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2019 Regular Session
SENATE BILL NO. 221
BY SENATOR MIZELL
Prefiled pursuant to Article III, Section 2(A)(4)(b)(i) of the Constitution of Louisiana.
ABORTION. Provides relative to abortion and the Woman's Right to Know law. (gov sig)
1 AN ACT
2 To amend and reenact R.S. 40:1061.17(B)(3), relative to regulation of abortion; to provide
3 for a woman's informed consent in an abortion proceeding; to provide for certain
4 written information to be given to a woman seeking an abortion; to require certain
5 oral information to be given to a woman seeking an abortion; to provide for certain
6 information necessary to assess the qualifications of the facility and the physician
7 who will perform the abortion; and to provide for related matters.
8 Be it enacted by the Legislature of Louisiana:
9 Section 1. R.S. 40:1061.17(B)(3) is hereby amended and reenacted to read as
10 follows:
11 ยง1061.17. Woman's right to know
12 * * *
13 B. Informed consent; requirements. After a woman is determined to be
14 pregnant, no abortion shall be performed or induced without the voluntary and
15 informed consent of the woman upon whom the abortion is to be performed or
16 induced. Except in the case of a medical emergency, consent to an abortion is
17 voluntary and informed if and only if:
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1 * * *
2 (3)(a) Oral Written information from the physician. Except as provided in
3 Subparagraph (b)(c) of this Paragraph, at least seventy-two hours before the abortion,
4 the physician who is to perform the abortion or the referring physician has informed
5 the woman, in writing and read orally and in person of:
6 (i) The name of the physician who meets the requirements of R.S.
7 46:1061.10(A) and who will perform the abortion, which shall be listed in the same
8 manner as the name appears on the membership roll of the Louisiana State
9 Board of Medical Examiners.
10 (ii) The location and specialty of the physician's residency and whether
11 the residency of the physician has been completed.
12 (iii) Whether the physician is currently board certified and, if so, the
13 medical specialty and the certifying organization.
14 (iv) Whether the physician has active admitting privileges at any hospital
15 that provides obstetrical or gynecological healthcare services, and if so, the
16 name of the hospital or hospitals. For purposes of this Subparagraph, "active
17 admitting privileges" means that the physician is a member in good standing of
18 the medical staff of a hospital that is currently licensed by the Department of
19 Health, with the ability to admit a patient and to provide diagnostic and surgical
20 services to such patient.
21 (v) Whether the physician has malpractice insurance that would cover
22 the abortion procedure.
23 (vi) Whether in the last ten years the physician has ever been placed on
24 probation, reprimanded, or had his license suspended or revoked by any
25 professional licensing organization, and if so, the jurisdiction in which the
26 professional discipline was ordered. For purposes of this Subsection, the
27 professional discipline action must be disclosed even if it was stayed or
28 suspended. Disclosure of disciplinary action shall include but not be limited to
29 action taken by the Louisiana State Board of Medical Examiners and the
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1 Louisiana Board of Pharmacy.
2 (vii) The Internet address for disciplinary records of the Louisiana
3 Board of Medical Examiners.
4 (b) Oral information from the physician. Except as provided in
5 Subparagraph (c) of this Paragraph, and in the same period of time provided
6 for in the introductory paragraph of Subparagraph (a) of this Paragraph, the
7 physician who is to perform the abortion or the referring physician has
8 informed the woman, orally and in person of:
9 (ii)(i) A description of the proposed abortion method and of those risks
10 (including risks to the woman's reproductive health) and alternatives to the abortion
11 that a reasonable patient would consider material to the decision of whether or not
12 to undergo the abortion.
13 (iii)(ii) The probable gestational age of the unborn child at the time the
14 abortion is to be performed; and, if the unborn child is viable or has reached the
15 gestational age of twenty-four weeks and the abortion may be otherwise lawfully
16 performed under existing law, that:
17 (aa) The unborn child may be able to survive outside the womb.
18 (bb) The woman has the right to request the physician to use the method of
19 abortion that is most likely to preserve the life of the unborn child.
20 (cc) If the unborn child is born alive, that attending physicians have the legal
21 obligation to take all reasonable steps necessary to maintain the life and health of the
22 child.
23 (iv)(iii) The probable anatomical and physiological characteristics of the
24 unborn child at the time the abortion is to be performed.
25 (v)(iv) The medical risks associated with carrying her child to term.
26 (vi)(v) Any need for anti-Rh immune globulin therapy, if she is Rh negative,
27 the likely consequences of refusing such therapy, and a good faith estimate of the
28 cost of the therapy.
29 (vii)(vi) The availability of anesthesia or analgesics to alleviate or eliminate
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1 organic pain to the unborn child that could be caused by the method of abortion to
2 be employed.
3 (viii)(vii) The requirement that at least seventy-two hours prior to the
4 woman's having any part of an abortion performed or induced, the physician,
5 referring physician, or qualified person working in conjunction with either physician
6 must perform an obstetric ultrasound under the provisions of R.S. 40:1061.10.
7 (ix)(viii) The inclusion in her printed materials of a comprehensive list,
8 compiled by the department, of facilities that offer obstetric ultrasounds free of
9 charge.
10 (b)(c) If the woman certifies in writing that she currently lives one hundred
11 fifty miles or more from the nearest licensed outpatient abortion facility to her
12 residence, then the physician who is to perform the abortion or the referring
13 physician shall comply with all of the requirements of Subparagraph (a) and (b) of
14 this Paragraph at least twenty-four hours prior to the abortion.
15 * * *
16 Section 2. In addition to the legislative finding provided for in R.S.
17 40:1061.1(A), the legislature further finds and declares all of the following:
18 (1) Louisiana patients considering a medical procedure customarily rely upon
19 the qualifications and background information of physician who would potentially
20 perform the patient's procedure. Such information is relevant and necessary to
21 determine all of the following: (a) Whether the patient should undergo the procedure
22 and whether the benefits outweigh the risk of complications, (b) The risks to which the
23 patient is exposed, and (c) the patient's choice of physician. Many patients research
24 particular physicians before deciding whether to undergo a procedure, or in the course
25 of choosing the physician who will perform it and facility where it will be performed.
26 (2) Louisiana physicians commonly make information about their background
27 and qualifications available to current and potential patients and by also posting such
28 information on the physicians' internet websites for their medical practices. The
29 widespread availability of physician information improves the market for medical
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1 services in Louisiana by enabling informed decisions to be made by patients and by
2 encouraging physicians and medical facilities to maintain high professional standards.
3 Such disclosures regarding physician qualifications are in the public's best interest.
4 (3) Abortion carries the known risk of serious complications for the mother
5 including infection, injury, hemorrhaging, sepsis, permanent loss of childbearing
6 capacity, and death. Such risks are documented as occurring in Louisiana as a result
7 of procedures at Louisiana abortion clinics.
8 (4) Louisiana outpatient abortion facilities do not publicly disclose the identities
9 and professional qualifications of physicians who perform abortions there. Unlike other
10 Louisiana medical practices, outpatient abortion facilities do not customarily post the
11 identities or qualifications of their physicians on their internet websites; therefore,
12 women considering an abortion may have difficulty obtaining information about an
13 abortion facility's doctors before the woman's first appointment before the abortion
14 procedure.
15 (5) Louisiana has a long history of outpatient abortion facilities operated by
16 out-of-state businessmen, and those clinics appear to perform little or no review of the
17 credentials or disciplinary history of the physicians who perform abortions at the
18 facility. See, e.g., June Medical Servs., LLC v. Gee, 905 F.3d 787, 799 (5th Cir. 2018).
19 (6) Louisiana outpatient abortion facilities actively work to conceal the identities
20 and misconduct of abortion providers. For example, in a pending court case, plaintiff
21 abortion providers repeatedly insisted that publicly available information regarding
22 misconduct by abortion doctors be filed under seal. Compare Emergency Motion to
23 Strike (ECF 202), June Medical Servs. LLC v. Gee, No. 3:16-cv-444 (M.D. La.) with
24 Mem. (ECF 207-1) at 4, 7-8, June Medical Servs. LLC v. Gee, No. 3:16-cv-444 (M.D. La.)
25 (noting that the documents sealed at plaintiffs' request include a grand jury report that
26 is for sale as a book and publicly available Louisiana State Board of Medical
27 Examiners disciplinary records); see also, e.g., Reply (ECF 135-2) at 5, June Medical
28 Servs. LLC v. Gee, No. 3:16-cv-444 (M.D. La.) (noting that plaintiffs had redacted the
29 name of a deceased Louisiana abortion provider from a public record). In another case,
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1 a state court was induced to seal the existence of a malpractice case against two
2 abortion providers, although the providers repeatedly used the patient's name in
3 federal litigation.
4 (7) Current law requires that a woman, in order to give informed consent to an
5 abortion, must receive the name of the physician who will perform the abortion.
6 Louisiana abortion facilities, however, are not currently required to provide
7 information about the physician's background and qualifications or to direct the
8 woman to a website where she may find information relevant to her decision about her
9 physician.
10 (8) The lack of transparency surrounding the medical operations of outpatient
11 abortion facilities makes it difficult for women to fully evaluate whether to obtain an
12 abortion or whether to obtain it from a particular physician at a given abortion facility.
13 Such lack of transparency makes it difficult for women to make important decisions
14 about their health and safety; creates an obstacle to women exercising their informed
15 consent; and is therefore contrary to the public interest.
16 (9) A significant number of physicians who have performed abortions at
17 Louisiana outpatient abortion facilities in recent years have been subject to
18 professional discipline and malpractice claims. The abortion facilities at which these
19 physicians perform abortions have received a significant number of noncompliance
20 actions related to violations of health and safety regulations which have been
21 documented by deficiency reports filed with the Louisiana Department of Health.
22 (10) If a woman who is considering an abortion is to be treated by a physician
23 who has been subject to professional discipline, it is in the best interest of that woman
24 that she be afforded the opportunity to consider that professional discipline in advance
25 of undergoing the abortion procedure.
26 (11) There is empirical evidence correlating nonboard certified physicians with
27 an increased likelihood of professional discipline. Susan H. Allen, et al., Training
28 Matters: A Retrospective Study of Physician Disciplinary Matters by the Louisiana State
29 Board of Medical Examiners, 1990-2010, 102(4) J. MED. REG. 7 (2016).
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1 (12) The information to be disclosed under the requirements of this Act is
2 truthful information that is nonmisleading and relevant to the decision to obtain an
3 abortion. It is therefore within the scope of information that Louisiana may require to
4 be disclosed as part of a woman's informed consent before an abortion.
5 Section 3. The legislature finds and declares that the purpose of this Act is to
6 improve the ability of Louisiana women to determine whether to obtain an abortion,
7 to choose the appropriate facility and physician, and to, make an informed consent for
8 such an abortion if the woman chooses to have the procedure. Such informed consent
9 is needed so that the state of Louisiana may adequately provide reasonable protections
10 for public health.
11 Section 4. The provisions of Section 1 of this Act, which amends R.S.
12 40:1061.17(B)(3), shall not be construed to have any effect on the Joint Stipulation for
13 Non-Enforcement in June Medical Services LLC v. Gee, No. 3:16-cv-444 (M.D. La.).
14 Section 5. If any provision or item of this Act, or the application thereof, is held
15 invalid, such invalidity shall not affect other provisions, items, or applications of the Act
16 which can be given effect without the invalid provision, item, or application and to this end
17 the provisions of this Act are hereby declared severable.
18 Section 6. This Act shall become effective upon signature by the governor or, if not
19 signed by the governor, upon expiration of the time for bills to become law without signature
20 by the governor, as provided by Article III, Section 18 of the Constitution of Louisiana. If
21 vetoed by the governor and subsequently approved by the legislature, this Act shall become
22 effective on the day following such approval.
The original instrument was prepared by Carla S. Roberts. The following
digest, which does not constitute a part of the legislative instrument, was
prepared by Christine Arbo Peck.
DIGEST
SB 221 Engrossed 2019 Regular Session Mizell
Present law provides for the Woman's Right to Know law which requires that providers of
abortions in Louisiana ensure that their patients have the necessary information, including
specific legal rights and options, to make an informed decision before they undergo an
abortion procedure.
Present law also provides that no abortion shall be performed or induced without the
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voluntary and informed consent of the woman upon whom the abortion is to be performed
or induced. Present law provides that, except in the case of a medical emergency, consent
to an abortion is voluntary and informed if and only if, the physician who is to perform the
abortion or the referring physician has informed the woman, orally and in person, the name
of the physician who meets the requirements of R.S. 46:1061.10(a) and is licensed to
practice medicine in the state of La. and who will perform the abortion.
Proposed law changes present law from oral to written, as it relates to the requirement that
the woman must be informed of the name of the physician who is to perform the abortion.
Proposed law provides that, in addition to the name of the physician who is to perform the
abortion, the physician shall inform the woman, in writing, all of the following:
(1)The name of the physician who will perform the abortion shall be listed in the
written document in the same manner as the name appears on the membership roll
of the Louisiana State Board of Medical Examiners.
(2)The location and specialty of the physician's residency and whether the residency has
been completed.
(3)Whether the physician is currently board certified and, if so, the name of the
certifying organization.
(4)Whether the physician has active admitting privileges at any hospital that provides
obstetrical or gynecological healthcare services, and if so, the name of the hospital
or hospitals. "Active admitting privileges" means that the physician is a member in
good standing of the medical staff of a hospital that is currently licensed by the
Department of Health, with the ability to admit a patient, and to provide diagnostic
and surgical services to such patient.
(5)Whether the physician has malpractice insurance that would cover the abortion
procedure.
(6)Whether in the last 10 years the physician has ever been placed on probation,
reprimanded, or had his license suspended or revoked by any professional licensing
organization, and if so, the jurisdiction in which the professional discipline was
ordered. For purposes of this subsection, the disciplinary action must be disclosed
even if it was stayed or suspended. Disclosure of disciplinary action shall include but
not be limited to action taken by the Louisiana State Board of Medical Examiners
and the Louisiana Board of Pharmacy.
(7)The internet address for disciplinary records of the Louisiana Board of Medical
Examiners.
Proposed law provides the following legislative intent:
(1)Louisiana patients considering a medical procedure customarily do research and rely
upon the qualifications and background information of the physician who would
potentially perform the patient's procedure. Such information is relevant and
necessary to determine if the patient should undergo the procedure, the risk of
complications, and to the patient's choice of physician.
(2)Louisiana physicians commonly make information about their background and
qualifications available to current and potential patients and by posting such
information on the physicians' websites. More information about physicians
improves the market for medical services in La. by enabling informed decisions by
patients and by encouraging physicians and medical facilities to maintain high
professional standards.
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(3)Abortion carries the known risk of serious complications for the mother including
infection, injury, hemorrhaging, sepsis, permanent loss of childbearing capacity, and
death. Such risks are documented as occurring in Louisiana as a result of procedures
at Louisiana abortion clinics.
(4)La. outpatient abortion facilities do not publicly disclose the identities and
professional qualifications of physicians who perform abortions there. Unlike other
La. medical practices, outpatient abortion facilities do not customarily post the
identities or qualifications of their physicians on their websites; therefore, the women
considering an abortion may have difficulty obtaining information about an abortion
facility's doctors.
(5)Louisiana has a long history of outpatient abortion facilities operated by out-of-state
businessmen, and those clinics appear to perform little or no review of the
credentials or disciplinary history of the physicians who perform abortions at the
facility. See, e.g., June Medical Servs., LLC v. Gee, 905 F.3d 787, 799 (5th Cir.
2018).
(6)Louisiana outpatient abortion facilities actively work to conceal the identities and
misconduct of abortion providers. For example, in a pending litigation, plaintiff
abortion providers repeatedly insisted that publicly available information regarding
misconduct by abortion doctors be filed under seal. Compare Emergency Motion to
Strike (ECF 202), June Medical Servs. LLC v. Gee, No. 3:16-cv-444 (M.D. La.) with
Mem. (ECF 207-1) at 4, 7-8, June Medical Servs. LLC v. Gee, No. 3:16-cv-444
(M.D. La.) (noting that the documents sealed at plaintiffs' request include a grand
jury report that is for sale as a book and publicly available Louisiana State Board of
Medical Examiners disciplinary records); see also, e.g., Reply (ECF 135-2) at 5,
June Medical Servs. LLC v. Gee, No. 3:16-cv-444 (M.D. La.) (noting that plaintiffs
had redacted the name of a deceased Louisiana abortion provider from a public
record). In another case, a state court was induced to seal the existence of a
malpractice case against two abortion providers, although the providers repeatedly
used the patient's name in federal litigation.
(7)Current law requires that a woman, in order to give informed consent to an abortion,
must receive the name of the physician who will perform the abortion. La. abortion
facilities are not currently required to provide information about the physician's
background and qualifications or to direct the woman to a website where she may
find information relevant to her decision about her physician.
(8)The lack of transparency surrounding the medical operations of outpatient abortion
facilities makes it difficult for women to fully evaluate whether to obtain an abortion
or whether to obtain it from a particular physician at a given abortion facility. Such
lack of transparency makes it difficult for women to make important decisions about
their health and safety and creates obstacles to women exercising their informed
consent and, therefore, such lack of transparency is contrary to the public interest.
(9)A significant number of physicians who have performed abortions at La. outpatient
abortion facilities in recent years have been subject to professional discipline and
malpractice claims. The abortion facilities at which these physicians perform
abortions have received a significant number of noncompliance actions related to
violations of health and safety regulations which have been documented by
deficiency reports filed with the La. Dept. of Health.
(10)If a woman who is considering an abortion is to be treated by a physician who has
been subject to professional discipline, it is in the best interest of that woman that she
be afforded the opportunity to consider that professional discipline, in advance of
undergoing the abortion procedure.
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(11)There is empirical evidence correlating nonboard certified physicians with an
increased likelihood of professional discipline. Susan H. Allen, et al, Training
Matters: A Retrospective Study of Physician Disciplinary Matters by the Louisiana
State Board of Medical Examiners, 1990-2010, 102(4) J. MED. REG. 7 (2016).
(12)The information to be disclosed under the requirements under proposed law is
truthful information that is nonmisleading and relevant to the decision to obtain an
abortion. It is therefore within the scope of information that Louisiana may require
to be disclosed as part of a woman's informed consent before an abortion.
Proposed law provides the legislature finds and declares that the purpose of proposed law
is to improve the ability of La. women to determine whether to obtain an abortion, to choose
the appropriate facility and physician and thereby, make an informed consent for such an
abortion if the woman chooses to have the procedure. Such informed consent is needed so
that the state of La. may adequately provide reasonable protections for public health.
Proposed law clarifies that, even though amendments are being added to the section of
present law which contains the number of hours for the waiting period required between the
time of the pre-abortion counseling and the actual abortion, proposed law is not intended to
be construed to affect the outcome of the court case which was filed in response to a change
in the waiting period in 2016 from 24 hours (prior law) to 72 hours (present law).
Effective upon signature of the governor or lapse of time for gubernatorial action.
(Amends R.S. 40:1061.17(B)(3))
Summary of Amendments Adopted by Senate
Committee Amendments Proposed by Senate Committee on Health and Welfare to
the original bill
1. Makes technical corrections.
2. Removes instruction to the Louisiana State Law Institute to re-designate the
subsections of R.S. 40:1061.17 into individual sections.
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