[As Amended by House Committee of the Whole]
         
Session of 1999
         
Substitute for House Bill No. 2405
         
By Committee on Federal and State Affairs
         
3-18
         

10             AN  ACT concerning abortion; requiring parental consent prior to abor-
11             tion; requiring certain records and reports; amending K.S.A. 1998
12             Supp. 38-1522, 65-445, 65-6701, 65-6703 and 65-6705 and repealing
13             the existing sections.
14      
15       Be it enacted by the Legislature of the State of Kansas:
16             Section  1. K.S.A. 1998 Supp. 38-1522 is hereby amended to read as
17       follows: 38-1522. (a) When any of the following persons has reason to
18       suspect that a child has been injured as a result of physical, mental or
19       emotional abuse or neglect or sexual abuse, the person shall report the
20       matter promptly as provided in subsection (c) or (e):
21             (1) Persons licensed to practice the healing arts or dentistry; persons
22       licensed to practice optometry;, dentistry, optometry and persons en-
23       gaged in postgraduate training programs approved by the state board of
24       healing arts;
25             (2) licensed psychologists[, licensed master's level psychologists
26       or licensed professional counselors];
27             (3) licensed professional or practical nurses examining, attending or
28       treating a child under the age of 18;
29             (4) teachers, school administrators or other employees of a school
30       which the child is attending;
31             (5) chief administrative officers of medical care facilities;
32             (6) registered censed] marriage and family therapists;
33             (7) persons licensed by the secretary of health and environment to
34       provide child care services or the employees of persons so licensed at the
35       place where the child care services are being provided to the child;
36             (8) licensed social workers;
37             (9) firefighters; and emergency medical services personnel;
38             (10) mediators appointed under K.S.A. 23-602, and amendments
39       thereto; and
40             (11) judges as required by K.S.A. 65-6705, and amendments thereto,
41       juvenile intake and assessment workers; and law enforcement officers.
42             The report may be made orally and shall be followed by a written report
43       if requested. When the suspicion is the result of medical examination or

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  1       treatment of a child by a member of the staff of a medical care facility or
  2       similar institution, that staff member shall immediately shall notify the
  3       superintendent, manager or other person in charge of the institution who
  4       shall make a written report forthwith. Every written report shall contain,
  5       if known, the names and addresses of the child and the child's parents or
  6       other persons responsible for the child's care, the child's age, the nature
  7       and extent of the child's injury (including any evidence of previous inju-
  8       ries) and any other information that the maker of the report believes
  9       might be helpful in establishing the cause of the injuries and the identity
10       of the persons responsible for the injuries.
11             (b) Any other person who has reason to suspect that a child has been
12       injured as a result of physical, mental or emotional abuse or neglect or
13       sexual abuse may report the matter as provided in subsection (c) or (e).
14             (c) Except as provided by subsection (e), reports made pursuant to
15       this section shall be made to the state department of social and rehabil-
16       itation services. When the department is not open for business, the re-
17       ports shall be made to the appropriate law enforcement agency. On the
18       next day that the state department of social and rehabilitation services is
19       open for business, the law enforcement agency shall report to the de-
20       partment any report received and any investigation initiated pursuant to
21       subsection (a) of K.S.A. 38-1524, and amendments thereto. The reports
22       may be made orally or, on request of the department, in writing.
23             (d) Any person who is required by this section to report an injury to
24       a child and who knows of the death of a child shall notify immediately
25       the coroner as provided by K.S.A. 22a-242, and amendments thereto.
26             (e) Reports of child abuse or neglect occurring in an institution op-
27       erated by the secretary of social and rehabilitation services or the com-
28       missioner of juvenile justice shall be made to the attorney general. All
29       other reports of child abuse or neglect by persons employed by or of
30       children of persons employed by the state department of social and re-
31       habilitation services or the juvenile justice authority shall be made to the
32       appropriate law enforcement agency.
33             (f) Willful and knowing failure to make a report required by this sec-
34       tion is a class B misdemeanor.
35             (g) Preventing or interfering with, with the intent to prevent, the
36       making of a report required by this section is a class B misdemeanor.
37             Sec.  2. K.S.A. 1998 Supp. 65-445 is hereby amended to read as fol-
38       lows: 65-445. (a) Every medical care facility shall keep written records of
39       all pregnancies which are lawfully terminated within such medical care
40       facility and shall annually shall submit a written report thereon to the
41       secretary of health and environment in the manner and form prescribed
42       by the secretary. Every person licensed to practice medicine and surgery
43       shall keep a record of all pregnancies which are lawfully terminated by

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  1       such person in a location other than a medical care facility and shall
  2       annually shall submit a written report thereon to the secretary of health
  3       and environment in the manner and form prescribed by the secretary.
  4             (b) Each The report required by this section shall not include the
  5       name of any person whose pregnancy was terminated. The report shall
  6       include:
  7             (1) The number of pregnancies terminated during the period of time
  8       covered by the report,;
  9             (2) the type of medical facility in which the pregnancy was
10       terminated,;
11             [(3) the number of pregnancies which were terminated after
12       obtaining the consent required by subsection (a) of K.S.A. 65-6705,
13       and amendments thereto;]
14             (3) [(4)] the number of pregnancies which were terminated after the
15       consent requirement imposed by K.S.A. 65-6705, and amendments
16       thereto, was waived by court order issued pursuant to such section;
17             (4) [(5)] information required to be reported under K.S.A. 65-6703,
18       and amendments thereto, if applicable to the pregnancy terminated,; and
19             (5) [(6)] such other information as may be required by the secretary
20       of health and environment, but the report shall not include the names of
21       the persons whose pregnancies were so terminated.
22             (c) Information obtained by the secretary of health and environment
23       under this section shall be confidential and shall not be disclosed in a
24       manner that would reveal the identity of any person licensed to practice
25       medicine and surgery who submits a report to the secretary under this
26       section or the identity of any medical care facility which submits a report
27       to the secretary under this section, except that such information, including
28       information identifying such persons and facilities may be disclosed to
29       the state board of healing arts upon request of the board for disciplinary
30       action conducted by the board and may be disclosed to the attorney gen-
31       eral upon a showing that a reasonable cause exists to believe that a vio-
32       lation of this act has occurred. Any information disclosed to the state
33       board of healing arts or the attorney general pursuant to this subsection
34       shall be used solely for the purposes of a disciplinary action or criminal
35       proceeding. Except as otherwise provided in this subsection, information
36       obtained by the secretary under this section may be used only for statis-
37       tical purposes and such information shall not be released in a manner
38       which would identify any county or other area of this state in which the
39       termination of the pregnancy occurred.
40             A violation of this subsection (c) is a class A nonperson misdemeanor.
41             (d) In addition to such criminal penalty under subsection (c), any
42       person licensed to practice medicine and surgery or medical care facility
43       whose identity is revealed in violation of this section may bring a civil

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  1       action against the responsible person or persons for any damages to the
  2       person licensed to practice medicine and surgery or medical care facility
  3       caused by such violation.
  4             (e) For the purpose of maintaining confidentiality as provided by sub-
  5       sections (c) and (d), reports of terminations of pregnancies required by
  6       this section shall identify the person or facility submitting such reports
  7       only by confidential code number assigned by the secretary of health and
  8       environment to such person or facility and the department of health and
  9       environment shall maintain such reports only by such number.
10             Sec.  3. K.S.A. 1998 Supp. 65-6701 is hereby amended to read as
11       follows: 65-6701. As used in this act K.S.A. 65-6701 through 65-6715 and
12       K.S.A. 1998 Supp. 65-6721, and amendments thereto:
13             (a) "Abortion" means the use of any means to intentionally terminate
14       a pregnancy except for the purpose of causing a live birth. Abortion does
15       not include: (1) The use of any drug or device that inhibits or prevents
16       ovulation, fertilization or the implantation of an embryo; or (2) disposition
17       of the product of in vitro fertilization prior to implantation.
18             (b) "Counselor" means a person who is: (1) Licensed to practice med-
19       icine and surgery; (2) licensed to practice psychology [or master's level
20       psychology]; (3) licensed to practice professional or practical nursing;
21       (4) registered censed] to practice professional counseling; (5) licensed
22       as a social worker; (6) the holder of a master's or doctor's degree from
23       an accredited graduate school of social work; (7) registered censed] to
24       practice marriage and family therapy; (8) a registered physician's assistant;
25       or (9) a currently ordained member of the clergy or religious authority of
26       any religious denomination or society. Counselor does not include the
27       physician who performs or induces the abortion or a physician or other
28       person who assists in performing or inducing the abortion.
29             (c) "Department" means the department of health and environment.
30             (d) "Fetus" means any individual human organism from fertilization
31       to birth.
32             (d) (e) [(d)] "Gestational age" means the time that has elapsed since
33       the first day of the woman's last menstrual period.
34             (e) (f) [(e)] "Medical emergency" means that condition which, on the
35       basis of the physician's good faith clinical judgment, so complicates the
36       medical condition of a pregnant woman as to necessitate the immediate
37       abortion of her pregnancy to avert her death or for which a delay will
38       create serious risk of substantial and irreversible impairment of a major
39       bodily function.
40             (f) (g) [(f)] "Minor" means a person less than 18 years of age.
41             (h) [(g)] "Parent" means one parent of the pregnant female minor or
42       the guardian of such minor.
43             (g) (i) [(h)] "Physician" means a person licensed to practice medicine

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  1       and surgery in this state.
  2             (h) (j) [(i)] "Pregnant" or "pregnancy" means that female reproduc-
  3       tive condition of having a fetus in the mother's body.
  4             (i) (k) [(j)] "Qualified person" means an agent of the physician who
  5       is a psychologist, [master's level psychologist,] licensed social worker,
  6       registered censed] professional counselor, registered nurse or
  7                                                                     physician.
  8             (j) (l) [(k)] "Unemancipated minor" means any minor who has never
  9       been: (1) Married; or (2) freed, by court order or otherwise, from the
10       care, custody and control of the minor's parents.
11             (k) (m) [(l)] "Viable" means that stage of gestation when, in the best
12       medical judgment of the attending physician, the fetus is capable of sus-
13       tained survival outside the uterus without the application of extraordinary
14       medical means fetal development when, in the physician's judgment ac-
15       cording to accepted obstetrical or neonatal standards of care and practice
16       applied by physicians in the same or similar circumstances, there is a
17       reasonable probability that the life of the child can be continued indefi-
18       nitely outside the mother's womb with natural or artificial life-supportive
19       measures.
20             Sec.  4. K.S.A. 1998 Supp. 65-6703 is hereby amended to read as
21       follows: 65-6703. (a) No person shall perform or induce an abortion when
22       the fetus is viable unless such person is a physician and has a documented
23       referral from another physician not legally or financially affiliated with
24       the physician performing or inducing the abortion and both physicians
25       determine that: (1) The abortion is necessary to preserve the life of the
26       pregnant woman; or (2) a continuation of the pregnancy will cause a
27       substantial and irreversible impairment of a major bodily function of the
28       pregnant woman.
29             (b)  (1) Except in the case of a medical emergency, prior to perform-
30       ing an abortion upon a woman, the physician shall determine the gesta-
31       tional age of the fetus according to accepted obstetrical and neonatal
32       practice and standards applied by physicians in the same or similar cir-
33       cumstances. If the physician determines the gestational age is less than
34       22 weeks, the physician shall document as part of the medical records of
35       the woman the basis for the determination.
36             (2) If the physician determines the gestational age of the fetus is 22
37       or more weeks, prior to performing an abortion upon the woman the
38       physician shall determine if the fetus is viable by using and exercising
39       that degree of care, skill and proficiency commonly exercised by the or-
40       dinary skillful, careful and prudent physician in the same or similar cir-
41       cumstances. In making this determination of viability, the physician shall
42       perform or cause to be performed such medical examinations and tests
43       as are necessary to make a finding of the gestational age of the fetus and

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  1       shall enter such findings and determinations of viability in the medical
  2       record of the woman.
  3             (3) If the physician determines the gestational age of a fetus is 22 or
  4       more weeks, and determines that the fetus is not viable and performs an
  5       abortion on the woman, the physician shall report such determinations
  6       and the reasons for such determinations in writing to the medical care
  7       facility in which the abortion is performed for inclusion in the report of
  8       the medical care facility to the secretary of health and environment under
  9       K.S.A. 65-445, and amendments thereto, or if the abortion is not per-
10       formed in a medical care facility, the physician shall report such deter-
11       minations and the reasons for such determinations in writing to the sec-
12       retary of health and environment as part of the written report made by
13       the physician to the secretary of health and environment under K.S.A.
14       65-445, and amendments thereto.
15             (4) If the physician who is to perform the abortion determines the
16       gestational age of a fetus is 22 or more weeks, and determines that the
17       fetus is viable, both physicians under subsection (a) determine in accord-
18       ance with the provisions of subsection (a) that an abortion is necessary to
19       preserve the life of the pregnant woman or that a continuation of the
20       pregnancy will cause a substantial and irreversible impairment of a major
21       bodily function of the pregnant woman and the physician performs an
22       abortion on the woman, the physician who performs the abortion shall
23       report such determinations, the reasons for such determinations and the
24       basis for the determination that an abortion is necessary to preserve the
25       life of the pregnant woman or that a continuation of the pregnancy will
26       cause a substantial and irreversible impairment of a major bodily function
27       of the pregnant woman in writing to the medical care facility in which
28       the abortion is performed for inclusion in the report of the medical care
29       facility to the secretary of health and environment under K.S.A. 65-445,
30       and amendments thereto, or if the abortion is not performed in a medical
31       care facility, the physician who performs the abortion shall report such
32       determinations, the reasons for such determinations and the basis for the
33       determination that an abortion is necessary to preserve the life of the
34       pregnant woman or that a continuation of the pregnancy will cause a
35       substantial and irreversible impairment of a major bodily function of the
36       pregnant woman in writing to the secretary of health and environment as
37       part of the written report made by the physician to the secretary of health
38       and environment under K.S.A. 65-445, and amendments thereto.
39             (5) The physician shall retain the medical records required to be kept
40       under paragraphs (1) and (2) of this subsection (b) for not less than five
41       years and shall retain a copy of the written reports required under para-
42       graphs (3) and (4) of this subsection (b) for not less than five years.
43             (c) A woman upon whom an abortion is performed shall not be pros-

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  1       ecuted under this section for a conspiracy to violate this section pursuant
  2       to K.S.A. 21-3302, and amendments thereto.
  3             (d) Nothing in this section shall be construed to create a right to an
  4       abortion. Notwithstanding any provision of this section, a person shall not
  5       perform an abortion that is prohibited by law.
  6             (e) As used in this section, "viable" means that stage of fetal devel-
  7       opment when it is the physician's judgment according to accepted ob-
  8       stetrical or neonatal standards of care and practice applied by physicians
  9       in the same or similar circumstances that there is a reasonable probability
10       that the life of the child can be continued indefinitely outside the mother's
11       womb with natural or artificial life-supportive measures.
12             (f) (e) If any provision of this section is held to be invalid or uncon-
13       stitutional, it shall be conclusively presumed that the legislature would
14       have enacted the remainder of this section without such invalid or un-
15       constitutional provision.
16             (g) (f) Upon a first conviction of a violation of this section, a person
17       shall be guilty of a class A nonperson misdemeanor. Upon a second or
18       subsequent conviction of a violation of this section, a person shall be guilty
19       of a severity level 10, nonperson felony.
20             Sec.  5. K.S.A. 1998 Supp. 65-6705 is hereby amended to read as
21       follows: 65-6705. (a) before a person performs an abortion upon an
22       unemancipated minor, the person or the person's agent must give actual
23       written notice of the intent to perform such abortion to one of the minor's
24       parents or the minor's legal guardian or must have written documentation
25       that such notice has been given unless, (a) Except as provided by this
26       section, no person knowingly shall perform an abortion upon an uneman-
27       cipated minor without the written consent of the minor's parent. After
28       receiving counseling as provided by subsection (a) of K.S.A. 65-6704, the
29       minor objects to such notice being given. If the minor so objects, and
30       amendments thereto, if the minor objects to the obtaining of such consent
31       or if consent has been denied by the parent, the minor may petition, on
32       her own behalf or by an adult of her choice, the district court of any
33       county of this state for a waiver of the notice consent requirement of this
34       subsection. If the minor so desires, the counselor who counseled the
35       minor as required by K.S.A. 65-6704, and amendments thereto, shall no-
36       tify the court and the court shall ensure that the minor or the adult pe-
37       titioning on the minor's behalf is given assistance in preparing and filing
38       the application.
39             (b) The minor may participate in proceedings in the court on the
40       minor's own behalf or through the adult petitioning on the minor's behalf.
41       The court shall provide a court-appointed counsel to represent the minor
42       at no cost to the minor.
43             (c) Court proceedings under this section shall be anonymous and the

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  1       court shall ensure that the minor's identity is kept confidential. The court
  2       shall order that a confidential record of the evidence in the proceeding
  3       be maintained. All persons shall be excluded from hearings under this
  4       section except the minor, her attorney and such other persons whose
  5       presence is specifically requested by the applicant or her attorney.
  6             (d) Notice The consent requirement shall be waived if the court finds
  7       by a preponderance of the evidence that either: (1) The minor is mature
  8       and well-informed enough to make the abortion decision on her own; or
  9       (2) notification obtaining the consent of a person specified in subsection
10       (a) would not be in the best interest of the minor.
11             (e) A court that conducts proceedings under this section shall issue
12       written and specific factual findings and legal conclusions supporting its
13       decision as follows:
14             (1) Granting the minor's application for waiver of notice consent pur-
15       suant to this section, if the court finds that the minor is mature and well-
16       enough informed to make the abortion decision without notice to consent
17       by a person specified in subsection (a);
18             (2) granting the minor's application for waiver if the court finds that
19       the minor is immature but that notification obtaining the consent of a
20       person specified in subsection (a) would not be in the minor's best inter-
21       est; or
22             (3) denying the application if the court finds that the minor is im-
23       mature and that waiver of notification the requirement of consent of a
24       person specified in subsection (a) would not be in the minor's best
25       interest.
26             (f) The court shall give proceedings under this section such prece-
27       dence over other pending matters as necessary to ensure that the court
28       may reach a decision promptly. The court shall issue a written order which
29       shall be issued immediately to the minor, or her attorney or other indi-
30       vidual designated by the minor to receive the order. If the court fails to
31       rule within 48 hours, excluding Saturdays and Sundays, of the time of the
32       filing of the minor's application, the application shall be deemed granted.
33             (g) An expedited anonymous appeal shall be available to any minor.
34       The record on appeal shall be completed and the appeal shall be per-
35       fected within five days from the filing of the notice to appeal.
36             (h) Any judge who has reason to suspect or determines that any minor
37       petitioning the court pursuant to this section has been injured or is preg-
38       nant as a result of sexual abuse shall report the matter in the manner
39       provided by K.S.A. 38-1522, and amendments thereto.
40             (h) (i) The supreme court shall promulgate any rules it finds are nec-
41       essary to ensure that proceedings under this act are handled in an expe-
42       ditious and anonymous manner.
43             (i) (j) No fees shall be required of any minor who avails herself of the

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  1       procedures provided by this section.
  2             (j) (k)  (1) No notice consent shall be required under this section if:
  3             (A) The pregnant minor declares that the father of the fetus is one
  4       of the persons to whom notice may be given from whom consent may be
  5       obtained under this section; or
  6             (B) in the best medical judgment of the attending physician based on
  7       the facts of the case, an emergency exists that threatens the health, safety
  8       or well-being life of the minor as to require an abortion; or
  9             (C) the person or persons who are entitled to notice from whom con-
10       sent may be obtained have signed a written, notarized waiver of notice
11       consent which is placed in the minor's medical record.
12             (2) A physician who does not comply with the provisions of this sec-
13       tion by reason of the exception of subsection (j)(1)(A) must (k)(1)(A) shall
14       inform the minor that the physician is required by law to report the sexual
15       abuse to the department of social and rehabilitation services. A physician
16       who does not comply with the requirements of this section by reason of
17       the exception of subsection (j)(1)(B) (k)(1)(B) shall state in the medical
18       record of the abortion the medical indications on which the physician's
19       judgment was based.
20             (k) (l) Any person who intentionally performs an abortion with knowl-
21       edge that, or with reckless disregard as to whether, the person upon
22       whom the abortion is to be performed is an unemancipated minor, and
23       who intentionally and knowingly fails to conform to any requirement of
24       this section, is guilty of a class A person misdemeanor.
25             (l) (m) Except as necessary for the conduct of a proceeding pursuant
26       to this section, it is a class B person misdemeanor for any individual or
27       entity to willfully or knowingly: (1) Disclose the identity of a minor pe-
28       titioning the court pursuant to this section or to disclose any court record
29       relating to such proceeding; or (2) permit or encourage disclosure of such
30       minor's identity or such record.
31             New Sec.  6. (a) If the court grants a petition for a waiver of the
32       consent requirement of K.S.A. 65-6705, and amendments thereto, the
33       minor's parents or legal guardians shall not be liable for the costs of such
34       abortion or any costs directly related to any physical complications arising
35       from such abortion.
36             (b) If the court grants a petition for a waiver of the consent require-
37       ment of K.S.A. 65-6705, and amendments thereto, the physician or other
38       person performing the abortion shall be liable for the costs directly related
39       to any physical complications arising from such abortion. 
40       Sec.  7 [6]. K.S.A. 1998 Supp. 38-1522, 65-445, 65-6701, 65-6703 and
41       65-6705 are hereby repealed.

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  1        Sec.  8 [7]. This act shall take effect and be in force from and after
  2       its publication in the statute book.