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.