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HB-5879, As Passed House, July 26, 2006

SUBSTITUTE FOR

HOUSE BILL NO. 5879

A bill to amend 1978 PA 368, entitled

"Public health code,"

by amending section 17015 (MCL 333.17015), as amended by 2006 PA

77.

THE PEOPLE OF THE STATE OF MICHIGAN ENACT:

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 and section 17015a:

(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. 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.

who meets 1 or more of the licensing requirements listed in

subdivision (f) 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) "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.

(g) "Probable gestational age of the fetus" means the

gestational age of the fetus at the time an abortion is planned to

be performed.

(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.

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.

(f) Perform the coercion and intimidation screening as

required under section 17015a(1) and, if applicable, comply with

the requirements under section 17015a(2) and (3).

(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, confirm

with the patient that the coercion and intimidation screening

required under section 17015a was performed, 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 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 offer to provide the patient with a physical

picture of the ultrasound image of the fetus prior to the

performance of the abortion. ~~Before~~ After the expiration of the

24-hour period prescribed under subsection (3) but 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).

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.

(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), 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, the American college 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.

Arabic, and Spanish, an acknowledgment and consent form that

includes only the following language above a signature line for the

patient:

"I, _____________________________ , voluntarily and willfully

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))

______________________________________________________________

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. I understand that it is illegal for anyone to coerce or

intimidate me into seeking an abortion. I acknowledge that at least

24 hours before the scheduled abortion I have received a physical

copy of each of the following:

(a) A medically accurate depiction, illustration, or

photograph of a fetus at the probable gestational age of the fetus

I am carrying.

(b) A written description of the medical procedure that will

be used to perform the abortion.

of the above listed documents were transmitted by facsimile, I

certify that the documents were clear and legible. I acknowledge

that the physician who will perform the abortion has orally

described all of the following to me:

(i) The specific risk to me, if any, of the complications that

have been associated with the procedure I am scheduled to undergo.

(ii) The specific risk to me, if any, of the complications if I

choose to continue the pregnancy.

I acknowledge that I have received all of the following

information:

(d) Information about what to do and whom to contact in the

event that complications arise from the abortion.

(e) Information pertaining to available pregnancy related

services.

I have been given an opportunity to ask questions about the

operation(s) or procedure(s). 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) above, or

24 hours after the time and date listed on the confirmation form if

paragraphs (a), (b), and (c) were 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 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 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~~

opens with the notice described under section 17015a(4) before

allowing 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.

(i) Develop, draft, and print, in nontechnical English,

Arabic, and Spanish, the notice as described under section

17015a(4) that is required to be posted and provided to the

patient. The notice shall be at least 8-1/2 inches by 14 inches

and the statement required under section 17015a(4) shall be printed

in at least 44-point type. The notice shall be made available to

physicians through the Michigan board of medicine and the Michigan

board of osteopathic medicine and surgery.

(j) Develop, draft, and print protocols and assessment

materials to be utilized by a physician or a qualified person

assisting the physician while performing the intimidation and

coercion screening as required under section 17015a. In developing

the protocols and assessment materials, the department shall

consider the standards and recommendations of the joint committee

on accreditation of healthcare organizations and the American

medical association. The protocols and assessment materials shall

address, at a minimum, each of the following:

(i) Danger assessments.

(ii) Physical and psychological assessments.

(iii) Safety plans.

(iv) Discharge instructions.

(v) Referrals to law enforcement and support organizations.

(vi) Private access to a telephone and safe transportation.

(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.

Enacting section 1. This amendatory act takes effect October

1, 2006.

Enacting section 2. This amendatory act does not take effect

unless all of the following bills of the 93rd Legislature are

enacted into law:

(a) House Bill No. 5880.

(b) House Bill No. 5881.

(d) House Bill No. 5883.