant woman who has not received an ultrasound;
• requires the Department of Health to:
• create, and make available online, a form to be signed by a physician or qualified technician performing the mandatory ultrasound; and
• provide a list of organizations that offer a free or low cost ultrasound; and
• makes technical and conforming changes.

Every vote on this bill

Bill text

ABORTION REVISIONS
GENERAL SESSION
STATE OF UTAH
Chief Sponsor: Steve R. Christiansen
Senate Sponsor: 
 Curtis S. Bramble
LONG TITLE
General Description:
This bill creates requirements relating to abortion procedures.
Highlighted Provisions:
This bill:
▸ requires a medical professional to do the following before a pregnant woman may
give informed consent to an abortion:
• perform an ultrasound on the pregnant woman;
• describe the images produced by the ultrasound;
• make audible the fetal heartbeat, if possible; and
• provide written confirmation to the pregnant woman stating that the medical
professional complied with the requirements;
▸ provides that a pregnant woman may choose not to view the images produced by the
ultrasound and not to listen to the fetal heartbeat;
▸ adds certain record keeping requirements for a physician performing an abortion;
▸ imposes a fine on a physician that performs an abortion on a pregnant woman who
has not received an ultrasound;
▸ requires the Department of Health to:
• create, and make available online, a form to be signed by a physician or
qualified technician performing the mandatory ultrasound; and
• provide a list of organizations that offer a free or low cost ultrasound; and
▸ makes technical and conforming changes.
Money Appropriated in this Bill:
None
Other Special Clauses:
None
Utah Code Sections Affected:
AMENDS:
26-21-6.5
, as last amended by Laws of Utah 2018, Chapter 282
76-7-305
, as last amended by Laws of Utah 2019, Chapters 124 and 189
76-7-305.5
, as last amended by Laws of Utah 2018, Chapter 282
78B-3-406
, as last amended by Laws of Utah 2019, Chapter 346
Be it enacted by the Legislature of the state of Utah:
Section 1. Section 
26-21-6.5
 is amended to read:
26-21-6.5.
Licensing of an abortion clinic -- Rulemaking authority -- Fee.
(1) A type I abortion clinic may not operate in the state without a license issued by the
department to operate a type I abortion clinic.
(2) A type II abortion clinic may not operate in the state without a license issued by the
department to operate a type II abortion clinic.
(3) The department shall make rules establishing minimum health, safety, sanitary, and
recordkeeping requirements for:
(a) a type I abortion clinic; and
(b) a type II abortion clinic.
(4) To receive and maintain a license described in this section, an abortion clinic shall:
(a) apply for a license on a form prescribed by the department;
(b) satisfy and maintain the minimum health, safety, sanitary, and recordkeeping
requirements established under Subsection (3) that relate to the type of abortion clinic licensed;
(c) comply with the recordkeeping and reporting requirements of Section 
76-7-313
and
Subsection 
76-7-305
(3)
;
(d) comply with the requirements of Title 76, Chapter 7, Part 3, Abortion;
(e) pay the annual licensing fee; and
(f) cooperate with inspections conducted by the department.
(5) The department shall, at least twice per year, inspect each abortion clinic in the
state to ensure that the abortion clinic is complying with all statutory and licensing
requirements relating to the abortion clinic. At least one of the inspections shall be made
without providing notice to the abortion clinic.
(6) The department shall charge an annual license fee, set by the department in
accordance with the procedures described in Section 
63J-1-504
, to an abortion clinic in an
amount that will pay for the cost of the licensing requirements described in this section and the
cost of inspecting abortion clinics.
(7) The department shall deposit the licensing fees described in this section in the
General Fund as a dedicated credit to be used solely to pay for the cost of the licensing
requirements described in this section and the cost of inspecting abortion clinics.
Section 2. Section 
76-7-305
 is amended to read:
76-7-305.
Informed consent requirements for abortion -- 72-hour wait mandatory
-- Exceptions.
(1) A person may not perform an abortion, unless, before performing the abortion, the
physician who will perform the abortion obtains from the woman on whom the abortion is to
be performed a voluntary and informed written consent that is consistent with:
(a) Section 8.08 of the American Medical Association's Code of Medical Ethics,
Current Opinions; and
(b) the provisions of this section.
(2) Except as provided in Subsection [
(8)
] 
(9)
, consent to an abortion is voluntary and
informed only if, at least 72 hours before the abortion:
(a) a staff member of an abortion clinic or hospital, physician, registered nurse, nurse
practitioner, advanced practice registered nurse, certified nurse midwife, genetic counselor, or
physician's assistant presents the information module to the pregnant woman;
(b) the pregnant woman views the entire information module and presents evidence to
the individual described in Subsection (2)(a) that the pregnant woman viewed the entire
information module;
(c) after receiving the evidence described in Subsection (2)(b), the individual described
in Subsection (2)(a):
(i) documents that the pregnant woman viewed the entire information module;
(ii) gives the pregnant woman, upon her request, a copy of the documentation
described in Subsection (2)(c)(i); and
(iii) provides a copy of the statement described in Subsection (2)(c)(i) to the physician
who is to perform the abortion, upon request of that physician or the pregnant woman;
(d) after the pregnant woman views the entire information module, the physician who
is to perform the abortion, the referring physician, a physician, a registered nurse, nurse
practitioner, advanced practice registered nurse, certified nurse midwife, genetic counselor, or
physician's assistant, in a face-to-face consultation in any location in the state, orally informs
the woman of:
(i) the nature of the proposed abortion procedure;
(ii) specifically how the procedure described in Subsection (2)(d)(i) will affect the
fetus;
(iii) the risks and alternatives to the abortion procedure or treatment;
(iv) the options and consequences of aborting a medication-induced abortion, if the
proposed abortion procedure is a medication-induced abortion;
(v) the probable gestational age and a description of the development of the unborn
child at the time the abortion would be performed;
(vi) the medical risks associated with carrying her child to term; 
and
[
(vii) the right to view an ultrasound of the unborn child, at no expense to the pregnant
woman, upon her request; and
]
[
(viii)
] 
(vii)
 when the result of a prenatal screening or diagnostic test indicates that the
unborn child has or may have Down syndrome, the Department of Health website containing
the information described in Section 
26-10-14
, including the information on the informational
support sheet; [
and
]
(e) after the pregnant woman views the entire information module, a staff member of
the abortion clinic or hospital provides to the pregnant woman:
(i) on a document that the pregnant woman may take home:
(A) the address for the department's website described in Section 
76-7-305.5
; and
(B) a statement that the woman may request, from a staff member of the abortion clinic
or hospital where the woman viewed the information module, a printed copy of the material on
the department's website; and
(ii) a printed copy of the material on the department's website described in Section
76-7-305.5
, if requested by the pregnant woman[
.
]
; and
(f) a qualified physician or technician performs an ultrasound on the pregnant woman
in accordance with Subsection (5).
(3) 
(a)
 Before performing an abortion, the physician who is to perform the abortion
shall:
[
(a)
] 
(i)
 in a face-to-face consultation, provide the information described in Subsection
(2)(d), unless the attending physician or referring physician is the individual who provided the
information required under Subsection (2)(d); and
[
(b) (i) obtain from the pregnant woman
]
(ii) obtain:
(A)
 a written certification 
from the pregnant woman
 that the information required to be
provided under Subsection (2) and this Subsection (3) was provided in accordance with the
requirements of Subsection (2) and this Subsection (3); [
and
]
(B) the signed form or copy of the signed form described in Subsection (5)(c); and
[
(ii) obtain
] 
(C)
 a copy of the statement described in Subsection (2)(c)(i).
(b) The treating physician shall retain a copy of each document described in Subsection
(3)(a) in the pregnant woman's medical record.
(4) When a serious medical emergency compels the performance of an abortion, the
physician shall inform the woman prior to the abortion, if possible, of the medical indications
supporting the physician's judgment that an abortion is necessary.
[
(5) If an ultrasound is performed on a woman before an abortion is performed, the
individual who performs the ultrasound, or another qualified individual, shall:
]
[
(a) inform the woman that the ultrasound images will be simultaneously displayed in a
manner to permit her to:
]
[
(i) view the images, if she chooses to view the images; or
]
[
(ii) not view the images, if she chooses not to view the images;
]
[
(b) simultaneously display the ultrasound images in order to permit the woman to:
]
[
(i) view the images, if she chooses to view the images; or
]
[
(ii) not view the images, if she chooses not to view the images;
]
[
(c) inform the woman that, if she desires, the person performing the ultrasound, or
another qualified person shall
]
(5) (a) A physician, or a qualified technician, performing an ultrasound required under
Subsection (2)(f) shall:
(i)
 provide a 
simultaneous
 detailed description of the ultrasound images, including:
(A) the presence and location of each unborn child within the uterus;
(B) the number of unborn children within the uterus;
[
(i)
] 
(C)
 the dimensions of [
the
] 
each
 unborn child;
[
(ii)
] 
(D)
 the presence of cardiac activity in [
the
] 
each
 unborn child, if present and
viewable; and
[
(iii)
] 
(E)
 the presence of external body parts or internal organs, if present and
viewable; [
and
]
[
(d) provide the detailed description described in Subsection (5)(c), if the woman
requests it.
]
(ii) display the ultrasound images so that the pregnant woman may view the images;
and
(iii) make each unborn child's heartbeat audible to the pregnant woman, if a heartbeat
is audible.
(b) (i) This section does not prevent a pregnant woman from:
(A) averting her eyes from the ultrasound images; or
(B) requesting the volume of a heartbeat be reduced or turned off.
(ii) The physician or qualified technician performing the ultrasound and the pregnant
woman are not subject to any civil or criminal penalty if the pregnant woman refuses to look at
the displayed ultrasound images or listen to the heartbeat of an unborn child.
(c) The physician or qualified technician who performs a required ultrasound in
accordance with this Subsection (5) shall:
(i) sign the form described in Subsection(5)(d) certifying that the physician or qualified
technician completed each of the requirements described in Subsection (5)(a); and
(ii) provide the signed form to the pregnant woman.
(d) The department shall:
(i) create a form to be signed by a physician or qualified technician who performs an
ultrasound in accordance with this Subsection (5) that, when signed by the physician or
qualified technician, certifies that the physician or qualified technician complied with each
requirement described in Subsection (5)(a); and
(ii) make the form described in Subsection (5)(d)(i) available for download on the
department's website.
(e) A pregnant woman obtaining a required ultrasound in accordance with this
Subsection (5) may obtain the required ultrasound from any physician or qualified technician.
(6) The information described in Subsections (2), (3), and (5) is not required to be
provided to a pregnant woman under this section if the abortion is performed for a reason
described in:
(a) Subsection 
76-7-302
(3)(b)(i), if the treating physician and one other physician
concur, in writing, that the abortion is necessary to avert:
(i) the death of the woman on whom the abortion is performed; or
(ii) a serious risk of substantial and irreversible impairment of a major bodily function
of the woman on whom the abortion is performed; or
(b) Subsection 
76-7-302
(3)(b)(ii).
(7) In addition to the criminal penalties described in this part, a physician who violates
the provisions of this section:
(a) is guilty of unprofessional conduct as defined in Section 
58-67-102
 or 
58-68-102
;
and
(b) shall be subject to:
(i) suspension or revocation of the physician's license for the practice of medicine and
surgery in accordance with Section 
58-67-401
 or 
58-68-401
; and
(ii) administrative penalties in accordance with Section 
58-67-402
 or 
58-68-402
.
(8) In addition to the penalties described in this part, a physician who fails to comply
with Subsection (3)(a)(ii)(B) is subject to a fine not to exceed $100,000 for a first offense or
$250,000 for each subsequent offense.
[
(8)
] 
(9)
 A physician is not guilty of violating this section for failure to furnish any of
the information described in Subsection (2) or (3), or for failing to comply with Subsection (5),
if:
(a) the physician can demonstrate by a preponderance of the evidence that the
physician reasonably believed that furnishing the information would have resulted in a severely
adverse effect on the physical [
or mental
] health of the pregnant woman;
(b) in the physician's professional judgment, the abortion was necessary to avert:
(i) the death of the woman on whom the abortion is performed; or
(ii) a serious risk of substantial and irreversible impairment of a major bodily function
of the woman on whom the abortion is performed;
(c) the pregnancy was the result of rape or rape of a child, as defined in Sections
76-5-402
 and 
76-5-402.1
;
(d) the pregnancy was the result of incest, as defined in Subsection 
76-5-406
(2)(j) and
Section 
76-7-102
; or
(e) at the time of the abortion, the pregnant woman was 14 years of age or younger.
[
(9)
] 
(10)
 A physician who complies with the provisions of this section and Section
76-7-304.5
 may not be held civilly liable to the physician's patient for failure to obtain
informed consent under Section 
78B-3-406
.
[
(10)
] 
(11)
 (a) The department shall provide an ultrasound, in accordance with the
provisions of Subsection (5)[
(b)
]
(a)
, at no expense to the pregnant woman.
(b) A local health department shall refer a pregnant woman who requests an ultrasound
described in Subsection [
(10)
] 
(11)
(a) to the department.
[
(11)
] 
(12)
 A physician is not guilty of violating this section if:
(a) the information described in Subsection (2) is provided less than 72 hours before
the physician performs the abortion; and
(b) in the physician's professional judgment, the abortion was necessary in a case
where:
(i) a ruptured membrane, documented by the attending or referring physician, will
cause a serious infection; or
(ii) a serious infection, documented by the attending or referring physician, will cause a
ruptured membrane.
Section 3. Section 
76-7-305.5
 is amended to read:
76-7-305.5.
Requirements for information module and website.
(1) In order to ensure that a woman's consent to an abortion is truly an informed
consent, the department shall, in accordance with the requirements of this section, develop an
information module and maintain a public website.
(2) The information module and public website described in Subsection (1) shall:
(a) be scientifically accurate, comprehensible, and presented in a truthful,
nonmisleading manner;
(b) present adoption as a preferred and positive choice and alternative to abortion;
(c) be produced in a manner that conveys the state's preference for childbirth over
abortion;
(d) state that the state prefers childbirth over abortion;
(e) state that it is unlawful for any person to coerce a woman to undergo an abortion;
(f) state that any physician who performs an abortion without obtaining the woman's
informed consent or without providing her a private medical consultation in accordance with
the requirements of this section, may be liable to her for damages in a civil action at law;
(g) provide a geographically indexed list of resources and public and private services
available to assist, financially or otherwise, a pregnant woman during pregnancy, at childbirth,
and while the child is dependent, including:
(i) medical assistance benefits for prenatal care, childbirth, and neonatal care;
(ii) organizations that offer a free or low-cost ultrasound;
[
(ii)
] 
(iii)
 services and supports available under Section 
35A-3-308
;
[
(iii)
] 
(iv)
 other financial aid that may be available during an adoption;
[
(iv)
] 
(v)
 services available from public adoption agencies, private adoption agencies,
and private attorneys whose practice includes adoption; and
[
(v)
] 
(vi)
 the names, addresses, and telephone numbers of each person listed under this
Subsection (2)(g);
(h) describe the adoption-related expenses that may be paid under Section 
76-7-203
;
(i) describe the persons who may pay the adoption related expenses described in
Subsection (2)(h);
(j) except as provided in Subsection (4), describe the legal responsibility of the father
of a child to assist in child support, even if the father has agreed to pay for an abortion;
(k) except as provided in Subsection (4), describe the services available through the
Office of Recovery Services, within the Department of Human Services, to establish and
collect the support described in Subsection (2)(j);
(l) state that private adoption is legal;
(m) describe and depict, with pictures or video segments, the probable anatomical and
physiological characteristics of an unborn child at two-week gestational increments from
fertilization to full term, including:
(i) brain and heart function;
(ii) the presence and development of external members and internal organs; and
(iii) the dimensions of the fetus;
(n) show an ultrasound of the heartbeat of an unborn child at:
(i) four weeks from conception;
(ii) six to eight weeks from conception; and
(iii) each month after 10 weeks gestational age, up to 14 weeks gestational age;
(o) describe abortion procedures used in current medical practice at the various stages
of growth of the unborn child, including:
(i) the medical risks associated with each procedure;
(ii) the risk related to subsequent childbearing that are associated with each procedure;
and
(iii) the consequences of each procedure to the unborn child at various stages of fetal
development;
(p) describe the possible detrimental psychological effects of abortion;
(q) describe the medical risks associated with carrying a child to term;
(r) include relevant information on the possibility of an unborn child's survival at the
two-week gestational increments described in Subsection (2)(m);
(s) except as provided in Subsection (5), include:
(i) information regarding substantial medical evidence from studies concluding that an
unborn child who is at least 20 weeks gestational age may be capable of experiencing pain
during an abortion procedure; and
(ii) the measures that will be taken in accordance with Section 
76-7-308.5
;
(t) explain the options and consequences of aborting a medication-induced abortion;
(u) include the following statement regarding a medication-induced abortion,
"Research indicates that mifepristone alone is not always effective in ending a pregnancy. You
may still have a viable pregnancy after taking mifepristone. If you have taken mifepristone but
have not yet taken the second drug and have questions regarding the health of your fetus or are
questioning your decision to terminate your pregnancy, you should consult a physician
immediately.";
(v) inform a pregnant woman that she has the right to view an ultrasound of the unborn
child, at no expense to her, upon her request; and
(w) be in a typeface large enough to be clearly legible.
(3) The information module and website described in Subsection (1) may include a
toll-free 24-hour telephone number that may be called in order to obtain, orally, a list and
description of services, agencies, and adoption attorneys in the locality of the caller.
(4) The department may develop a version of the information module and website that
omits the information in Subsections (2)(j) and (k) for a viewer who is pregnant as the result of
rape.
(5) The department may develop a version of the information module and website that
omits the information described in Subsection (2)(s) for a viewer who will have an abortion
performed:
(a) on an unborn child who is less than 20 weeks gestational age at the time of the
abortion; or
(b) on an unborn child who is at least 20 weeks gestational age at the time of the
abortion, if:
(i) the abortion is being performed for a reason described in Subsection
76-7-302
(3)(b)(i) or (ii); and
(ii) due to a serious medical emergency, time does not permit compliance with the
requirement to provide the information described in Subsection (2)(s).
(6) The department and each local health department shall make the information
module and the website described in Subsection (1) available at no cost to any person.
(7) The department shall make the website described in Subsection (1) available for
viewing on the department's website by clicking on a conspicuous link on the home page of the
website.
(8) The department shall ensure that the information module is:
(a) available to be viewed at all facilities where an abortion may be performed;
(b) interactive for the individual viewing the module, including the provision of
opportunities to answer questions and manually engage with the module before the module
transitions from one substantive section to the next;
(c) produced in English and may include subtitles in Spanish or another language; and
(d) capable of being viewed on a tablet or other portable device.
(9) The department shall present the information module to the Health and Human
Services Interim Committee for the committee's review and recommendation before November
1, 2018.
(10) The department shall release the information module, for the use described in
Section 
76-7-305
, before January 1, 2019.
(11) After the department releases the initial version of the information module, for the
use described in Section 
76-7-305
, the department shall:
(a) update the information module, as required by law; and
(b) present an updated version of the information module to the Health and Human
Services Interim Committee for the committee's review and recommendation before releasing
the updated version for the use described in Section 
76-7-305
.
Section 4. Section 
78B-3-406
 is amended to read:
78B-3-406.
Failure to obtain informed consent -- Proof required of patient --
Defenses -- Consent to health care.
(1) (a) When a person submits to health care rendered by a health care provider, it is
presumed that actions taken by the health care provider are either expressly or impliedly
authorized to be done.
(b) For a patient to recover damages from a health care provider in an action based
upon the provider's failure to obtain informed consent, the patient must prove the following:
(i) that a provider-patient relationship existed between the patient and health care
provider;
(ii) the health care provider rendered health care to the patient;
(iii) the patient suffered personal injuries arising out of the health care rendered;
(iv) the health care rendered carried with it a substantial and significant risk of causing
the patient serious harm;
(v) the patient was not informed of the substantial and significant risk;
(vi) a reasonable, prudent person in the patient's position would not have consented to
the health care rendered after having been fully informed as to all facts relevant to the decision
to give consent; and
(vii) the unauthorized part of the health care rendered was the proximate cause of
personal injuries suffered by the patient.
(2) In determining what a reasonable, prudent person in the patient's position would do
under the circumstances, the finder of fact shall use the viewpoint of the patient before health
care was provided and before the occurrence of any personal injuries alleged to have arisen
from said health care.
(3) It shall be a defense to any malpractice action against a health care provider based
upon alleged failure to obtain informed consent if:
(a) the risk of the serious harm which the patient actually suffered was relatively
minor;
(b) the risk of serious harm to the patient from the health care provider was commonly
known to the public;
(c) the patient stated, prior to receiving the health care complained of, that he would
accept the health care involved regardless of the risk; or that he did not want to be informed of
the matters to which he would be entitled to be informed;
(d) the health care provider, after considering all of the attendant facts and
circumstances, used reasonable discretion as to the manner and extent to which risks were
disclosed, if the health care provider reasonably believed that additional disclosures could be
expected to have a substantial and adverse effect on the patient's condition; or
(e) the patient or the patient's representative executed a written consent which sets forth
the nature and purpose of the intended health care and which contains a declaration that the
patient accepts the risk of substantial and serious harm, if any, in hopes of obtaining desired
beneficial results of health care and which acknowledges that health care providers involved
have explained the patient's condition and the proposed health care in a satisfactory manner and
that all questions asked about the health care and its attendant risks have been answered in a
manner satisfactory to the patient or the patient's representative.
(4) The written consent shall be a defense to an action against a health care provider
based upon failure to obtain informed consent unless the patient proves that the person giving
the consent lacked capacity to consent or shows by clear and convincing evidence that the
execution of the written consent was induced by the defendant's affirmative acts of fraudulent
misrepresentation or fraudulent omission to state material facts.
(5) This act may not be construed to prevent any person 18 years of age or over from
refusing to consent to health care for the patient's own person upon personal or religious
grounds.
(6) Except as provided in Section 
76-7-304.5
, the following persons are authorized and
empowered to consent to any health care not prohibited by law:
(a) any parent, whether an adult or a minor, for the parent's minor child;
(b) any married person, for a spouse;
(c) any person temporarily standing in loco parentis, whether formally serving or not,
for the minor under that person's care and any guardian for the guardian's ward;
(d) any person 18 years of age or over for that person's parent who is unable by reason
of age, physical or mental condition, to provide such consent;
(e) any patient 18 years of age or over;
(f) any female regardless of age or marital status, when given in connection with her
pregnancy or childbirth;
(g) in the absence of a parent, any adult for the adult's minor brother or sister;
(h) in the absence of a parent, any grandparent for the grandparent's minor grandchild;
(i) an emancipated minor as provided in Section 
78A-6-805
;
(j) a minor who has contracted a lawful marriage; and
(k) an unaccompanied homeless minor, as that term is defined in the McKinney-Vento
Homeless Assistance Act of 1987, Pub. L. 100-77, as amended, who is 15 years of age or older.
(7) A person who in good faith consents or authorizes health care treatment or
procedures for another as provided by this act may not be subject to civil liability.
(8) Notwithstanding any other provision of this section, if a health care provider fails to
comply with the requirement in Section 
58-1-509
, the health care provider is presumed to have
lacked informed consent with respect to the patient examination, as defined in Section
58-1-509
.
(9) (a) Notwithstanding any other provision of this section, if a health care provider
fails to comply with Subsection 
76-7-305
(2) before performing an abortion, the health care
provider is presumed to have lacked the informed consent of the pregnant woman to perform
an abortion.
(b) A health care provider may reverse the presumption described in Subsection (9)(a)
if the health care provider produces a signed copy of the certificate described in Subsection
76-7-305
(3)(a)(ii)(A).