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 Reengrossed 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 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.
(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.
(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.