Brief⁽¹⁾

H.B. 2531 would enact the Prevention of Assisted Suicide Act by redefining the current crime of assisting suicide and creating civil causes of action for injunctive relief and damages. The bill also amends the law regarding abortions and post-viability abortion restrictions. Further, the bill prohibits the use of the partial birth abortion procedure except in certain limited circumstances.

Assisted Suicide

The bill redefines the crime of assisting suicide as: (1) knowingly causing another person to commit or attempt to commit suicide (a severity level 3 person felony) or (2) intentionally and purposefully assisting a person to commit or attempt to commit suicide by providing the physical means to commit or attempt to commit suicide or participating in a physical act by which the person commits or attempts to commit suicide (a severity level 9 person felony).

The bill makes an exception from prosecution for a licensed health care professional who administers, prescribes, or dispenses medication to relieve another person's pain or discomfort even if such action might hasten or increase the risk of death unless such action was done with the intent to cause death. The bill also provides that a licensed health care professional, family member, or other legally authorized person who participates in the act of or in the decision making process which results in the withholding or withdrawal of a life-sustaining procedure does not violate the law. Further, providing spiritual treatment by prayer alone in lieu of medical treatment does not violate the law.

The bill creates two causes of action as follows:

• An action for injunctive relief may be maintained when there is a reasonable belief that there is a violation or there is about to be a violation of the Act by a spouse, parent, child, or sibling of the person about to commit suicide, or one who might inherit from the person, a health care provider, or qualified public official who can prosecute or enforce state laws.



• An action for civil damages (compensatory and punitive) may be maintained against a person for violations or attempted violations of the Act by the spouse, parent, child, sibling, or one who could inherit from the person or a personal representative of the person who did or would commit suicide even if plaintiff consented to or had knowledge of the violation or attempt.

Reasonable attorney fees may also be recovered by a prevailing plaintiff or a prevailing defendant when there is a determination the suit was frivolous or brought in bad faith.

In addition, grounds for disciplinary actions may be levied by the Board of Nursing, the Dental Board, the Board of Pharmacy, and the Board of Healing Arts for violations of the Act.

Post-Viability Abortions

The bill amends existing law regarding post-viability abortions as follows:

• prohibits "legal or financial affiliation," rather than "financial association," of the two doctors required to be involved in a post-viability abortion and in partial birth abortion decisions;

• replaces the existing fetal abnormality exception to the post-viability abortion prohibition with an exception that would allow a post-viability abortion if "continuation of the pregnancy will cause a substantial and irreversible impairment of a major bodily function of the pregnant woman";

• requires a physician to determine gestational age of the fetus according to accepted obstetrical and neonatal practice and standards prior to any abortion, except in the case of a medical emergency;



• if the physician determines the gestational age to be less than 22 weeks, the physician must document the basis for the determination in the woman's medical records;





• after 22 weeks gestational age, requires the doctor to determine whether the fetus is viable and conduct medical examinations and tests to determine gestational age of the fetus;



• viability determination must be made by the physician exercising that degree of care exercised by the ordinary prudent physician engaged in the same or similar circumstances,



• findings and determinations of viability must be recorded in the woman's medical records, and



• a new definition of "viable" is added to K.S.A. 65-6703 to include "that stage of fetal development when it is the physician's judgment according to accepted obstetrical or neonatal standards of care and practice applied by physicians in the same or similar circumstances that there is a reasonable probability that the life of the child can be continued indefinitely outside the mother's womb with natural or artificial life-supportive measures.

The bill requires that the doctor then must report to the Kansas Department of Health and Environment (KDHE) the reason for determining that gestational age was 22 or more weeks and the fetus was not viable. If a post-22-week viable fetus is aborted, the bill requires a report to KDHE regarding the basis for the determination of fetal age and viability and the necessity for the abortion. Further, doctors are required to retain the woman's medical records, including the determination of gestational age, fetal viability, and necessity for the abortion, and the required written reports to KDHE for at least five years.

A conviction of a violation of any provision of the post-viability abortion restrictions is a class A nonperson misdemeanor for the first offense and a level 10 nonperson felony for second or subsequent offenses. Women upon whom an abortion is performed shall not be prosecuted for conspiracy to violate the post-viability abortion law.

Partial Birth Abortions

In regard to partial birth abortions, the bill:

• prohibits the use of partial birth abortion procedures on a viable fetus unless the woman has a referral from another doctor and both doctors determine that the abortion procedure is necessary to preserve the woman's life or a continuation of the pregnancy will cause a substantial and irreversible impairment of a major physical or mental function of the woman;



• defines a partial birth abortion as an "abortion procedure which includes the deliberate and intentional evacuation of all or a part of the intracranial contents of a viable fetus prior to removal of such otherwise intact fetus from the body of the pregnant woman";



• requires the doctor to include the reasons for a determination of necessity for a partial birth abortion in reports filed with KDHE; and



• makes violations of the partial birth abortion provisions a level 10 person felony. Women upon whom an abortion is performed may not be prosecuted for conspiracy to violate the partial birth abortion law.

General Abortion Regulations

The bill also requires physicians to conform with the Woman's Right to Know Act, whether or not an abortion is performed.

The abortion reporting requirement for medical facilities is amended to include the reports of determination of fetal viability, gestational age, and medical necessity for abortion.

The bill also amends the definition of unprofessional conduct in the healing arts statutes to include a violation of the post-viability requirements.

Background

A conferee from the Kansas Medical Society (KMS) appeared in support of the bill. Also testifying in support of the measure were conferees from Kansans for Life, the Kansas Catholic Conference, and the Association of Kansas Hospices. A letter of support was received on behalf of the Kansas Association of Osteopathic Medicine.

The House Committee amendments include the suggestions from the KMS, a clarification of who can bring suit in an action for civil damages, and cleanup amendments.

The fiscal note indicates there is an undetermined fiscal impact at this time. Any fiscal impact will center around increased litigation due to two new causes of action and the provisions requiring court documentation as evidence in actions before disciplinary boards.

The Senate Committee added the clarification regarding withholding or withdrawing life sustaining procedures and spiritual treatment by prayer alone and deleted the House Committee of the Whole amendment which would have required the University of Kansas Medical Center to conduct symposiums on pain management and quality of life in the last stages of life.

The Senate Committee of the Whole added the post-viability and partial birth abortion provisions.

1. *Supplemental notes are prepared by the Legislative Research Department and do not express legislative intent. The supplemental note and fiscal note for this bill may be accessed on the Internet at http://www.ink.org/public/legislative/fulltext-bill.html.