§1299.35.6. Woman's Right To Know
A. Legislative findings and purposes. The Legislature of Louisiana finds that:
(1) Act No. 435 of the 1978 Regular Session of the Legislature required the obtaining of the informed consent of a pregnant woman to the performance of an abortion. This law was declared unconstitutional in the cases of Margaret S. v. Edwards, and in Margaret S. v. Treen.
(2) By Act No. 435 of the 1978 Regular Session of the Legislature (R.S. 40:1299.35.7) a twenty-four-hour waiting period was required between the signing of an informed consent and the performance of an abortion. This law was repealed by Act No. 418 of the 1980 Regular Session of the Legislature because of the decision of the federal court in Margaret S. v. Edwards.
(3) Subsequent to the above-referenced court decisions and legislative enactments, the United States Supreme Court has rendered a decision in the case of Planned Parenthood of Pennsylvania v. Casey, which upheld the constitutionality of the Pennsylvania law which required informed consent, parental consent, and a twenty-four-hour waiting period prior to an abortion, and which decision has therefore impliedly overruled the decisions in the Margaret S. cases.
(4) The judicial obstacles to such legislation now having been removed by virtue of the Casey decision, the legislature finds that it is in the public interest and in furtherance of the general health and welfare of the citizens of this state to reenact provisions of law similar to those heretofore either declared unconstitutional or repealed for the following reasons:
(a) It is essential to the psychological and physical well-being of a woman considering an abortion that she receive complete and accurate information regarding her alternatives.
(b) The knowledgable exercise of a woman's decision to have an abortion depends on the extent to which the woman receives sufficient information to make an informed choice between two alternatives, giving birth or having an abortion.
(c) The vast majority of all abortions are performed in clinics devoted solely to providing abortions and family planning services. Most women who seek abortions at these facilities do not have any relationship with the physician who performs the abortion, before or after the procedure. They do not return to the facility for postsurgical care. In most instances, the woman's only actual contact with the physician occurs simultaneously with the abortion procedure, with little opportunity to receive counseling concerning her decision.
(d) The decision to abort "is an important, and often a stressful one, and it is desirable and imperative that it be made with full knowledge of its nature and consequences", Planned Parenthood v. Danforth.
(e) "The medical, emotional, and psychological consequences of an abortion are serious and can be lasting...", H. L. v. Matheson.
(f) Abortion facilities or providers offer only limited and/or impersonal counseling opportunities.
(g) Many abortion facilities or providers hire untrained and unprofessional "counselors" whose primary goal is to sell abortion services.
(5) Based on the above findings, it is the purpose of this Act to:
(a) Ensure that every woman considering an abortion receive complete information on her alternatives and that every woman submitting to an abortion do so only after giving her voluntary and informed consent to the abortion procedure.
(b) Protect unborn children from a woman's uninformed decision to have an abortion.
(c) Reduce "the risk that a woman may elect an abortion only to discover later, with devastating psychological consequences, that her decision was not fully informed", Planned Parenthood v. Casey.
(d) Ensure that every woman considering an abortion receive complete information regarding the availability of anesthesia or analgesics that would eliminate or alleviate organic pain to the unborn child that could be caused by the particular method of abortion to be employed.
B. Informed consent; requirements. After a woman is determined to be pregnant, no abortion shall be performed or induced without the voluntary and informed consent of the woman upon whom the abortion is to be performed or induced. Except in the case of a medical emergency, consent to an abortion is voluntary and informed if and only if:
(1) The provisions of R.S. 40:1299.35.2 requiring an ultrasound test and determination of viability are met.
(2) The information required by this Section to be communicated orally and in person to the woman is provided to her individually and in a private room to protect her privacy, for the purpose of ensuring that the information focuses on her individual circumstances and that she has an adequate opportunity to ask questions.
(3) Oral information from the physician. 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 meets the requirements of R.S. 46:1299.35.2(A) and who will perform the abortion.
(b) A description of the proposed abortion method and of those risks (including risks to the woman's reproductive health) and alternatives to the abortion that a reasonable patient would consider material to the decision of whether or not to undergo the abortion.
(c) The probable gestational age of the unborn child at the time the abortion is to be performed; and, if the unborn child is viable or has reached the gestational age of twenty-four weeks and the abortion may be otherwise lawfully performed under existing law, that:
(i) The unborn child may be able to survive outside the womb.
(ii) The woman has the right to request the physician to use the method of abortion that is most likely to preserve the life of the unborn child.
(iii) If the unborn child is born alive, that attending physicians have the legal obligation to take all reasonable steps necessary to maintain the life and health of the child.
(d) The probable anatomical and physiological characteristics of the unborn child at the time the abortion is to be performed.
(e) The medical risks associated with carrying her child to term.
(f) Any need for anti-Rh immune globulin therapy, if she is Rh negative, the likely consequences of refusing such therapy, and a good faith estimate of the cost of the therapy.
(g) The availability of anesthesia or analgesics to alleviate or eliminate organic pain to the unborn child that could be caused by the method of abortion to be employed.
(h) The requirement that at least twenty-four hours prior to the woman having any part of an abortion performed or induced, the physician, referring physician, or qualified person working in conjunction with either physician must perform an obstetric ultrasound under the provisions of R.S. 40:1299.35.2.
(i) The inclusion in her printed materials of a comprehensive list, compiled by the department, of facilities that offer obstetric ultrasounds free of charge.
(4) Oral information from a physician or qualified person.
(a) In the initial contact with an abortion provider by any person seeking to schedule an abortion for a minor or adult woman or for herself, whether such initial contact is by telephone, by Internet communication, in person, or by any other means, the physician who is to perform the abortion or any person acting on behalf of the physician informs the person of the Internet address of the department's abortion alternatives and informed consent website provided for in this Section.
(b) At least twenty-four hours before a scheduled abortion, the physician who is to perform the abortion, the referring physician, or a qualified person has informed the woman, orally and in person, that:
(i) Medical assistance benefits may be available for prenatal care, childbirth, and neonatal care, and that more detailed information on the availability of such assistance is contained on the department's website and in the printed materials which shall be given to her as provided in this Section.
(ii) The department's website and printed materials describe the unborn child and list agencies which offer alternatives to abortion.
(iii) The father of the unborn child is liable to assist in the support of her child, even in instances where he has offered to pay for the abortion. In the case of rape, this information may be omitted.
(iv) She is free to withhold or withdraw her consent to the abortion at any time before or during the abortion without affecting her right to future care or treatment and without the loss of any state or federally funded benefits to which she might otherwise be entitled.
(c) For purposes of this Paragraph, "qualified person" shall mean an agent of the physician who is a psychologist, licensed social worker, licensed professional counselor, registered nurse, or physician.
(5) Provision of printed materials. At least twenty-four hours before the abortion, the woman is given a copy of the printed materials described in this Section by the physician who is to perform the abortion, the referring physician, or a qualified person as defined in Subparagraph (4)(c) of this Subsection. If the woman is unable to read the materials, they shall be read to her. If the woman asks questions concerning any of the information or materials, answers shall be provided to her in her own language.
(6) Certification and reporting. The woman certifies in writing on a form provided by the department, prior to the abortion, that the information and materials required to be provided under this Section have been provided at least twenty-four hours prior to the abortion. All physicians who perform abortions shall report the total number of certifications received monthly to the department. The department shall make the number of certifications received available to the public on an annual basis.
(7) Prior to the performance of the abortion, the physician who is to perform the abortion or his agent receives a copy of the written certification required by this Section.
(8) The woman is not required to pay any amount for the abortion procedures until the twenty-four-hour period has expired.
C. Publication of abortion alternatives and informed consent website.
(1) The department shall cause to be published in English, within one hundred twenty days after enactment of this Act, and shall update on an annual basis, or as needed, the following easily comprehensible information on a stable Internet website that shall be developed and maintained by the department to inform the public of the public and private agencies and services available to assist a woman through pregnancy, upon childbirth, and while her child is dependent, including but not limited to the following information that shall indicate the agency's or service's physical address, telephone number, and web address if available:
(a) Information about public and private agencies which provide medical assistance benefits that may be available for prenatal care, childbirth, and neonatal care, and easily comprehensible information on how to apply for such benefits.
(b) Public and private pregnancy resource centers that provide information and services such as free abortion alternatives counseling, prenatal care, pantry services and parenting skills, and that do not refer, counsel, perform, induce, prescribe, or provide any means for abortion.
(c) Information about the support obligations of the father of a child who is born alive and information about the judicial enforcement of child support.
(d) Information on a separate and featured subpage of the department's website that lists facilities that provide free obstetric ultrasound services under the provisions of R.S. 40:1299.35.2 and this Section.
(e) Information on public and private adoption agencies.
(f) Information on the anatomical and physiological characteristics of the unborn child pursuant to the provisions of this Section, including color photographs or images consistent with the most current technology depicting the unborn child at two-week gestational increments or closer.
(g) Information describing the various methods of abortion procedures, the short-term and long-term medical risks associated with abortion, and the medical risks associated with carrying a child to term.
(h) Information on the unborn child's ability to experience pain.
(i) Video clips that convey objective and medically accurate information about abortion procedures, abortion risks, abortion alternative resources, and medically accurate information on the development of an unborn child. Video clips may be produced with the in-house resources of the department, or acquired for no cost to the state from third parties if the video is approved by the secretary as providing objective and medically accurate information.
(j) Information that helps women identify unlawful abortion coercion, including but not limited to resources or hotlines that a minor or adult woman may call if she is experiencing actual or threatened physical abuse or violence, loss of employment or employment privileges, loss of eligible social assistance, loss of educational scholarship, or loss of legally protected financial support or housing.
(k) Information to assist minors who are considering abortion, including parental consent information, and resources to help minors seek the protection of state child welfare services, temporary guardianship, or law enforcement authorities to report abuse as defined in Article 603 of the Children's Code. The information designed to assist minors shall also include a link to pregnancy resource centers as defined in Subparagraph (1)(b) of this Subsection.
(2) The home page of the department's main website shall feature a button or other link which accesses the department's abortion alternatives and informed consent website, and the home page of such website shall feature user-friendly buttons that link to the information required in this Section. The department shall ensure that the resources described in this Section are comprehensive and user-friendly, and that they do not directly or indirectly promote, exclude, or discourage the use of any agency or service described in this Section.
(3) No information regarding who uses the website shall be collected or maintained. The department shall monitor the website to prevent and correct tampering and shall immediately notify abortion providers of any change of the website address.
(4) The search capabilities on the department's main website shall ensure that entering the term "abortion" yields the website and information required by this Section, regardless of how the information is labeled.
(5) The information on the department's abortion alternatives and informed consent website shall be printable. The printed materials required in Subsection D of this Section shall be available to download from the website in a portable document format without cost. The download of such information shall not be deemed to satisfy the requirements of Subsection B of this Section.
(6) The department's abortion alternatives and informed consent website shall be accessible to the public without requiring registration or use of a user name, a password, or any user identification.
(7) The department's abortion alternatives and informed consent website shall have the capability of detecting when it is being accessed by a mobile device and shall have the capability of converting to a platform designed to be easily viewable on mobile devices.
(8) If an abortion provider has a website, the abortion provider's Internet website home page shall include a prominent link to the department's abortion alternatives and informed consent website.
D. Publication of printed materials. The department shall cause to be published, within one hundred twenty days after enactment of this Act and shall update on an annual basis or as needed, the following printed materials:
(1) The signs provided for in the Forced Abortion Prevention Sign Act, R.S. 40:1218.104.22.168.
(2) A list arranged geographically, including the name, address, hours of operation, website address if available, and telephone number of each entity which offers obstetric ultrasounds free of charge. The list shall not include any facility that counsels, refers, performs, induces, prescribes, or provides any means for abortion.
(3) A printed booklet that features the web address of the department's dedicated pregnancy resource website printed in a bold large typeface. The booklet shall contain an outline of the various topics on the website as provided in Subsection C of this Section along with an explanation that more detailed information can be found at the department's website. The printed booklet shall state that it is unlawful for any individual to coerce a minor or adult woman to undergo an abortion, that any physician who performs an abortion upon a woman without her informed consent may be liable to her for damages in a civil action at law, and that the law permits adoptive parents to pay costs of prenatal care, childbirth, and neonatal care.
(a) The department's website and printed booklet shall include the following statements:
(i) "There are many public and private agencies willing and able to help you to carry your child to term, and to assist you and your child after your child is born, whether you choose to keep your child or to place her or him for adoption. The state of Louisiana strongly urges you to consult an independent physician about the risks of abortion to your physical and psychological well-being and to contact the resources provided on our website before making a final decision about abortion. The law requires that the abortion provider give you the opportunity to contact agencies like these before you undergo an abortion."
(ii) "By twenty weeks gestation, the unborn child has the physical structures necessary to experience pain. There is evidence that by twenty weeks gestation unborn children seek to evade certain stimuli in a manner which in an infant or an adult would be interpreted to be a response to pain. Anesthesia is routinely administered to unborn children who are twenty weeks gestational age or older who undergo prenatal surgery."
(b) The printed booklet shall include materials that inform the pregnant woman of the probable anatomical and physiological characteristics of the unborn child at a minimum of two-week gestational increments from fertilization to full term, including color photographs or medical images consistent with the most current technology depicting the development of unborn children, and any relevant information on the possibility of the unborn child's survival; provided that any such color photographs or images shall contain the dimensions of the unborn child and shall be medically accurate. The materials shall be objective, nonjudgmental, and designed to convey only accurate scientific information about the unborn child at the various gestational ages. The material shall also contain objective information describing the methods of abortion procedures, the short-term and long-term medical risks associated with abortion as supported by peer-reviewed medical journals, and the medical risks associated with carrying a child to term.
(4) A certification form to be used by physicians or their agents as provided in this Section, which will list all the items of information which are to be given to women by physicians or their agents as required by this Section.
E. The materials provided for in Subsection D of this Section shall be printed in a typeface large enough to be clearly legible, and shall be available at no cost from the department upon request and in appropriate number to any person, facility, or hospital. The department's abortion alternatives and informed consent website shall contain information on ordering printed materials. The department shall promulgate rules and regulations relative to the methods of distribution of printed materials.
F. Medical emergency. Where a medical emergency compels the performance of an abortion, the physician shall orally inform the woman, before the abortion, if possible, of the medical indications supporting his judgment that an abortion is necessary to avert her death or to avert substantial and irreversible impairment of a major bodily function.
G. Reporting requirements. Any physician who has provided the information and materials to any woman in accordance with the requirements of this Section shall provide to the department:
(1) With respect to a woman upon whom an abortion is performed, all information as required by R.S. 40:1299.35.10 as well as the date upon which the information and materials required to be provided under this Section were provided, as well as an executed copy of the certification form required by this Section.
(2) With respect to any woman to whom the printed and oral information and materials have been provided in accordance with this Section, but upon whom the physician has not performed an abortion, the name and address of the facility where the required information was provided and if executed by the woman, a copy of the certification form required by this Section.
H. Criminal penalties.
(1) Any person who intentionally, knowingly, or recklessly fails to comply with all the requirements of this Section shall be subject to the penalties provided in R.S. 40:1299.35.19.
(2) No physician shall be guilty of violating this Section if he or she can demonstrate, by a preponderance of the evidence, that he or she reasonably believed that furnishing the required information would have resulted in a severely adverse effect on the physical or mental health of the pregnant woman, provided that the pregnancy is terminated in a licensed hospital and that it is necessary, as certified with supporting medical reasons by the physician in the woman's medical record, to avert the woman's death or avoid serious risk of substantial and irreversible impairment of a major bodily function, or to induce the premature delivery of an unborn child who is eighteen weeks gestational age or greater when the physician has made a good faith medical judgment that the unborn child's medical condition is such that there is no realistic possibility of maintaining the life of the unborn child outside the womb even if the unborn child were to be delivered after a full-term pregnancy.
I. Limitation on civil liability. Any physician who complies with the provisions of this Section may not be held civilly liable to his patient for failure to obtain informed consent to the abortion under this Section. Any and all other rights and remedies are preserved to the patient.
(1) Nothing in this Section shall be construed as creating or recognizing a right to abortion.
(2) It is not the intention of this Section to make lawful an abortion that is unlawful upon the effective date of this Act, or which later becomes unlawful.
Added by Acts 1978, No. 435, §1. Amended by Acts 1980, No. 418, §1; Acts 1981, No. 774, §1, eff. July 23, 1981; Acts 1995, No. 648, §1, eff. June 20, 1995; Acts 2007, No. 282, §1; Acts 2010, No. 888, §1; Acts 2011, No. 411, §1; Acts 2012, No. 685, §1.