72nd OREGON LEGISLATIVE ASSEMBLY--2003 Regular Session
NOTE: Matter within { + braces and plus signs + } in an
amended section is new. Matter within { - braces and minus
signs - } is existing law to be omitted. New sections are within
{ + braces and plus signs + } .
LC 1022
House Bill 2550
Sponsored by Representative T SMITH; Representatives BUTLER,
KNOPP, KROPF, NELSON, Senators BEYER, GEORGE
SUMMARY
The following summary is not prepared by the sponsors of the
measure and is not a part of the body thereof subject to
consideration by the Legislative Assembly. It is an editor's
brief statement of the essential features of the measure as
introduced.
Requires physicians to inform females contemplating abortions
about fetal pain and to report on abortions performed. Creates
exceptions. Requires Department of Human Services to publish
information about fetal pain, prepare physician reporting forms
and issue report. Requires department to assess against physician
civil penalty of $500 per 30-day period or part of period for
failure to report. Authorizes private action to enforce Act and
private action for damages for violation of Act. Authorizes
Speaker of House of Representatives and President of Senate to
appoint sponsor of Act to intervene in action challenging
validity of Act.
Creates crime of nonconsensual abortion. Punishes by maximum
five years' imprisonment, $100,000 fine, or both.
Creates crime of unlawful abortion reporting. Punishes by
maximum 30 days' imprisonment, $1,000 fine, or both.
A BILL FOR AN ACT
Relating to prevention of fetal pain.
Be It Enacted by the People of the State of Oregon:
SECTION 1. { + As used in sections 1 to 11 of this 2003 Act:
(1) 'Abortion' has the meaning given the term 'induced
termination of pregnancy' in ORS 432.005.
(2) 'Attempt to perform an abortion' means an act or omission
that, under the circumstances as the actor believes them to be,
constitutes a substantial step in a course of conduct planned to
culminate in an abortion.
(3) 'Medical emergency' means any medical condition that, on
the basis of a physician's good faith clinical judgment,
necessitates an immediate abortion to avert the female's death or
avoid a serious risk of substantial and irreversible impairment
of a major bodily function.
(4) 'Physician' has the meaning given that term in ORS 677.010.
(5) 'Probable gestational age' means a physician's reasonable
estimate of the gestational age of the unborn child at the time
the physician plans to perform the abortion.
(6) 'Unborn child' means a member of the species Homo sapiens
from fertilization until birth. + }
SECTION 2. { + (1) At least 24 hours before performing an
abortion on an unborn child whose probable gestational age is 20
weeks or more, the physician performing the abortion or the
physician's agent must inform the pregnant female, by telephone
or in person, that:
(a) The female has the right to review the printed materials
described in section 4 of this 2003 Act;
(b) The State of Oregon has provided the materials;
(c) The materials are available for review on a state-sponsored
website and that the physician or the physician's agent will
provide the website address to the female; and
(d) The materials contain information on fetal pain.
(2) If a female chooses to review the materials in a manner
other than on the website, the physician or the physician's agent
must:
(a) Give the materials to the female in person at least 24
hours before the abortion; or
(b) Mail the materials to the female at least 72 hours before
the abortion, by certified mail, restricted delivery to the
female.
(3) If a female chooses to receive the information in the
materials by audio tape recording, the physician or the
physician's agent must keep a record that the female chose not to
receive the materials in person or by mail.
(4) Before performing an abortion, the physician who is to
perform the abortion or the physician's agent must obtain the
female's certification in writing that she received the
information required by this section. The physician or the
physician's agent must retain a copy of the written certification
in the female's medical record for at least three years.
(5) This section does not apply in a medical emergency. + }
SECTION 3. { + (1) Before performing an abortion on an unborn
child whose probable gestational age is 20 weeks or more, the
physician performing the abortion or the physician's agent must:
(a) Inform the pregnant female that an anesthetic or analgesic
may eliminate or alleviate organic pain that the abortion may
cause the unborn child; and
(b) Inform the female of the medical risks associated with the
anesthetic or analgesic.
(2) The physician must administer the anesthetic or analgesic
at the female's request.
(3) This section does not apply in a medical emergency. + }
SECTION 4. { + (1) The Department of Human Services shall
publish materials with the following information about unborn
children at 20 weeks' gestational age and at subsequent two-week
gestational increments from 22 weeks until birth:
(a) Development of the nervous system;
(b) Responsiveness to adverse stimuli or other indicators of
capacity to experience organic pain; and
(c) The methods of abortion procedures commonly employed at
that stage of pregnancy.
(2) The information must be objective, nonjudgmental and convey
only accurate scientific information.
(3) The department must present the information in a manner
that is easily comprehensible to a person without medical
training.
(4) The department must publish the information:
(a) In writing and on the state website required by section 5
of this 2003 Act; and
(b) In English and in each language that is the primary
language of two percent or more of the state's population.
(5)(a) The printed materials must be in a typeface large enough
to be clearly legible.
(b) The website required by section 5 of this 2003 Act must
maintain a minimum resolution of 70 dots per inch. All pictures
appearing on the website must contain at least 200 by 300 pixels.
Letters on the website must be at least 11-point font. Text and
pictures must be accessible with an industry standard browser,
requiring no additional plug-ins.
(6) Upon request, the department shall provide the printed
materials to any person free of charge. + }
SECTION 5. { + (1) The Department of Human Services shall
develop and maintain a stable Internet website to provide the
information described in section 4 of this 2003 Act.
(2) The department may not collect or retain information about
a person who uses the website.
(3) To prevent tampering with the website, the department shall
monitor use of the website each day. + }
SECTION 6. { + When a medical emergency compels a physician to
perform an abortion, the physician shall inform the female, prior
to the abortion if possible, of the indications supporting the
medical emergency. + }
SECTION 7. { + (1) The Department of Human Services shall
prepare a reporting form containing a reprint of this 2003 Act
and blanks for a physician to list:
(a) The number of females to whom the physician or the
physician's agent provided the information required by section 2
(1) of this 2003 Act.
(b) The number of females provided the information by
telephone.
(c) The number of females provided the information in person.
(d) Of the females provided the information by telephone, the
number to whom the physician or the physician's agent provided
the information as a referring physician.
(e) Of the females provided the information by telephone, the
number to whom the physician or the physician's agent provided
the information as the physician who was to perform the abortion.
(f) Of the females provided the information in person, the
number to whom the physician or the physician's agent provided
the information as a referring physician.
(g) Of the females provided the information in person, the
number to whom the physician or the physician's agent provided
the information as the physician who was to perform the abortion.
(h) The number of females who obtained the printed materials
described in section 4 of this 2003 Act.
(i) The number of females who did not obtain the printed
materials.
(j) Of the females who obtained the printed materials, the
number who obtained the abortion.
(k) Of the females who did not obtain the printed materials,
the number who obtained the abortion.
(L) The number of abortions performed by a physician who did
not provide the information because an immediate abortion was
necessary to avert the female's death.
(m) The number of abortions performed by a physician who did
not provide the information because an immediate abortion was
necessary to avoid serious risk of substantial and irreversible
impairment of a major bodily function of the female.
(2)(a) When the Board of Medical Examiners notifies a physician
that the physician has received a license to practice medicine in
this state, the department shall provide the reporting form to
the physician.
(b) By December 1 of each year, the department shall provide
the reporting form to all physicians licensed to practice
medicine in this state.
(3) By February 28 of each year, a physician who provided, or
whose agent provided, the information required by section 2 of
this 2003 Act during the previous calendar year shall submit a
completed reporting form to the department.
(4)(a) The department shall assess against a physician a civil
penalty of $500 for each 30-day period or portion of a 30-day
period after April 1 of each year that the physician does not
submit the completed reporting form.
(b) If a physician does not submit a complete reporting form
within one year of the date on which the form is due, the
department may bring an action in circuit court to compel the
physician to submit the report.
(5) By June 30 of each year, the department shall issue a
report providing the information required by subsection (1) of
this section for the state as a whole for each calendar year. The
department may not provide information in the report that a
person could use to identify a physician or a patient.
(6) The department may adopt rules:
(a) To implement sections 2 to 7 of this 2003 Act.
(b) To change a date established by this section to another
date in the same calendar year.
(c) To consolidate reporting forms or reports with other forms
or reports when consolidation will achieve administrative
convenience or fiscal savings or reduce the burden of reporting
on physicians. + }
SECTION 8. { + (1) Any person upon whom a physician has
performed or attempted to perform an abortion in violation of
section 2 of this 2003 Act may bring an action to recover actual
and punitive damages from the physician.
(2) The father of an unborn child who was the subject of an
abortion performed in violation of section 2 of this 2003 Act and
the grandparent of an unborn child who was the subject of an
abortion performed in violation of section 2 of this 2003 Act may
bring an action to recover actual and punitive damages from the
physician.
(3) If the Department of Human Services fails to issue the
report required by section 7 of this 2003 Act, any group of 10 or
more residents of this state may bring an action against the
Director of Human Services to compel issuance of the report. If
the director fails to comply with an order to issue the report,
the court shall impose remedial sanctions for contempt.
(4) The court shall award reasonable attorney fees to a
plaintiff who prevails in an action under this section. The court
may award reasonable attorney fees incurred by a defendant who
prevails in the action if the court determines that the plaintiff
had no objectively reasonable basis for bringing the action. + }
SECTION 9. { + (1) If a female upon whom a physician performed
an abortion or attempted to perform an abortion does not consent
to the disclosure of her identity in a proceeding or action
involving sections 1 to 11 of this 2003 Act, the court shall
determine whether to protect the female's identity from public
disclosure. If the court determines to protect the female's
identity, the court shall order parties, witnesses and counsel
not to disclose the female's identity and shall seal the record
and exclude witnesses from courtrooms or hearing rooms to the
extent necessary to protect the female's identity from public
disclosure.
(2) An order protecting a female's identity from public
disclosure must include specific written findings explaining:
(a) The reasons that the female's identity should be protected
from public disclosure;
(b) The reasons that the order is essential to protect the
female's identity;
(c) How the terms of the order are narrowly tailored to serve
only the interest of protecting the female's identity; and
(d) The reasons that no less restrictive alternative to the
order will protect the female's interests.
(3)(a) A person who brings an action under section 8 (1) or (2)
of this 2003 Act shall use a pseudonym unless the female on whom
the physician performed an abortion or attempted to perform an
abortion consents to the person's use of the female's given name.
(b) Notwithstanding paragraph (a) of this subsection, a
plaintiff may not conceal the plaintiff's identity from the
defendant or witnesses for the defendant. + }
SECTION 10. { + (1) A person commits the crime of
nonconsensual abortion if the person intentionally, knowingly or
recklessly performs an abortion or attempts to perform an
abortion in violation of section 2 of this 2003 Act.
(2) Nonconsensual abortion is a Class C felony. + }
SECTION 11. { + (1) A person commits the crime of unlawful
abortion reporting if the person is a physician and
intentionally, knowingly or recklessly submits a false report
under section 7 of this 2003 Act.
(2) Unlawful abortion reporting is a Class C misdemeanor. + }
SECTION 12. { + Sections 1 to 11 of this 2003 Act may be cited
as the Fetal Pain Prevention Act. + }
SECTION 13. { + The Speaker of the House of Representatives
and the President of the Senate may appoint one or more sponsors
of this 2003 Act to intervene as a matter of right in an action
that challenges the validity of this 2003 Act. + }
SECTION 14. { + (1) Within 90 days after the effective date of
this 2003 Act, the Department of Human Services shall:
(a) Publish the printed materials described in section 4 of
this 2003 Act.
(b) Develop and maintain the website required by section 5 of
this 2003 Act.
(2) Within 120 days after the effective date of this 2003 Act,
the department shall provide the reporting form to all physicians
licensed to practice medicine in this state.
(3) Section 7 (3), (4) and (5) of this 2003 Act do not apply in
the calendar year in which this 2003 Act becomes effective.
(4) No penalty may be assessed or liability imposed for failure
to comply with section 2 (1) of this 2003 Act until the
department has published the printed materials described in
section 4 of this 2003 Act. + }
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