Isaacson et al v. Horne et al

Filing 1

COMPLAINT. Filing fee received: $350.00, receipt number PHX 0970-6994997, filed by William Clewell, Paul A Isaacson, Hugh Miller (submitted by Christopher LaVoy). (Attachments: # 1 Civil Cover Sheet)(REK)

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Janet Crepps*
David Brown*
Center for Reproductive Rights
120 Wall Street, 14th Floor
New York, New York 10005
[e-mail]
[e-mail]
Tel: [phone]

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Christopher A. LaVoy (AZ #016609)
LaVoy & Chernoff, PC
201 North Central Avenue, Suite 3300
Phoenix, Arizona 85004
[e-mail]
Tel: [phone]

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Attorneys for Plaintiff Isaacson

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*Application for admission pro hac vice filed

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Susan Talcott Camp*
Alexa Kolbi-Molinas*
American Civil Liberties
Union Foundation
125 Broad Street, 18th Floor
New York, New York 10004
[e-mail]
[e-mail]
Telephone: [phone]
Attorneys for Plaintiffs Clewell and
Miller
Additional Co-Counsel listed on
signature page

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Paul A. Isaacson, M.D.; William Clewell, M.D.;
Hugh Miller, M.D.,
Case No.

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Plaintiffs,

Tom Horne, Attorney General of Arizona, in his
20 official capacity; William (Bill) Montgomery,
21 County Attorney for Maricopa County, in his
official capacity; Barbara LaWall, County
22 Attorney for Pima County, in her official
23 capacity; Arizona Medical Board; and Lisa
Wynn, Executive Director of the Arizona
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Medical Board, in her official capacity,
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Defendants.
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COMPLAINT

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Plaintiffs, by and through their undersigned attorneys, bring this Complaint against

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the above-named Defendants, their employees, agents, and successors in office, and in

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support thereof allege the following:

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I. PRELIMINARY STATEMENT

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1.

Plaintiffs bring this civil rights action under the United States Constitution

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and 42 U.S.C. § 1983 to challenge the constitutionality of a provision within recently

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enacted Arizona House Bill 2036 (hereinafter “HB 2036” or “the Act”) that bans abortions

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beginning at 20 weeks of pregnancy. HB 2036, 50th Leg., 2d Reg. Sess. § 7 (Ariz. 2012)

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(creating A.R.S. § 36-2159). This provision is scheduled to take effect August 2, 2012. A

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copy of HB 2036 is attached hereto as Exhibit A.
2.

The ban on abortions beginning at 20 weeks (“20 week ban” or “ban”)

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violates the substantive due process rights of women seeking abortions. Under clearly

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established United States Supreme Court precedent, the State of Arizona cannot ban

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abortions prior to viability. With its narrowly defined medical emergency exception, the

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ban also unconstitutionally endangers women’s health.

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3.

Plaintiffs seek a declaration that the 20 week ban is unconstitutional and

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preliminary and permanent injunctive relief prohibiting its enforcement as to previability

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abortions.

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II. JURISDICTION AND VENUE

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4.

This court has jurisdiction under 28 U.S.C. §§ 1331, 1343(a)(3), and

1343(a)(4).
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Plaintiffs’ action for declaratory and injunctive relief is authorized by 28

U.S.C. §§ 2201 and 2202 and by Rules 57 and 65 of the Federal Rules of Civil Procedure.

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6.

Venue in this Court is proper under 28 U.S.C. §1391(b) because a

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substantial part of the events giving rise to this action occurred in this district and the

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Defendants are located in this district.

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III. PARTIES

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A. Plaintiffs

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Plaintiff Paul A. Isaacson, M.D., is a board-certified obstetrician and

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gynecologist. He is licensed to practice in Arizona and provides services at Family

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Planning Associates, a private medical practice located in Phoenix. Dr. Isaacson provides

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a wide range of reproductive health care services, including abortions. Dr. Isaacson

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regularly provides abortions before fetal viability (“previability abortions”) at and after 20

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weeks gestational age. Dr. Isaacson sues on his own behalf and on behalf of his patients

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seeking previability abortions at and after 20 weeks.

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8.

Plaintiff William Clewell, M.D., is a board-certified obstetrician and

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gynecologist with a subspecialty in maternal-fetal medicine. He is licensed to practice in

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Arizona, where he provides a wide range of prenatal care, high-risk pregnancy

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management care, and labor and delivery services for women with high-risk pregnancies

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at Banner Good Samaritan Hospital in Phoenix. In particular situations, where the

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pregnancy threatens the woman’s life or health; where she is experiencing pregnancy

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failure; and/or where the fetus has a severe or lethal anomaly, he performs a previability

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pregnancy termination at or after 20 weeks. Dr. Clewell sues on his own behalf and on

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behalf of his patients seeking previability pregnancy terminations at and after 20 weeks.

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Plaintiff Hugh Miller, M.D., is a board-certified obstetrician and

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gynecologist with a subspecialty in maternal-fetal medicine. He is licensed to practice in

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Arizona, where he provides a wide range of prenatal care, high-risk pregnancy

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management care, and labor and delivery services for women with high-risk pregnancies

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at Tucson Medical Center in Tucson. In particular situations, where the pregnancy

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threatens the woman’s life or health; where she is experiencing pregnancy failure; and/or

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where the fetus has a severe or lethal anomaly, he performs a previability pregnancy

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termination at or after 20 weeks. Dr. Miller sues on his own behalf and on behalf of his

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patients seeking previability pregnancy terminations at and after 20 weeks.

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B. Defendants

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Defendant Tom Horne is the Attorney General of Arizona. The Attorney

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General provides the Arizona Medical Board with legal counsel, including providing

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assistance to the Board to interpret its obligations and enforcement responsibilities under

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new legislation. See A.R.S. § 41-192. The Attorney General also represents the Board as

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its legal counsel and defends its decisions to revoke or suspend physicians’ licenses in

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appeals before the state courts. Id.; see also id. §193. Mr. Horne is sued in his official

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capacity.

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Defendant William (Bill) Montgomery is the County Attorney for Maricopa

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County, which encompasses the City of Phoenix. He has authority to prosecute criminal

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violations of the 20 week ban. See A.R.S. § 11-532(A). Mr. Montgomery is sued in his

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official capacity.

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Defendant Barbara LaWall is the County Attorney for Pima County, which

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encompasses the City of Tucson. She has authority to prosecute criminal violations of the

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20 week ban. See id. Ms. LaWall is sued in her official capacity

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Defendant Arizona Medical Board is the entity responsible for enforcing

disciplinary sanctions against physicians who violate the challenged provisions.
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Defendant Lisa Wynn is the Executive Director of the Arizona Medical

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Board. The Board may delegate much of its disciplinary authority to the Executive

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Director. See A.R.S. § 32-1405. Ms. Wynn is sued in her official capacity.

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IV. THE CHALLENGED PROVISIONS
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HB 2036, which contains 12 distinct sections, imposes a number of

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restrictions on the provision of abortion services. Several of these provisions do not take

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effect, however, until the Department of Health Services completes rulemaking. The 20

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week ban is not subject to rulemaking and is scheduled to take effect on August 2, 2012.

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A. Except in a medical emergency, a person shall not perform, induce or
attempt to perform or induce an abortion unless the physician or the
referring physician has first made a determination of the probable
gestational age of the unborn child. . . . .

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B. Except in a medical emergency, a person shall not knowingly perform,
induce or attempt to perform or induce an abortion on a pregnant woman
if the probable gestational age of her unborn child has been determined to
be at least twenty weeks.

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The ban provides:

HB 2036 § 7 (creating A.R.S. § 36-2159).

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“Gestational age” is defined as “the age of the unborn child as calculated

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from the first day of the last menstrual period of the pregnant woman.” A.R.S. § 36-

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2151(4) (set forth as existing law in HB 2036 § 3).

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The only exception to the 20 week ban is for a “medical emergency” defined

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a condition that, on the basis of the physician’s good faith clinical judgment,
so complicates the medical condition of a pregnant woman as to necessitate
the immediate abortion of her pregnancy to avert her death or for which a
delay will create serious risk of substantial and irreversible impairment of a
major bodily function.

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A.R.S. § 36-2151(6) (set forth as existing law in HB 2036 § 3).
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Violation of the 20 week ban is a Class 1 misdemeanor, punishable by up to

six months imprisonment. HB 2036 § 7 (creating A.R.S. § 36-2159(C)); A.R.S. § 13-

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707(A)(1). A knowing violation of the 20 week ban also subjects a physician to discipline

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for unprofessional conduct, which can result in license suspension or revocation. HB 2036

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§ 7 (creating A.R.S. § 36-2159(D)).

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V. STATEMENT OF FACTS

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Under current Arizona law, “[a] physician shall not knowingly perform an

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abortion of a viable fetus unless: . . . the abortion is necessary to preserve the life or health

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of the woman.” A.R.S. § 36-2301.01(A)(1). “‘Viable fetus’ means the unborn offspring

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of human beings that has reached a stage of fetal development so that, in the judgment of

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the attending physician on the particular facts of the case, there is a reasonable probability

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of the fetus' sustained survival outside the uterus, with or without artificial support.” Id. §

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2301.01(C)( 3).

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21.

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Although the point at which an individual fetus may attain viability varies,

no fetus is viable at 20 weeks.

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22.

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abortions.

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An abortion ban that takes effect at 20 weeks will prohibit some previability

The vast majority of abortions performed in the United States and in Arizona

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occur in the first trimester of pregnancy. Only a small fraction of abortions are performed

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at or after 20 weeks.

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Women obtain abortions at or after 20 weeks for a variety of reasons,

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including that continuation of the pregnancy poses a threat to their health, that the fetus

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has been diagnosed with a medical condition or anomaly, or that they are losing the

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pregnancy (“miscarrying”).

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For women who seek abortions because continuation of the pregnancy poses

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a risk to their health, these risks can come from exacerbation of a pre-existing medical

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condition or can be caused by a condition related to or brought on by the pregnancy itself.

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In many instances, although the threat to the woman’s health is serious, and

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may become more so over time, it does not pose an immediate or severely time-sensitive

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threat, such that it constitutes a medical emergency for purposes of the exception to the 20

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week ban.

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The definition of medical emergency applicable to the 20 week ban comes

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from existing Arizona law which permits physicians to waive a mandatory 24 hour delay

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for women seeking abortions if the woman is experiencing a medical emergency. A.R.S.

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§§ 36-2151(6) (definition of medical emergency), 2153 (requiring, except in medical

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emergencies, a 24 hour delay between receipt of state-mandated information and an

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abortion), and 2156(A)(1) (requiring, except in medical emergencies, a delay between the

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performance of an ultrasound and an abortion).
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In the context of a mandatory delay, the definition of “medical emergency”

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delineates when an abortion does not have to be delayed by an otherwise mandated 24-

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hour waiting period. In the context of the abortion ban in HB 2036, however, the

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definition of “medical emergency” delineates whether an abortion may be obtained at

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all—even a previability abortion needed to preserve a woman’s health. Limiting the

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reason that a woman may obtain a previability abortion to narrowly defined medical

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emergencies places significant burdens on the health of some women seeking abortion

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care.

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As a result, under HB 2036, a woman seeking abortion care at or after 20

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weeks due to a medical condition that threatens her health may either be prohibited from

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doing so altogether, or may have to delay the procedure until her condition worsens to the

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point where immediate action is necessary, and the abortion therefore meets the medical

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emergency exception’s temporal requirements.

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For these and other reasons, HB 2036 endangers women’s health.

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Many women undergo prenatal testing at approximately 18 to 20 weeks

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gestational age.

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As a result of this testing, some women will learn that their fetus has a

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medical condition or anomaly that is incompatible with life or that will cause serious,

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lifelong disabilities. Some of these women will choose to terminate the pregnancy.

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Under HB 2036, however, women wishing to have a previability abortion

for these reasons at or after 20 weeks will be unable to do so.
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Although House Bill 2036 sets forth legislative findings and purposes

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asserting that the 20 week ban is supported by “the documented risks to women’s health

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and the strong medical evidence that unborn children feel pain during an abortion at that

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gestational age,” HB 2036 § 9(B)(1), neither of these assertions – even if true – nor any

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other asserted justification could support a ban on previability abortions.

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VI. THE IMPACT OF THE BAN ON PLAINTIFFS AND THEIR PATIENTS

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By prohibiting all abortions beginning at 20 weeks except those that come

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within the Act’s narrow definition of medical emergency, HB 2036 will harm Plaintiffs’

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patients by denying or delaying access to abortions, including abortions they seek to

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preserve their health.

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As a result of the 20 week ban, some women who find out about fetal

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conditions or anomalies close to or after the 20 week cutoff may have inadequate time to

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obtain additional information and to weigh their options of carrying to term or seeking a

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previability abortion before they are foreclosed from obtaining an abortion.

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Each of these harms constitutes irreparable harm to Plaintiffs’ patients.

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The Act presents physicians with an untenable choice: to face criminal

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prosecution for continuing to provide abortion care in accordance with their best medical

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judgment, or to stop providing the critical care their patients seek.

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FIRST CLAIM FOR RELIEF

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(Substantive Due Process)

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38 above.

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Plaintiffs reallege and hereby incorporate by reference Paragraphs 1 through

The ban on previability abortions at or after 20 weeks, except in narrowly

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defined medical emergencies, violates the substantive due process rights of Plaintiffs’

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patients, guaranteed by the Fourteenth Amendment, by banning previability abortions and

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endangering women’s health.
INJUNCTIVE RELIEF

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40 above.

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Plaintiffs reallege and hereby incorporate by reference Paragraphs 1 through

Plaintiffs’ claim meets the standard for injunctive relief. Plaintiffs and their

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patients do not have an adequate remedy at law and they will suffer immediate and

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irreparable injury if the 20 week ban is permitted to go into effect. Moreover, Plaintiffs

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have established a strong likelihood of success on the merits, the balance of equities tips

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strongly in favor of Plaintiffs and their patients, and the public interest will be served if

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Defendants are enjoined from enforcing the 20 week ban.

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ATTORNEY’S FEES

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43.

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42 above.

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44.

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Plaintiffs reallege and hereby incorporate by reference Paragraphs 1 through

Plaintiffs are entitled to an award of reasonable attorney’s fees and expenses

pursuant to 42 U.S.C. § 1988.
REQUEST FOR RELIEF
Wherefore, Plaintiffs respectfully request that this Court:

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1.

Issue a declaratory judgment that the 20 week ban, to be codified as A.R.S. §

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35-2159, is unconstitutional as applied to previability abortions, under the Fourteenth

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Amendment to the United States Constitution and in violation of 42 U.S.C. § 1983;

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2.

Issue a preliminary and permanent injunction restraining Defendants, their

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employees, agents, and successors from enforcing the 20 week ban as to previability

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abortions.

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3.

Issue an order prohibiting Defendants, their employees, agents, and

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successors from bringing enforcement actions for previability abortions performed while a

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Temporary Restraining Order, Preliminary Injunction, or Permanent Injunction are in

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effect against the 20 week ban;
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Award Plaintiffs their reasonable costs and attorney’s fees pursuant to 42

U.S.C. § 1988; and
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Grant such other or further relief as the Court deems just, proper and

equitable.

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RESPECTFULLY SUBMITTED this 12th day of July, 2012.

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LAVOY & CHERNOFF, PC
By/s/ Christopher A. LaVoy
Christopher A. LaVoy (016609)
LaVoy & Chernoff, PC
201 North Central Avenue, Suite 3300
Phoenix, Arizona 85004
[e-mail]
Tel: [phone]

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Janet Crepps*
David Brown*
Center for Reproductive Rights
120 Wall Street, 14th Floor
New York, New York 10005
[e-mail]
[e-mail]
Tel: [phone]
Janie F. Schulman*
Nancy R. Thomas*
Morrison & Foerster LLP
555 West Fifth Street
Los Angeles, California 90013-1024
[e-mail]
[e-mail]
Tel: [phone]

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Attorneys for Plaintiff Isaacson
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Susan Talcott Camp*
Alexa Kolbi-Molinas*
American Civil Liberties Union Foundation
125 Broad Street, 18th Floor
New York, New York 10004
Telephone: [phone]
[e-mail]
[e-mail]
Daniel Pochoda (AZ #021979)
Kelly Flood (AZ #019772)
American Civil Liberties Union Foundation
of Arizona
3707 North 7th Street, Suite 235
Phoenix, Arizona 85014
Telephone: [phone]
[e-mail]

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Attorneys for Plaintiffs Clewell and Miller

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*Application for admission pro hac vice filed

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Exhibit A

Senate Engrossed House Bill

State of Arizona
House of Representatives
Fiftieth Legislature
Second Regular Session
2012

CHAPTER 250

HOUSE BILL 2036
AN ACT
AMENDING SECTIONS 36-449.01, 36-449.03, 36-2151, 36-2152, 36-2153 AND
36-2156, ARIZONA REVISED STATUTES; AMENDING TITLE 36, CHAPTER 20, ARTICLE 1,
ARIZONA REVISED STATUTES, BY ADDING SECTIONS 36-2158 AND 36-2159; AMENDING
SECTION 36-2163, ARIZONA REVISED STATUTES; RELATING TO ABORTION.

(TEXT OF BILL BEGINS ON NEXT PAGE)

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H.B. 2036

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Be it enacted by the Legislature of the State of Arizona:
Section 1. Section 36-449.01, Arizona Revised Statutes, is amended to
read:
36-449.01. Definitions
In this article, unless the context otherwise requires:
1. "Abortion" means the use of any means with the intent to terminate
a woman's pregnancy for reasons other than to increase the probability of a
live birth, to preserve the life or health of the child after a live birth,
to terminate an ectopic pregnancy or to remove a dead fetus. Abortion does
not include birth control devices or oral contraceptives.
2. "Abortion clinic" means a facility, other than a hospital, in which
five or more first trimester abortions in any month or any second or third
trimester abortions are performed.
3. "Director" means the director of the department of health services.
4. "MEDICATION ABORTION" MEANS THE USE OF ANY MEDICATION, DRUG OR
OTHER SUBSTANCE THAT IS INTENDED TO CAUSE OR INDUCE AN ABORTION.
4. 5. "Perform" includes the initial administration of any
medication, drug or other substance intended to cause or induce an abortion.
6. "SURGICAL ABORTION" HAS THE SAME MEANING PRESCRIBED IN SECTION
36-2151.
5. 7. "Viable fetus" has the same meaning prescribed in section
36-2301.01.
Sec. 2. Section 36-449.03, Arizona Revised Statutes, is amended to
read:
36-449.03. Abortion clinics; rules; civil penalties
A. The director shall adopt rules for an abortion clinic's physical
facilities. At a minimum these rules shall prescribe standards for:
1. Adequate private space that is specifically designated for
interviewing, counseling and medical evaluations.
2. Dressing rooms for staff and patients.
3. Appropriate lavatory areas.
4. Areas for preprocedure hand washing.
5. Private procedure rooms.
6. Adequate lighting and ventilation for abortion procedures.
7. Surgical or gynecologic examination tables and other fixed
equipment.
8. Postprocedure recovery rooms that are supervised, staffed and
equipped to meet the patients' needs.
9. Emergency exits to accommodate a stretcher or gurney.
10. Areas for cleaning and sterilizing instruments.
11. Adequate areas for the secure storage of medical records and
necessary equipment and supplies.
12. The display in the abortion clinic, in a place that is conspicuous
to all patients, of the clinic's current license issued by the department.
B. The director shall adopt rules to prescribe abortion clinic
supplies and equipment standards, including supplies and equipment that are
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H.B. 2036

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required to be immediately available for use or in an emergency. At a
minimum these rules shall:
1. Prescribe required equipment and supplies, including medications,
required for the conduct, in an appropriate fashion, of any abortion
procedure that the medical staff of the clinic anticipates performing and for
monitoring the progress of each patient throughout the procedure and recovery
period.
2. Require that the number or amount of equipment and supplies at the
clinic is adequate at all times to assure sufficient quantities of clean and
sterilized durable equipment and supplies to meet the needs of each patient.
3. Prescribe required equipment, supplies and medications that shall
be available and ready for immediate use in an emergency and requirements for
written protocols and procedures to be followed by staff in an emergency,
such as the loss of electrical power.
4. Prescribe required equipment and supplies for required laboratory
tests and requirements for protocols to calibrate and maintain laboratory
equipment at the abortion clinic or operated by clinic staff.
5. Require ultrasound equipment in those facilities that provide
abortions after twelve weeks' gestation.
6. Require that all equipment is safe for the patient and the staff,
meets applicable federal standards and is checked annually to ensure safety
and appropriate calibration.
C. The director shall adopt rules relating to abortion clinic
personnel. At a minimum these rules shall require that:
1. The abortion clinic designate a medical director of the abortion
clinic who is licensed pursuant to title 32, chapter 13, 17 or 29.
2. Physicians performing surgery ABORTIONS are licensed pursuant to
title 32, chapter 13 or 17, demonstrate competence in the procedure involved
and are acceptable to the medical director of the abortion clinic.
3. A physician with admitting privileges at an accredited hospital in
this state is available: .
(a) FOR A SURGICAL ABORTION WHO HAS ADMITTING PRIVILEGES AT A HEALTH
CARE INSTITUTION THAT IS CLASSIFIED BY THE DIRECTOR AS A HOSPITAL PURSUANT TO
SECTION 36-405, SUBSECTION B AND THAT IS WITHIN THIRTY MILES OF THE ABORTION
CLINIC.
(b) FOR A MEDICATION ABORTION WHO HAS ADMITTING PRIVILEGES AT A HEALTH
CARE INSTITUTION THAT IS CLASSIFIED BY THE DIRECTOR AS A HOSPITAL PURSUANT TO
SECTION 36-405, SUBSECTION B.
4. If a physician is not present, a registered nurse, nurse
practitioner, licensed practical nurse or physician's PHYSICIAN assistant is
present and remains at the clinic when abortions are performed to provide
postoperative monitoring and care, OR MONITORING AND CARE AFTER INDUCING A
MEDICATION ABORTION, until each patient who had an abortion that day is
discharged.

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H.B. 2036

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5. Surgical assistants receive training in counseling, patient
advocacy and the specific responsibilities of the services the surgical
assistants provide.
6. Volunteers receive training in the specific responsibilities of the
services the volunteers provide, including counseling and patient advocacy as
provided in the rules adopted by the director for different types of
volunteers based on their responsibilities.
D. The director shall adopt rules relating to the medical screening
and evaluation of each abortion clinic patient. At a minimum these rules
shall require:
1. A medical history, including the following:
(a) Reported allergies to medications, antiseptic solutions or latex.
(b) Obstetric and gynecologic history.
(c) Past surgeries.
2. A physical examination, including a bimanual examination estimating
uterine size and palpation of the adnexa.
3. The appropriate laboratory tests, including:
(a) For an abortion in which an ultrasound examination is not
performed before the abortion procedure, Urine or blood tests for pregnancy
performed before the abortion procedure.
(b) A test for anemia.
(c) Rh typing, unless reliable written documentation of blood type is
available.
(d) Other tests as indicated from the physical examination.
4. An ultrasound evaluation for all patients who elect to have an
abortion after twelve weeks' gestation. The rules shall require that if a
person who is not a physician performs an ultrasound examination, that person
shall have documented evidence that the person completed a course in the
operation of ultrasound equipment as prescribed in rule. The physician or
other health care professional shall review, at the request of the patient,
the ultrasound evaluation results with the patient before the abortion
procedure is performed, including the probable gestational age of the fetus.
5. That the physician is responsible for estimating the gestational
age of the fetus based on the ultrasound examination and obstetric standards
in keeping with established standards of care regarding the estimation of
fetal age as defined in rule and shall write the estimate in the patient's
medical history. The physician shall keep original prints of each ultrasound
examination of a patient in the patient's medical history file.
E. The director shall adopt rules relating to the abortion procedure.
At a minimum these rules shall require:
1. That medical personnel is available to all patients throughout the
abortion procedure.
2. Standards for the safe conduct of abortion procedures that conform
to obstetric standards in keeping with established standards of care
regarding the estimation of fetal age as defined in rule.
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3. Appropriate use of local anesthesia, analgesia and sedation if
ordered by the physician.
4. The use of appropriate precautions, such as the establishment of
intravenous access at least for patients undergoing second or third trimester
abortions.
5. The use of appropriate monitoring of the vital signs and other
defined signs and markers of the patient's status throughout the abortion
procedure and during the recovery period until the patient's condition is
deemed to be stable in the recovery room.
6. THAT ANY MEDICATION, DRUG OR OTHER SUBSTANCE USED TO INDUCE AN
ABORTION IS ADMINISTERED IN COMPLIANCE WITH THE PROTOCOL THAT IS AUTHORIZED
BY THE UNITED STATES FOOD AND DRUG ADMINISTRATION AND THAT IS OUTLINED IN THE
FINAL PRINTING LABELING INSTRUCTIONS FOR THAT MEDICATION, DRUG OR SUBSTANCE.
F. The director shall adopt rules that prescribe minimum recovery room
standards. At a minimum these rules shall require that:
1. FOR A SURGICAL ABORTION, immediate postprocedure care, OR CARE
PROVIDED AFTER INDUCING A MEDICATION ABORTION, consists of observation in a
supervised recovery room for as long as the patient's condition warrants.
2. The clinic arrange hospitalization if any complication beyond the
management capability of the staff occurs or is suspected.
3. A licensed health professional who is trained in the management of
the recovery area and is capable of providing basic cardiopulmonary
resuscitation and related emergency procedures remains on the premises of the
abortion clinic until all patients are discharged.
4. FOR A SURGICAL ABORTION, a physician with admitting privileges at
an accredited hospital in this state A HEALTH CARE INSTITUTION THAT IS
CLASSIFIED BY THE DIRECTOR AS A HOSPITAL PURSUANT TO SECTION 36-405,
SUBSECTION B AND THAT IS WITHIN THIRTY MILES OF THE ABORTION CLINIC remains
on the premises of the abortion clinic until all patients are stable and are
ready to leave the recovery room and to facilitate the transfer of emergency
cases if hospitalization of the patient or viable fetus is necessary. A
physician shall sign the discharge order and be readily accessible and
available until the last patient is discharged.
5. A physician discusses RhO(d) immune globulin with each patient for
whom it is indicated and assures it is offered to the patient in the
immediate postoperative period or that it will be available to her within
seventy-two hours after completion of the abortion procedure. If the patient
refuses, a refusal form approved by the department shall be signed by the
patient and a witness and included in the medical record.
6. Written instructions with regard to postabortion coitus, signs of
possible problems and general aftercare are given to each patient. Each
patient shall have specific instructions regarding access to medical care for
complications, including a telephone number to call for medical emergencies.
7. There is a specified minimum length of time that a patient remains
in the recovery room by type of abortion procedure and duration of gestation.
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8. The physician assures that a licensed health professional from the
abortion clinic makes a good faith effort to contact the patient by
telephone, with the patient's consent, within twenty-four hours after surgery
A SURGICAL ABORTION to assess the patient's recovery.
9. Equipment and services are located in the recovery room to provide
appropriate emergency resuscitative and life support procedures pending the
transfer of the patient or viable fetus to the hospital.
G. The director shall adopt rules that prescribe standards for
follow-up visits. At a minimum these rules shall require that:
1. FOR A SURGICAL ABORTION, a postabortion medical visit is offered
and, if requested, scheduled for three weeks after the abortion, including a
medical examination and a review of the results of all laboratory tests. FOR
A MEDICATION ABORTION, THE RULES SHALL REQUIRE THAT A POSTABORTION MEDICAL
VISIT IS SCHEDULED BETWEEN ONE WEEK AND THREE WEEKS AFTER THE INITIAL DOSE OF
A MEDICATION ABORTION TO CONFIRM THE PREGNANCY IS COMPLETELY TERMINATED AND
TO ASSESS THE DEGREE OF BLEEDING.
2. A urine pregnancy test is obtained at the time of the follow-up
visit to rule out continuing pregnancy. If a continuing pregnancy is
suspected, the patient shall be evaluated and a physician who performs
abortions shall be consulted.
H. The director shall adopt rules to prescribe minimum abortion clinic
incident reporting. At a minimum these rules shall require that:
1. The abortion clinic records each incident resulting in a patient's
or viable fetus' serious injury occurring at an abortion clinic and shall
report them in writing to the department within ten days after the incident.
For the purposes of this paragraph, "serious injury" means an injury that
occurs at an abortion clinic and that creates a serious risk of substantial
impairment of a major body organ AND INCLUDES ANY INJURY OR CONDITION THAT
REQUIRES AMBULANCE TRANSPORTATION OF THE PATIENT.
2. If a patient's death occurs, other than a fetal death properly
reported pursuant to law, the abortion clinic reports it to the department
not later than the next department work day.
3. Incident reports are filed with the department and appropriate
professional regulatory boards.
I. THE DIRECTOR SHALL ADOPT RULES RELATING TO ENFORCEMENT OF THIS
ARTICLE. AT A MINIMUM, THESE RULES SHALL REQUIRE THAT:
1. FOR AN ABORTION CLINIC THAT IS NOT IN SUBSTANTIAL COMPLIANCE WITH
THIS ARTICLE AND THE RULES ADOPTED PURSUANT TO THIS ARTICLE OR THAT IS IN
SUBSTANTIAL COMPLIANCE BUT REFUSES TO CARRY OUT A PLAN OF CORRECTION
ACCEPTABLE TO THE DEPARTMENT OF ANY DEFICIENCIES THAT ARE LISTED ON THE
DEPARTMENT'S STATE OF DEFICIENCY, THE DEPARTMENT MAY DO ANY OF THE FOLLOWING:
(a) ASSESS A CIVIL PENALTY PURSUANT TO SECTION 36-431.01.
(b) IMPOSE AN INTERMEDIATE SANCTION PURSUANT TO SECTION 36-427.
(c) SUSPEND OR REVOKE A LICENSE PURSUANT TO SECTION 36-427.
(d) DENY A LICENSE.
(e) BRING AN ACTION FOR AN INJUNCTION PURSUANT TO SECTION 36-430.
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2. IN DETERMINING THE APPROPRIATE ENFORCEMENT ACTION, THE DEPARTMENT
CONSIDERS THE THREAT OF THE HEALTH, SAFETY AND WELFARE OF THE ABORTION
CLINIC'S PATIENTS OR THE GENERAL PUBLIC, INCLUDING:
(a) WHETHER THE ABORTION CLINIC HAS REPEATED VIOLATIONS OF STATUTES OR
RULES.
(b) WHETHER THE ABORTION CLINIC HAS ENGAGED IN A PATTERN OF
NONCOMPLIANCE.
(c) THE TYPE, SEVERITY AND NUMBER OF VIOLATIONS.
I. J. The department shall not release personally identifiable
patient or physician information.
J. K. The rules adopted by the director pursuant to this section do
not limit the ability of a physician or other health professional to advise a
patient on any health issue.
Sec. 3. Section 36-2151, Arizona Revised Statutes, is amended to read:
36-2151. Definitions
In this article, unless the context otherwise requires:
1. "Abortion" means the use of any means to terminate the clinically
diagnosable pregnancy of a woman with knowledge that the termination by those
means will cause, with reasonable likelihood, the death of the unborn child.
Abortion does not include birth control devices, oral contraceptives used to
inhibit or prevent ovulation, conception or the implantation of a fertilized
ovum in the uterus or the use of any means to increase the probability of a
live birth SAVE THE LIFE OR PRESERVE THE HEALTH OF THE UNBORN CHILD, to
preserve the life or health of the child after a live birth, to terminate an
ectopic pregnancy or to remove a dead fetus.
2. "Auscultation" means the act of listening for sounds made by
internal organs of the unborn child, specifically for a heartbeat, using an
ultrasound transducer and fetal heart rate monitor.
3. "Conception" means the fusion of a human spermatozoon with a human
ovum.
4. "Gestational age" means the age of the unborn child as calculated
from the first day of the last menstrual period of the pregnant woman.
5. "Health professional" has the same meaning prescribed in section
32-3201.
6. "Medical emergency" means a condition that, on the basis of the
physician's good faith clinical judgment, so complicates the medical
condition of a pregnant woman as to necessitate the immediate abortion of her
pregnancy to avert her death or for which a delay will create serious risk of
substantial and irreversible impairment of a major bodily function.
7. "MEDICATION ABORTION" MEANS THE USE OF ANY MEDICATION, DRUG OR
OTHER SUBSTANCE THAT IS INTENDED TO CAUSE OR INDUCE AN ABORTION.
7. 8. "Physician" means a person who is licensed pursuant to title
32, chapter 13 or 17.
8. 9. "Pregnant" or "pregnancy" means a female reproductive condition
of having a developing unborn child in the body and that begins with
conception.
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9. 10. "Probable gestational age" means the gestational age of the
unborn child at the time the abortion is planned to be performed and as
determined with reasonable probability by the attending physician.
10. 11. "Surgical abortion" means the use of a surgical instrument or
a machine to terminate the clinically diagnosable pregnancy of a woman with
knowledge that the termination by those means will cause, with reasonable
likelihood, the death of the unborn child.
Surgical abortion does not
include the use of any means to increase the probability of a live birth, to
preserve the life or health of the child after a live birth, to terminate an
ectopic pregnancy or to remove a dead fetus. Surgical abortion does not
include patient care incidental to the procedure.
11. 12. "Ultrasound" means the use of ultrasonic waves for diagnostic
or therapeutic purposes to monitor a developing unborn child.
12. 13. "Unborn child" means the offspring of human beings from
conception until birth.
Sec. 4. Section 36-2152, Arizona Revised Statutes, is amended to read:
36-2152. Parental consent; exception; hearings; time limits;
violation; classification; civil relief; statute of
limitations
A. In addition to the OTHER requirements of section 36-2153 THIS
CHAPTER, a person shall not knowingly perform an abortion on a pregnant
unemancipated minor unless the attending physician has secured the written
and notarized consent from one of the minor's parents or the minor's guardian
or conservator or unless a judge of the superior court authorizes the
physician to perform the abortion pursuant to subsection B of this section.
Notwithstanding section 41-319, the notarized statement of parental consent
and the description of the document or notarial act recorded in the notary
journal are confidential and are not public records.
B. A judge of the superior court, on petition or motion, and after an
appropriate hearing, shall authorize a physician to perform the abortion if
the judge determines that the pregnant minor is mature and capable of giving
informed consent to the proposed abortion. If the judge determines that the
pregnant minor is not mature or if the pregnant minor does not claim to be
mature, the judge shall determine whether the performance of an abortion on
her without the consent from one of her parents or her guardian or
conservator would be in her best interests and shall authorize a physician to
perform the abortion without consent if the judge concludes that the pregnant
minor's best interests would be served.
C. If the pregnant minor claims to be mature at a proceeding held
pursuant to subsection B of this section, the minor must prove by clear and
convincing evidence that she is sufficiently mature and capable of giving
informed consent without consulting her parent or legal guardian based on her
experience level, perspective and judgment. In assessing the pregnant
minor's experience level, the court may consider, among other relevant
factors, the minor's age and experiences working outside the home, living
away from home, traveling on her own, handling personal finances and making
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other significant decisions. In assessing the pregnant minor's perspective,
the court may consider, among other relevant factors, what steps the minor
took to explore her options and the extent to which she considered and
weighed the potential consequences of each option. In assessing the pregnant
minor's judgment, the court may consider, among other relevant factors, the
minor's conduct since learning of her pregnancy and her intellectual ability
to understand her options and to make an informed decision.
D. The pregnant minor may participate in the court proceedings on her
own behalf. The court shall appoint a guardian ad litem for her. The court
shall advise her that she has the right to court appointed counsel and, on
her request, shall provide her with counsel unless she appears through
private counsel or she knowingly and intelligently waives her right to
counsel.
E. Proceedings in the court under this section are confidential and
have precedence over other pending matters. Members of the public shall not
inspect, obtain copies of or otherwise have access to records of court
proceedings under this section unless authorized by law. A judge who
conducts proceedings under this section shall make in writing specific
factual findings and legal conclusions supporting the decision and shall
order a confidential record of the evidence to be maintained, including the
judge's own findings and conclusions. The minor may file the petition using
a fictitious name. For purposes of this subsection, public does not include
judges, clerks, administrators, professionals or other persons employed by or
working under the supervision of the court or employees of other public
agencies who are authorized by state or federal rule or law to inspect and
copy closed court records.
F. The court shall hold the hearing and shall issue a ruling within
forty-eight hours, excluding weekends and holidays, after the petition is
filed. If the court fails to issue a ruling within this time period, the
petition is deemed to have been granted and the consent requirement is
waived.
G. An expedited confidential appeal is available to a pregnant minor
for whom the court denies an order authorizing an abortion without parental
consent. The appellate court shall hold the hearing and issue a ruling
within forty-eight hours, excluding weekends and holidays, after the petition
for appellate review is filed. Filing fees are not required of the pregnant
minor at either the trial or the appellate level.
H. Parental consent or judicial authorization is not required under
this section if either:
1. The pregnant minor certifies to the attending physician that the
pregnancy resulted from sexual conduct with a minor by the minor's parent,
stepparent, uncle, grandparent, sibling, adoptive parent, legal guardian or
foster parent or by a person who lives in the same household with the minor
and the minor's mother. The physician performing the abortion shall report
the sexual conduct with a minor to the proper law enforcement officials
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pursuant to section 13-3620 and shall preserve and forward a sample of the
fetal tissue to these officials for use in a criminal investigation.
2. The attending physician certifies in the pregnant minor's medical
record that, on the basis of the physician's good faith clinical judgment,
the pregnant minor has a condition that so complicates her medical condition
as to necessitate the immediate abortion of her pregnancy to avert her death
or for which a delay will create serious risk of substantial and irreversible
impairment of major bodily function.
I. A person who performs an abortion in violation of this section is
guilty of a class 1 misdemeanor. A person is not subject to any liability
under this section if the person establishes by written evidence that the
person relied on evidence sufficient to convince a careful and prudent person
that the representations of the pregnant minor regarding information
necessary to comply with this section are true.
J. In addition to other remedies available under the common or
statutory law of this state, one or both of the minor's parents or the
minor's guardian may bring a civil action in the superior court in the county
in which the parents or the guardian resides to obtain appropriate relief for
a violation of this section, unless the pregnancy resulted from the criminal
conduct of the parent or guardian. The civil action may be based on a claim
that failure to obtain consent was a result of simple negligence, gross
negligence, wantonness, wilfulness, intention or any other legal standard of
care. THE CIVIL ACTION MAY BE BROUGHT AGAINST THE PERSON WHO PERFORMS THE
ABORTION IN VIOLATION OF THIS SECTION AND ANY PERSON WHO CAUSES, AIDS OR
ASSISTS A MINOR TO OBTAIN AN ABORTION WITHOUT MEETING THE REQUIREMENTS OF
THIS SECTION. Relief pursuant to this subsection includes the following:
1. Money damages for all psychological, emotional and physical
injuries that result from the violation of this section.
2. Statutory damages in an amount equal to five thousand dollars or
three times the cost of the abortion, whichever is greater.
3. Reasonable attorney fees and costs.
K. A civil action brought pursuant to this section must be initiated
within six years after the violation occurred.
L. THE CONSENT REQUIRED BY THIS SECTION MUST BE OBTAINED ON A FORM
PRESCRIBED BY THE DEPARTMENT OF HEALTH SERVICES. AT A MINIMUM, THE FORM
MUST:
1. LIST THE POSSIBLE MEDICAL RISKS THAT MAY OCCUR WITH ANY SURGICAL,
MEDICAL OR DIAGNOSTIC PROCEDURE, INCLUDING THE POTENTIAL FOR INFECTION, BLOOD
CLOTS, HEMORRHAGE, ALLERGIC REACTIONS AND DEATH.
2. LIST THE POSSIBLE MEDICAL RISKS THAT MAY OCCUR WITH A SURGICAL
ABORTION, INCLUDING HEMORRHAGE, UTERINE PERFORATION, STERILITY, INJURY TO THE
BOWEL OR BLADDER, A POSSIBLE HYSTERECTOMY AS A RESULT OF A COMPLICATION OR
INJURY DURING THE PROCEDURE AND FAILURE TO REMOVE ALL PRODUCTS OF CONCEPTION
THAT MAY RESULT IN AN ADDITIONAL PROCEDURE.
3. LIST THE POSSIBLE MEDICAL RISKS THAT MAY OCCUR WITH A MEDICATION
ABORTION, INCLUDING HEMORRHAGE, INFECTION, FAILURE TO REMOVE ALL PRODUCTS OF
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CONCEPTION THAT MAY RESULT IN AN ADDITIONAL PROCEDURE, STERILITY AND THE
POSSIBLE CONTINUATION OF THE PREGNANCY.
4. REQUIRE THE PREGNANT MINOR'S AND THE PREGNANT MINOR'S PARENT'S
INITIALS ON EACH PAGE OF THE FORM AND A FULL SIGNATURE ON THE FINAL PAGE OF
THE FORM.
5. INCLUDE A SPACE FOR THE NOTARY'S SIGNATURE AND SEAL ON THE FINAL
PAGE OF THE FORM.
M. THE PHYSICIAN MUST MAINTAIN THE FORM IN THE PREGNANT MINOR'S
RECORDS FOR SEVEN YEARS AFTER THE DATE OF THE PROCEDURE OR FIVE YEARS AFTER
THE DATE OF THE MINOR'S MATURITY, WHICHEVER IS LONGER.
Sec. 5. Section 36-2153, Arizona Revised Statutes, is amended to read:
36-2153. Informed consent; requirements; information; website;
signs;
violation;
civil
relief;
statute
of
limitations
A. An abortion shall not be performed or induced without the voluntary
and informed consent of the woman on whom the abortion is to be performed or
induced. Except in the case of a medical emergency AND IN ADDITION TO THE
OTHER REQUIREMENTS OF THIS CHAPTER, consent to an abortion is voluntary and
informed only if all of the following are true:
1. At least twenty-four hours before the abortion, the physician who
is to perform the abortion or the referring physician has informed the woman,
orally and in person, of:
(a) The name of the physician who will perform the abortion.
(b) The nature of the proposed procedure or treatment.
(c) The immediate and long-term medical risks associated with the
procedure that a reasonable patient would consider material to the decision
of whether or not to undergo the abortion.
(d) Alternatives to the procedure or treatment that a reasonable
patient would consider material to the decision of whether or not to undergo
the abortion.
(e) The probable gestational age of the unborn child at the time the
abortion is to be performed.
(f) The probable anatomical and physiological characteristics of the
unborn child at the time the abortion is to be performed.
(g) The medical risks associated with carrying the child to term.
2. At least twenty-four hours before the abortion, the physician who
is to perform the abortion, the referring physician or a qualified physician,
physician assistant, nurse, psychologist or licensed behavioral health
professional to whom the responsibility has been delegated by either
physician has informed the woman, orally and in person, that:
(a) Medical assistance benefits may be available for prenatal care,
childbirth and neonatal care.
(b) The father of the unborn child is liable to assist in the support
of the child, even if he has offered to pay for the abortion. In the case of
rape or incest, this information may be omitted.
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(c) Public and private agencies and services are available to assist
the woman during her pregnancy and after the birth of her child if she
chooses not to have an abortion, whether she chooses to keep the child or
place the child for adoption.
(d) It is unlawful for any person to coerce a woman to undergo an
abortion.
(e) The woman 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.
(f) THE DEPARTMENT OF HEALTH SERVICES MAINTAINS A WEBSITE THAT
DESCRIBES THE UNBORN CHILD AND LISTS THE AGENCIES THAT OFFER ALTERNATIVES TO
ABORTION.
(g) THE WOMAN HAS A RIGHT TO REVIEW THE WEBSITE AND THAT A PRINTED
COPY OF THE MATERIALS ON THE WEBSITE WILL BE PROVIDED TO HER FREE OF CHARGE
IF SHE CHOOSES TO REVIEW THESE MATERIALS.
3. The information in paragraphs 1 and 2 of this subsection is
provided to the woman individually and in a private room to protect her
privacy and to ensure that the information focuses on her individual
circumstances and that she has adequate opportunity to ask questions.
4. The woman certifies in writing before the abortion that the
information required to be provided pursuant to paragraphs 1 and 2 of this
subsection has been provided.
B. If a medical emergency compels the performance 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 avert the woman's death or to avert substantial and irreversible
impairment of a major bodily function.
C. THE DEPARTMENT OF HEALTH SERVICES SHALL ESTABLISH A WEBSITE WITHIN
NINETY DAYS AFTER THE EFFECTIVE DATE OF THIS AMENDMENT TO THIS SECTION AND
SHALL ANNUALLY UPDATE THE WEBSITE. THE WEBSITE MUST INCLUDE A LINK TO A
PRINTABLE VERSION OF ALL MATERIALS LISTED ON THE WEBSITE. THE MATERIALS MUST
BE WRITTEN IN AN EASILY UNDERSTOOD MANNER AND PRINTED IN A TYPEFACE THAT IS
LARGE ENOUGH TO BE CLEARLY LEGIBLE. THE WEBSITE MUST INCLUDE ALL OF THE
FOLLOWING MATERIALS:
1. INFORMATION THAT IS ORGANIZED GEOGRAPHICALLY BY LOCATION AND THAT
IS DESIGNED TO INFORM THE WOMAN ABOUT PUBLIC AND PRIVATE AGENCIES AND
SERVICES THAT ARE AVAILABLE TO ASSIST A WOMAN THROUGH PREGNANCY, AT
CHILDBIRTH AND WHILE HER CHILD IS DEPENDENT, INCLUDING ADOPTION AGENCIES.
THE MATERIALS SHALL INCLUDE A COMPREHENSIVE LIST OF THE AGENCIES, A
DESCRIPTION OF THE SERVICES THEY OFFER AND THE MANNER IN WHICH THESE AGENCIES
MAY BE CONTACTED, INCLUDING THE AGENCIES' TELEPHONE NUMBERS AND WEBSITE
ADDRESSES.
2. INFORMATION ON THE AVAILABILITY OF MEDICAL ASSISTANCE BENEFITS FOR
PRENATAL CARE, CHILDBIRTH AND NEONATAL CARE.
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3. A STATEMENT THAT IT IS UNLAWFUL FOR ANY PERSON TO COERCE A WOMAN TO
UNDERGO AN ABORTION.
4. A STATEMENT THAT ANY PHYSICIAN WHO PERFORMS AN ABORTION ON A WOMAN
WITHOUT OBTAINING THE WOMAN'S VOLUNTARY AND INFORMED CONSENT OR WITHOUT
AFFORDING HER A PRIVATE MEDICAL CONSULTATION MAY BE LIABLE TO THE WOMAN FOR
DAMAGES IN A CIVIL ACTION.
5. A STATEMENT THAT THE FATHER OF A CHILD IS LIABLE TO ASSIST IN THE
SUPPORT OF THAT CHILD, EVEN IF THE FATHER HAS OFFERED TO PAY FOR AN ABORTION,
AND THAT THE LAW ALLOWS ADOPTIVE PARENTS TO PAY COSTS OF PRENATAL CARE,
CHILDBIRTH AND NEONATAL CARE.
6. INFORMATION THAT IS DESIGNED TO INFORM THE WOMAN OF THE PROBABLE
ANATOMICAL AND PHYSIOLOGICAL CHARACTERISTICS OF THE UNBORN CHILD AT TWO-WEEK
GESTATIONAL INCREMENTS FROM FERTILIZATION TO FULL TERM, INCLUDING PICTURES OR
DRAWINGS REPRESENTING THE DEVELOPMENT OF UNBORN CHILDREN AT TWO-WEEK
GESTATIONAL INCREMENTS AND ANY RELEVANT INFORMATION ON THE POSSIBILITY OF THE
UNBORN CHILD'S SURVIVAL. THE PICTURES OR DRAWINGS MUST CONTAIN THE
DIMENSIONS OF THE UNBORN CHILD AND MUST BE REALISTIC AND APPROPRIATE FOR EACH
STAGE OF PREGNANCY. THE INFORMATION PROVIDED PURSUANT TO THIS PARAGRAPH MUST
BE OBJECTIVE, NONJUDGMENTAL AND DESIGNED TO CONVEY ONLY ACCURATE SCIENTIFIC
INFORMATION ABOUT THE UNBORN CHILD AT THE VARIOUS GESTATIONAL AGES.
7. OBJECTIVE INFORMATION THAT DESCRIBES THE METHODS OF ABORTION
PROCEDURES COMMONLY EMPLOYED, THE MEDICAL RISKS COMMONLY ASSOCIATED WITH EACH
PROCEDURE, THE POSSIBLE DETRIMENTAL PSYCHOLOGICAL EFFECTS OF ABORTION AND THE
MEDICAL RISKS COMMONLY ASSOCIATED WITH CARRYING A CHILD TO TERM.
C. D. An individual who is not a physician shall not perform a
surgical abortion.
D. E. A person shall not write or communicate a prescription for a
drug or drugs to induce an abortion or require or obtain payment for a
service provided to a patient who has inquired about an abortion or scheduled
an abortion until the expiration of the twenty-four hour reflection period
required by subsection A OF THIS SECTION.
E. F. A person shall not intimidate or coerce in any way any person
to obtain an abortion. A parent, A guardian or any other person shall not
coerce a minor to obtain an abortion. If a minor is denied financial support
by the minor's parents, guardians or custodian due to the minor's refusal to
have an abortion performed, the minor is deemed emancipated for the purposes
of eligibility for public assistance benefits, except that the emancipated
minor may not use these benefits to obtain an abortion.
G. AN ABORTION CLINIC AS DEFINED IN SECTION 36-449.01 SHALL
CONSPICUOUSLY POST SIGNS THAT ARE VISIBLE TO ALL WHO ENTER THE ABORTION
CLINIC, THAT ARE CLEARLY READABLE AND THAT STATE IT IS UNLAWFUL FOR ANY
PERSON TO FORCE A WOMAN TO HAVE AN ABORTION AND A WOMAN WHO IS BEING FORCED
TO HAVE AN ABORTION HAS THE RIGHT TO CONTACT ANY LOCAL OR STATE LAW
ENFORCEMENT OR SOCIAL SERVICE AGENCY TO RECEIVE PROTECTION FROM ANY ACTUAL OR
THREATENED PHYSICAL, EMOTIONAL OR PSYCHOLOGICAL ABUSE. THE SIGNS SHALL BE
POSTED IN THE WAITING ROOM, CONSULTATION ROOMS AND PROCEDURE ROOMS.
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H. A PERSON SHALL NOT REQUIRE A WOMAN TO OBTAIN AN ABORTION AS A
PROVISION IN A CONTRACT OR AS A CONDITION OF EMPLOYMENT.
F. I. A physician who knowingly violates this section commits an act
of unprofessional conduct and is subject to license suspension or revocation
pursuant to title 32, chapter 13 or 17.
G. J. In addition to other remedies available under the common or
statutory law of this state, any of the following may file a civil action to
obtain appropriate relief for a violation of this section:
1. A woman on whom an abortion has been performed without her informed
consent as required by this section.
2. The father of the unborn child if married to the mother at the time
she received the abortion, unless the pregnancy resulted from the plaintiff's
criminal conduct.
3. The maternal grandparents of the unborn child if the mother was not
at least eighteen years of age at the time of the abortion, unless the
pregnancy resulted from the plaintiff's criminal conduct.
H. K. A civil action filed pursuant to subsection G J OF THIS
SECTION shall be brought in the superior court in the county in which the
woman on whom the abortion was performed resides and may be based on a claim
that failure to obtain informed consent was a result of simple negligence,
gross negligence, wantonness, wilfulness, intention or any other legal
standard of care. Relief pursuant to subsection G
J OF THIS SECTION
includes the following:
1. Money damages for all psychological, emotional and physical
injuries resulting from the violation of this section.
2. Statutory damages in an amount equal to five thousand dollars or
three times the cost of the abortion, whichever is greater.
3. Reasonable attorney fees and costs.
I. L. A civil action brought pursuant to this section must be
initiated within six years after the violation occurred.
Sec. 6. Section 36-2156, Arizona Revised Statutes, is amended to read:
36-2156. Informed consent; ultrasound required; violation;
civil relief; statute of limitations
A. An abortion shall not be performed or induced without the voluntary
and informed consent of the woman on whom the abortion is to be performed or
induced. Except in the case of a medical emergency and in addition to the
OTHER requirements of section 36-2153 THIS CHAPTER, consent to an abortion is
voluntary and informed only if both of the following are true:
1. At least one hour TWENTY-FOUR HOURS before the woman having any
part of an abortion performed or induced, and before the administration of
any anesthesia or medication in preparation for the abortion on the woman,
the physician who is to perform the abortion, the referring physician or a
qualified person working in conjunction with either physician shall:
(a) Perform fetal ultrasound imaging and auscultation of fetal heart
tone services on the woman undergoing the abortion.
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(b) Offer to provide the woman with an opportunity to view the active
ultrasound image of the unborn child and hear the heartbeat of the unborn
child if the heartbeat is audible. The active ultrasound image must be of a
quality consistent with standard medical practice in the community, contain
the dimensions of the unborn child and accurately portray the presence of
external members and internal organs, if present or viewable, of the unborn
child. The auscultation of fetal heart tone must be of a quality consistent
with standard medical practice in the community.
(c) Offer to provide the woman with a simultaneous explanation of what
the ultrasound is depicting, including the presence and location of the
unborn child within the uterus, the number of unborn children depicted, the
dimensions of the unborn child and the presence of any external members and
internal organs, if present or viewable.
(d) Offer to provide the patient with a physical picture of the
ultrasound image of the unborn child.
2. The woman certifies in writing before the abortion that she has
been given the opportunity to view the active ultrasound image and hear the
heartbeat of the unborn child if the heartbeat is audible and that she opted
to view or not view the active ultrasound image and hear or not hear the
heartbeat of the unborn child.
B. A physician who knowingly violates this section commits an act of
unprofessional conduct and is subject to license suspension or revocation
pursuant to title 32, chapter 13 or 17.
C. In addition to other remedies available under the common or
statutory law of this state, any of the following may file a civil action to
obtain appropriate relief for a violation of this section:
1. A woman on whom an abortion has been performed without her informed
consent as required by this section.
2. The father of the unborn child if married to the mother at the time
she received the abortion, unless the pregnancy resulted from the plaintiff's
criminal conduct.
3. The maternal grandparents of the unborn child if the mother was not
at least eighteen years of age at the time of the abortion, unless the
pregnancy resulted from the plaintiff's criminal conduct.
D. A civil action filed pursuant to subsection C of this section shall
be brought in the superior court in the county in which the woman on whom the
abortion was performed resides and may be based on a claim that failure to
obtain informed consent was a result of simple negligence, gross negligence,
wantonness, wilfulness, intention or any other legal standard of care.
Relief pursuant to subsection C of this section includes any of the
following:
1. Money damages for all psychological, emotional and physical
injuries resulting from the violation of this section.
2. Statutory damages in an amount equal to five thousand dollars or
three times the cost of the abortion, whichever is greater.
3. Reasonable attorney fees and costs.
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E. A civil action brought pursuant to this section must be initiated
within six years after the violation occurred.
Sec. 7. Title 36, chapter 20, article 1, Arizona Revised Statutes, is
amended by adding sections 36-2158 and 36-2159, to read:
36-2158. Informed consent; fetal condition; website; violation;
civil relief; statute of limitations; definitions
A. A PERSON SHALL NOT PERFORM OR INDUCE AN ABORTION WITHOUT FIRST
OBTAINING THE VOLUNTARY AND INFORMED CONSENT OF THE WOMAN ON WHOM THE
ABORTION IS TO BE PERFORMED OR INDUCED. EXCEPT IN THE CASE OF A MEDICAL
EMERGENCY AND IN ADDITION TO THE OTHER REQUIREMENTS OF THIS CHAPTER, CONSENT
TO AN ABORTION IS VOLUNTARY AND INFORMED ONLY IF ALL OF THE FOLLOWING OCCUR:
1. IN THE CASE OF A WOMAN SEEKING AN ABORTION OF HER UNBORN CHILD
DIAGNOSED WITH A LETHAL FETAL CONDITION, AT LEAST TWENTY-FOUR HOURS BEFORE
THE ABORTION THE PHYSICIAN WHO IS TO PERFORM THE ABORTION OR THE REFERRING
PHYSICIAN HAS INFORMED THE WOMAN, ORALLY AND IN PERSON, THAT:
(a) PERINATAL HOSPICE SERVICES ARE AVAILABLE AND THE PHYSICIAN HAS
OFFERED THIS CARE AS AN ALTERNATIVE TO ABORTION.
(b) THE DEPARTMENT OF HEALTH SERVICES MAINTAINS A WEBSITE THAT LISTS
PERINATAL HOSPICE PROGRAMS THAT ARE AVAILABLE BOTH IN THIS STATE AND
NATIONALLY AND THAT ARE ORGANIZED GEOGRAPHICALLY BY LOCATION.
(c) THE WOMAN HAS A RIGHT TO REVIEW THE WEBSITE AND THAT A PRINTED
COPY OF THE MATERIALS ON THE WEBSITE WILL BE PROVIDED TO HER FREE OF CHARGE
IF SHE CHOOSES TO REVIEW THESE MATERIALS.
2. IN THE CASE OF A WOMAN SEEKING AN ABORTION OF HER UNBORN CHILD
DIAGNOSED WITH A NONLETHAL FETAL CONDITION, AT LEAST TWENTY-FOUR HOURS BEFORE
THE ABORTION THE PHYSICIAN WHO IS TO PERFORM THE ABORTION OR THE REFERRING
PHYSICIAN HAS INFORMED THE WOMAN, ORALLY AND IN PERSON:
(a) OF UP-TO-DATE, EVIDENCE-BASED INFORMATION CONCERNING THE RANGE OF
OUTCOMES FOR INDIVIDUALS LIVING WITH THE DIAGNOSED CONDITION, INCLUDING
PHYSICAL, DEVELOPMENTAL, EDUCATIONAL AND PSYCHOSOCIAL OUTCOMES.
(b) THAT THE DEPARTMENT OF HEALTH SERVICES MAINTAINS A WEBSITE THAT
LISTS INFORMATION REGARDING SUPPORT SERVICES, HOTLINES, RESOURCE CENTERS OR
CLEARINGHOUSES, NATIONAL AND LOCAL PEER SUPPORT GROUPS AND OTHER EDUCATION
AND SUPPORT PROGRAMS AVAILABLE TO ASSIST THE WOMAN AND HER UNBORN CHILD, ANY
NATIONAL OR LOCAL REGISTRIES OF FAMILIES WILLING TO ADOPT NEWBORNS WITH THE
NONLETHAL FETAL CONDITION AND CONTACT INFORMATION FOR ADOPTION AGENCIES
WILLING TO PLACE NEWBORNS WITH THE NONLETHAL FETAL CONDITION WITH FAMILIES
WILLING TO ADOPT.
(c) THAT THE WOMAN HAS A RIGHT TO REVIEW THE WEBSITE AND THAT A
PRINTED COPY OF THE MATERIALS ON THE WEBSITE WILL BE PROVIDED TO HER FREE OF
CHARGE IF SHE CHOOSES TO REVIEW THESE MATERIALS.
3. THE WOMAN CERTIFIES IN WRITING BEFORE THE ABORTION THAT THE
INFORMATION REQUIRED TO BE PROVIDED PURSUANT TO THIS SUBSECTION HAS BEEN
PROVIDED.
B. THE DEPARTMENT OF HEALTH SERVICES SHALL ESTABLISH A WEBSITE WITHIN
NINETY DAYS AFTER THE EFFECTIVE DATE OF THIS SECTION AND SHALL ANNUALLY
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UPDATE THE WEBSITE. THE WEBSITE SHALL INCLUDE THE INFORMATION PRESCRIBED IN
SUBSECTION A, PARAGRAPH 1, SUBDIVISION (b) AND PARAGRAPH 2, SUBDIVISION (b)
OF THIS SECTION.
C. A PHYSICIAN WHO KNOWINGLY VIOLATES THIS SECTION COMMITS AN ACT OF
UNPROFESSIONAL CONDUCT AND IS SUBJECT TO LICENSE SUSPENSION OR REVOCATION
PURSUANT TO TITLE 32, CHAPTER 13 OR 17.
D. IN ADDITION TO OTHER REMEDIES AVAILABLE UNDER THE COMMON OR
STATUTORY LAW OF THIS STATE, ANY OF THE FOLLOWING INDIVIDUALS MAY FILE A
CIVIL ACTION TO OBTAIN APPROPRIATE RELIEF FOR A VIOLATION OF THIS SECTION:
1. A WOMAN ON WHOM AN ABORTION HAS BEEN PERFORMED WITHOUT HER INFORMED
CONSENT AS REQUIRED BY THIS SECTION.
2. THE FATHER OF THE UNBORN CHILD IF THE FATHER IS MARRIED TO THE
MOTHER AT THE TIME SHE RECEIVED THE ABORTION, UNLESS THE PREGNANCY RESULTED
FROM THE FATHER'S CRIMINAL CONDUCT.
3. THE MATERNAL GRANDPARENTS OF THE UNBORN CHILD IF THE MOTHER WAS NOT
AT LEAST EIGHTEEN YEARS OF AGE AT THE TIME OF THE ABORTION, UNLESS THE
PREGNANCY RESULTED FROM EITHER OF THE MATERNAL GRANDPARENT'S CRIMINAL
CONDUCT.
E. A CIVIL ACTION FILED PURSUANT TO SUBSECTION D OF THIS SECTION SHALL
BE BROUGHT IN THE SUPERIOR COURT IN THE COUNTY IN WHICH THE WOMAN ON WHOM THE
ABORTION WAS PERFORMED RESIDES AND MAY BE BASED ON A CLAIM THAT FAILURE TO
OBTAIN INFORMED CONSENT WAS A RESULT OF SIMPLE NEGLIGENCE, GROSS NEGLIGENCE,
WANTONNESS, WILFULNESS, INTENTION OR ANY OTHER LEGAL STANDARD OF CARE.
RELIEF PURSUANT TO THIS SUBSECTION INCLUDES THE FOLLOWING:
1. MONEY DAMAGES FOR ALL PSYCHOLOGICAL, EMOTIONAL AND PHYSICAL
INJURIES RESULTING FROM THE VIOLATION OF THIS SECTION.
2. STATUTORY DAMAGES IN AN AMOUNT EQUAL TO FIVE THOUSAND DOLLARS OR
THREE TIMES THE COST OF THE ABORTION, WHICHEVER IS GREATER.
3. REASONABLE ATTORNEY FEES AND COSTS.
F. A CIVIL ACTION BROUGHT PURSUANT TO THIS SECTION MUST BE INITIATED
WITHIN SIX YEARS AFTER THE VIOLATION OCCURRED.
G. FOR THE PURPOSES OF THIS SECTION:
1. "LETHAL FETAL CONDITION" MEANS A FETAL CONDITION THAT IS DIAGNOSED
BEFORE BIRTH AND THAT WILL RESULT, WITH REASONABLE CERTAINTY, IN THE DEATH OF
THE UNBORN CHILD WITHIN THREE MONTHS AFTER BIRTH.
2. "NONLETHAL FETAL CONDITION" MEANS A FETAL CONDITION THAT IS
DIAGNOSED BEFORE BIRTH AND THAT WILL NOT RESULT IN THE DEATH OF THE UNBORN
CHILD WITHIN THREE MONTHS AFTER BIRTH BUT MAY RESULT IN PHYSICAL OR MENTAL
DISABILITY OR ABNORMALITY.
3. "PERINATAL HOSPICE" MEANS COMPREHENSIVE SUPPORT TO THE PREGNANT
WOMAN AND HER FAMILY THAT INCLUDES SUPPORTIVE CARE FROM THE TIME OF DIAGNOSIS
THROUGH THE TIME OF BIRTH AND DEATH OF THE INFANT AND THROUGH THE POSTPARTUM
PERIOD. SUPPORTIVE CARE MAY INCLUDE COUNSELING AND MEDICAL CARE BY
MATERNAL-FETAL MEDICAL SPECIALISTS, OBSTETRICIANS, NEONATOLOGISTS, ANESTHESIA
SPECIALISTS, CLERGY, SOCIAL WORKERS AND SPECIALTY NURSES WHO ARE FOCUSED ON
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ALLEVIATING FEAR AND ENSURING THAT THE WOMAN AND HER FAMILY EXPERIENCE THE
LIFE AND DEATH OF THE CHILD IN A COMFORTABLE AND SUPPORTIVE ENVIRONMENT.
36-2159. Abortion; gestational age; violation; classification;
statute of limitations
A. EXCEPT IN A MEDICAL EMERGENCY, A PERSON SHALL NOT PERFORM, INDUCE
OR ATTEMPT TO PERFORM OR INDUCE AN ABORTION UNLESS THE PHYSICIAN OR THE
REFERRING PHYSICIAN HAS FIRST MADE A DETERMINATION OF THE PROBABLE
GESTATIONAL AGE OF THE UNBORN CHILD. IN MAKING THAT DETERMINATION, THE
PHYSICIAN OR REFERRING PHYSICIAN SHALL MAKE ANY INQUIRIES OF THE PREGNANT
WOMAN AND PERFORM OR CAUSE TO BE PERFORMED ALL MEDICAL EXAMINATIONS, IMAGING
STUDIES AND TESTS AS A REASONABLY PRUDENT PHYSICIAN IN THE COMMUNITY,
KNOWLEDGEABLE ABOUT THE MEDICAL FACTS AND CONDITIONS OF BOTH THE WOMAN AND
THE UNBORN CHILD INVOLVED, WOULD CONSIDER NECESSARY TO PERFORM AND CONSIDER
IN MAKING AN ACCURATE DIAGNOSIS WITH RESPECT TO GESTATIONAL AGE.
B. EXCEPT IN A MEDICAL EMERGENCY, A PERSON SHALL NOT KNOWINGLY
PERFORM, INDUCE OR ATTEMPT TO PERFORM OR INDUCE AN ABORTION ON A PREGNANT
WOMAN IF THE PROBABLE GESTATIONAL AGE OF HER UNBORN CHILD HAS BEEN DETERMINED
TO BE AT LEAST TWENTY WEEKS.
C. A PERSON WHO KNOWINGLY VIOLATES THIS SECTION COMMITS A CLASS 1
MISDEMEANOR.
D. A PHYSICIAN WHO KNOWINGLY VIOLATES THIS SECTION COMMITS AN ACT OF
UNPROFESSIONAL CONDUCT AND IS SUBJECT TO LICENSE SUSPENSION OR REVOCATION
PURSUANT TO TITLE 32, CHAPTER 13 OR 17.
E. IN ADDITION TO OTHER REMEDIES AVAILABLE UNDER THE COMMON OR
STATUTORY LAW OF THIS STATE, ANY OF THE FOLLOWING INDIVIDUALS MAY FILE A
CIVIL ACTION TO OBTAIN APPROPRIATE RELIEF FOR A VIOLATION OF THIS SECTION:
1. A WOMAN ON WHOM AN ABORTION HAS BEEN PERFORMED IN VIOLATION OF THIS
SECTION.
2. THE FATHER OF THE UNBORN CHILD IF THE FATHER IS MARRIED TO THE
MOTHER AT THE TIME SHE RECEIVED THE ABORTION, UNLESS THE PREGNANCY RESULTED
FROM THE FATHER'S CRIMINAL CONDUCT.
3. THE MATERNAL GRANDPARENTS OF THE UNBORN CHILD IF THE MOTHER WAS NOT
AT LEAST EIGHTEEN YEARS OF AGE AT THE TIME OF THE ABORTION, UNLESS THE
PREGNANCY RESULTED FROM EITHER OF THE MATERNAL GRANDPARENT'S CRIMINAL
CONDUCT.
F. A CIVIL ACTION FILED PURSUANT TO SUBSECTION E OF THIS SECTION SHALL
BE BROUGHT IN THE SUPERIOR COURT IN THE COUNTY IN WHICH THE WOMAN ON WHOM THE
ABORTION WAS PERFORMED RESIDES. RELIEF PURSUANT TO THIS SUBSECTION INCLUDES
THE FOLLOWING:
1. MONEY DAMAGES FOR ALL PSYCHOLOGICAL, EMOTIONAL AND PHYSICAL
INJURIES RESULTING FROM THE VIOLATION OF THIS SECTION.
2. STATUTORY DAMAGES IN AN AMOUNT EQUAL TO FIVE THOUSAND DOLLARS OR
THREE TIMES THE COST OF THE ABORTION, WHICHEVER IS GREATER.
3. REASONABLE ATTORNEY FEES AND COSTS.
G. A CIVIL ACTION BROUGHT PURSUANT TO THIS SECTION MUST BE INITIATED
WITHIN SIX YEARS AFTER THE VIOLATION OCCURRED.
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H. A WOMAN ON WHOM AN ABORTION IS PERFORMED OR INDUCED IN VIOLATION OF
THIS SECTION MAY NOT BE PROSECUTED UNDER THIS SECTION OR FOR CONSPIRACY TO
COMMIT A VIOLATION OF THIS SECTION.
Sec. 8. Section 36-2163, Arizona Revised Statutes, is amended to read:
36-2163. Reports; confidentiality; annual statistical report;
violations; classification; unprofessional conduct
A. A report required by this article shall not contain the name of the
woman, common identifiers such as the woman's social security number, driver
license number or insurance carrier identification numbers or any other
information or identifiers that would make it possible to identify in any
manner or under any circumstances an individual who has obtained or seeks to
obtain an abortion.
B. The department of health services shall collect all abortion
reports and complication reports and prepare a comprehensive annual
statistical report based on the data gathered in the reports. The
statistical report shall not lead to the disclosure of the identity of any
person filing a report or about whom a report is filed. The department shall
make the statistical report available on its website and for public
inspection and copying.
C. The report prepared by the department pursuant to subsection B of
this section shall include statistics from the administrative office of the
courts containing the following information:
1. The number of petitions filed pursuant to section 36-2152,
subsection B.
2. Of the petitions filed pursuant to section 36-2152, subsection B,
the number in which the judge appointed a guardian ad litem or
court-appointed counsel for the minor pursuant to section 36-2152,
subsection D.
3. Of the petitions filed pursuant to section 36-2152, subsection B,
the number in which the judge issued an order authorizing an abortion without
parental consent.
4. Of the petitions filed pursuant to section 36-2152, subsection B,
the number in which the judge issued an order denying the petition.
5. Of the petitions denied, the number appealed to the court of
appeals.
6. The number of those appeals that resulted in the denials being
affirmed.
7. The number of those appeals that resulted in the denial being
reversed.
D. Except for a statistical report as provided in subsection B of this
section, a report filed pursuant to this article is not a public record and
is not available for public inspection, except that disclosure may be made to
law enforcement officials on an order of a court after application showing
good cause. The court may condition disclosure of the information on any
appropriate safeguards it may impose.
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E. Original copies of all reports filed pursuant to sections 36-2161
and 36-2162 shall be available to the Arizona medical board and the Arizona
board of osteopathic examiners in medicine and surgery for use in the
performance of their official duties. The Arizona medical board and the
Arizona board of osteopathic examiners in medicine and surgery shall maintain
the confidentiality of any reports obtained pursuant to this subsection.
F. An employee, agent or contractor of the department who wilfully
discloses any information obtained from reports filed pursuant to this
article, other than disclosure authorized under subsections B, D and E of
this section or as otherwise authorized by law, is guilty of a class 3
misdemeanor.
G. A person who is required by this article to file a report, keep any
records or supply any information and who wilfully fails to file that report,
keep records or supply information as required by law is guilty of
unprofessional conduct and is subject to discipline, including license
suspension or revocation.
H. A person who wilfully delivers or discloses to the department any
report, record or information known by that person to be false commits a
class 1 misdemeanor.
I. In addition to the penalties prescribed by subsections F, G and H
of this section, an organization or facility that wilfully violates the
reporting requirements of this article is subject to discipline by the
department including the same civil penalties as prescribed in section 36-126
36-431.01. IF AN ORGANIZATION OR FACILITY THAT IS LICENSED PURSUANT TO
CHAPTER 4, ARTICLE 10 OF THIS TITLE WILFULLY VIOLATES THE REPORTING
REQUIREMENTS OF THIS ARTICLE, THE DEPARTMENT MAY ASSESS A CIVIL PENALTY
PURSUANT TO SECTION 36-431.01, IMPOSE AN INTERMEDIATE SANCTION PURSUANT TO
SECTION 36-427, SUSPEND OR REVOKE A LICENSE PURSUANT TO SECTION 36-427, DENY
A LICENSE OR BRING AN ACTION FOR AN INJUNCTION PURSUANT TO SECTION 36-430.
Sec. 9. Findings and purposes
A. The legislature finds that:
1. Abortion can cause serious both short-term and long-term physical
and psychological complications for women, including but not limited to
uterine perforation, uterine scarring, cervical perforation or other injury,
infection, bleeding, hemorrhage, blood clots, failure to actually terminate
the pregnancy, incomplete abortion (retained tissue), pelvic inflammatory
disease, endometritis, missed ectopic pregnancy, cardiac arrest, respiratory
arrest, renal failure, metabolic disorder, shock, embolism, coma, placenta
previa in subsequent pregnancies, preterm delivery in subsequent pregnancies,
free fluid in the abdomen, organ damage, adverse reactions to anesthesia and
other drugs, psychological or emotional complications such as depression,
anxiety or sleeping disorders and death. See, e.g., P.K. Coleman, Abortion
and Mental Health: Quantitative Synthesis and Analysis of Research Published
1995-2009, Brit. J. of Psychiatry 199:180-86 (2011); P. Shah et al., Induced
termination of pregnancy and low birth weight and preterm birth: a systematic
review and meta-analysis, B.J.O.G. 116(11):1425 (2009); H.M. Swingle et al.,
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Abortion and the Risk of Subsequent Preterm Birth: A Systematic Review and
Meta-Analysis, J. Reprod. Med. 54:95 (2009); R.H. van Oppenraaij et al.,
Predicting adverse obstetric outcome after early pregnancy events and
complications: a review, Human Reprod. Update Advance Access 1:1 (Mar. 7,
2009); R.E. Behrman, Preterm Birth: Causes, Consequences, and Prevention 519
(2006); J.M. Thorp et al., Long-Term Physical and Psychological Health
Consequences of Induced Abortion: Review of the Evidence, Obstet. & Gynecol.
Survey 58[1]:67, 75 (2003) J.M. Barrett, Induced Abortion: A Risk Factor for
Placenta Previa, Am. J. Obstet. & Gynecol. 141:7 (1981).
2. Abortion has a higher medical risk when the procedure is performed
later in pregnancy. Compared to an abortion at eight weeks of gestation or
earlier, the relative risk increases exponentially at higher gestations.
L. Bartlett et al., Risk factors for legal induced abortion-related mortality
in the United States, Obstetrics & Gynecology 103(4):729–737 (2004).
3. The incidence of major complications is highest after twenty weeks
of gestation. J. Pregler & A. DeCherney, Women's Health: Principles and
Clinical Practice 232 (2002).
4. The risk of death associated with abortion increases with the
length of pregnancy, from one death for every one million abortions at or
before eight weeks gestation to one per 29,000 abortions at sixteen to twenty
weeks and one per 11,000 abortions at twenty-one or more weeks. L. Bartlett
et al., Risk factors for legal induced abortion-related mortality in the
United States, Obstetrics & Gynecology 103(4):729–737 (2004).
After the
first trimester, the risk of hemorrhage from an abortion, in particular, is
greater, and the resultant complications may require a hysterectomy, other
reparative surgery or a blood transfusion.
5. The State of Arizona has a legitimate concern for the public's
health and safety. Williamson v. Lee Optical, 348 U.S. 483, 486 (1985);
Cohen v. State, 121 Ariz. 6, 10, 588 P.2d 299, 303 (1978).
6. The State of Arizona "has legitimate interests from the outset of
pregnancy in protecting the health of women."
Planned Parenthood of
Southeastern Pennsylvania v. Casey, 505 U.S. 833, 847 (1992); Planned
Parenthood Arizona, Inc. v. American Ass'n of Pro-Life Obstetricians &
Gynecologists, 257 P.3d 181, 194 (Ariz. App. Div. 1, 2011). More
specifically, Arizona "has a legitimate concern with the health of women who
undergo abortions." Akron v. Akron Ctr. for Reproductive Health, Inc., 462
U.S. 416, 428-29 (1983).
7. There is substantial and well-documented medical evidence that an
unborn child by at least twenty weeks of gestation has the capacity to feel
pain during an abortion. K. Anand, Pain and its effects in the human neonate
and fetus, New England Journal of Medicine, 317:1321-29 (1987).
8. The United States Food and Drug Administration approved the drug
mifepristone, a first-generation (selective) progesterone receptor modulator
([S]PRM), as an abortion-inducing drug with a specific gestation, dosage and
administration protocol.
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9. As approved by the United States Food and Drug Administration, and
as outlined in the drug label, an abortion by mifepristone consists of three
200 mg tablets of mifepristone taken orally, followed by two 200 mcg tablets
of misopristol taken orally, through forty-nine days LMP (a gestational
measurement using the first day of the woman's "last menstrual period" as a
marker). The patient is to return for a follow-up visit in order to confirm
that a complete termination of pregnancy has occurred. Mifeprex Prescribing
Information,
Danco
Laboratories
(July
2005),
available
at
http://www.accessdata.fda.gov/drugsatfda_docs/label/2005/020687s013lbl.pdf;
Mifeprex Medication Guide, Danco Laboratories (June 8, 2011), available at
www.accessdata.fda.gov/drugsatfda_docs/label/2011/020687s014lbl.pdf.
10. The aforementioned treatment requires three office visits by the
patient, and the dosages may only be administered in a clinic, medical office
or hospital and under supervision of a physician.
11. Court testimony demonstrates that some abortion providers fail to
follow the mifepristone protocol as tested and approved by the United States
Food and Drug Administration, and as outlined in the drug label. See, e.g.,
Planned Parenthood v. Goddard, CV2009-029110, Declaration of Beth Otterstein
at 3 (Sept. 10, 2009); Planned Parenthood v. Horne, CV2010-030230,
Declaration of Paul D. Blumenthal, M.D., M.P.H. (June 29, 2011); and Planned
Parenthood Cincinnati Region v. Taft, 459 F. Supp. 2d 626, 630 n. 7 (S.D. Oh.
2006).
12. The use of mifepristone presents significant medical risks to
women, including but not limited to C. sordellii bacterial infection, septic
shock, toxic shock syndrome, adult respiratory distress syndrome from sepsis,
Escheria coli sepsis, group B Streptococcus septicemia, disseminated
intravascular coagulopathy (DIC) with heptic and renal failure, severe pelvic
infection and massive hemorrhage.
13. Abortion-inducing drugs are associated with an increased risk of
complications relative to surgical abortion. The risk of complications
increases with increasing gestational age, and, in the instance of
mifepristone, with failure to complete the two-step dosage process.
14. Medical studies have indicated that 1 to 2 out of every 1,000
women who undergo mifepristone abortions will require emergency blood
transfusion for massive hemorrhage. By April 30, 2011, the United States
Food and Drug Administration reported that at least 339 women required blood
transfusions for massive bleeding after mifepristone abortions. A total of
612 United States women have been hospitalized due to complications, and
fourteen women in the United States have died following administration of
mifepristone. The majority of reported deaths in the United States were from
fatal infection.
Mifepristone U.S. Postmarketing Adverse Events Summary
through 04/30/2011, United States Food and Drug Administration, available at
www.fda.gov/downloads/Drugs/DrugSafety/PostmarketDrugSafetyInformationfor
PatientsandProviders/UCM263353.pdf. This infection is atypical to the usual
presentation of sepsis and may occur without the typical signs of infection,
such as fever and tenderness. This atypical presentation requires that
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H.B. 2036

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mifepristone be dispensed only in a closely supervised clinical setting under
the direction of a licensed physician who has the direct ability to counsel
the patient regarding the risks, and also to examine the patient prior to and
after administration of mifepristone.
15. The absence of proper follow-up care after mifepristone
abortions
has
resulted
in
at least 58 women having undetected
ectopic
pregnancies,
including
two
deaths
from
ectopic
rupture.
Mifepristone U.S. Postmarketing Adverse Events Summary through 04/30/2011,
United
States
Food
and
Drug
Administration,
available
at
www.fda.gov/downloads/Drugs/DrugSafety/PostmarketDrugSafetyInformationfor
PatientsandProviders/UCM263353.pdf.
B. For these reasons, the legislature's purposes in promulgating this
act include to:
1. Prohibit abortions at or after twenty weeks of gestation, except in
cases of a medical emergency, based on the documented risks to women's health
and the strong medical evidence that unborn children feel pain during an
abortion at that gestational age.
2. Protect women from the dangerous and potentially deadly off-label
use of abortion-inducing drugs, such as, for example, mifepristone.
3. Ensure that physicians abide by the protocol tested and approved by
the United States Food and Drug Administration for such abortion-inducing
drugs, as outlined in the drug labels.
Sec. 10. Exemption from rule making
For the purposes of this act, the department of health services is
exempt from the rule making requirements of title 41, chapter 6, Arizona
Revised Statutes, for two years after the effective date of this act.
Sec. 11. Construction
This act does not establish or recognize a right to an abortion and
does not make lawful an abortion that is currently unlawful.
Sec. 12. Severability
If a provision of this act or its application to any person or
circumstance is held invalid, the invalidity does not affect other provisions
or applications of the act that can be given effect without the invalid
provision or application, and to this end the provisions of this act are
severable.

APPROVED BY THE GOVERNOR APRIL 12, 2012.
FILED IN THE OFFICE OF THE SECRETARY OF STATE APRIL 12, 2012.

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