ENTITLED, An Act to revise certain provisions pertaining to the decision of a pregnant mother
considering termination of her relationship with her child by an abortion, to establish certain
procedures to insure that such decisions are voluntary, uncoerced, and informed, and to revise
certain causes of action for professional negligence relating to performance of an abortion.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF SOUTH DAKOTA:
Section 1. That § 34-23A-53 be amended to read as follows:
34-23A-53. Terms as used in §§ 34-23A-53 to 34-23A-62, inclusive, mean:
(1) "Pregnancy help center," any entity whether it be a form of corporation, partnership, or
proprietorship, whether it is for profit, or nonprofit, that has as one of its principal
missions to provide education, counseling, and other assistance to help a pregnant mother
maintain her relationship with her unborn child and care for her unborn child, which
entity has a medical director who is licensed to practice medicine in the State of South
Dakota, or that it has a collaborative agreement with a physician licensed in South Dakota
to practice medicine to whom women can be referred, which entity does not perform
abortions and is not affiliated with any physician or entity that performs abortions, and
does not now refer pregnant mothers for abortions, and has not referred any pregnant
mother for abortions for the three-year period immediately preceding July 1, 2011, and
which are in compliance with the requirements of section 8 of this Act;
(2)
(3)
(4) "Coercion," exists if the pregnant mother is induced to consent to an abortion by any other
person under circumstances, or in such a manner, which deprives her from making a free
decision or exercising her free will.
Section 2. That § 34-23A-56 be amended to read as follows:
34-23A-56. No surgical or medical abortion may be scheduled except by a licensed physician
and only after the physician physically and personally meets with the pregnant mother, consults with
her, and performs an assessment of her medical and personal circumstances. Only after the physician
completes the consultation and assessment complying with the provisions of §§ 34-23A-53 to 34-23A-62, inclusive, may the physician schedule a surgical or medical abortion, but in no instance may
the physician schedule such surgical or medical abortion to take place in less than seventy-two hours
from the completion of such consultation and assessment except in a medical emergency as set forth
in § 34-23A-10.1 and subdivision 34-23A-1(5). No physician may have the pregnant mother sign
a consent for the abortion on the day of this initial consultation. No physician may take a signed
consent from the pregnant mother unless the pregnant mother is in the physical presence of the
physician and except on the day the abortion is scheduled, and only after complying with the
provisions of §§ 34-23A-53 to 34-23A-62, inclusive, as they pertain to the initial consultation, and
only after complying with the provisions of subdivisions 34-23A-10.1(1) and (2). During the initial
consultation between the physician and the pregnant mother, prior to scheduling a surgical or
medical abortion, the physician shall:
(1) Do an assessment of the pregnant mother's circumstances to make a reasonable
determination whether the pregnant mother's decision to submit to an abortion is the result
of any coercion or pressure from other persons. In conducting that assessment, the
physician shall obtain from the pregnant mother the age or approximate age of the father
of the unborn child, and the physician shall consider whether any disparity in age between
the mother and father is a factor when determining whether the pregnant mother has been
subjected to pressure, undue influence, or coercion;
(2) Provide the written disclosure required by subdivision 34-23A-10.1(1) and discuss them
with her to determine that she understands them;
(3) Provide the pregnant mother with the names, addresses, and telephone numbers of all
pregnancy help centers that are registered with the South Dakota Department of Health
pursuant to §§ 34-23A-53 to 34-23A-62, inclusive, and provide her with written
instructions that set forth the following:
(a) That prior to the day of any scheduled abortion the pregnant mother must have a
consultation at a pregnancy help center at which the pregnancy help center shall
inform her about what education, counseling, and other assistance is available to
help the pregnant mother keep and care for her child, and have a private interview
to discuss her circumstances that may subject her decision to coercion;
(b) That prior to signing a consent to an abortion, the physician shall first obtain from
the pregnant mother, a written statement that she obtained a consultation with a
pregnancy help center, which sets forth the name and address of the pregnancy help
center, the date and time of the consultation, and the name of the counselor at the
pregnancy help center with whom she consulted;
(4) Conduct an assessment of the pregnant mother's health and circumstances to determine
if any of the following preexisting risk factors associated with adverse psychological
outcomes following an abortion are present in her case:
(a) Coercion;
(b) Pressure from others to have an abortion;
(c) The pregnant mother views an abortion to be in conflict with her personal or
religious values;
(d) The pregnant mother is ambivalent about her decision to have an abortion, or finds
the decision of whether to have an abortion difficult and she has a high degree of
decisional distress;
(e) That the pregnant mother has a commitment to the pregnancy or prefers to carry
the child to term;
(f) The pregnant mother has a medical history that includes a pre-abortion mental
health or psychiatric problem; and
(g) The pregnant mother is twenty-two years old or younger.
The physician making the assessment shall record in the pregnant mother's medical
records, on a form created for such purpose, each of the risk factors associated with
adverse psychological outcomes following an abortion listed in this subdivision that are
present in her case and which are not present in her case;
(5) The physician shall identify for the pregnant mother and explain each of the risk factors
associated with adverse psychological outcomes following an abortion listed in
subdivision (4) which are present in her case;
(6) The physician shall advise the pregnant mother of each risk factor associated with adverse
psychological outcomes following an abortion listed in subdivision 34-23A-56(4) which
the physician determines are present in her case and shall discuss with the pregnant
mother, in such a manner and detail as is appropriate, so that the physician can certify that
the physician has made a reasonable determination that the pregnant mother understands
the information imparted, all material information about the risk of adverse psychological
outcomes known to be associated with each of the risk factors found to be present;
(7) In the event that no risk factor is determined to be present, the physician shall include in
the patient's records a statement that the physician has discussed the information required
by the other parts of this section and that the physician has made a reasonable
determination that the mother understands the information in question;
(8) Records of the assessments, forms, disclosures, and instructions performed and given
pursuant to this section shall be prepared by the physician and maintained as a permanent
part of the pregnant mother's medical records.
Section 3. That § 34-23A-57 be amended to read as follows:
34-23A-57. On the day on which the abortion is scheduled, no physician may take a consent for
an abortion nor may the physician perform an abortion, unless the provisions of §§ 34-23A-53 to 34-23A-62, inclusive, have been met, and the physician first obtains from the pregnant mother, a
written, signed statement setting forth all information required by subsection 34-23A-56(3)(b). The
written statement signed by the pregnant mother shall be maintained as a permanent part of the
pregnant mother's medical records. Only the physician who meets with and consults with the
pregnant mother pursuant to § 34-23A-56 can take her consent and perform her abortion unless
serious unforeseen circumstances prevent that physician from taking the consent and performing the
abortion.
Section 4. That chapter 34-23A be amended by adding thereto a NEW SECTION to read as
follows:
On or before January 2, 2013, each pregnancy help center which has been placed on the registry
of pregnancy help centers maintained by the Department of Health before January 1, 2012, as a
condition to remain on the state registry of pregnancy help centers, shall submit a supplemental
affidavit that certifies that:
(1) It has available either on staff, or pursuant to a collaborative agreement, a licensed
counselor, or licensed psychologist, or licensed certified social worker, or licensed nurse,
or licensed marriage and family therapist, or physician, to provide the counseling related
to the assessment for coercion and the associated imparting of information described in
§§ 34-23A-53 to 34-23A-62, inclusive; and
(2) It shall strictly adhere to the confidentiality requirements set forth in §§ 34-23A-53 to 34-23A-62, inclusive.
Section 5. That chapter 34-23A be amended by adding thereto a NEW SECTION to read as
follows:
Any pregnancy help center which has been placed on the registry of pregnancy help centers
maintained by the Department of Health before January 1, 2012, shall remain on the registry of the
Department of Health and is eligible to provide the counseling and interviews described in §§ 34-23A-53 to 34-23A-62 for pregnancy help centers until January 1, 2013. Thereafter, each pregnancy
help center shall remain on the state registry of the Department of Health and maintain its eligibility
to provide the counseling and interviews by submitting to the Department of Health the supplemental
affidavit provided for in section 4 of this Act.
Section 6. That chapter 34-23A be amended by adding thereto a NEW SECTION to read as
follows:
Any pregnancy help center which has not been placed on the registry of pregnancy help centers
maintained by the Department of Health before January 1, 2012, which submits a written request or
application to be listed on the state registry of pregnancy help centers, in order to be included on the
registry, shall submit to the Department of Health an affidavit that certifies all of the information
required by § 34-23A-58 as well as the information required by section 4 of this Act.
Section 7. That § 34-23A-59 be amended to read as follows:
34-23A-59. A pregnancy help center consultation required by this Act shall be implemented as
follows:
(1) The pregnancy help center shall be permitted to interview the pregnant mother to
determine whether the pregnant mother has been subject to any coercion to have an
abortion, or is being pressured into having an abortion, and shall be permitted to inform
the pregnant mother in writing or orally, or both, what counseling, education, and
assistance that is available to the pregnant mother to help her maintain her relationship
with her unborn child and help her care for the child both through the pregnancy help
center or any other organization, faith-based program, or governmental program. The
pregnancy help center may, if it deems it appropriate, discuss matters pertaining to
adoption;
(2) During the consultation interviews provided for by §§ 34-23A-53 to 34-23A-62,
inclusive, no pregnancy help center, its agents or employees, may discuss with any
pregnant mother religion or religious beliefs, either of the mother or the counselor, unless
the pregnant mother consents in writing;
(3) The pregnancy help center is under no obligation to communicate with the abortion
provider in any way, and is under no obligation to submit any written or other form of
confirmation that the pregnant mother consulted with the pregnancy help center. The
pregnancy help center may voluntarily provide a written statement of assessment to the
abortion provider, whose name the woman shall give to the pregnancy help center, if the
pregnancy help center obtains information that indicates that the pregnant mother has
been subjected to coercion or that her decision to consider an abortion is otherwise not
voluntary or not informed. The physician shall make the physician's own independent
determination whether or not a pregnant mother's consent to have an abortion is voluntary,
uncoerced, and informed before having the pregnant mother sign a consent to an abortion.
The physician shall review and consider any information provided by the pregnancy help
center as one source of information, which in no way binds the physician, who shall make
an independent determination consistent with the provisions of §§ 34-23A-53 to 34-23A-62, inclusive, the common law requirements, and accepted medical standards;
(4) Any written statement or summary of assessment prepared by the pregnancy help center
as a result of counseling of a pregnant mother as a result of the procedures created by
§§ 34-23A-53 to 34-23A-62, inclusive, may be forwarded by the pregnancy help center,
in its discretion, to the abortion physician. If forwarded to the physician, the written
statement or summary of assessment shall be maintained as a permanent part of the
pregnant mother's medical records. Other than forwarding such documents to the abortion
physician, no information obtained by the pregnancy help center from the pregnant mother
may be released, without the written signed consent of the pregnant mother or unless the
release is in accordance with federal, state, or local law.
Nothing in §§ 34-23A-53 to 34-23A-62, inclusive, may be construed to impose any duties or
liability upon a pregnancy help center.
Section 8. That chapter 34-23A be amended by adding thereto a NEW SECTION to read as
follows:
Any pregnancy help center listed on the Department of Health registry of pregnancy help centers
prior to January 1, 2012, shall, beginning on January 1, 2013, have available either on staff or
pursuant to a collaborative agreement, a licensed counselor, or licensed psychologist, or licensed
nurse, or licensed marriage and family therapist, or a licensed physician to meet privately with the
pregnant mother to provide the counseling and meeting required by this Act. Any pregnancy help
center placed on the state registry on or after January 1, 2012, shall have one or more such licensed
professionals available on staff or pursuant to collaborative agreement for such purposes beginning
on January 1, 2012.
Section 9. That chapter 34-23A be amended by adding thereto a NEW SECTION to read as
follows:
Any person who knowingly and intentionally releases any information obtained during any
consultations resulting from this Act, under circumstances not in accord with the confidentiality
provisions required by this Act, is guilty of a Class 2 misdemeanor. Such a conviction of a Class 2
misdemeanor shall be reported to any agency or board responsible for licensing or certifying the
persons who conducted the counseling required by this Act.
Section 10. That § 34-23A-61 be amended to read as follows:
34-23A-61. In any civil action presenting a claim arising from a failure to comply with any of
the provisions of this chapter, the following shall apply:
(1) The failure to comply with the requirements of this chapter relative to obtaining consent
for the abortion shall create a rebuttable presumption that if the pregnant mother had been
informed or assessed in accordance with the requirements of this chapter, she would have
decided not to undergo the abortion;
(2) If the trier of fact determines that the abortion was the result of coercion, and it is
determined that if the physician acted prudently, the physician would have learned of the
coercion, there is a nonrebuttable presumption that the mother would not have consented
to the abortion if the physician had complied with the provisions of §§ 34-23A-53 to 34-23A-62, inclusive;
(3) If evidence is presented by a defendant to rebut the presumption set forth in subdivision
(1), then the finder of fact shall determine whether this particular mother, if she had been
given all of the information a reasonably prudent patient in her circumstance would
consider significant, as well as all information required by §§ 34-23A-53 to 34-23A-62,
inclusive, to be disclosed, would have consented to the abortion or declined to consent to
the abortion based upon her personal background and personality, her physical and
psychological condition, and her personal philosophical, religious, ethical, and moral
beliefs;
(4) The pregnant mother has a right to rely upon the abortion doctor as her source of
information, and has no duty to seek any other source of information, other than from a
pregnancy help center as referenced in §§ 34-23A-56 and 34-23A-57, prior to signing a
consent to an abortion;
(5) No patient or other person responsible for making decisions relative to the patient's care
may waive the requirements of this chapter, and any verbal or written waiver of liability
for malpractice or professional negligence arising from any failure to comply with the
requirements of this chapter is void and unenforceable.
An Act to revise certain provisions pertaining to the decision of a pregnant mother considering
termination of her relationship with her child by an abortion, to establish certain procedures to insure
that such decisions are voluntary, uncoerced, and informed, and to revise certain causes of action for
professional negligence relating to performance of an abortion.
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I certify that the attached Act
originated in the
HOUSE as Bill No. 1254
____________________________
Chief Clerk
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____________________________
Speaker of the House
____________________________
Chief Clerk
____________________________
President of the Senate
____________________________
Secretary of the Senate
House Bill No. 1254
File No. ____
Chapter No. ______
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Received at this Executive Office
this _____ day of _____________ ,
20____ at ____________ M.
By _________________________
for the Governor
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The attached Act is hereby
approved this ________ day of
______________ , A.D., 20___
____________________________
Governor
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STATE OF SOUTH DAKOTA,
ss.
Office of the Secretary of State
Filed ____________ , 20___
at _________ o'clock __ M.
____________________________
Secretary of State
By _________________________
Asst. Secretary of State
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