76-7-305 - Informed consent requirements for abortion -- 24-hour wait mandatory -- Exceptions.
76-7-305. Informed consent requirements for abortion -- 24-hour wait mandatory-- Exceptions.
(1) A person may not perform an abortion, unless, before performing the abortion, thephysician who will perform the abortion obtains a voluntary and informed written consent fromthe woman on whom the abortion is performed, that is consistent with:
(a) Section 8.08 of the American Medical Association's Code of Medical Ethics, CurrentOpinions; and
(b) the provisions of this section.
(2) Except as provided in Subsection (8), consent to an abortion is voluntary andinformed only if:
(a) at least 24 hours before the abortion, the physician who is to perform the abortion, thereferring 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,orally informs the woman:
(i) consistent with Subsection (3)(a), of:
(A) the nature of the proposed abortion procedure;
(B) specifically how the procedure described in Subsection (2)(a)(i)(A) will affect thefetus; and
(C) the risks and alternatives to an abortion procedure or treatment;
(ii) of the probable gestational age and a description of the development of the unbornchild at the time the abortion would be performed;
(iii) of the medical risks associated with carrying her child to term; and
(iv) except as provided in Subsection (3)(b), if the abortion is to be performed on anunborn child who is at least 20 weeks gestational age:
(A) that, upon the woman's request, an anesthetic or analgesic will be administered to theunborn child, through the woman, to eliminate or alleviate organic pain to the unborn child thatmay be caused by the particular method of abortion to be employed; and
(B) of any medical risks to the woman that are associated with administering theanesthetic or analgesic described in Subsection (2)(a)(iv)(A);
(b) at least 24 hours prior to the abortion the physician who is to perform the abortion,the referring physician, or, as specifically delegated by either of those physicians, a registerednurse, licensed practical nurse, certified nurse-midwife, advanced practice registered nurse,clinical laboratory technologist, psychologist, marriage and family therapist, clinical socialworker, genetic counselor, or certified social worker orally, in a face-to-face consultation,informs the pregnant woman that:
(i) the Department of Health, in accordance with Section 76-7-305.5, publishes printedmaterial and an informational video that:
(A) provides medically accurate information regarding all abortion procedures that maybe used;
(B) describes the gestational stages of an unborn child; and
(C) includes information regarding public and private services and agencies available toassist her through pregnancy, at childbirth, and while the child is dependent, including privateand agency adoption alternatives;
(ii) the printed material and a viewing of or a copy of the informational video shall bemade available to her, free of charge, on the Department of Health's website;
(iii) medical assistance benefits may be available for prenatal care, childbirth, andneonatal care, and that more detailed information on the availability of that assistance iscontained in the printed materials and the informational video published by the Department ofHealth;
(iv) except as provided in Subsection (3)(c):
(A) the father of the unborn child is legally required to assist in the support of her child,even if he has offered to pay for the abortion; and
(B) the Office of Recovery Services within the Department of Human Services will assisther in collecting child support; and
(v) she has the right to view an ultrasound of the unborn child, at no expense to her, uponher request;
(c) the information required to be provided to the pregnant woman under Subsection(2)(a) is also provided by the physician who is to perform the abortion, in a face-to-faceconsultation, prior to performance of the abortion, unless the attending or referring physician isthe individual who provides the information required under Subsection (2)(a);
(d) a copy of the printed materials published by the Department of Health has beenprovided to the pregnant woman;
(e) the informational video, published by the Department of Health, has been provided tothe pregnant woman in accordance with Subsection (4); and
(f) the pregnant woman has certified in writing, prior to the abortion, that the informationrequired to be provided under Subsections (2)(a) through (e) was provided, in accordance withthe requirements of those subsections.
(3) (a) The alternatives required to be provided under Subsection (2)(a)(i) include:
(i) a description of adoption services, including private and agency adoption methods;and
(ii) a statement that it is legal for adoptive parents to financially assist in pregnancy andbirth expenses.
(b) The information described in Subsection (2)(a)(iv) may be omitted from theinformation required to be provided to a pregnant woman under this section if the abortion isperformed for a reason described in Subsection 76-7-302(3)(b)(i).
(c) The information described in Subsection (2)(b)(iv) may be omitted from theinformation required to be provided to a pregnant woman under this section if the woman ispregnant as the result of rape.
(d) Nothing in this section shall be construed to prohibit a person described in Subsection(2)(a) from, when providing the information described in Subsection (2)(a)(iv), informing awoman of the person's own opinion regarding:
(i) the capacity of an unborn child to experience pain;
(ii) the advisability of administering an anesthetic or analgesic to an unborn child; or
(iii) any other matter related to fetal pain.
(4) When the informational video described in Section 76-7-305.5 is provided to apregnant woman, the person providing the information shall:
(a) request that the woman view the video at that time or at another specificallydesignated time and location; or
(b) if the woman chooses not to view the video at a time described in Subsection (4)(a),inform the woman that she can access the video on the Department of Health's website.
(5) When a serious medical emergency compels the performance of an abortion, thephysician shall inform the woman prior to the abortion, if possible, of the medical indicationssupporting the physician's judgment that an abortion is necessary.
(6) If an ultrasound is performed on a woman before an abortion is performed, the personwho performs the ultrasound, or another qualified person, shall:
(a) inform the woman that the ultrasound images will be simultaneously displayed in amanner 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, oranother qualified person shall provide a detailed description of the ultrasound images, including:
(i) the dimensions of the unborn child;
(ii) the presence of cardiac activity in the unborn child, if present and viewable; and
(iii) the presence of external body parts or internal organs, if present and viewable; and
(d) provide the detailed description described in Subsection (6)(c), if the woman requestsit.
(7) In addition to the criminal penalties described in this part, a physician who violatesthe 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 andsurgery 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) A physician is not guilty of violating this section for failure to furnish any of theinformation described in Subsection (2), or for failing to comply with Subsection (6), if:
(a) the physician can demonstrate by a preponderance of the evidence that the physicianreasonably believed that furnishing the information would have resulted in a severely adverseeffect 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 ofthe woman on whom the abortion is performed;
(c) the pregnancy was the result of rape or rape of a child, as defined in Sections76-5-402 and 76-5-402.1;
(d) the pregnancy was the result of incest, as defined in Subsection 76-5-406(10) andSection 76-7-102; or
(e) at the time of the abortion, the pregnant woman was 14 years of age or younger.
(9) A physician who complies with the provisions of this section and Section 76-7-304.5may not be held civilly liable to the physician's patient for failure to obtain informed consentunder Section 78B-3-406.
(10) (a) The Department of Health shall provide an ultrasound, in accordance with theprovisions of Subsection (2)(b), at no expense to the pregnant woman.
(b) A local health department shall refer a person who requests an ultrasound describedin Subsection (10)(a) to the Department of Health.
Amended by Chapter 314, 2010 General Session