”20-HB2263/SB2196 – *Lamberth/Johnson (*Governor’s bill)

(1) Creates the Class C felony of performing or inducing, or attempting to perform or induce, an abortion upon a pregnant woman whose unborn child has a fetal heartbeat. This amendment creates additional Class C felonies for performing or inducing, or attempting to perform or induce, an abortion on a pregnant woman at various stages of pregnancy, ranging from six weeks gestational age to 24 weeks gestational age. The amendment specifies that a person will not be convicted of more than one such violation for any one abortion that person performed, induced, or attempted to perform or induce.
(2) Creates the Class C felony of performing or inducing, or attempting to perform or induce, an abortion upon a pregnant woman if the person knows the woman is seeking the abortion because of:
(A) The sex of the unborn child;
(B) The race of the unborn child; or
(C) A prenatal diagnosis, test, or screening indicating Down syndrome or the potential for Down syndrome in the unborn child.
(3) Creates the Class C felony of performing or inducing, or attempting to perform or induce, an abortion in violation of any of the requirements imposed on the physician performing or inducing, or attempting to perform or induce, an abortion, which include the following:
(A) Determine the gestational age of the unborn child and inform the pregnant woman of the gestational age;
(B) Perform, or have performed (See item (5) below), an obstetric ultrasound and display the images so that the pregnant woman may view them;
(C) Auscultate the fetal heartbeat of the unborn child, if any, so that the pregnant woman may hear the heartbeat if it is audible; and
(D) Obtain a signed certification from the pregnant woman prior to performing or inducing, or attempting to perform or induce, an abortion, stating that the woman was presented with the information in this item (3), that the woman viewed ultrasound images or declined to do so, and that the woman heard the fetal heartbeat, if audible, or declined to do so.
(4) Creates an affirmative defense to criminal prosecution for a violation of the above requirements that, in the physician's reasonable medical judgement, a medical emergency prevented compliance with the provision. For the affirmative defense to apply, the physician must have complied with each of five conditions (described in amendment section 39-15-215(e)(2)), unless the medical emergency also prevented compliance with a condition.
(5) Authorizes the physician to delegate the responsibility to perform the required obstetric ultrasound to a qualified ultrasound technician. The physician may also accept a certification from a referring physician that the referring physician completed the required ultrasound. The physician may rely on the signed certification described in subitem (3)(D) obtained by the referring physician or ultrasound technician unless the physician knows, or in the exercise of reasonable care should know, that an ultrasound was not performed in accordance with this amendment. A violation of this item (5) by an ultrasound technician or referring physician whose performance of an ultrasound is relied upon by a physician in performing or inducing, or attempting to perform or induce, will constitute a Class E felony.
(6) States that a pregnant woman upon whom an abortion is performed or induced, or attempted to be performed or induced, in violation of any above provision is not guilty of violating, or attempting to commit or conspiring to commit a violation of this amendment.
(7) Requires a physician criminally charged under this amendment to report the charge to the board of medical examiners within seven calendar days of acquiring knowledge of the charge. The report must include the jurisdiction where the charge is pending, if known, and a copy of the charging documents, if available. A district attorney general must notify the board of medical examiners when a physician is charged under this amendment.
(8) Deletes a present law requirement that the department of children's services assign a court advocate in each judicial district to assist in the coordination of court-appointed counsel, to attend legal proceedings with the minor, and to provide minors with information related to parental consent for abortions and the judicial bypass process.

ON JUNE 19, 2020, THE SENATE SUBSTITUTED HOUSE BILL 2263 FOR SENATE BILL 2196, ADOPTED AMENDMENT #3, AND PASSED HOUSE BILL 2263, AS AMENDED.
SIGNAGE
This bill requires healthcare facilities (such as a physicians' offices or ambulatory surgical treatment centers) in which more than 50 elective abortions were provided in the previous year, to conspicuously post in a manner clearly visible to patients a sign noting the potential ineffectiveness of mifepristone in chemical abortions and the potential to reverse its effects if the second pill required for a chemical abortion has not been taken.

REQUIREMENTS FOR PHYSICIANS AND AGENTS
This bill requires that certain information (described below) be provided to a woman at least 48 hours prior to a nonemergency chemical abortion involving the two-drug process of dispensing mifepristone first and then misoprostol. Under this bill, the following information must be provided to the woman by the physician who is to perform the abortion:
(1) That it may be possible to reverse the intended effects of a chemical abortion utilizing mifepristone if the woman changes her mind, but that time is of the essence; and
(2) That information on and assistance with reversing the effects of a chemical abortion utilizing mifepristone is available on the department of health website.
Also under this bill, after the first drug involved in the two-drug process is dispensed in a chemical abortion utilizing mifepristone, the physician or the physician's agent must provide to the pregnant woman written medical discharge instructions that include that same information that is required in the signage (as described above).
Additionally, under this bill when a medical emergency compels the performance of any abortion (either surgical or chemical), the physician must inform the woman prior to the abortion, if possible, of the medical indications supporting the physician's professional medical judgment that an abortion is necessary to prevent the woman's death or that a delay of 48 hours will create serious risk of substantial and irreversible physical impairment of a major bodily function, not including psychological or emotional conditions. This requirement will be in addition to the present law requirement (in TCA 39-115-202(f)(2), that provides "when a medical emergency compels the performance of an abortion, the physician shall inform the woman, prior to the abortion if possible, of the medical reasons supporting the physician's judgment that an abortion is necessary to avert her death or to avert substantial and irreversible impairment of major bodily function."

DEPARTMENT OF HEALTH - INFORMATIONAL MATERIALS
This bill requires the department of health to publish printed materials designed to inform women of the possibility of reversing the effects of a chemical abortion utilizing mifepristone if a woman changes her mind and information on and assistance with the resources that may be available to help reverse the effects of a chemical abortion. This bill also requires the department to develop and maintain a stable internet website to provide the same information on the internet. The printed materials and website must be in English and in each language that is the primary language of 2 percent or more of this state's population and must be easily understood by the general public.

PENALTIES and REMEDIES
A healthcare facility that negligently fails to post the signage required by this bill will be assessed a civil penalty of $10,000. Each day on which a nonemergency abortion is performed and the signs are not posted will be considered a separate violation.
It will be a Class E felony if a person knowingly or recklessly performs, induces, or attempts to perform or induce an abortion in violation of any provision of this bill, including the signage requirement. A penalty will not be assessed against the woman upon whom the abortion is performed, induced, or attempted to be performed or induced. Further, neither a penalty or civil liability will be assessed for failure to inform a woman of information on the department's website if the information is not available.
This bill provides that an action for actual or punitive damage against a person who performs an abortion in knowing or reckless violation of this bill may be brought by:
(1) Any person upon whom an abortion that was not in compliance with this bill has been performed. A person upon whom an abortion was attempted may bring an action as well;
(2) The father of the unborn child who was the subject of the abortion; or
(3) If the woman was a minor at the time of the chemical abortion or has died as a result of the chemical abortion, the grandparent of the unborn child.
This bill prohibits a court from awarding damages to a plaintiff if the pregnancy resulted from the plaintiff's criminal conduct.
This bill requires the court to award reasonable attorney's fees to:
(1) The plaintiff, if judgment is rendered in favor of the plaintiff in any action brought pursuant to this bill; or
(2) The defendant, if judgment is rendered in favor of the defendant and the court finds that the plaintiff's suit was frivolous and brought in bad faith.

CONFIDENTIALITY
In each civil or criminal proceeding brought under this bill, the court must rule whether the anonymity of any woman upon whom an abortion has been performed or attempted must be preserved from public disclosure if the woman does not give her consent to such disclosure.
In the absence of written consent of the woman upon whom an abortion has been performed or attempted, anyone who brings a civil action under this bill must do so under a pseudonym. This bill states that it is not to be construed to conceal the identity of the plaintiff or witnesses from the defendant.