§ 40:1061.17 — Woman's right to know

Louisiana § 40:1061.17

• Jurisdiction: Louisiana
• Title 40: Public Health and Safety

Text

§1061.17. Woman's right to know
A. Legislative findings and purposes. The Legislature of Louisiana finds that:
(1) Act No. 435 of the 1978 Regular Session of the Legislature required the obtaining
of the informed consent of a pregnant woman to the performance of an abortion. This law
was declared unconstitutional in the cases of Margaret S. v. Edwards , and in Margaret S. v.
Treen .
(2) By Act No. 435 of the 1978 Regular Session of the Legislature (R.S. 40:1061.18)
a twenty-four-hour waiting period was required between the signing of an informed consent
and the performance of an abortion. This law was repealed by Act No. 418 of the 1980
Regular Session of the Legislature because of the decision of the federal court in Margaret
S. v. Edwards .
(3) Subsequent to the above-referenced court decisions and legislative enactments,
the United States Supreme Court has rendered a decision in the case of Planned Parenthood
of Pennsylvania v. Casey , which upheld the constitutionality of the Pennsylvania law which
required informed consent, parental consent, and a twenty-four-hour waiting period prior to
an abortion, and which decision has therefore impliedly overruled the decisions in the Margaret S. cases.
(4) The judicial obstacles to such legislation now having been removed by virtue of
the Casey decision, the legislature finds that it is in the public interest and in furtherance of
the general health and welfare of the citizens of this state to reenact provisions of law similar
to those heretofore either declared unconstitutional or repealed for the following reasons:
(a) It is essential to the psychological and physical well-being of a woman
considering an abortion that she receive complete and accurate information regarding her
alternatives.
(b) The knowledgeable exercise of a woman's decision to have an abortion depends
on the extent to which the woman receives sufficient information to make an informed
choice between two alternatives, giving birth or having an abortion.
(c) The vast majority of all abortions are performed in clinics devoted solely to
providing abortions and family planning services. Most women who seek abortions at these
facilities do not have any relationship with the physician who performs the abortion, before
or after the procedure. They do not return to the facility for postsurgical care. In most
instances, the woman's only actual contact with the physician occurs simultaneously with the
abortion procedure, with little opportunity to receive counseling concerning her decision.
(d) The decision to abort "is an important, and often a stressful one, and it is
desirable and imperative that it be made with full knowledge of its nature and consequences", Planned Parenthood v. Danforth .
(e) "The medical, emotional, and psychological consequences of an abortion are
serious and can be lasting...", H. L. v. Matheson .
(f) Abortion facilities or providers offer only limited and/or impersonal counseling
opportunities.
(g) Many abortion facilities or providers hire untrained and unprofessional
"counselors" whose primary goal is to sell abortion services.
(5) Based on the above findings, it is the purpose of this Act to:
(a) Ensure that every woman considering an abortion receive complete information
on her alternatives and that every woman submitting to an abortion do so only after giving
her voluntary and informed consent to the abortion procedure.
(b) Protect unborn children from a woman's uninformed decision to have an abortion.
(c) Reduce "the risk that a woman may elect an abortion only to discover later, with
devastating psychological consequences, that her decision was not fully informed", Planned
Parenthood v. Casey .
(d) Ensure that every woman considering an abortion receive complete information
regarding the availability of anesthesia or analgesics that would eliminate or alleviate organic
pain to the unborn child that could be caused by the particular method of abortion to be
employed.
B. Informed consent; requirements. After a woman is determined to be pregnant, no
abortion shall be performed or induced without the voluntary and informed consent of the
woman upon whom the abortion is to be performed or induced. Except in the case of a
medical emergency, consent to an abortion is voluntary and informed if and only if:
(1) The provisions of R.S. 40:1061.10 requiring an ultrasound test and determination
of viability are met.
(2) The information required by this Section to be communicated orally and in
person to the woman is provided to her individually and in a private room to protect her
privacy, for the purpose of ensuring that the information focuses on her individual
circumstances and that she has an adequate opportunity to ask questions.
(3)(a) Written information from the physician. Except as provided in Subparagraph
(c) of this Paragraph, at least seventy-two hours before the abortion, the physician who is to
perform the abortion or the referring physician has informed the woman, in writing and read
orally and in person of:
(i) The name of the physician who meets the requirements of R.S. 46:1061.10(A) and
who will perform the abortion, which shall be listed in the same manner as the name appears
on the membership roll of the Louisiana State Board of Medical Examiners.
(ii) The location and specialty of the physician's residency and whether the residency
of the physician has been completed.
(iii) Whether the physician is currently board-certified and, if so, the medical
specialty and the certifying organization.
(iv) Whether the physician has active admitting privileges at any hospital that
provides obstetrical or gynecological healthcare services and, if so, the name of the hospital
or hospitals. For purposes of this Subparagraph, "active admitting privileges" means that the
physician is a member in good standing of the medical staff of a hospital that is currently
licensed by the Louisiana Department of Health, with the ability to admit a patient and to
provide diagnostic and surgical services to such patient.
(v) Whether the physician has malpractice insurance that would cover the abortion
procedure.
(vi) Whether in the last ten years the physician has ever been placed on probation,
reprimanded, or had his license suspended or revoked by any professional licensing
organization and, if so, the jurisdiction in which the professional discipline was ordered. For
purposes of this Subsection, the professional discipline action must be disclosed even if it
was stayed or suspended. Disclosure of disciplinary action shall include but not be limited
to action taken by the Louisiana State Board of Medical Examiners and the Louisiana Board
of Pharmacy.
(vii) The internet address for disciplinary records of the Louisiana State Board of
Medical Examiners.
(b) Oral information from the physician. Except as provided in Subparagraph (c) of
this Paragraph, and in the same period of time provided for in the introductory paragraph of
Subparagraph (a) of this Paragraph, the physician who is to perform the abortion or the
referring physician has informed the woman, orally and in person of:
(i) A description of the proposed abortion method and of those risks (including risks
to the woman's reproductive health) and alternatives to the abortion that a reasonable patient
would consider material to the decision of whether or not to undergo the abortion.
(ii) The probable gestational age of the unborn child at the time the abortion is to be
performed; and, if the unborn child is viable or has reached the gestational age of twenty-four
weeks and the abortion may be otherwise lawfully performed under existing law, that:
(aa) The unborn child may be able to survive outside the womb.
(bb) The woman has the right to request the physician to use the method of abortion
that is most likely to preserve the life of the unborn child.
(cc) If the unborn child is born alive, that attending physicians have the legal
obligation to take all reasonable steps necessary to maintain the life and health of the child.
(iii) The probable anatomical and physiological characteristics of the unborn child
at the time the abortion is to be performed.
(iv) The medical risks associated with carrying her child to term.
(v) Any need for anti-Rh immune globulin therapy, if she is Rh negative, the likely
consequences of refusing such therapy, and a good faith estimate of the cost of the therapy.
(vi) The availability of anesthesia or analgesics to alleviate or eliminate organic pain
to the unborn child that could be caused by the method of abortion to be employed.
(vii) The requirement that at least seventy-two hours prior to the woman's having any
part of an abortion performed or induced, the physician, referring physician, or qualified
person working in conjunction with either physician must perform an obstetric ultrasound
under the provisions of R.S. 40:1061.10.
(viii) The inclusion in her printed materials of a comprehensive list, compiled by the
department, of facilities that offer obstetric ultrasounds free of charge.
(c) If the woman certifies in writing that she currently lives one hundred fifty miles
or more from the nearest licensed outpatient abortion facility to her residence, then the
physician who is to perform the abortion or the referring physician shall comply with all of
the requirements of Subparagraphs (a) and (b) of this Paragraph at least twenty-four hours
prior to the abortion.
(4) Oral information from a physician or qualified person.
(a) In the initial contact with an abortion provider by any person seeking to schedule
an abortion for a minor or adult woman or for herself, whether such initial contact is by
telephone, by internet communication, in person, or by any other means, the physician who
is to perform the abortion or any person acting on behalf of the physician informs the person
of the internet address of the department's abortion alternatives and informed consent website
provided for in this Section.
(b)(i) Except as provided in Item (ii) of this Subparagraph, at least seventy-two hours
before a scheduled abortion, the physician who is to perform the abortion, the referring
physician, or a qualified person has informed the woman, orally and in person, that:
(aa) Medical assistance benefits may be available for prenatal care, childbirth, and
neonatal care, and that more detailed information on the availability of such assistance is
contained on the department's website and in the printed materials which shall be given to
her as provided in this Section.
(bb) The department's website and printed materials describe the unborn child and
list agencies which offer alternatives to abortion.
(cc) The father of the unborn child is liable to assist in the support of her child, even
in instances where he has offered to pay for the abortion. In the case of rape, this information
may be omitted.
(dd) She is free to withhold or withdraw her consent to the abortion at any time
before or during the abortion without affecting her right to future care or treatment and
without the loss of any state or federally funded benefits to which she might otherwise be
entitled.
(ii) If the woman certifies in writing that she currently lives one hundred fifty miles
or more from the nearest licensed outpatient abortion facility to her residence, then the
physician who is to perform the abortion, the referring physician, or a qualified person shall
comply with all of the requirements of Item (i) of this Subparagraph at least twenty-four
hours before a scheduled abortion.
(c) For purposes of this Paragraph, "qualified person" shall mean an agent of the
physician who is a psychologist, licensed social worker, licensed professional counselor,
registered nurse, or physician.
(5)(a) Provision of printed materials. Except as provided in Subparagraph (b) of this
Paragraph, at least seventy-two hours before the abortion, the woman is given a copy of the
printed materials described in this Section by the physician who is to perform the abortion,
the referring physician, or a qualified person as defined in Subparagraph (4)(c) of this
Subsection. If the woman is unable to read the materials, they shall be read to her. If the
woman asks questions concerning any of the information or materials, answers shall be
provided to her in her own language.
(b) If the woman certifies in writing that she currently lives one hundred fifty miles
or more from the nearest licensed outpatient abortion facility to her residence, then the
woman shall be given a copy of the printed materials described in this Section by the
physician who is to perform the abortion, the referring physician, or a qualified person as
defined in Subparagraph (4)(c) of this Subsection at least twenty-four hours before the
abortion. If the woman is unable to read the materials, they shall be read to her. If the
woman asks questions concerning any of the information or materials, answers shall be
provided to her in her own language.
(6) Certification and reporting. The woman certifies in writing on a form provided
by the department, prior to the abortion, that the information and materials required to be
provided under this Section have been provided at least seventy-two hours prior to the
abortion; or, if applicable, at least twenty-four hours prior to the abortion in the case of a
woman who has given prior certification in writing that she currently lives one hundred fifty
miles or more from the nearest licensed outpatient abortion facility to her residence. All
physicians who perform abortions shall report the total number of certifications received
monthly to the department. The department shall make the number of certifications received
available to the public on an annual basis.
(7) Prior to the performance of the abortion, the physician who is to perform the
abortion or his agent receives a copy of the written certification required by this Section.
(8) The woman is not required to pay any amount for the abortion procedures until
the seventy-two-hour period has expired; or until expiration of the twenty-four-hour period
applicable in the case of a woman who has given prior certification in writing that she
currently lives one hundred fifty miles or more from the nearest licensed outpatient abortion
facility to her residence.
C. Publication of abortion alternatives and informed consent website.
(1) The department shall cause to be published in English, within one hundred
twenty days after enactment of this Act, and shall update on an annual basis, or as needed,
the following easily comprehensible information on a stable internet website that shall be
developed and maintained by the department to inform the public of the public and private
agencies and services available to assist a woman through pregnancy, upon childbirth, and
while her child is dependent, including but not limited to the following information that shall
indicate the agency's or service's physical address, telephone number, and web address if
available:
(a) Information about public and private agencies which provide medical assistance
benefits that may be available for prenatal care, childbirth, and neonatal care, and easily
comprehensible information on how to apply for such benefits.
(b) Public and private pregnancy resource centers that provide information and
services such as free abortion alternatives counseling, prenatal care, pantry services and
parenting skills, and that do not refer, counsel, perform, induce, prescribe, or provide any
means for abortion.
(c) Information about the support obligations of the father of a child who is born
alive and information about the judicial enforcement of child support.
(d) Information on a separate and featured subpage of the department's website that
lists facilities that provide free obstetric ultrasound services under the provisions of R.S.
40:1061.10 and this Section.
(e) Information on a separate and featured webpage created and maintained by the
Department of Children and Family Services linked on the department's website, accessible
by redirecting from the domain name AdoptionOption.La.Gov, that lists public and private
nonprofit adoption agencies that are not affiliated with an abortion provider, along with
easily comprehensible first steps to aid a pregnant woman seeking to confidentially explore
the option of placing her child for adoption, and indicating whether the adoption agency
allows the woman to choose the adoptive parents.
(f) Information on the anatomical and physiological characteristics of the unborn
child pursuant to the provisions of this Section, including color photographs or images
consistent with the most current technology depicting the unborn child at two-week
gestational increments or closer.
(g) Information describing the various methods of abortion procedures, the
short-term and long-term medical risks associated with abortion, and the medical risks
associated with carrying a child to term.
(h) Information on the unborn child's ability to experience pain.
(i) Video clips that convey objective and medically accurate information about
abortion procedures, abortion risks, abortion alternative resources, and medically accurate
information on the development of an unborn child. Video clips may be produced with the
in-house resources of the department, or acquired for no cost to the state from third parties
if the video is approved by the secretary as providing objective and medically accurate
information.
(j) Information that helps women identify unlawful abortion coercion, including but
not limited to resources or hotlines that a minor or adult woman may call if she is
experiencing actual or threatened physical abuse or violence, loss of employment or
employment privileges, loss of eligible social assistance, loss of educational scholarship, or
loss of legally protected financial support or housing.
(k) Information to assist minors who are considering abortion, including parental
consent information, and resources to help minors seek the protection of state child welfare
services, temporary guardianship, or law enforcement authorities to report abuse as defined
in Children's Code Article 603. The information designed to assist minors shall also include
a link to pregnancy resource centers as defined in Subparagraph (1)(b) of this Subsection.
(2) The home page of the department's main website shall feature a button or other
link which accesses the department's abortion alternatives and informed consent website, and
the home page of such website shall feature user-friendly buttons that link to the information
required in this Section. The department shall ensure that the resources described in this
Section are comprehensive and user-friendly, and that they do not directly or indirectly
promote, exclude, or discourage the use of any agency or service described in this Section.
(3) No information regarding who uses the website shall be collected or maintained.
The department shall monitor the website to prevent and correct tampering and shall
immediately notify abortion providers of any change of the website address.
(4) The search capabilities on the department's main website shall ensure that
entering the term "abortion" yields the website and information required by this Section,
regardless of how the information is labeled.
(5) The information on the department's abortion alternatives and informed consent
website shall be printable. The printed materials required in Subsection D of this Section
shall be available to download from the website in a portable document format without cost.
The download of such information shall not be deemed to satisfy the requirements of
Subsection B of this Section.
(6) The department's abortion alternatives and informed consent website shall be
accessible to the public without requiring registration or use of a user name, a password, or
any user identification.
(7) The department's abortion alternatives and informed consent website shall have
the capability of detecting when it is being accessed by a mobile device and shall have the
capability of converting to a platform designed to be easily viewable on mobile devices.
(8) If an abortion provider has a website, the abortion provider's internet website
home page shall include a prominent link to the department's abortion alternatives and
informed consent website.
D. Publication of printed materials. The department shall cause to be published,
within one hundred twenty days after enactment of this Act and shall update on an annual
basis or as needed, the following printed materials, which shall also be included as printable
portable document format documents from the department's website:
(1) The signs provided for in the Forced Abortion Prevention Sign Act, R.S.
40:1061.15.
(2)(a) A list arranged geographically of Louisiana-based public or private nonprofit
agencies, including the name, physical address, website address if available, and telephone
number of each of the following:
(i) Entities that offer obstetric ultrasounds free of charge.
(ii) Entities that offer free and confidential counseling to a woman considering
placing her child for adoption, along with the information provided pursuant to Subparagraph
(C)(1)(e) of this Section.
(b) The lists provided for in this Subsection shall not include any facility that
counsels, refers, performs, induces, prescribes, or provides any means for abortion.
(3) A printed booklet that features the web address of the department's dedicated
pregnancy resource website printed in a bold large typeface. The booklet shall contain an
outline of the various topics on the website as provided in Subsection C of this Section along
with an explanation that more detailed information can be found at the department's website.
The printed booklet shall state that it is unlawful for any individual to coerce a minor or
adult woman to undergo an abortion, that any physician who performs an abortion upon a
woman without her informed consent may be liable to her for damages in a civil action at
law, and that the law permits adoptive parents to pay costs of prenatal care, childbirth, and
neonatal care.
(a) The department's website and printed booklet shall include the following
statements:
(i) "There are many public and private agencies willing and able to help you to carry
your child to term, and to assist you and your child after your child is born, whether you
choose to keep your child or to place her or him for adoption. The state of Louisiana strongly
urges you to consult an independent physician about the risks of abortion to your physical
and psychological well-being and to contact the resources provided on our website before
making a final decision about abortion. The law requires that the abortion provider give you
the opportunity to contact agencies like these before you undergo an abortion."
(ii) "By twenty weeks gestation, the unborn child has the physical structures
necessary to experience pain. There is evidence that by twenty weeks gestation unborn
children seek to evade certain stimuli in a manner which in an infant or an adult would be
interpreted to be a response to pain. Anesthesia is routinely administered to unborn children
who are twenty weeks gestational age or older who undergo prenatal surgery."
(b) The printed booklet shall include materials that inform the pregnant woman of
the probable anatomical and physiological characteristics of the unborn child at a minimum
of two-week gestational increments from fertilization to full term, including color
photographs or medical images consistent with the most current technology depicting the
development of unborn children, and any relevant information on the possibility of the
unborn child's survival; provided that any such color photographs or images shall contain the
dimensions of the unborn child and shall be medically accurate. The materials shall be
objective, nonjudgmental, and designed to convey only accurate scientific information about
the unborn child at the various gestational ages. The material shall also contain objective
information describing the methods of abortion procedures, the short-term and long-term
medical risks associated with abortion as supported by peer-reviewed medical journals, and
the medical risks associated with carrying a child to term.
(4) A certification form to be used by physicians or their agents as provided in this
Section, which will list all the items of information which are to be given to women by
physicians or their agents as required by this Section.
E. The materials provided for in Subsection D of this Section shall be printed in a
typeface large enough to be clearly legible, and shall be available at no cost from the
department upon request and in appropriate number to any person, facility, or hospital. The
department's abortion alternatives and informed consent website shall contain information
on ordering printed materials. The department shall promulgate rules and regulations relative
to the methods of distribution of printed materials.
F. Medical emergency. Where a medical emergency compels the performance of an
abortion, the physician shall orally inform the woman, before the abortion, if possible, of the
medical indications supporting his judgment that an abortion is necessary to avert her death
or to avert substantial and irreversible impairment of a major bodily function.
G. Reporting requirements. Any physician who has provided the information and
materials to any woman in accordance with the requirements of this Section shall provide to
the department:
(1) With respect to a woman upon whom an abortion is performed, all information
as required by R.S. 40:1061.21 as well as the date upon which the information and materials
required to be provided under this Section were provided, as well as an executed copy of the
certification form required by this Section.
(2) With respect to any woman to whom the printed and oral information and
materials have been provided in accordance with this Section, but upon whom the physician
has not performed an abortion, the name and address of the facility where the required
information was provided and if executed by the woman, a copy of the certification form
required by this Section.
H. Criminal penalties.
(1) Any person who intentionally, knowingly, or recklessly fails to comply with all
the requirements of this Section shall be subject to the penalties provided in R.S. 40:1061.29.
(2) No physician shall be guilty of violating this Section if he or she can demonstrate,
by a preponderance of the evidence, that he or she reasonably believed that furnishing the
required information would have resulted in a severely adverse effect on the physical or
mental health of the pregnant woman, provided that the pregnancy is terminated in a licensed
hospital and that it is necessary, as certified with supporting medical reasons by the physician
in the woman's medical record, to avert the woman's death or avoid serious risk of substantial
and irreversible impairment of a major bodily function, or to induce the premature delivery
of an unborn child who is eighteen weeks gestational age or greater when the physician has
made a good faith medical judgment that the unborn child's medical condition is such that
there is no realistic possibility of maintaining the life of the unborn child outside the womb
even if the unborn child were to be delivered after a full-term pregnancy.
I. Limitation on civil liability. Any physician who complies with the provisions of
this Section may not be held civilly liable to his patient for failure to obtain informed consent
to the abortion under this Section. Any and all other rights and remedies are preserved to the
patient.
J. Construction.
(1) Nothing in this Section shall be construed as creating or recognizing a right to
abortion.
(2) It is not the intention of this Section to make lawful an abortion that is unlawful
upon the effective date of this Act, or which later becomes unlawful.
(3) The provisions of R.S. 40:1061.1 shall apply to this Section.

Legislative History

Added by Acts 1978, No. 435, §1. Amended by Acts 1980, No. 418, §1; Acts 1981, No. 774, §1, eff. July 23, 1981; Acts 1995, No. 648, §1, eff. June 20, 1995; Acts 2007, No. 282, §1; Acts 2010, No. 888, §1; Acts 2011, No. 411, §1; Acts 2012, No. 685, §1; Redesignated from R.S. 40:1299.35.6 by HCR 84 of 2015 R.S.; Acts 2016, No. 97, §1; Acts 2018, No. 319, §1; Acts 2019, No. 198, §1, eff. June 11, 2019; Acts 2022, No. 271, §4; Acts 2022, No. 545, §3.