Session of 1999
         
SENATE BILL No. 142
         
By Committee on Federal and State Affairs
         
1-26
         

  9             AN  ACT concerning the termination of pregnancies; imposing limita-
10             tions on postviability abortions; imposing penalties for violations
11             thereof; amending K.S.A. 1998 Supp. 65-445, 65-6703 and 65-6712
12             and repealing the existing sections; also repealing K.S.A. 1998 Supp.
13             65-2837b and 65-6721.
14      
15       Be it enacted by the Legislature of the State of Kansas:
16             Section  1. K.S.A. 1998 Supp. 65-445 is hereby amended to read as
17       follows: 65-445. (a) Every medical care facility shall keep written records
18       of all pregnancies which are lawfully terminated within such medical care
19       facility and shall annually shall submit a written report thereon to the
20       secretary of health and environment in the manner and form prescribed
21       by the secretary. Every person licensed to practice medicine and surgery
22       shall keep a record of all pregnancies which are lawfully terminated by
23       such person in a location other than a medical care facility and shall
24       annually shall submit a written report thereon to the secretary of health
25       and environment in the manner and form prescribed by the secretary.
26             (b) Each report required by this section shall include the number of
27       pregnancies terminated during the period of time covered by the report,
28       the type of medical facility in which the pregnancy was terminated, in-
29       formation required to be reported under K.S.A. 65-6703 and amend-
30       ments thereto if applicable to the pregnancy terminated, and such other
31       information as may be required by the secretary of health and environ-
32       ment, but. The report shall not include the names of the persons whose
33       pregnancies were so terminated.
34             (c) Information obtained by the secretary of health and environment
35       under this section shall be confidential and shall not be disclosed in a
36       manner that would reveal the identity of any person licensed to practice
37       medicine and surgery who submits a report to the secretary under this
38       section or the identity of any medical care facility which submits a report
39       to the secretary under this section, except that such information, including
40       information identifying such persons and facilities may be disclosed to
41       the state board of healing arts upon request of the board for disciplinary
42       action conducted by the board and may be disclosed to the attorney gen-
43       eral upon a showing that a reasonable cause exists to believe that a vio-
44       lation of this act has occurred. Any information disclosed to the state
45       board of healing arts or the attorney general pursuant to this subsection
46       shall be used solely for the purposes of a disciplinary action or criminal
47       proceeding. Except as otherwise provided in this subsection, information
48       obtained by the secretary under this section may be used only for statis-
49       tical purposes and. Such information shall not be released in a manner
50       which would identify any county or other area of this state in which the
51       termination of the pregnancy occurred.
52             A violation of this subsection (c) is a class A nonperson misdemeanor.
53             (d) In addition to such the criminal penalty authorized under sub-
54       section (c), any person licensed to practice medicine and surgery or med-
55       ical care facility whose identity is revealed in violation of this section may
56       bring a civil action against the responsible person or persons for any dam-
57       ages to the person licensed to practice medicine and surgery or medical
58       care facility caused by such violation.
59             (e) For the purpose of maintaining confidentiality as provided by sub-
60       sections (c) and (d), reports of terminations of pregnancies required by
61       this section shall identify the person or facility submitting such reports
62       only by confidential code number assigned by the secretary of health and
63       environment to such person or facility and the department of health and
64       environment shall maintain such reports only by such number.
65             Sec.  2. K.S.A. 1998 Supp. 65-6703 is hereby amended to read as
66       follows: 65-6703. (a) Nothing in this section shall be construed as elimi-
67       nating the necessity for compliance with the requirements and duties im-
68       posed by the woman's right-to-know act.
69             (b) No person shall perform or induce an abortion when the fetus is
70       viable unless such person is a physician and has a documented referral
71       from another physician not legally or financially affiliated with the phy-
72       sician performing or inducing the abortion and both physicians determine
73       that: (1) the abortion is necessary to preserve the life or protect the phys-
74       ical or mental health of the pregnant woman; or (2) a continuation of the
75       pregnancy will cause a substantial and irreversible impairment of a major
76       bodily function of the pregnant woman.
77             (b)  (1) Except in the case of a medical emergency, prior to perform-
78       ing an abortion upon a woman, the physician shall determine the gesta-
79       tional age of the fetus according to accepted obstetrical and neonatal
80       practice and standards applied by physicians in the same or similar cir-
81       cumstances. If the physician determines the gestational age is less than
82       22 weeks, the physician shall document as part of the medical records of
83       the woman the basis for the determination.
84             (2) If the physician determines the gestational age of the fetus is 22
85       or more weeks, prior to performing an abortion upon the woman the
86       physician shall determine if the fetus is viable by using and exercising
87       that degree of care, skill and proficiency commonly exercised by the or-
88       dinary skillful, careful and prudent physician in the same or similar cir-
89       cumstances. In making this determination of viability, the physician shall
90       perform or cause to be performed such medical examinations and tests
91       as are necessary to make a finding of the gestational age of the fetus and
92       shall enter such findings and determinations of viability in the medical
93       record of the woman.
94             (3) If the physician determines the gestational age of a fetus is 22 or
95       more weeks, and determines that the fetus is not viable and performs an
96       abortion on the woman, the physician shall report such determinations
97       and the reasons for such determinations in writing to the medical care
98       facility in which the abortion is performed for inclusion in the report of
99       the medical care facility to the secretary of health and environment under
100       K.S.A. 65-445 and amendments thereto or if the abortion is not per-
101       formed in a medical care facility, the physician shall report such deter-
102       minations and the reasons for such determinations in writing to the sec-
103       retary of health and environment as part of the written report made by
104       the physician to the secretary of health and environment under K.S.A.
105       65-445 and amendments thereto.
106             (4) If the physician who is to perform the abortion determines the
107       gestational age of a fetus is 22 or more weeks, and determines that the
108       fetus is viable, both physicians under subsection (a) determine in accord-
109       ance with the provisions of subsection (a) that an abortion is necessary to
110       preserve the life of the pregnant woman or that a continuation of the
111       pregnancy will cause a substantial and irreversible impairment of a major
112       bodily function of the pregnant woman and the physician performs an
113       abortion on the woman, the physician who performs the abortion shall
114       report such determinations, the reasons for such determinations and the
115       basis for the determination that an abortion is necessary to preserve the
116       life of the pregnant woman or that a continuation of the pregnancy will
117       cause a substantial and irreversible impairment of a major bodily function
118       of the pregnant woman in writing to the medical care facility in which
119       the abortion is performed for inclusion in the report of the medical care
120       facility to the secretary of health and environment under K.S.A. 65-445
121       and amendments thereto or if the abortion is not performed in a medical
122       care facility, the physician who performs the abortion shall report such
123       determinations, the reasons for such determinations and the basis for the
124       determination that an abortion is necessary to preserve the life of the
125       pregnant woman or that a continuation of the pregnancy will cause a
126       substantial and irreversible impairment of a major bodily function of the
127       pregnant woman in writing to the secretary of health and environment as
128       part of the written report made by the physician to the secretary of health
129       and environment under K.S.A. 65-445 and amendments thereto.
130             (5) The physician shall retain the medical records required to be kept
131       under paragraphs (1) and (2) of this subsection (b) for not less than five
132       years and shall retain a copy of the written reports required under para-
133       graphs (3) and (4) of this subsection (b) for not less than five years.
134             (c) A woman upon whom an abortion is performed shall not be pros-
135       ecuted under this section for a conspiracy to violate this section pursuant
136       to K.S.A. 21-3302, and amendments thereto.
137             (d) Nothing in this section shall be construed to create a right to an
138       abortion. Notwithstanding any provision of this section, a person shall not
139       perform an abortion that is prohibited by law.
140             (e) As used in this section, "viable" means that stage of fetal devel-
141       opment when it is the physician's judgment according to accepted ob-
142       stetrical or neonatal standards of care and practice applied by physicians
143       in the same or similar circumstances that there is a reasonable probability
144       that the life of the child can be continued indefinitely outside the mother's
145       womb with natural or artificial life-supportive measures.
146             (f) If any provision of this section is held to be invalid or unconsti-
147       tutional, it shall be conclusively presumed that the legislature would have
148       enacted the remainder of this section without such invalid or unconsti-
149       tutional provision.
150             (g) (c) Upon a first conviction of a violation of this section, a person
151       shall be guilty of a class A nonperson misdemeanor. Upon a second or
152       subsequent conviction of a violation of this section, a person shall be guilty
153       of a severity level 10, nonperson felony.
154             Sec.  3. K.S.A. 1998 Supp. 65-6712 is hereby amended to read as
155       follows: 65-6712. Any physician who intentionally, knowingly or recklessly
156       fails to provide in accordance with K.S.A. 1998 Supp. 65-6709, and
157       amendments thereto, the printed materials described in K.S.A. 1998
158       Supp. 65-6710, and amendments thereto, whether or not an abortion is
159       actually performed on the woman, is guilty of unprofessional conduct as
160       defined in K.S.A. 65-2837, and amendments thereto. 
161       Sec.  4. K.S.A. 1998 Supp. 65-445, 65-2837b, 65-6703, 65-6712 and
162       65-6721 are hereby repealed.
163        Sec.  5. This act shall take effect and be in force from and after its
164       publication in the Kansas register.