1 | A bill to be entitled |
2 | An act relating to abortion; amending s. 390.0111, F.S.; |
3 | requiring a physician performing an abortion to, if the |
4 | gestational age of the fetus is determined to be 22 weeks |
5 | or more, provide specified information to the woman on |
6 | whom the procedure is to be performed; requiring a |
7 | physician to offer to administer an anesthetic or |
8 | analgesic to the fetus if an abortion is to be performed |
9 | on a fetus whose gestational age is 22 weeks or more; |
10 | providing an exception for medical emergency; providing |
11 | for civil actions by certain persons for violations of |
12 | specified provisions related to informed consent and fetal |
13 | anesthesia; providing for award of attorney's fees in |
14 | certain circumstances; providing that such an action is |
15 | not subject to specified medical malpractice provisions; |
16 | specifying an applicable statute of limitations; amending |
17 | s. 390.012, F.S.; providing for rulemaking concerning use |
18 | of general and local anesthesia in certain abortion |
19 | clinics for the pregnant woman and for the fetus; |
20 | providing an effective date. |
21 |
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22 | Be It Enacted by the Legislature of the State of Florida: |
23 |
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24 | Section 1. Subsections (9) through (11) of section |
25 | 390.0111, Florida Statutes, are renumbered as subsections (10) |
26 | through (12), respectively, new subsections (9) and (13) are |
27 | added to that section, and subsection (3) of that section is |
28 | amended, to read: |
29 | 390.0111 Termination of pregnancies.- |
30 | (3) CONSENTS REQUIRED.-A termination of pregnancy may not |
31 | be performed or induced except with the voluntary and informed |
32 | written consent of the pregnant woman or, in the case of a |
33 | mental incompetent, the voluntary and informed written consent |
34 | of her court-appointed guardian. |
35 | (a) Except in the case of a medical emergency, consent to |
36 | a termination of pregnancy is voluntary and informed only if: |
37 | 1. The physician who is to perform the procedure, or the |
38 | referring physician, has, at a minimum, orally, in person, |
39 | informed the woman of: |
40 | a. The nature and risks of undergoing or not undergoing |
41 | the proposed procedure that a reasonable patient would consider |
42 | material to making a knowing and willful decision of whether to |
43 | terminate a pregnancy. |
44 | b. The probable gestational age of the fetus at the time |
45 | the termination of pregnancy is to be performed. |
46 | c. If the gestational age of the fetus is determined to be |
47 | 22 weeks or more, the ability of the fetus to feel pain. This |
48 | information shall include, but need not be limited to, the |
49 | following: |
50 | (I) By 22 weeks gestational age, a fetus possesses all the |
51 | anatomical structures, including pain receptors, spinal cord, |
52 | nerve tracts, thalamus, and cortex, that are necessary in order |
53 | to feel pain. |
54 | (II) A description of the actual steps in the abortion |
55 | procedure to be performed or induced, and at which steps the |
56 | abortion procedure could be painful to the fetus. |
57 | (III) There is evidence that by 22 weeks of gestational |
58 | age, fetuses seek to evade certain stimuli in a manner that in |
59 | an infant or adult would be interpreted as a response to pain. |
60 | (IV) Anesthesia is given to fetuses who are 22 weeks or |
61 | more gestational age who undergo prenatal surgery. |
62 | (V) Anesthesia is given to premature children who are 22 |
63 | weeks or more gestational age who undergo surgery; |
64 | (VI) Anesthesia or analgesics are available in order to |
65 | minimize or alleviate the pain to the fetus. |
66 | (VII) The medical risks associated with the particular |
67 | anesthetic or analgesic. |
68 | d.c. The medical risks to the woman and fetus of carrying |
69 | the pregnancy to term. |
70 | 2. Printed materials prepared and provided by the |
71 | department have been provided to the pregnant woman, if she |
72 | chooses to view these materials, including: |
73 | a. A description of the fetus. |
74 | b. A list of agencies that offer alternatives to |
75 | terminating the pregnancy. |
76 | c. Detailed information on the availability of medical |
77 | assistance benefits for prenatal care, childbirth, and neonatal |
78 | care. |
79 | 3. The woman acknowledges in writing, before the |
80 | termination of pregnancy, that the information required to be |
81 | provided under this subsection has been provided. |
82 |
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83 | Nothing in this paragraph is intended to prohibit a physician |
84 | from providing any additional information which the physician |
85 | deems material to the woman's informed decision to terminate her |
86 | pregnancy. |
87 | (b) In the event a medical emergency exists and a |
88 | physician cannot comply with the requirements for informed |
89 | consent, a physician may terminate a pregnancy if he or she has |
90 | obtained at least one corroborative medical opinion attesting to |
91 | the medical necessity for emergency medical procedures and to |
92 | the fact that to a reasonable degree of medical certainty the |
93 | continuation of the pregnancy would threaten the life of the |
94 | pregnant woman. In the event no second physician is available |
95 | for a corroborating opinion, the physician may proceed but shall |
96 | document reasons for the medical necessity in the patient's |
97 | medical records. |
98 | (c) Violation of this subsection by a physician |
99 | constitutes grounds for disciplinary action under s. 458.331 or |
100 | s. 459.015. Substantial compliance or reasonable belief that |
101 | complying with the requirements of informed consent would |
102 | threaten the life or health of the patient is a defense to any |
103 | action brought under this paragraph. |
104 | (9) FETAL ANESTHESIA.-Except in the case of a medical |
105 | emergency, as defined in s. 390.01114(2)(d), before an abortion |
106 | is performed on a fetus whose gestational age is 22 weeks or |
107 | more, the physician performing the abortion shall offer to |
108 | administer an anesthetic or analgesic to the fetus. The |
109 | physician shall document in the patient's medical history file |
110 | whether the patient has accepted or declined fetal anesthetic or |
111 | analgesic. |
112 | (13) CIVIL ACTION; REMEDIES.-Any woman upon whom an |
113 | abortion was performed in violation of sub-subparagraph |
114 | (3)(a)1.c. or subsection (9) or the father of a fetus who was |
115 | the subject of such an abortion shall have a cause of action for |
116 | negligence. The action may be brought in any court of competent |
117 | jurisdiction. Any plaintiff who prevails in any such action for |
118 | any amount is entitled to recover reasonable attorney's fees, |
119 | costs of the action, and damages, unless the court finds that |
120 | the plaintiff has acted in bad faith or with malicious purpose |
121 | or that there was a complete absence of a justiciable issue of |
122 | either law or fact. A prevailing defendant is entitled to |
123 | recover reasonable attorney's fees under s. 57.105 only if the |
124 | court determines that the plaintiff's claim involved a complete |
125 | absence of justiciable law or fact. The remedies provided in |
126 | this section are in addition to other legal and administrative |
127 | remedies available to the woman or the father. Any action |
128 | brought pursuant to this subsection is not a claim for medical |
129 | malpractice, and chapter 766 does not apply. The statute of |
130 | limitations in s. 95.11(3) applies to an action under this |
131 | subsection. |
132 | Section 2. Paragraph (e) of subsection (3) of section |
133 | 390.012, Florida Statutes, is amended to read: |
134 | 390.012 Powers of agency; rules; disposal of fetal |
135 | remains.- |
136 | (3) For clinics that perform or claim to perform abortions |
137 | after the first trimester of pregnancy, the agency shall adopt |
138 | rules pursuant to ss. 120.536(1) and 120.54 to implement the |
139 | provisions of this chapter, including the following: |
140 | (e) Rules relating to the abortion procedure. At a |
141 | minimum, these rules shall require: |
142 | 1. That a physician, registered nurse, licensed practical |
143 | nurse, advanced registered nurse practitioner, or physician |
144 | assistant is available to all patients throughout the abortion |
145 | procedure. |
146 | 2. Standards for the safe conduct of abortion procedures |
147 | that conform to obstetric standards in keeping with established |
148 | standards of care regarding the estimation of fetal age as |
149 | defined in rule. |
150 | 3. Appropriate use of general and local anesthesia, |
151 | analgesia, and sedation if ordered by the physician, for the |
152 | pregnant woman and for the fetus. |
153 | 4. Appropriate precautions, such as the establishment of |
154 | intravenous access at least for patients undergoing post-first |
155 | trimester abortions. |
156 | 5. Appropriate monitoring of the vital signs and other |
157 | defined signs and markers of the patient's status throughout the |
158 | abortion procedure and during the recovery period until the |
159 | patient's condition is deemed to be stable in the recovery room. |
160 | Section 3. This act shall take effect July 1, 2011. |