25.0682.01000
Sixty-ninth
Legislative Assembly
of North Dakota
Introduced by
Representative Murphy
A BILL for an Act to create and enact sections 14-02.1-04.3, 14-02.1-04.4, and 14-02.1-04.5 of
the North Dakota Century Code, relating to the creation of an abortion approval committee, a
framework for abortion, and an emergency medical exception; to amend and reenact sections
12.1-19.1-03, 14-02.1-02, 14-02.1-02.1, 14-02.1-02.2, and 14-02.1-03, subsection 1 of section
14-02.1-03.1, sections 14-02.1-05, 14-02.1-07, 14-02.1-08, 14-02.1-09, and 14-10-15, and
subsection 3 of section 14-10-19 of the North Dakota Century Code, relating to abortion
procedures, consent, and reporting requirements; and to repeal sections 14-02.1-03.4,
14-02.1-03.5, and 14-02.1-04 of the North Dakota Century Code, relating to abortion
restrictions.
BE IT ENACTED BY THE LEGISLATIVE ASSEMBLY OF NORTH DAKOTA:
SECTION 1. AMENDMENT. Section 12.1-19.1-03 of the North Dakota Century Code is
amended and reenacted as follows:
12.1-19.1-03. Exceptions.
This chapter does not apply to:
1.An abortion deemed necessary based on reasonable medical judgment which was
intended to prevent the death or a serious health risk to the pregnant femaleperformed
in accordance with chapter 14 - 02.1 .
2.An abortion to terminate a pregnancy that based on reasonable medical judgment
resulted from gross sexual imposition, sexual imposition, sexual abuse of a ward, or
incest, as those offenses are defined in chapter 12.1-20, if the probable gestational
age of the unborn child is six weeks or less.
3.An individual assisting in performing an abortion if the individual was acting within the
scope of that individual's regulated profession, was under the direction of or at the
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HOUSE BILL NO. 1488
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direction of a physician, and did not know the physician was performing an abortion in
violation of this chapter.
SECTION 2. AMENDMENT. Section 14-02.1-02 of the North Dakota Century Code is
amended and reenacted as follows:
14-02.1-02. Definitions.
As used in this chapter:
1."Abortion" means the act of using or prescribing any instrument, medicine, drug, or
any other substance, device, or means with the intent to terminate the clinically
diagnosable pregnancy of a woman, including the elimination of one or more unborn
childrenfetuses in a multifetal pregnancy, with knowledge that the termination by those
means will with reasonable likelihood cause the death of the unborn childfetus. Such
use, prescription, or means is not an abortion if done with the intent to:
a.Remove a dead unborn childfetus caused by spontaneous abortion;
b.Treat a woman for an ectopic pregnancy; or
c.Treat a woman for a molar pregnancy.
2."Abortion facility" means a licensed healthcare facility in which abortions are
performed. The term includes a clinic, ambulatory surgical center, or physician's office,
or any other place or facility in which abortions are performed or prescribed, other
than. The term does not include a hospital.
3."Abortion-inducing drug" means a medicine, drug, or any other substance prescribed
or dispensed with the intent of causing an abortion.
4."Drug label" means the pamphlet accompanying an abortion-inducing drug which
outlines the protocol tested and authorized by the federal food and drug administration
and agreed upon by the drug company applying for the federal food and drug
administration authorization of that drug. Also known as "final printing labeling
instructions", drug label is the federal food and drug administration document that
delineates how a drug is to be used according to the federal food and drug
administration approval.
5."Fertilization" means the fusion of a human spermatozoon with a human ovum.
5."Fetus" means an unborn human offspring from conception until birth.
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6."Hospital" means an institution licensed by the department of health and human
services under chapter 23-16 and any hospital operated by the United States or this
state.
7."Human being" means an individual living member of the species of homo sapiens,
including the unborn human being during the entire embryonic and fetal ages from
fertilization to full gestation.
8."Infant born alive" means a born child which exhibits either heartbeat, spontaneous
respiratory activity, spontaneous movement of voluntary muscles or pulsation of the
umbilical cord if still attached to the child.
9."Informed consent" means voluntary consent to abortion by the woman upon whom
the abortion is to be performed or induced provided:
a.The woman is told the following by the physician who is to perform the abortion,
by the referring physician, or by the physician's agent, at least twenty-four hours
before the abortion:
(1)The name of the physician who will perform the abortion;
(2)The abortion will terminate the life of a whole, separate, unique, living
human being;
(3)The particular medical risks associated with the particular abortion
procedure to be employed including, when medically accurate, the risks of
infection, hemorrhage, danger to subsequent pregnancies, and infertility;
(4)(3)The probable gestational age of the unborn childfetus at the time the
abortion is to be performed; and
(5)(4)The medical risks associated with carrying her child to term.
b.The woman is informed, by the physician or the physician's agent, at least
twenty-four hours before the abortion:
(1)That medical assistance benefits may be available for prenatal care,
childbirth, and neonatal care and that more detailed information on the
availability of that assistance is contained in the printed materials given to
her as described in section 14-02.1-02.1;
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(2)That the printed materials given to her and described in section
14-02.1-02.1 describe the unborn child and list agencies that offer
alternatives to abortion;
(3)That the father is liable to assist in the support of her child, even in
instances in which the father has offered to pay for the abortion; and
(4)That she is free to withhold or withdraw her consent to the abortion at any
time without affecting her right to future care or treatment and without the
loss of any state or federally funded benefits to which she might otherwise
be entitled.
c.The woman certifies in writing, before the abortion, that the information described
in subdivisions a and bsubdivision a has been furnished to her.
d.c.Before the performance of the abortion, the physician who is to perform or induce
the abortion or the physician's agent receives a copy of the written certification
prescribed by subdivision cb.
e.The physician has not received or obtained payment for a service provided to a
patient who has inquired about an abortion or has scheduled an abortion before
the twenty-four-hour period required by this section.
10."Medical emergency" means a condition that, in reasonable medical judgment, so
complicates the medical condition of the pregnant woman that it necessitates an
immediate abortion to prevent her death or a serious health risk.
11."Physician" means an individual licensed to practice medicine or osteopathy under
chapter 43-17 or a physician who practices in the armed services of the United States
or in the employ of the United States.
12."Probable gestational age of the unborn childfetus" means what, in reasonable
medical judgment, will with reasonable probability be the gestational age of the unborn
childfetus.
13."Reasonable medical judgment" means a medical judgment that would be made by a
reasonably prudent physician, knowledgeable about the case and the treatment
possibilities with respect to the medical conditions involved.
14."Serious health risk" means a condition that, in reasonable medical judgment,
complicates the medical condition of the pregnant woman so that it necessitates an
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abortion to prevent substantial physical impairment of a major bodily function, not
including any psychological or emotional condition. The term may not be based on a
claim or diagnosis that the woman will engage in conduct that will result in her death or
in substantial physical impairment of a major bodily function.
15."Unborn child" means the offspring of human beings from conception until birth.
16."Viable" means the ability of an unborn childa fetus to live outside the mother's womb,
albeit with artificial aid.
SECTION 3. AMENDMENT. Section 14-02.1-02.1 of the North Dakota Century Code is
amended and reenacted as follows:
14-02.1-02.1. Printed information - Referral service.
1.The department of health and human services shall publish in English, and in every
other language that the department determines is the primary language of a significant
number of state residents, the following materials in an easily comprehensible printed
materialsand scientifically accurate format:
a.Geographically indexed materials designed to inform the woman of public and
private agencies and services available to assist a woman through pregnancy,
upon childbirth, and while the child is dependent, including adoption agencies.
The materials must include a comprehensive list of the agencies available, a
description of the services they offer and a description of the manner, including
telephone numbers, in which they might be contacted, or, at the option of the
department, printed materials, including a toll-free, twenty-four-hour-a-day
telephone number that may be called to obtain, orally, such a list and description
of agencies in the locality of the caller and of the services they offer. The
materials must state that it is unlawful for any individual to coerce a woman to
undergo an abortion and that if a minor is denied financial support by the minor's
parent, guardian, or custodian due to the minor's refusal to have an abortion
performed, the minor is deemed to be emancipated for the purposes of eligibility
for public assistance benefits, except that those benefits may not be used to
obtain an abortion. The materials also must state that any physician who
performs an abortion upon a woman without her informed consent may be liable
to her for damages in a civil action and that the law permits adoptive parents to
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pay costs of prenatal care, childbirth, and neonatal care. The materials must
include the following statement: There are many public and private agencies
willing and able to help you to carry your child to term and to assist you and your
child after your child is born, whether you choose to keep your child or to place
your child for adoption. The state of North Dakota strongly urges you to contact
one or more of these agencies before making a final decision about abortion. The
law requires that your physician or your physician's agent give you the
opportunity to call agencies like these before you undergo an abortion.
b.Materials, published in a booklet format, designed to inform the woman of the
probable anatomical and physiological characteristics of the unborn childfetus at
two-week gestational increments from the time when a woman can be known to
be pregnant to full term, including any relevant information on the possibility of
the survival of the unborn childfetus and color photographs of the development of
an unborn childfetus at two-week gestational increments. The descriptions must
include information about brain and heart function, the presence of external
members and internal organs during the applicable states of development, and
any relevant information on the possibility of the unborn child's survival. The
materials must be objective, nonjudgmental, and designed to convey only
accurate scientific information about the unborn childfetus at the various
gestational ages. The materials required under this subsection must be reviewed,
updated, and reprinted as needed.
c.Materials that include information on the support obligations of the father of a
child who is born alive, including the father's legal duty to support his child, which
may include child support payments and health insurance, and the fact that
paternity may be established by the father's signature on an acknowledgment of
paternity or by court action. The printed material must also state that more
information concerning paternity establishment and child support services and
enforcement may be obtained by calling state public assistance agencies or
human service zones.
d.Materials that contain objective information describingon the various surgical and
drug-induced methods of abortion as well as the immediate and long-term
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medical risks commonly associated with each abortion method, including the
risks of infection, hemorrhage, cervical or uterine perforation or rupture, danger to
subsequent pregnancies, the possible increased risk of breast cancer, the
possible adverse psychological effects associated with an abortion, and the
medical risks associated with carrying a child to term, and information on
common causes for a nonviable pregnancy.
e.Materials including information it may be possible to reverse the effects of an
abortion-inducing drug but time is of the essence. The materials must include
information directing the patient where to obtain further information and
assistance in locating a medical professional who can aid in the reversal of
abortion-inducing drugs.
f.Materials including a notice that the performance of certain abortions is prohibited
by law.
2.The materials required under subsection 1 must be available at no cost from the
department of health and human services upon request and in appropriate number to
any person, facility, or hospital, and, except for copyrighted material, must be available
on the department's internet website. A woman may not be forced to accept
information prepared by the department. The department may make the copyrighted
material available on its internet website if the department pays the copyright royalties.
SECTION 4. AMENDMENT. Section 14-02.1-02.2 of the North Dakota Century Code is
amended and reenacted as follows:
14-02.1-02.2. Abortion report form.
The department of health and human services shall prepare an abortion compliance report
form and an abortion data report form to be used by the physician for each abortion performed,
as required by section 14-02.1-07. The abortion compliance report form must include a checklist
designed to confirm compliance with all provisions of this chapter, chapter 14-02.3, chapter
14-02.6, and section 23-16-14. The abortion data report form must include:
1.The data called for in the United States standard report of induced termination of
pregnancy as recommended by the national center for health statistics; and
2.Whether the abortion was:
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a.Necessary in reasonable medical judgment and was intended to prevent the
death of the pregnant female;
b.To terminate a pregnancy that resulted from gross sexual imposition, sexual
imposition, sexual abuse of a ward, or incest, as those offenses are defined in
chapter 12.1-20; or
c.Necessary to prevent a serious health risk.
SECTION 5. AMENDMENT. Section 14-02.1-03 of the North Dakota Century Code is
amended and reenacted as follows:
14-02.1-03. Consent to abortion - Notification requirements.
1.A physician may not perform an abortion unless before such performance the
physician certified in writing that the woman gave her informed consent as defined and
provided in section 14-02.1-02 and shall certify in writing the pregnant woman's marital
status and age based upon proof of age offered by her.
2.Before the period of pregnancy when the unborn childfetus may reasonably be
expected to have reached viability, an abortion may not be performed upon an
unemancipated minor unless the attending physician certifies in writing that each of
the parents of the minor requesting the abortion has been provided by the physician in
person with the information provided for in section 14-02.1-02 at least twenty-four
hours before the minor's consent to the performance of abortion or unless the
attending physician certifies in writing that the physician has caused materials of
section 14-02.1-02 to be posted by certified mail to each of the parents of the minor
separately to the last-known addresses at least forty-eight hours before the minor's
consent to the performance of abortion. If a parent of the minor has died or rights and
interests of that parent have been legally terminated, this subsection applies to the
sole remaining parent. When both parents have died or the rights and interests of both
parents have been legally terminated, this subsection applies to the guardian or other
person standing in loco parentis. Notification by the attending physician is not required
if the minor elects not to allow the notification of one or both parents or her guardian
and the abortion is authorized by the juvenile court in accordance with section
14-02.1-03.1. None of the requirements of this subsection apply in the case of a
medical emergency, except that when a medical emergency compels the performance
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of an abortion, the physician shall inform the woman, before the abortion if possible, of
the medical indications supporting the physician's judgment that an abortion is
necessary to prevent her death or prevent a serious health risk, and shall certify those
indications in writing.
2.3.Subsequent to the period of pregnancy when the unborn childfetus may reasonably be
expected to have reached viability, an abortion, other than an abortion necessary to
preserve her life or to prevent a serious health risk, may not be performed upon any
woman in the absence of the written consent of a parent, if living, or the custodian or
legal guardian of the woman, if the woman is unmarried and under eighteen years of
age.
3.4.No executive officer, administrative agency, or public employee of the state of North
Dakota or any local governmental body has power to issue any order requiring an
abortion, nor shall any such officer or entity coerce any woman to have an abortion,
nor shall any other person coerce any woman to have an abortion.
SECTION 6. AMENDMENT. Subsection 1 of section 14-02.1-03.1 of the North Dakota
Century Code is amended and reenacted as follows:
1.A person may not knowingly perform an abortion upon a pregnant woman under the
age of eighteen years unless:
a.The attending physician has secured the written consent of the minor woman and
both parents, if living, or the surviving parent if one parent is deceased, or the
custodial parent if the parents are separated or divorced, or the legal guardian or
guardians if the minor is subject to guardianship;
b.The minor woman is married and the attending physician has secured her
informed written consent; or
c.The abortion has been authorized by the juvenile court in accordance with the
provisions of this section; or
d.The abortion is performed in response to a medical emergency.
SECTION 7. Section 14-02.1-04.3 of the North Dakota Century Code is created and
enacted as follows:
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14 - 02.1 - 04.3. Abortion approval committee - Duties.
1.A licensed hospital providing medical care under this chapter shall form an abortion
approval committee. Each committee must be comprised of the following board
certified physicians, licensed under chapter 43 - 17, on staff at the licensed hospital:
a.A physician specializing in obstetrics and gynecology;
b.A physician specializing in family practice; and
c.A physician specializing in internal medicine or pediatrics.
2.The abortion committee shall:
a.Form a decision based upon the woman's medical records, current pregnancy
status, and input from the woman's attending physician; and
b.Render a decision within five days, or sooner upon request.
3.The identity of each physician on the committee must remain confidential. A record,
including a physician's identity on an approval committee is not subject to section
44 - 04 - 18 and section - 6 of article XI of the Constitution of North Dakota.
4.An abortion approval committee shall determine if a proposed abortion procedure is
medically necessary. A decision by the committee to determine a proposed abortion
procedure is medically necessary may be approved by a majority of the members of
the committee.
5.All discussion by a committee must remain confidential. The content of discussion
conducted by a committee is protected under the Federal Health Insurance Portability
and Accountability Act [42 U.S.C. section 1320d et al; 45 C.F.R. 160-164] and any
record of the discussion is not subject to section 44-04-18 and section 6 of article XI of
the Constitution of North Dakota.
SECTION 8. Section 14-02.1-04.4 of the North Dakota Century Code is created and
enacted as follows:
14 - 02.1 - 04.4. Abortion limitations
1.An abortion procedure may be performed from fertilization through fifteen weeks of
gestation. The abortion procedure must be performed:
a.Under the supervision of a physician licensed under chapter 43 - 17;
b.In a licensed healthcare facility; and
c.In compliance with section 14 - 02.1 - 03.
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2.An abortion procedure may be performed from sixteen through twenty - six weeks
gestation only when:
a.Approved for a medical purpose, including a serious health risk, by the licensed
hospital's abortion approval committee under section 14 - 02.1 - 04.3, and
b.Performed by a physician, board certified or board eligible in:
(1)Obstetrics and gynecology; or,
(2)Family medicine with additional training in obstetrics and gynecology; and
c.In compliance with section 14 - 02.1 - 03.
3.An abortion procedure may be performed from twenty - seven weeks gestation through
parturition only when deemed medically required and approved by an abortion
approval committee.
4.This section does not apply in a medical emergency under section 14 - 02.1 - 04.5.
SECTION 9. Section 14-02.1-04.5 of the North Dakota Century Code is created and
enacted as follows:
14 - 02.1 - 04.5. Medical emergency abortion procedures.
A medical emergency decision to perform an abortion does not require approval of the
abortion committee under 14 - 02.1 - 04.3. A medical emergency requiring an abortion procedure
may be carried out by any physician licensed under chapter 43 - 17 in a medical effort to
preserve the life of the mother and the fetus, at any point medically necessary during a
pregnancy.
SECTION 10. AMENDMENT. Section 14-02.1-05 of the North Dakota Century Code is
amended and reenacted as follows:
14-02.1-05. Preserving life of a viable child - Penalty.
An abortion of a viable child may be performed only when there is in attendance a physician
other than the physician performing the abortion who shall take control and provide immediate
medical care for the viable child born as a result of the abortion. The physician performing it,
and subsequent to the abortion, the physician required by this section to be in attendance, shall
take all reasonable steps in keeping with good medical practice, consistent with the procedure
used, to preserve the life and health of the unborn childfetus. Failure to do so is a class C
felony.
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SECTION 11. AMENDMENT. Section 14-02.1-07 of the North Dakota Century Code is
amended and reenacted as follows:
14-02.1-07. Records required - Reporting of practice of abortion.
1.a.All abortionhealth care facilities and hospitals in which abortions are performed
shall keep records, including admission and discharge notes, histories, results of
tests and examinations, nurses' worksheets, social service records, and progress
notes, and shall further keep a copy of all written certifications provided for in this
chapter as well as a copy of the constructive notice forms, consent forms, court
orders, abortion data reports, adverse event reports, abortion compliance reports,
and complication reports. All abortion facilities shall keep the following records:
(1)The number of women who availed themselves of the opportunity to receive
and view an ultrasound image of their unborn children pursuant to section
14-02.1-04, and the number who did not; and of each of those numbers, the
number who, to the best of the reporting abortion facility's information and
belief, went on to obtain the abortion.
(2)A record of the probable gestational age of the unborn child at the time of
the abortion. If a probable gestational age of the unborn child was not made
because of a medical emergency, the record must include the basis of the
determination that a medical emergency existedin accordance with state
and federal law.
b.The medical records of abortion facilities and hospitals in which abortions are
performed and all information contained therein must remain confidential and
may be used by the department of health and human services only for gathering
statistical data and ensuring compliance with the provisions of this chapter.
c.Records must be maintained in the permanent files of the hospital or abortion
facility for a period of not less than seven years.
d.An abortion committee formed by a hospital under section 14 - 02.1 - 04.3 shall
report annually:
(1)The number of cases considered by the committee; and
(2)The number of cases approved by the committee.
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2.a.An individual abortion compliance report and an individual abortion data report for
each abortion performed upon a woman must be completed by her attending
physician. The abortion data report must be confidential and may not contain the
name of the woman. The abortion data report must include the data called for in
the United States standard report of induced termination of pregnancy as
recommended by the national center for health statistics and whether:
(1)The abortion was performed to prevent the death of the pregnant female;
(2)The pregnancy resulted from gross sexual imposition, sexual imposition,
sexual abuse of a ward, or incest, as those offenses are defined in chapter
12.1-20; or
(3)Necessary due to a medical emergency.
b.All abortion compliance reports must be signed by the attending physician within
twenty-four hours and submitted to the department of health and human services
within ten business days from the date of the abortion. All abortion data and
complication reports must be signed by the attending physician and submitted to
the department of health and human services within thirty days from the date of
the abortion. If a physician provides an abortion-inducing drug to another for the
purpose of inducing an abortion and the physician knows that the individual
experiences during or after the use an adverse event, the physician shall provide
a written report of the adverse event within thirty days of the event to the
department of health and human services and the federal food and drug
administration via the medwatch reporting system. For purposes of this section,
"adverse event" is defined based upon the federal food and drug administration
criteria given in the medwatch reporting system. If a determination of probable
gestational age of the unborn child was not made, the abortion compliance report
must state the basis of the determination that a medical emergency existed.
c.A copy of the abortion report, any complication report, and any adverse event
report must be made a part of the medical record of the patient at the facility or
hospital in which the abortion was performed. In cases when post-abortion
complications are discovered, diagnosed, or treated by physicians not associated
with the facility or hospital where the abortion was performed, the department of
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health and human services shall forward a copy of the report to that facility or
hospital to be made a part of the patient's permanent record.
d.The department of health and human services is responsible for collecting all
abortion compliance reports, abortion data reports, complication reports, and
adverse event reports and collating and evaluating all data gathered from these
reports and shall annually publish a statistical report based on data from
abortions performed in the previous calendar year. All abortion compliance
reports received by the department of health and human services are public
records. Except for disclosure to a law enforcement officer or state agency, the
department may not disclose an abortion compliance report without first removing
any individually identifiable health information and any other demographic
information, including race, marital status, number of previous live births, and
education regarding the woman upon whom the abortion was performed.
e.The department of health and human services shall report to the attorney general
any apparent violation of this chapter.
SECTION 12. AMENDMENT. Section 14-02.1-08 of the North Dakota Century Code is
amended and reenacted as follows:
14-02.1-08. Protection of infant born alive - Penalty.
1.A person is guilty of a class C felony if the person knowingly, or negligently, causes the
death of an infant born alive.
2.Whenever an unborn childa fetus who is the subject of abortion is born alive and is
viable, it becomes an abandoned child and a child in need of protection, unless:
a.The termination of the pregnancy is necessary to preserve the life of the mother;
or
b.The mother and her spouse, or either of them, have agreed in writing in advance
of the abortion, or within seventy-two hours thereafter, to accept the parental
rights and responsibilities for the unborn childfetus if it survives the abortion
procedure.
SECTION 13. AMENDMENT. Section 14-02.1-09 of the North Dakota Century Code is
amended and reenacted as follows:
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30 Sixty-ninth
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14-02.1-09. Humane disposal of nonviable unborn childfetus.
The physician performing the abortion, if performed outside of a hospital, must see to it that
the unborn childfetus is disposed of in a humane fashion under regulationsrules established by
the department of health and human services. A licensed hospital in which an abortion is
performed must dispose of a dead unborn childfetus in a humane fashion in compliance with
regulations promulgatedrules adopted by the department of health and human services.
SECTION 14. AMENDMENT. Section 14-10-15 of the North Dakota Century Code is
amended and reenacted as follows:
14-10-15. Unborn childFetus - When deemed existing person.
A childfetus conceived but not born is to be deemed an existing person so far as may be
necessary for its interests in the event of its subsequent birth.
SECTION 15. AMENDMENT. Subsection 3 of section 14-10-19 of the North Dakota
Century Code is amended and reenacted as follows:
3.A physician or other health care professional who, pursuant to subsection 1, provides
pregnancy care services to a minor may inform the parent or guardian of the minor of
any pregnancy care services given or needed if the physician or other health care
professional discusses with the minor the reasons for informing the parent or guardian
prior to the disclosure and, in the judgment of the physician or other health care
professional:
a.Failure to inform the parent or guardian would seriously jeopardize the health of
the minor or her unborn childfetus;
b.Surgery or hospitalization is needed; or
c.Informing the parent or guardian would benefit the health of the minor or her
unborn childfetus.
SECTION 16. REPEAL. Sections 14-02.1-03.4, 14-02.1-03.5, and 14-02.1-04 of the North
Dakota Century Code are repealed.
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