[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.