Session of 2000
Senate Substitute for
Substitute for HOUSE BILL No. 2581
By Committee on Federal and State Affairs
3-13
12 AN ACT
concerning abortion; amending K.S.A. 1999 Supp. 65-6701, 65-
13 6703, 65-6712 and
65-6721 and repealing the existing sections.
14
15 Be it enacted by the Legislature of the
State of Kansas:
16 Section
1. K.S.A. 1999 Supp. 65-6701 is hereby amended to read as
17 follows: 65-6701. As used in this
act K.S.A. 65-6701 through 65-6721, and
18 amendments thereto:
19 (a) ``Abortion''
means the use of any means to intentionally terminate
20 a pregnancy except for the purpose of
causing a live birth. Abortion does
21 not include: (1) The use of any drug or
device that inhibits or prevents
22 ovulation, fertilization or the
implantation of an embryo; or (2) disposition
23 of the product of in vitro
fertilization prior to implantation.
24 (b) ``Counselor''
means a person who is: (1) Licensed to practice med-
25 icine and surgery; (2) licensed to practice
psychology; (3) licensed to prac-
26 tice professional or practical nursing; (4)
registered to practice profes-
27 sional counseling; (5) licensed as a social
worker; (6) the holder of a
28 master's or doctor's degree from an
accredited graduate school of social
29 work; (7) registered to practice marriage
and family therapy; (8) a regis-
30 tered physician's assistant; or (9) a
currently ordained member of the
31 clergy or religious authority of any
religious denomination or society.
32 Counselor does not include the physician
who performs or induces the
33 abortion or a physician or other person who
assists in performing or in-
34 ducing the abortion.
35
(c) ``Department'' means the department of health and
environment.
36 (d) ``Gestational
age'' means the time that has elapsed since the first
37 day of the woman's last menstrual
period.
38 (e) ``Medical
emergency'' means that condition which, on the
basis
39 of the physician's good faith
clinical judgment a condition which the at-
40 tending physician determines, in
accordance with accepted practices and
41 standards applied by physicians in the
same or similar circumstances, so
42 complicates the medical condition of a
pregnant woman as to necessitate
43 the an immediate
abortion of her pregnancy to avert her death or
for
2
1 which a delay will create
serious risk of substantial and irreversible im-
2 pairment of a major bodily
function to preserve the life or health of the
3 pregnant woman.
4
(f) ``Minor'' means a person less than 18 years of age.
5
(g) ``Physician'' means a person licensed to practice medicine
and
6 surgery in this state.
7
(h) ``Pregnant'' or ``pregnancy'' means that female
reproductive con-
8 dition of having a fetus in the
mother's body.
9
(i) ``Qualified person'' means an agent of the physician who
is a psy-
10 chologist, licensed social worker,
registered professional counselor, reg-
11 istered nurse or physician.
12
(j) ``Unemancipated minor'' means any minor who has never
been:
13 (1) Married; or (2) freed, by court order
or otherwise, from the care,
14 custody and control of the minor's
parents.
15
(k) ``Viable'' means that stage of gestation when, in
the best medical
16 judgment of the attending
physician, the fetus is capable of sustained
17 survival outside the uterus without
the application of extraordinary med-
18 ical means.
19 (k) ``Viable''
means that state of fetal development when the attending
20 physician determines, in accordance with
accepted practices and stan-
21 dards applied by physicians in the same
or similar circumstances, there
22 is a reasonable likelihood that the life
of the fetus will continue indefinitely
23 outside the mother's womb with or
without natural or artificial life-sup-
24 portive systems.
25 Sec.
2. K.S.A. 1999 Supp. 65-6703 is hereby amended to read as
26 follows: 65-6703. (a) No person shall
perform or induce an abortion when
27 the fetus is viable unless such person is a
Kansas-licensed physician and
28 has a documented referral from another
Kansas-licensed physician not
29 legally or financially affiliated with the
physician performing or inducing
30 the abortion and both physicians determine
that: (1) the abortion is nec-
31 essary to preserve the life or
health of the pregnant woman; or (2) a
32 continuation of the pregnancy will
cause a substantial and irreversible
33 impairment of a major bodily
function of the pregnant woman.
34 (b)
(1) Except in the case of a medical emergency, prior to
perform-
35 ing an abortion upon a woman, the physician
shall determine the gesta-
36 tional age of the fetus according to
accepted obstetrical and neonatal
37 practice practices
and standards applied by physicians in the same or
38 similar circumstances. If the physician
determines the gestational age is
39 less than 22 weeks, the physician shall
document as part of the medical
40 records of the woman the basis for the
determination.
41 (2) If the
physician determines the gestational age of the fetus is 22
42 or more weeks, and
prior to performing an abortion upon the woman,
43 the physician shall determine if
the fetus is viable by using and exercising
3
1 that degree of care, skill
and proficiency commonly exercised by the or-
2 dinary skillful, careful and
prudent physician, in accordance with accepted
3 practices and standards applied by
physicians in the same or similar cir-
4 cumstances, if the fetus is
viable. In making this determination of viability,
5 the physician shall perform or cause
to be performed such medical ex-
6 aminations and tests as are necessary
to make a finding of the gestational
7 age of the fetus and shall enter such
findings and determinations of via-
8 bility in the medical record of the
woman.
9 (3) If the
physician determines the gestational age of a fetus is 22 or
10 more weeks, and determines
that the fetus is not viable and performs an
11 abortion on the woman, the physician shall
report such determinations
12 and the reasons for such determinations in
writing to the medical care
13 facility in which the abortion is performed
for inclusion in the report of
14 the medical care facility to the secretary
of health and environment under
15 K.S.A. 65-445, and amendments
thereto or. If the abortion is not per-
16 formed in a medical care facility, the
physician shall report such deter-
17 minations and the reasons for such
determinations in writing to the sec-
18 retary of health and environment as part of
the written report made by
19 the physician to the secretary of health
and environment under K.S.A.
20 65-445, and amendments thereto.
21 (4) If the
physician who is to perform the abortion determines the
22 gestational age of a fetus is 22 or more
weeks, and determines that the
23 fetus is viable,
and both physicians under subsection (a) determine in
24 accordance with the provisions of
subsection (a) that an abortion is nec-
25 essary to preserve the life or
health of the pregnant woman or that a
26 continuation of the pregnancy will
cause a substantial and irreversible
27 impairment of a major bodily
function of the pregnant woman and the
28 physician performs an abortion on the
woman, the physician who per-
29 forms the abortion shall report such
determinations, the reasons for such
30 determinations and the basis for the
determination that an abortion is
31 necessary to preserve the life or
health of the pregnant woman or that a
32 continuation of the pregnancy will
cause a substantial and irreversible
33 impairment of a major bodily
function of the pregnant woman in writing
34 to the medical care facility in which the
abortion is performed for inclu-
35 sion in the report of the medical care
facility to the secretary of health
36 and environment under K.S.A. 65-445,
and amendments thereto or. If
37 the abortion is not performed in a medical
care facility, the physician who
38 performs the abortion shall report such
determinations, the reasons for
39 such determinations and the basis for the
determination that an abortion
40 is necessary to preserve the life or
health of the pregnant woman or that
41 a continuation of the pregnancy
will cause a substantial and irreversible
42 impairment of a major bodily
function of the pregnant woman in writing
43 to the secretary of health and environment
as part of the written report
4
1 made by the physician to the
secretary of health and environment under
2 K.S.A. 65-445, and amendments
thereto.
3 (5) The
physician shall retain the medical records required to be kept
4 under paragraphs (1) and (2) of this
subsection (b) for not less than five
5 years and shall retain a copy of the
written reports required under para-
6 graphs (3) and (4) of this subsection
(b) for not less than five years.
7 (c) A woman
upon whom an abortion is performed shall not be pros-
8 ecuted under this section for a
conspiracy to violate this section pursuant
9 to K.S.A. 21-3302, and amendments
thereto.
10 (d) Nothing in
this section shall be construed to create a right to an
11 abortion. Nothing in this section shall
be construed as eliminating the
12 necessity for compliance with the
woman's right-to-know act. Notwith-
13 standing any provision of this section, a
person shall not perform an abor-
14 tion that is prohibited by law.
15 (e) As
used in this section, ``viable'' means that stage of fetal
devel-
16 opment when it is the physician's
judgment according to accepted ob-
17 stetrical or neonatal standards of
care and practice applied by physicians
18 in the same or similar
circumstances that there is a reasonable probability
19 that the life of the child can be
continued indefinitely outside the mother's
20 womb with natural or artificial
life-supportive measures.
21 (f)
(e) If any provision of this section is held to be
invalid or uncon-
22 stitutional, it shall be
conclusively presumed conclusively that the
legis-
23 lature would have enacted the remainder of
this section without such
24 invalid or unconstitutional provision.
25 (g)
(f) A person who intentionally, knowingly or recklessly
violates
26 this section and upon a first
conviction of a violation of this section, a
27 person thereof
shall be guilty of a class A nonperson misdemeanor.
Upon
28 and upon a second or subsequent
conviction of a violation of this section,
29 a person shall be guilty
of a severity level 10, nonperson felony.
30 Sec.
3. K.S.A. 1999 Supp. 65-6712 is hereby amended to read as
31 follows: 65-6712. Any physician who
intentionally, knowingly or recklessly
32 fails to provide in accordance with K.S.A.
1999 Supp. 65-6709, and
33 amendments thereto, the printed
materials described in K.S.A. 1999
34 Supp. 65-6710, and amendments
thereto, whether or not an abortion is
35 actually performed on the
woman, is guilty of unprofessional conduct as
36 defined in K.S.A. 65-2837, and
amendments thereto.
37 Sec.
4. K.S.A. 1999 Supp. 65-6721 is hereby amended to read as
38 follows: 65-6721. (a) No person shall
perform or induce a partial birth
39 abortion on a viable fetus unless
such person is a physician and has a
40 documented referral from another
physician not legally or financially af-
41 filiated with the physician
performing or inducing the abortion and both
42 physicians determine: (1) The
abortion is necessary to preserve the life
43 of the pregnant woman; or (2) a
continuation of the pregnancy will cause
5
1 a substantial and
irreversible impairment of a major physical or mental
2 function of the pregnant
woman.
3 (b) As used
in this section:
4
(1) ``Partial birth abortion'' means an abortion procedure
which in-
5 cludes the deliberate and intentional
evacuation of all or a part of the
6 intracranial contents of a viable
fetus prior to removal of such otherwise
7 intact fetus from the body of the
pregnant woman.
8
(2) ``Partial birth abortion'' shall not include the: (A)
Suction curet-
9 tage abortion procedure; (B) suction
aspiration abortion procedure; or
10 (C) dilation and evacuation abortion
procedure involving dismemberment
11 of the fetus prior to removal from the body
of the pregnant woman.
12 (c) If a
physician determines in accordance with the provisions
of
13 subsection (a) that a partial birth
abortion is necessary and performs a
14 partial birth abortion on the
woman, the physician shall report such de-
15 termination and the reasons for
such determination in writing to the med-
16 ical care facility in which the
abortion is performed for inclusion in the
17 report of the medical care facility
to the secretary of health and environ-
18 ment under K.S.A. 65-445 and
amendments thereto or if the abortion is
19 not performed in a medical care
facility, the physician shall report the
20 reasons for such determination in
writing to the secretary of health and
21 environment as part of the written
report made by the physician to the
22 secretary of health and environment
under K.S.A. 65-445 and amend-
23 ments thereto. The physician shall
retain a copy of the written reports
24 required under this subsection for
not less than five years.
25 (d) A
woman upon whom an abortion is performed shall not be
pros-
26 ecuted under this section for a
conspiracy to violate this section pursuant
27 to K.S.A. 21-3302, and amendments
thereto.
28
(e) Nothing in this section shall be construed to create a
right to an
29 abortion.
30 (f) Upon
conviction of a violation of this section, a person shall
be
31 guilty of a severity level 10
person felony.
32 (c) A person
who intentionally, knowingly or recklessly violates this
33 section shall be guilty of a severity
level 10 nonperson felony.
34 Sec. 5. K.S.A. 1999 Supp.
65-6701, 65-6703, 65-6712 and 65-6721
35 are hereby repealed.
36 Sec. 6. This act shall
take effect and be in force from and after its
37 publication in the statute book.