| HB 329 - Woman's Right to Know Act; enact |
First Reader Summary
A BILL to amend Chapter 12 of Title 16 of the Official Code of
Georgia Annotated, relating to offenses against health and
morals, so as to provide for a short title; to provide for
definitions; to require that a female give her informed consent
prior to an abortion; to require that certain information be
provided to or made available to a female prior to an abortion;
and for other purposes.
| House |
Action |
Senate |
| 1/29/99 |
Read 1st Time |
|
| 2/1/99 |
Read 2nd Time |
|
HB 329 LC 11 9619
A BILL TO BE ENTITLED
AN ACT
1- 1 To amend Chapter 12 of Title 16 of the Official Code of
1- 2 Georgia Annotated, relating to offenses against health and
1- 3 morals, so as to provide for a short title; to provide for
1- 4 definitions; to require that a female give her informed
1- 5 consent prior to an abortion; to require that certain
1- 6 information be provided to or made available to a female
1- 7 prior to an abortion; to require a written acknowledgement
1- 8 of receipt of such information; to provide for the
1- 9 preparation and availability of certain information; to
1-10 provide for procedures in a medical emergency; to provide
1-11 for reporting; to provide criminal sanctions; to provide for
1-12 civil actions, damages, and attorney's fees; to provide for
1-13 anonymity of certain persons in civil actions; to provide
1-14 for severability; to provide for an effective date; to
1-15 repeal conflicting laws; and for other purposes.
1-16 BE IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:
1-17 SECTION 1.
1-18 Chapter 12 of Title 16 of the Official Code of Georgia
1-19 Annotated, relating to offenses against health and morals,
1-20 is amended by adding immediately following Article 5 thereof
1-21 a new article to read as follows:
1-22 16-12-150.
1-23 This article shall be known and may be cited as the
1-24 'Woman's Right to Know Act.'
1-25 16-12-151.
1-26 As used in this article, the term:
1-27 (1) 'Abortion' means the use or prescription of any
1-28 instrument, medicine, drug, or any other substance or
1-29 device intentionally to terminate the pregnancy of a
1-30 female known to be pregnant with an intention other than
1-31 to increase the probability of a live birth, to preserve
-1-
2- 1 the life or health of the child after live birth, or to
2- 2 remove a dead fetus.
2- 3 (2) 'Attempt to perform an abortion' means an act, or an
2- 4 omission of a statutorily required act, that, under the
2- 5 circumstances as the actor believes them to be,
2- 6 constitutes a substantial step in a course of conduct
2- 7 planned to culminate in the performance of an abortion
2- 8 in Georgia in violation of this article.
2- 9 (3) 'Medical emergency' means any condition which, on
2-10 the basis of the physician's good faith clinical
2-11 judgment, so complicates the medical condition of a
2-12 pregnant female as to necessitate the immediate abortion
2-13 of her pregnancy to avert her death or for which a delay
2-14 will create serious risk of substantial and irreversible
2-15 impairment of a major bodily function.
2-16 (4) 'Physician' means a person licensed to practice
2-17 medicine under Article 2 of Chapter 34 of Title 43.
2-18 (5) 'Probable gestational age of the unborn child' means
2-19 what, in the judgment of the physician, will with
2-20 reasonable probability be the gestational age of the
2-21 unborn child at the time the abortion is planned to be
2-22 performed.
2-23 16-12-152.
2-24 No abortion shall be performed in this state except with
2-25 the voluntary and informed consent of the female upon whom
2-26 the abortion is to be performed. Except in the case of a
2-27 medical emergency, consent to an abortion is voluntary and
2-28 informed if and only if:
2-29 (1) The female is told the following, by telephone or in
2-30 person, by the physician who is to perform the abortion
2-31 or by a referring physician, at least 24 hours before
2-32 the abortion:
2-33 (A) The name of the physician who will perform the
2-34 abortion;
2-35 (B) The particular medical risks associated with the
2-36 particular abortion procedure to be employed,
2-37 including, when medically accurate, the risks of
2-38 infection, hemorrhage, breast cancer, danger to
2-39 subsequent pregnancies, and infertility;
2-40 (C) The probable gestational age of the unborn child
2-41 at the time the abortion is to be performed; and
-2-
3- 1 (D) The medical risks associated with carrying her
3- 2 child to term.
3- 3 The information required by this paragraph may be
3- 4 provided by telephone without conducting a physical
3- 5 examination or tests of the patient, in which case the
3- 6 information required to be provided may be based on
3- 7 facts supplied the physician by the female and whatever
3- 8 other relevant information is reasonably available to
3- 9 the physician. Such information may not be provided by a
3-10 tape recording but must be provided during a
3-11 consultation in which the physician is able to ask
3-12 questions of the female and the female is able to ask
3-13 questions of the physician. If a physical examination,
3-14 tests, or the availability of other information to the
3-15 physician subsequently indicates, in the medical
3-16 judgment of the physician, a revision of the information
3-17 previously supplied to the patient, that revised
3-18 information may be communicated to the patient at any
3-19 time prior to the performance of the abortion. Nothing
3-20 in this Code section may be construed to preclude
3-21 provision of required information in a language
3-22 understood by the patient through a translator;
3-23 (2) The female is informed, by telephone or in person,
3-24 by the physician who is to perform the abortion, by a
3-25 referring physician, or by an agent of either physician
3-26 at least 24 hours before the abortion:
3-27 (A) That medical assistance benefits may be available
3-28 for prenatal care, childbirth, and neonatal care;
3-29 (B) That the father is liable to assist in the support
3-30 of her child, even in instances in which the father
3-31 has offered to pay for the abortion; and
3-32 (C) That she has the right to review the printed
3-33 materials described in Code Section 16-12-153. The
3-34 physician or the physician's agent shall orally inform
3-35 the female that materials have been provided by the
3-36 State of Georgia and that they describe the unborn
3-37 child and list agencies which offer alternatives to
3-38 abortion. If the female chooses to view the
3-39 materials, they shall either be given to her at least
3-40 24 hours before the abortion or mailed to her at least
3-41 72 hours before the abortion by certified mail,
3-42 restricted delivery to addressee, which means the
-3-
4- 1 postal employee can only deliver the mail to the
4- 2 addressee;
4- 3 The information required by this paragraph may be
4- 4 provided by a tape recording if provision is made to
4- 5 record or otherwise register specifically whether the
4- 6 female does or does not choose to review the printed
4- 7 materials.
4- 8 (3) The female certifies in writing prior to the
4- 9 abortion that the information described in paragraphs
4-10 (1) and (2) of this Code section has been furnished her
4-11 and that she has been informed of her opportunity to
4-12 review the information referred to in subparagraph (C)
4-13 of paragraph (2) of this Code section; and
4-14 (4) Prior to the performance of the abortion, the
4-15 physician who is to perform the abortion or the
4-16 physician's agent receives a copy of the written
4-17 certification prescribed by paragraph (3) of this Code
4-18 section.
4-19 16-12-153.
4-20 (a) Within 90 days after this article first becomes
4-21 effective in 1999, the Department of Human Resources shall
4-22 cause to be published in English and in each language
4-23 which is the primary language of 2 percent or more of the
4-24 state's population the following printed materials in such
4-25 a way as to ensure that the information is easily
4-26 comprehensible:
4-27 (1) Geographically indexed materials designed to inform
4-28 the female of public and private agencies and services
4-29 available to assist a female through pregnancy, upon
4-30 childbirth, and while the child is dependent, including
4-31 adoption agencies, which shall include a comprehensive
4-32 list of the agencies available, a description of the
4-33 services they offer, and a description of the manner,
4-34 including telephone numbers, in which they might be
4-35 contacted or, at the option of such department, printed
4-36 materials including a toll-free, 24 hour a day telephone
4-37 number which may be called to obtain, orally, such a
4-38 list and description of agencies in the locality of the
4-39 caller and of the services they offer; and
4-40 (2) Materials designed to inform the female of the
4-41 probable anatomical and physiological characteristics of
4-42 the unborn child at two-week gestational increments from
-4-
5- 1 the time when a female can be known to be pregnant to
5- 2 full term, including any relevant information on the
5- 3 possibility of the unborn child's survival and pictures
5- 4 or drawings representing the development of unborn
5- 5 children at two-week gestational increments, provided
5- 6 that any such pictures or drawings must contain the
5- 7 dimensions of the fetus and must be realistic and
5- 8 appropriate for the stage of pregnancy depicted. The
5- 9 materials shall be objective, nonjudgmental, and
5-10 designed to convey only accurate scientific information
5-11 about the unborn child at the various gestational ages.
5-12 The material shall also contain objective information
5-13 describing the methods of abortion procedures commonly
5-14 employed, the medical risks commonly associated with
5-15 each such procedure, the possible detrimental
5-16 psychological effects of abortion and the medical risks
5-17 commonly associated with each such procedure and the
5-18 medical risks commonly associated with carrying a child
5-19 to term.
5-20 (b) The materials referred to in subsection (a) of this
5-21 Code section shall be printed in a typeface large enough
5-22 to be clearly legible.
5-23 (c) The materials required under this Code section shall
5-24 be available at no cost from the Department of Human
5-25 Resources upon request and in appropriate number to any
5-26 person, facility, or hospital.
5-27 16-12-154.
5-28 When a medical emergency compels the performance of an
5-29 abortion, the physician shall inform the female, prior to
5-30 the abortion if possible, of the medical indications
5-31 supporting the physician's judgment that an abortion is
5-32 necessary to avert her death or that a 24 hour delay will
5-33 create serious risk of substantial and irreversible
5-34 impairment of a major bodily function.
5-35 16-12-155.
5-36 Within 90 days after this article first becomes effective
5-37 in 1999, the Department of Human Resources shall prepare a
5-38 reporting form for physicians containing a reprint of this
5-39 article and listing:
5-40 (1) The number of females to whom the physician provided
5-41 the information described in paragraph (1) of Code
5-42 Section 16-12-152; of that number, the number to whom
-5-
6- 1 such information was provided by telephone and the
6- 2 number to whom such information was provided in person;
6- 3 and of each of those numbers, the number to whom such
6- 4 information was provided by a referring physician and
6- 5 the number to whom such information was provided by a
6- 6 physician who is to perform the abortion;
6- 7 (2) The number of females to whom the physician or an
6- 8 agent of the physician provided the information
6- 9 described in paragraph (2) of Code Section 16-12-152; of
6-10 that number, the number to whom such information was
6-11 provided by telephone and the number to whom such
6-12 information was provided in person; of each of those
6-13 numbers, the number to whom such information was
6-14 provided by a referring physician and the number to whom
6-15 such information was provided by a physician who is to
6-16 perform the abortion; and of each of those numbers, the
6-17 number to whom such information was provided by the
6-18 physician and the number to whom such information was
6-19 provided by an agent of the physician;
6-20 (3) The number of females who availed themselves of the
6-21 opportunity to obtain a copy of the printed information
6-22 described in Code Section 16-12-153, and the number who
6-23 did not; and of each of those numbers, the number who,
6-24 to the best of the reporting physician's information and
6-25 belief, went on to obtain the abortion; and
6-26 (4) The number of abortions performed by the physician
6-27 in which information otherwise required to be provided
6-28 at least 24 hours before the abortion was not so
6-29 provided because an immediate abortion was necessary to
6-30 avert the female's death and the number of abortions in
6-31 which such information was not so provided because a
6-32 delay would create serious risk of substantial and
6-33 irreversible impairment of a major bodily function.
6-34 (b) The Department of Human Resources shall ensure that
6-35 copies of the reporting forms described in subsection (a)
6-36 of this Code section are provided:
6-37 (1) Within 120 days after this article first becomes
6-38 effective in 1999, to all physicians licensed to
6-39 practice in this State;
6-40 (2) To each physician who subsequently becomes newly
6-41 licensed to practice in this state;
-6-
7- 1 (3) By December 1 of each year, other than the calendar
7- 2 year in which forms are distributed in accordance with
7- 3 paragraph (1) of this subsection, to all physicians
7- 4 licensed to practice in this state.
7- 5 (c) By February 28 of each year following a calendar year
7- 6 in any part of which this article was in effect, each
7- 7 physician who provided, or whose agent provided,
7- 8 information to one or more females in accordance with Code
7- 9 Section 16-12-152 during the previous calendar year shall
7-10 submit to the Department of Human Resources a copy of the
7-11 form described in subsection (a) of this Code section
7-12 with the requested data entered accurately and completely.
7-13 (d) Reports that are not submitted more than a grace
7-14 period of 30 days following the due date shall be subject
7-15 to a late fee of $500.00 for each additional 30 day period
7-16 or portion of a 30 day period such reports are overdue.
7-17 Any physician required to submit a report in accordance
7-18 with this Code section who has not submitted such report
7-19 or has submitted only an incomplete report or has
7-20 submitted such report more than one year following the due
7-21 date in an action brought by the Department of Human
7-22 Resources, may be directed by a court of competent
7-23 jurisdiction to submit a complete report within a period
7-24 stated by court order or may be subject to sanctions for
7-25 civil contempt.
7-26 (e) By June 30 of each year, the Department of Human
7-27 Resources shall issue a public report providing statistics
7-28 for the previous calendar year compiled from all of the
7-29 reports covering that year submitted in accordance with
7-30 this Code section for each of the items listed in
7-31 subsection (a) of this Code section. Each such report
7-32 shall also provide the statistics for all previous
7-33 calendar years adjusted to reflect any additional
7-34 information from late or corrected reports. The
7-35 Department of Human Resources shall take care to ensure
7-36 that none of the information included in the public
7-37 reports could reasonably lead to the identification of any
7-38 individual provided information in accordance with Code
7-39 Section 16-12-152 or 16-12-153.
7-40 (f) The Department of Human Resources may, by regulation,
7-41 alter the dates established by subsections (c) or (e) of
7-42 this Code section or paragraph (3) of subsection (b) of
7-43 this Code section or may consolidate the forms or reports
7-44 described in this Code section with other forms or reports
-7-
8- 1 to achieve administrative convenience or fiscal savings or
8- 2 to reduce the burden of reporting requirements, so long as
8- 3 reporting forms are sent to all licensed physicians in the
8- 4 state at least once every year and the report described in
8- 5 subsection (e) of this Code section is issued at least
8- 6 once every year.
8- 7 16-12-156.
8- 8 Any person who knowingly or recklessly performs or
8- 9 attempts to perform an abortion in violation of this
8-10 article shall be guilty of a felony. Any physician who
8-11 knowingly or recklessly submits a false report under
8-12 subsection (c) of Code Section 16-12-155 shall be guilty
8-13 of a misdemeanor. No penalty may be assessed against the
8-14 female upon whom the abortion is performed or attempted to
8-15 be performed. No penalty or civil liability may be
8-16 assessed for failure to comply with subparagraph (C) of
8-17 paragraph (2) of Code Section 16-12-152 or that portion of
8-18 paragraph (3) of Code Section 16-12-152 requiring a
8-19 written certification that the female has been informed of
8-20 her opportunity to review the information referred to in
8-21 subparagraph (C) of paragraph (2) of Code Section
8-22 16-12-152 unless the Department of Human Resources has
8-23 made the printed materials available at the time the
8-24 physician or the physician's agent is required to inform
8-25 the female of her right to review them.
8-26 16-12-157.
8-27 (a) Any person upon whom an abortion has been performed
8-28 without complying with this article, the father of the
8-29 unborn child who was the subject of such an abortion, or
8-30 the grandparent of such an unborn child may maintain an
8-31 action against the person who performed the abortion in
8-32 knowing or reckless violation of this article for actual
8-33 and punitive damages. Any person upon whom an abortion
8-34 has been attempted without complying with this article may
8-35 maintain an action against the person who attempted to
8-36 perform the abortion in knowing or reckless violation of
8-37 this article for actual and punitive damages.
8-38 (b) If the Department of Human Resources fails to issue
8-39 the public report required by subsection (e) of Code
8-40 Section 16-12-155, any group of ten or more citizens of
8-41 this state may seek an injunction in a court of competent
8-42 jurisdiction against the commissioner of human resources
8-43 requiring that a complete report be issued within a period
-8-
9- 1 of time stated by court order. Failure to abide by such
9- 2 an injunction shall subject the commissioner to sanctions
9- 3 for civil contempt.
9- 4 (c) If judgment is rendered in favor of the plaintiff in
9- 5 any action described in this section, the court shall also
9- 6 render judgment for a reasonable attorney's fee in favor
9- 7 of the plaintiff against the defendant. If judgment is
9- 8 rendered in favor of the defendant and the court finds
9- 9 that the plaintiff's suit was frivolous and brought in bad
9-10 faith, the court shall also render judgment for a
9-11 reasonable attorney's fee in favor of the defendant
9-12 against the plaintiff.
9-13 16-12-158.
9-14 In every civil or criminal proceeding or action brought
9-15 under this article, the court shall rule whether the
9-16 anonymity of any female upon whom an abortion is performed
9-17 or attempted shall be preserved from public disclosure if
9-18 she does not give her consent to such disclosure. The
9-19 court, upon motion or sua sponte, shall make such a ruling
9-20 and, upon determining that her anonymity should be
9-21 preserved, shall issue orders to the parties, witnesses,
9-22 and counsel and shall direct the sealing of the record and
9-23 exclusion of individuals from courtrooms or hearing rooms
9-24 to the extent necessary to safeguard her identity from
9-25 public disclosure. Each such order shall be accompanied
9-26 by specific written findings explaining why the anonymity
9-27 of the female should be preserved from public disclosure,
9-28 why the order is essential to that end, how the order is
9-29 narrowly tailored to serve that interest, and why no
9-30 reasonable less restrictive alternative exists. In the
9-31 absence of written consent of the female upon whom an
9-32 abortion has been performed or attempted, anyone, other
9-33 than a public official, who brings an action under
9-34 subsection (a) of Code Section 16-12-157 shall do so under
9-35 a pseudonym. This Code section may not be construed to
9-36 conceal the identity of the plaintiff or of witnesses from
9-37 the defendant.
9-38 16-12-159.
9-39 If any one or more provisions, sections, subsections,
9-40 sentences, clauses, phrases, or words of this article or
9-41 the application thereof to any person or circumstance is
9-42 held invalid, such invalidity shall not affect the
9-43 provisions, words, phrases, clauses, or applications of
-9-
10- 1 this article which can be given effect without the invalid
10- 2 provision, word, phrase, clause, or application and to
10- 3 this end, the provisions, words, phrases, and clauses of
10- 4 this article are declared to be severable."
10- 5 SECTION 2.
10- 6 This Act shall become effective upon its approval by the
10- 7 Governor or upon its becoming law without such approval.
10- 8 SECTION 3.
10- 9 All laws and parts of laws in conflict with this Act are
10-10 repealed.
-10-
Clerk of the House
Robert E. Rivers, Jr., Clerk
Last Updated on 02/24/99
