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State of South Dakota
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NINETY-FOURTH SESSION LEGISLATIVE ASSEMBLY, 2019 |
| 481B0711 | HOUSE BILL NO. 1177 |
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Introduced by: Representatives Frye-Mueller, Brunner, and Pischke and Senators Nelson,
DiSanto, Jensen (Phil), and Russell
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FOR AN ACT ENTITLED, An Act to require the performance of an ultrasound prior to an
abortion.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF SOUTH DAKOTA:
Section 1. That § 34-23A-1 be amended to read:
34-23A-1. Terms as used in this chapter mean:
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF SOUTH DAKOTA:
Section 1. That § 34-23A-1 be amended to read:
34-23A-1. Terms as used in this chapter mean:
(1) "Abortion," the use of any means to intentionally terminate the pregnancy of a
woman known to be pregnant with knowledge that the termination with those means
will, with reasonable likelihood, cause the death of the fetus the use or prescription
of any instrument, medicine, drug, or any other substance or device to intentionally
kill the unborn child of a woman known to be pregnant, or to intentionally terminate
the pregnancy of a woman known to be pregnant, with an intention, other than after
viability to produce a live birth and preserve the life and health of the child born alive
or to remove a dead unborn child;
(3) "Attempt to perform an abortion," an act or omission that, under the circumstances
as the actor believes them to be, constitutes a substantial step the performance of an
abortion in this state;
(12) "Qualified technician," a registered diagnostic medical sonographer who is certified
in obstetrics and gynecology by the American Registry for Diagnostic Medical
Sonography, a nurse midwife, or an advance practice nurse practitioner in obstetrics
with certification in obstetrical ultrasonography;
(13) "Unborn child," a member or members of the species homo sapiens at any stage of
development before birth.
Section 2. That § 34-23A-52 be amended to read:
34-23A-52.No facility that performs abortions may perform an abortion on a pregnant
woman without first offering the pregnant woman an opportunity to view a sonogram of her
unborn child. The woman's response to the offer shall be documented by the facility, including
the date and time of the offer and the woman's signature attesting to her informed decision. Prior
to receiving a written statement under § 34-23A-57 to having any part of an abortion performed
or induced, and prior to the administration of any anesthesia or medication in preparation for
the abortion on the woman, the physician or qualified technician shall:
Section 2. That § 34-23A-52 be amended to read:
34-23A-52.
(1) Perform an obstetric ultrasound on the pregnant woman, using whichever method the
physician and patient agree is best under the circumstance;
(2) Provide a simultaneous verbal explanation of what the ultrasound is depicting,
including the presence and location of the unborn child within the uterus and the
number of unborn children depicted and whether the ultrasound image indicates that
fetal demise has occurred;
(3) Display the ultrasound images so the pregnant woman may view them; and
(4) Provide a medical description of the ultrasound images, including the dimensions of
the embryo or fetus and the presence of external members and internal organs, if
present and viewable.
A physician who violates this section is guilty of a Class 6 felony.
Nothing in this section prevents a pregnant woman from averting her eyes or looking away
from the ultrasound images required under this section. The physician and the pregnant woman
are not subject to any penalty if the woman declines to look at the ultrasound images.
Section 3. That chapter 34-23A be amended by adding a NEW SECTION to read:
Section 3. That chapter 34-23A be amended by adding a NEW SECTION to read:
The provisions of § 34-23A-52 do not apply to an abortion provider or facility in the case
of a medical emergency. Upon a determination by physician under this section that a medical
emergency exists, the physician shall certify the specific medical conditions that constitute the
emergency.
Section 4. That § 28-6B-8 be amended to read:
28-6B-8. For purposes of this chapter, the term, prenatal medical services, does not include an abortion unless the abortion is necessitated by a medical emergency as defined insubdivision
34-23A-1(5) § 34-23A-1.
Section 5. That § 34-23A-56 be amended to read:
34-23A-56. No surgical or medical abortion may be scheduled except by a licensed physician and only after the physician physically and personally meets with the pregnant mother, consults with her, and performs an assessment of her medical and personal circumstances. Only after the physician completes the consultation and assessment complying with the provisions of §§ 34-23A-53 to 34-23A-62, inclusive, may the physician schedule a surgical or medical abortion, but in no instance may the physician schedule such surgical or medical abortion to take place in less than seventy-two hours from the completion of such consultation and assessment except in a medical emergency as set forth in § 34-23A-10.1 andsubdivision 34-23A-1(5) § 34-23A-1. No Saturday, Sunday, or annually recurring holiday, as specifically named in § 1-5-1,
may be included or counted in the calculation of the seventy-two hour minimum time period
between the initial physician consultation and assessment and the time of the scheduled abortion
Section 4. That § 28-6B-8 be amended to read:
28-6B-8. For purposes of this chapter, the term, prenatal medical services, does not include an abortion unless the abortion is necessitated by a medical emergency as defined in
Section 5. That § 34-23A-56 be amended to read:
34-23A-56. No surgical or medical abortion may be scheduled except by a licensed physician and only after the physician physically and personally meets with the pregnant mother, consults with her, and performs an assessment of her medical and personal circumstances. Only after the physician completes the consultation and assessment complying with the provisions of §§ 34-23A-53 to 34-23A-62, inclusive, may the physician schedule a surgical or medical abortion, but in no instance may the physician schedule such surgical or medical abortion to take place in less than seventy-two hours from the completion of such consultation and assessment except in a medical emergency as set forth in § 34-23A-10.1 and
procedure. No physician may have the pregnant mother sign a consent for the abortion on the
day of this initial consultation and no physician, abortion provider, hospital, or clinic, at which
the physician performs an abortion, may accept payment for an abortion until a consent is signed
after full compliance with the provisions of §§ 34-23A-53 to 34-23A-62, inclusive. No
physician may take a signed consent from the pregnant mother unless the pregnant mother is in
the physical presence of the physician and except on the day the abortion is scheduled, and only
after complying with the provisions of §§ 34-23A-53 to 34-23A-62, inclusive, as they pertain
to the initial consultation, and only after complying with the provisions of subdivisions 34-23A-10.1(1) and (2). During the initial consultation between the physician and the pregnant mother,
prior to scheduling a surgical or medical abortion, the physician shall:
(1) Do an assessment of the pregnant mother's circumstances to make a reasonable
determination whether the pregnant mother's decision to submit to an abortion is the
result of any coercion or pressure from other persons. In conducting that assessment,
the physician shall obtain from the pregnant mother the age or approximate age of the
father of the unborn child, and the physician shall consider whether any disparity in
age between the mother and father is a factor when determining whether the pregnant
mother has been subjected to pressure, undue influence, or coercion;
(2) Provide the written disclosure required by subdivision 34-23A-10.1(1) and discuss
them with her to determine that she understands them;
(3) Provide the pregnant mother with the names, addresses, and telephone numbers of
all pregnancy help centers that are registered with the South Dakota Department of
Health pursuant to §§ 34-23A-53 to 34-23A-62, inclusive, and provide her with
written instructions that set forth the following:
(a) That prior to the day of any scheduled abortion the pregnant mother must have
a consultation at a pregnancy help center at which the pregnancy help center
shall inform her about what education, counseling, and other assistance is
available to help the pregnant mother keep and care for her child, and have a
private interview to discuss her circumstances that may subject her decision
to coercion;
(b) That prior to signing a consent to an abortion, the physician shall first obtain
from the pregnant mother, a written statement that she obtained a consultation
with a pregnancy help center, which sets forth the name and address of the
pregnancy help center, the date and time of the consultation, and the name of
the counselor at the pregnancy help center with whom she consulted;
(4) Conduct an assessment of the pregnant mother's health and circumstances to
determine if any of the following preexisting risk factors associated with adverse
psychological outcomes following an abortion are present in her case:
(a) Coercion;
(b) Pressure from others to have an abortion;
(c) The pregnant mother views an abortion to be in conflict with her personal or
religious values;
(d) The pregnant mother is ambivalent about her decision to have an abortion, or
finds the decision of whether to have an abortion difficult and she has a high
degree of decisional distress;
(e) That the pregnant mother has a commitment to the pregnancy or prefers to
carry the child to term;
(f) The pregnant mother has a medical history that includes a pre-abortion mental
health or psychiatric problem; and
(g) The pregnant mother is twenty-two years old or younger.
The physician making the assessment shall record in the pregnant mother's medical
records, on a form created for such purpose, each of the risk factors associated with
adverse psychological outcomes following an abortion listed in this subdivision that
are present in her case and which are not present in her case;
(4A) Inquire into whether the pregnant mother knows the sex of her unborn child and if
so, whether the mother is seeking an abortion due to the sex of the unborn child.
(5) The physician shall identify for the pregnant mother and explain each of the risk
factors associated with adverse psychological outcomes following an abortion listed
in subdivision (4) which are present in her case;
(6) The physician shall advise the pregnant mother of each risk factor associated with
adverse psychological outcomes following an abortion listed in subdivision 34-23A-56(4) which the physician determines are present in her case and shall discuss with
the pregnant mother, in such a manner and detail as is appropriate, so that the
physician can certify that the physician has made a reasonable determination that the
pregnant mother understands the information imparted, all material information about
the risk of adverse psychological outcomes known to be associated with each of the
risk factors found to be present;
(7) In the event that no risk factor is determined to be present, the physician shall include
in the patient's records a statement that the physician has discussed the information
required by the other parts of this section and that the physician has made a
reasonable determination that the mother understands the information in question;
(8) Records of the assessments, forms, disclosures, and instructions performed and given
pursuant to this section shall be prepared by the physician and maintained as a
permanent part of the pregnant mother's medical records.
Section 6. That § 34-23A-59 be amended to read:
34-23A-59. A pregnancy help center consultation required by §§ 34-23A-53 to 34-23A-59.2,
inclusive, shall be implemented as follows:
(1) The pregnancy help center shall be permitted to:
(a) Interview the pregnant mother to determine whether the pregnant mother has
been subject to any coercion to have an abortion, or is being pressured into
having an abortion;
(b) Provide counseling in connection with any coercion or pressure;
(c) Inform the pregnant mother in writing or orally, or both, of the counseling,
education, and assistance available to the pregnant mother to assist her in
maintaining her relationship with her unborn child and in caring for the child
through the pregnancy help center or any other organization, faith-based
program, or governmental program;
(d) Provide a statement orally and in writing to the pregnant mother that "an
abortion will terminate the life of a whole, separate, unique, living human
being," and provide counseling in lay terms that explain this disclosure, and
to ascertain that the pregnant mother understands this disclosure, and for the
purpose of this disclosure, the definition of human being found in subdivision
34-23A-1(4) § 34-23A-1 applies; and
(e) Provide statements orally and in writing setting forth the disclosures required
by subsections 34-23A-10.1(1)(c) and (d) and provide counseling in lay terms
that explain those disclosures. The pregnancy help center may, if it deems it
appropriate, discuss matters pertaining to adoption;
(2) The pregnancy help center, its agents, or employees may not:
(a) Discuss with any pregnant mother religion or religious beliefs, either of the
mother or the counselor, unless the pregnant mother consents in writing;
(b) Discuss the physical or psychological risks to a woman posed by an abortion.
However, if, during the mandatory pregnancy help center consultation
interview, the pregnant mother requests the opportunity to discuss the risks of
an abortion with pregnancy help center personnel, the pregnancy help center
may schedule a separate and distinct appointment for the pregnant mother to
meet with a physician for the purpose of discussing the physical and
psychological risks of abortion. Any requests shall be evidenced in writing
signed by the pregnant mother;
(3) The pregnancy help center is under no obligation to communicate with the abortion
provider in any way, and is under no obligation to submit any written or other form
of confirmation that the pregnant mother consulted with the pregnancy help center.
The pregnancy help center may voluntarily provide a written statement of assessment
to the abortion provider, whose name the woman shall give to the pregnancy help
center, if the pregnancy help center obtains information that indicates that the
pregnant mother has been subjected to coercion or that her decision to consider an
abortion is otherwise not voluntary or not informed. The physician shall make the
physician's own independent determination whether or not a pregnant mother's
consent to have an abortion is voluntary, uncoerced, and informed before having the
pregnant mother sign a consent to an abortion. The physician shall review and
consider any information provided by the pregnancy help center as one source of
information, which in no way binds the physician, who shall make an independent
determination consistent with the provisions of §§ 34-23A-53 to 34-23A-59.2,
inclusive, the common law requirements, and accepted medical standards;
(4) Any written statement or summary of assessment prepared by the pregnancy help
center as a result of counseling of a pregnant mother as a result of the procedures
created by §§ 34-23A-53 to 34-23A-59.2, inclusive, may be forwarded by the
pregnancy help center, in its discretion, to the abortion physician. If forwarded to the
physician, the written statement or summary of assessment shall be maintained as a
permanent part of the pregnant mother's medical records. Other than forwarding such
documents to the abortion physician, no information obtained by the pregnancy help
center from the pregnant mother may be released, without the written signed consent
of the pregnant mother or unless the release is in accordance with federal, state, or
local law;
(5) Commencing on September 1, 2016, the counseling authorized pursuant to this
section shall be conducted in accordance with the Uniform Policy and Procedures
Guidelines developed and promulgated by the South Dakota Association of
Registered Pregnancy Help Centers and adopted in 2015.
Nothing in §§ 34-23A-53 to 34-23A-59.2, inclusive, may be construed to impose any
liability upon a pregnancy help center. However, the failure of a pregnancy help center to
comply with the conditions of § 34-23A-58.1, 34-23A-59.1 or this section for being authorized
to provide the pregnancy help center counseling, if uncorrected, may result in the Department
of Health removing the pregnancy help center from the state's registry of pregnancy help centers.
Section 7. That § 58-17-147 be amended to read:
58-17-147. Pursuant to the Patient Protection and Affordable Care Act, Pub. L. No. 111-148, no qualified health plan offered through a health insurance exchange established in the state may
Section 7. That § 58-17-147 be amended to read:
58-17-147. Pursuant to the Patient Protection and Affordable Care Act, Pub. L. No. 111-148, no qualified health plan offered through a health insurance exchange established in the state may
include elective abortion coverage.
For the purposes of this section, an elective abortion is an abortion performed for any reason
other than a medical emergency as set forth in subdivision 34-23A-1(5) § 34-23A-1.
Section 8. That § 34-23A-1.1 be repealed.
34-23A-1.1. For the purposes of this chapter, an attempt to perform an abortion is 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 the performance of an abortion in South
Dakota.
Section 8. That § 34-23A-1.1 be repealed.
