2008 Initiative Petitions
Approved for Circulation in Missouri
Statutory Amendment to Title XXXVI of the Revised Statutes of Missouri, Relating to Restricting Abortions, 2008-027
THE PROPOSED AMENDMENT
Be it enacted by the people of the State of Missouri:
Title XXXVI of the Revised Statutes of Missouri is amended to add a new Chapter which reads as follows:
SECTION 1. Short title. This act shall be cited as “Prevention of Coerced and Unsafe Abortions Act.”
(a) "Abortion" means the use or prescription of any instrument, medicine, drug or any other substance or device to terminate the pregnancy of a woman with an intention other than to increase the probability of a live birth or to deliver a child that has already died.
(b) "Abortion provider" means any physician or entity that performs or provides abortions or any person or entity that refers for abortions as a normal part of their business more than five (5) times per year.
(c) “Complication associated with abortion” means any adverse physical, emotional or psychological reaction that is statistically associated with abortion as defined by P<0.05, meaning there is less than a 5 percent chance that the results were due to sampling error.
(d) "Medical emergency" means that condition which, on the basis of the physician's reasonable clinical judgment, so complicates the medical condition of the pregnant woman as to necessitate an immediate abortion to avert the death of the mother or for which a 48 hour delay will create grave peril of immediate and irreversible loss of a major bodily function.
(e) “Negligible risks” means risks that a reasonable patient would consider to be immaterial to a decision to undergo an elective procedure.
(f) “Risk factor” means any factor, including any physical, psychological, emotional, demographic, or situational factor that is statistically associated at a level of P<0.05 with one or more complications associated with abortion wherein the statistically significant association was published no less than twelve months prior to the abortion in any peer reviewed journals indexed by the National Library of Medicine's search services, PubMed or MedLine, or in any journal included in the Thomson Scientific Master Journal List.
(g) "Self‑induced abortion" means any abortion or menstrual extraction attempted or completed by a woman on her own body.
SECTION 3. Screening requirements.
In addition to whatever requirements exist under the common or statutory law of this state, it is an act of medical negligence, for the purposes of civil remedy alone, to perform or refer for an abortion, except in the case of a medical emergency, unless all of the following are true:
(a) Before the physician recommends or performs an abortion, a licensed physician, licensed psychologist, licensed social worker, or licensed registered nurse has (1) evaluated the woman to identify any pressures to consent to the abortion and the presence of any risk factors and informed her and the physician of the results of this evaluation in writing, which shall include at least a checklist identifying both the positive and negative results of the evaluation for each risk factor and a copy of this risk profile has been retained in the patient’s permanent record and
(2) provided a written statement to the patient and the physician certifying, to the best of that person's knowledge, that the patient understands and appreciates the significance of the risk factors discussed and is seeking the abortion without duress or coercion.
(b) In the event that any risk factors were identified, the patient has been informed of each complication that is associated with each risk factor that was identified, and the explanations of the risks and associated complications has included quantifiable risk rates, whenever such relevant data exists, in such detail that a reasonable patient may consider material to the decision of undergoing an elective procedure.
(c) The physician recommending or performing the abortion has formed a reasonable medical judgment, documented in the permanent record, that either (1) the preponderance of statistically validated medical studies demonstrate that any risks statistically associated with abortion for women with similar risk profiles are negligible risks, or (2) continuance of the pregnancy would involve risk, greater than if the pregnancy were terminated by induced abortion, of injury to the physical or mental health of the pregnant woman and the physician has made a good faith effort to ensure that there are no other available options that can lessen the health risks associated with continuing the pregnancy to a degree less than the health risks associated with an induced abortion.
(a) In addition to whatever remedies are available under the common or statutory laws of this state, the intentional, knowing, or negligent failure to comply with the requirements of this act shall provide a basis for the following:
(1) Each violation of this act shall entitle the woman or her survivors to Ten Thousand Dollars ($10,000.00) for each failure to screen for a risk factor and for each failure to inform her of complications associated with an identified risk factor plus actual damages and reasonable attorney’s fees and costs.
(2) Recovery for the woman for the death of her unborn child under the Wrongful Death Act, whether or not the unborn child was viable at the time the abortion, upon proving by a preponderance of evidence that the abortion provider knew or should have known that patient’s consent to the abortion was either not fully informed or fully voluntary.
(b) Any action for civil remedies based on a failure to comply with the requirements of this chapter must be brought no later than the longer of four (4) years after the abortion, or two (2) years after the date the woman has recovered from any psychological complications which may impede a woman's ability to pursue a civil remedy.
(c) If the physician provided a minor patient with an abortion without providing the information required in Section 3 to the minor's legal guardian the burden of proving that the minor woman was capable of maturely and independently evaluating the information given to her shall fall upon the abortion provider.
(d) If the physician provided the patient with less than forty-eight (48) hours for reflection time to comprehend and consider all the information this act requires, the burden of proving that the woman had sufficient reflection time, given her age, level of maturity, emotional state, and mental capacity shall fall upon the abortion provider.
(e) In a civil action involving this act:
(1) In determining liability and validity of consent, the failure to comply with the requirements of Section 3 shall create the rebuttable presumption that the plaintiff would not have undertaken the recommended abortion had Section 3 been complied with.
(2) The absence of physical injury shall not preclude an award of damages for emotional harm associated with the abortion.
(3) The fact that a physician does not perform elective abortions, or has not in the past, shall not automatically disqualify that physician from being an expert witness. A licensed obstetrician or family practitioner who regularly helps women in resolving pregnancy related medical matters shall presumptively be qualified to testify as an expert on the screening, counseling, management, and treatment of unwanted and/or problem pregnancies.
(4) Any abortion provider, licensed health care worker, or licensed health care provider that makes referrals to a physician whose practice is inside or outside this state shall be liable for ensuring that the party to whom the abortion provider refers the patient provides a standard of screening, counseling, and care equal to or better than standard defined by Section 3.
(5) Any abortion provider advertising services in this state shall be deemed to being doing business in the state and shall be subject to the provisions of this law.
(6) The failure to comply with the requirements of Section 3 shall create the presumption that the negligence was willful and wanton unless the defendant proves by a preponderance of evidence that a lesser mental state in fact applied.
(7) Any verbal or written waiver of liability for negligence as defined in Section 3 shall be void and unenforceable.
(f) It shall be an affirmative defense to allegations of inadequate disclosure under the standards and requirements of Section 3 of this act that the defendant omitted the contested information because statistically validated surveys of the general population of women of reproductive age, conducted within three years before or after the contested abortion, demonstrate that less than five (5) percent of women would consider the contested information to be relevant to an abortion decision, or if it was the reasonable medical judgment of two licensed psychiatrists who examined the patient prior to the abortion that disclosure of the contested information would most likely cause a severe adverse effect on the physical health of the patient.
(g) In addition to whatever remedies are available under the common or statutory law of this state, a woman, or her survivors, shall have a cause of action for reckless endangerment against any person, other than a licensed physician or a licensed pharmacist acting with a prescription, who attempts or completes an abortion on her or aids or abets the commission of a self induced abortion. Proof of injury shall not be required to recover an award for reckless endangerment under this subsection, and the minimum award for damages under this subsection shall be Eight Hundred Thousand Dollars ($800,000) plus reasonable attorney’s fees
SECTION 5. Construction. It is not the intention of this law to make unlawful an abortion that is otherwise lawful. No violation of Section 3 shall be construed to provide grounds for criminal prosecution for medical negligence or to place a medical license at risk. Nothing in this Act shall be construed as creating or recognizing a right to abortion. It is not the intention of this law to make lawful an abortion that is otherwise unlawful. Nothing in this Act shall be construed as overturning or amending the provisions of Title VII, Chapter 188. Under no circumstances should any validity or invalidity of this act or any part thereof be construed so as to impair the independent scope of Title VII, Chapter 188.
SECTION 6. Effective date. This Act takes effect immediately upon becoming law. In the event that any portion of this act is enjoined and subsequently upheld, the statute of limitations for filing civil suit under the provisions of this statute shall be tolled during the pendency of the injunction and for four (4) years thereafter.