Session of 1999
         
SENATE BILL No. 357
         
By Committee on Federal and State Affairs
         
3-30
         
  9             AN  ACT concerning abortion; amending K.S.A. 1998 Supp. 65-6701, 65-
10             6703, 65-6712 and 65-6721 and repealing the existing sections.
11      
12       Be it enacted by the Legislature of the State of Kansas:
13             Section  1. K.S.A. 1998 Supp. 65-6701 is hereby amended to read as
14       follows: 65-6701. As used in this act K.S.A. 65-6701 through 65-6721, and
15       amendments thereto:
16             (a) "Abortion" means the use of any means to intentionally terminate
17       a pregnancy except for the purpose of causing a live birth. Abortion does
18       not include: (1) The use of any drug or device that inhibits or prevents
19       ovulation, fertilization or the implantation of an embryo; or (2) disposition
20       of the product of in vitro fertilization prior to implantation.
21             (b) "Counselor" means a person who is: (1) Licensed to practice
22       medicine and surgery; (2) licensed to practice psychology; (3) licensed to
23       practice professional or practical nursing; (4) registered to practice pro-
24       fessional counseling; (5) licensed as a social worker; (6) the holder of a
25       master's or doctor's degree from an accredited graduate school of social
26       work; (7) registered to practice marriage and family therapy; (8) a regis-
27       tered physician's assistant; or (9) a currently ordained member of the
28       clergy or religious authority of any religious denomination or society.
29       Counselor does not include the physician who performs or induces the
30       abortion or a physician or other person who assists in performing or in-
31       ducing the abortion.
32             (c) "Department" means the department of health and environment.
33             (d) "Gestational age" means the time that has elapsed since the first
34       day of the woman's last menstrual period.
35             (e) "Medical emergency" means that condition which, on the basis
36       of the physician's good faith clinical judgment a condition which the at-
37       tending physician determines, in accordance with accepted practices and
38       standards applied by physicians in the same or similar circumstances, so
39       complicates the medical condition of a pregnant woman as to necessitate
40       the an immediate abortion of her pregnancy to avert her death to preserve
41       the life of the pregnant woman or for which a delay will create serious
42       risk of substantial and irreversible impairment of a major bodily physical
43       or mental function.

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  1             (f) "Minor" means a person less than 18 years of age.
  2             (g) "Physician" means a person licensed to practice medicine and
  3       surgery in this state.
  4             (h) "Pregnant" or "pregnancy" means that female reproductive con-
  5       dition of having a fetus in the mother's body.
  6             (i) "Qualified person" means an agent of the physician who is a psy-
  7       chologist, licensed social worker, registered professional counselor, reg-
  8       istered nurse or physician.
  9             (j) "Unemancipated minor" means any minor who has never been:
10       (1) Married; or (2) freed, by court order or otherwise, from the care,
11       custody and control of the minor's parents.
12             (k) "Viable" means that stage of gestation when, in the best medical
13       judgment of the attending physician, the fetus is capable of sustained
14       survival outside the uterus without the application of extraordinary med-
15       ical means.
16             (k) "Viable" means that state of fetal development when the attending
17       physician determines, in accordance with accepted practices and stan-
18       dards applied by physicians in the same or similar circumstances, there
19       is a reasonable likelihood that the life of the fetus will continue indefinitely
20       outside the mother's womb with or without natural or artificial life-sup-
21       portive systems.
22             Sec.  2. K.S.A. 1998 Supp. 65-6703 is hereby amended to read as
23       follows: 65-6703. (a) No person shall perform or induce an abortion when
24       the fetus is viable unless such person is a physician and has a documented
25       referral from another physician not legally or financially affiliated with
26       the physician performing or inducing the abortion and both physicians
27       determine that: (1) The abortion is necessary to preserve the life of the
28       pregnant woman; or (2) a continuation of the pregnancy will cause a
29       substantial and irreversible impairment of a major bodily physical or men-
30       tal function of the pregnant woman.
31             (b)  (1) Except in the case of a medical emergency, prior to perform-
32       ing an abortion upon a woman, the physician shall determine the gesta-
33       tional age of the fetus according to accepted obstetrical and neonatal
34       practice practices and standards applied by physicians in the same or
35       similar circumstances. If the physician determines the gestational age is
36       less than 22 weeks, the physician shall document as part of the medical
37       records of the woman the basis for the determination.
38             (2) If the physician determines the gestational age of the fetus is 22
39       or more weeks, and prior to performing an abortion upon the woman,
40       the physician shall determine if the fetus is viable by using and exercising
41       that degree of care, skill and proficiency commonly exercised by the or-
42       dinary skillful, careful and prudent physician, in accordance with accepted
43       practices and standards applied by physicians in the same or similar cir-

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  1       cumstances, if the fetus is viable. In making this determination of viability,
  2       the physician shall perform or cause to be performed such medical ex-
  3       aminations and tests as are necessary to make a finding of the gestational
  4       age of the fetus and shall enter such findings and determinations of via-
  5       bility in the medical record of the woman.
  6             (3) If the physician determines the gestational age of a fetus is 22 or
  7       more weeks, and determines that the fetus is not viable and performs an
  8       abortion on the woman, the physician shall report such determinations
  9       and the reasons for such determinations in writing to the medical care
10       facility in which the abortion is performed for inclusion in the report of
11       the medical care facility to the secretary of health and environment under
12       K.S.A. 65-445, and amendments thereto or. If the abortion is not per-
13       formed in a medical care facility, the physician shall report such deter-
14       minations and the reasons for such determinations in writing to the sec-
15       retary of health and environment as part of the written report made by
16       the physician to the secretary of health and environment under K.S.A.
17       65-445, and amendments thereto.
18             (4) If the physician who is to perform the abortion determines the
19       gestational age of a fetus is 22 or more weeks, and determines that the
20       fetus is viable, and both physicians under subsection (a) determine in
21       accordance with the provisions of subsection (a) that an abortion is nec-
22       essary to preserve the life of the pregnant woman or that a continuation
23       of the pregnancy will cause a substantial and irreversible impairment of
24       a major bodily physical or mental function of the pregnant woman and
25       the physician performs an abortion on the woman, the physician who
26       performs the abortion shall report such determinations, the reasons for
27       such determinations and the basis for the determination that an abortion
28       is necessary to preserve the life of the pregnant woman or that a contin-
29       uation of the pregnancy will cause a substantial and irreversible impair-
30       ment of a major bodily physical or mental function of the pregnant woman
31       in writing to the medical care facility in which the abortion is performed
32       for inclusion in the report of the medical care facility to the secretary of
33       health and environment under K.S.A. 65-445, and amendments thereto
34       or. If the abortion is not performed in a medical care facility, the physician
35       who performs the abortion shall report such determinations, the reasons
36       for such determinations and the basis for the determination that an abor-
37       tion is necessary to preserve the life of the pregnant woman or that a
38       continuation of the pregnancy will cause a substantial and irreversible
39       impairment of a major bodily physical or mental function of the pregnant
40       woman in writing to the secretary of health and environment as part of
41       the written report made by the physician to the secretary of health and
42       environment under K.S.A. 65-445, and amendments thereto.
43             (5) The physician shall retain the medical records required to be

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  1       kept under paragraphs (1) and (2) of this subsection (b) for not less than
  2       five years and shall retain a copy of the written reports required under
  3       paragraphs (3) and (4) of this subsection (b) for not less than five years.
  4             (c) A woman upon whom an abortion is performed shall not be pros-
  5       ecuted under this section for a conspiracy to violate this section pursuant
  6       to K.S.A. 21-3302, and amendments thereto.
  7             (d) Nothing in this section shall be construed to create a right to an
  8       abortion. Nothing in this section shall be construed as eliminating the
  9       necessity for compliance with the woman's right-to-know act. Notwith-
10       standing any provision of this section, a person shall not perform an abor-
11       tion that is prohibited by law.
12             (e) As used in this section, "viable" means that stage of fetal devel-
13       opment when it is the physician's judgment according to accepted ob-
14       stetrical or neonatal standards of care and practice applied by physicians
15       in the same or similar circumstances that there is a reasonable probability
16       that the life of the child can be continued indefinitely outside the mother's
17       womb with natural or artificial life-supportive measures.
18             (f) (e) If any provision of this section is held to be invalid or uncon-
19       stitutional, it shall be conclusively presumed conclusively that the legis-
20       lature would have enacted the remainder of this section without such
21       invalid or unconstitutional provision.
22             (g) (f) A person who intentionally, knowingly or recklessly violates
23       this section and upon a first conviction of a violation of this section, a
24       person thereof shall be guilty of a class A nonperson misdemeanor. Upon
25       and upon a second or subsequent conviction of a violation of this section,
26       a person shall be guilty of a severity level 10, nonperson felony.
27             Sec.  3. K.S.A. 1998 Supp. 65-6712 is hereby amended to read as
28       follows: 65-6712. Any physician who intentionally, knowingly or recklessly
29       fails to provide in accordance with K.S.A. 1998 Supp. 65-6709, and
30       amendments thereto, the printed materials described in K.S.A. 1998
31       Supp. 65-6710, and amendments thereto, whether or not an abortion is
32       actually performed on the woman, is guilty of unprofessional conduct as
33       defined in K.S.A. 65-2837, and amendments thereto.
34             Sec.  4. K.S.A. 1998 Supp. 65-6721 is hereby amended to read as
35       follows: 65-6721. (a) No person shall perform or induce a partial birth
36       abortion on a viable fetus unless such person is a physician and has a
37       documented referral from another physician not legally or financially af-
38       filiated with the physician performing or inducing the abortion and both
39       physicians determine: (1) The, in accordance with accepted practices and
40       standards applied by physicians in the same or similar circumstances,
41       that the abortion is necessary to preserve the life of the pregnant woman;
42       or (2) a continuation of the pregnancy will cause a substantial and irre-
43       versible impairment of a major physical or mental function of the preg-

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  1       nant woman.
  2             (b) As used in this section:
  3             (1) "Partial birth abortion" means an abortion procedure which in-
  4       cludes the deliberate and intentional evacuation of all or a part of the
  5       intracranial contents of a viable fetus prior to removal of such otherwise
  6       intact fetus from the body of the pregnant woman.
  7             (2) "Partial birth abortion" shall not include the: (A) Suction curet-
  8       tage abortion procedure; (B) suction aspiration abortion procedure; or
  9       (C) dilation and evacuation abortion procedure involving dismemberment
10       of the fetus prior to removal from the body of the pregnant woman.
11             (c) If a physician determines in accordance with the provisions of
12       subsection (a) that a partial birth abortion is necessary and performs a
13       partial birth abortion on the woman, the physician shall report such de-
14       termination and the reasons for such determination in writing to the med-
15       ical care facility in which the abortion is performed for inclusion in the
16       report of the medical care facility to the secretary of health and environ-
17       ment under K.S.A. 65-445, and amendments thereto or. If the abortion
18       is not performed in a medical care facility, the physician shall report the
19       reasons for such determination in writing to the secretary of health and
20       environment as part of the written report made by the physician to the
21       secretary of health and environment under K.S.A. 65-445, and amend-
22       ments thereto. The physician shall retain a copy of the written reports
23       required under this subsection for not less than five years.
24             (d) A woman upon whom an a partial birth abortion is performed
25       shall not be prosecuted under this section for a conspiracy to violate this
26       section pursuant to K.S.A. 21-3302, and amendments thereto.
27             (e) Nothing in this section shall be construed to create a right to an
28       abortion. Nothing in this section shall be construed as eliminating the
29       necessity for compliance with the woman's right-to-know act. Notwith-
30       standing any provision of this section, a person shall not perform an abor-
31       tion that is prohibited by law.
32             (f) Upon conviction of a violation of this A person convicted of in-
33       tentionally, knowingly or recklessly violating this section, a person shall
34       be guilty of a severity level 10 person felony. 
35       Sec.  5. K.S.A. 1998 Supp. 65-6701, 65-6703, 65-6712 and 65-6721
36       are hereby repealed.
37         Sec.  6. This act shall take effect and be in force from and after its
38       publication in the statute book.