§1061.10. Abortion by physician; determination of viability; ultrasound test required; exceptions; penalties

A.(1) Physician requirements. No person shall perform or induce an abortion unless that person is a physician licensed to practice medicine in the state of Louisiana and is currently board-certified in obstetrics and gynecology or family medicine or enrolled in a residency program for obstetrics and gynecology or family medicine, when that resident performs or induces an abortion under the direct supervision of a physician who is board-certified in obstetrics and gynecology or family medicine. Any outpatient abortion facility that knowingly or negligently employs, contracts with, or provides any valuable consideration for the performance of an abortion in an outpatient abortion facility by any person who does not meet the requirements of this Section is subject to having its license denied, non-renewed, or revoked by the Louisiana Department of Health in accord with R.S. 40:2175.6. For the purposes of this Subsection, "direct supervision" shall mean that the physician must be present in the hospital, on the campus, or in the outpatient facility, and immediately available to furnish assistance and direction throughout the performance of the procedure. The physician need not be present in the room when the procedure is performed in order to maintain direct supervision.

(2) On the date the abortion is performed or induced, a physician performing or inducing an abortion shall:

(a) Have active admitting privileges at a hospital that is located not further than thirty miles from the location at which the abortion is performed or induced and that provides obstetrical or gynecological health care services. For purposes of this Section, "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 department, with the ability to admit a patient and to provide diagnostic and surgical services to such patient consistent with the requirements of Paragraph (A)(1) of this Subsection.

(b) Provide the pregnant woman with all of the following before the abortion is performed or induced:

(i) A telephone number by which the pregnant woman may reach the physician, or other health care personnel employed by the physician or facility at which the abortion was performed or induced, who has twenty-four hours per day access to the woman's relevant medical records so that the woman may request assistance related to any complication that arises from the performance or induction of the abortion, or to ask health-related questions regarding the abortion.

(ii) The name and telephone number of the hospital nearest to the home of the pregnant woman at which an emergency arising from the abortion would be treated.

(c) Whoever violates the provisions of Subparagraph (2)(a) of this Paragraph shall be fined not more than four thousand dollars per violation.

B. Viability. Except in the case of a medical emergency, before a physician performs an abortion, the physician, by use of his good faith medical judgment, shall first determine if the unborn child is viable.

C. Determination of Viability. In order to preserve the health of the woman, and in order to assist in making an accurate finding of viability considering the gestational age, weight, and lung maturity of the unborn child, the physician intending to terminate a pregnancy shall first perform or cause to be performed an ultrasound examination pursuant to the provisions of Subsection D of this Section. The physician shall enter such findings and determination of viability in the medical record of the pregnant woman, along with photographs or prints of the ultrasound evidencing the findings.

D. Ultrasound Requirements. Except in the case of a medical emergency, and in addition to the provisions of R.S. 40:1061.17, consent to an abortion of an unborn child at any stage of gestational development is voluntary and informed only if an obstetric ultrasound is performed in accordance with the provisions of this Section.

(1) Qualifications to perform ultrasound. The ultrasound shall be performed by the physician who is to perform the abortion or a qualified person who is the physician's agent. For purposes of this Section, "qualified person" means a person having documented evidence that he or she has completed a course in the operation of ultrasound equipment and is in compliance with any other requirements of law regarding the operation of ultrasound equipment.

(2)(a) Requirements. Except as provided in Subparagraph (b) of this Paragraph, at least seventy-two hours prior to the woman's having any part of an abortion performed or induced, and prior to the administration of any anesthesia or medication in preparation for the abortion on the woman, the physician who is to perform the abortion or a qualified person who is the physician's agent shall comply with all of the following requirements:

(i) Perform an obstetric ultrasound on the pregnant woman; simultaneously display the screen which depicts the active ultrasound images so that the pregnant woman may view them; and make audible the fetal heartbeat, if present, in a quality consistent with current medical practice. Nothing in this Section shall be construed to prevent the pregnant woman from not listening to the sounds detected by the fetal heart monitor, or from not viewing the images displayed on the ultrasound screen.

(ii) Provide a simultaneous and objectively accurate oral explanation of what the ultrasound is depicting, in a manner understandable to a layperson, which shall include the presence and location of the unborn child within the uterus and the number of unborn children depicted, the dimensions of the unborn child, and the presence of cardiac activity if present and viewable, along with the opportunity for the pregnant woman to ask questions.

(iii) Offer the pregnant woman the option of requesting an ultrasound photograph or print of her unborn child of a quality consistent with current standard medical practice that accurately portrays, to the extent feasible, the body of the unborn child including limbs, if present and viewable.

(iv) Prior to the ultrasound, obtain from the pregnant woman a copy of a completed, signed, and dated election form. The election form shall be produced and made available by the department, and shall state as follows:

"Ultrasound Before Abortion Notice and Election Form

Louisiana law requires an ultrasound examination prior to the performance of an abortion. By signing below, I certify that I understand the following:

(1)       I have the option to look at or look away from the ultrasound display at any time.

(2)       I have the option to listen to the heartbeat of the unborn child that is required to be made audible unless I decline by initialing here: ________________.

(3)       I am required by law to hear an oral explanation of the ultrasound images, unless I certify below that I am pregnant due to an act of rape or crime against nature as defined by R.S. 14:89(A)(2).

(4)       I have the option to ask and receive answers to any questions about the images of the unborn child.

(5)       I have the option to ask for an ultrasound photographic print depicting the unborn child.

__________________________________________

Signature Date

OPTION FOR WOMEN WHO HAVE FILED LAW ENFORCEMENT REPORTS:

I certify that I have reported an act of rape or crime against nature as defined by R.S. 14:89(A)(2) to law enforcement officials, and that I decline to hear an oral explanation of the ultrasound images.

__________________________________________

Signature Date"

(v) Orally read the following statement to the pregnant woman in the ultrasound examination room prior to beginning the ultrasound examination, and certify by signature on a form that shall be produced and made available by the department that the following statement was delivered orally:

"During this ultrasound examination, you have the right to an oral explanation of the results. You have the option to view the images on the ultrasound screen. The heartbeat of the unborn child, if present, will be made audible, unless you declined on the election form. You have the right to receive answers to any questions you ask about your ultrasound examination. You have the right to receive an ultrasound photographic print, which will be provided at your request."

(vi) Retain copies of the election form and certification prescribed by Items (iv) and (v) of this Subparagraph. The certification shall be placed in the medical file of the woman and shall be kept by the abortion provider for a period of not less than seven years. If the woman is a minor, the certification shall be placed in the medical file of the minor and kept for at least seven years or for five years after the minor reaches the age of majority, whichever is greater. The woman's medical files shall be kept confidential as provided by law.

(b) If the pregnant 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 a qualified person who is the physician's agent shall comply with all of the requirements of Subparagraph (a) of this Paragraph at least twenty-four hours prior to the woman having any part of an abortion performed or induced.

(3) Options to view or listen to required medical information.

(a) A pregnant woman may choose not to exercise her option to request an ultrasound photograph print as provided for under this Section.

(b) A pregnant woman may choose not to view the ultrasound images required to be provided to and reviewed with the pregnant woman as provided for under this Section.

(c) A pregnant woman may choose not to listen to the sounds detected by the fetal heart monitor required to be provided to the pregnant woman as provided for under this Section.

(d) The physician, the agent of the physician, and the pregnant woman are not subject to a penalty under this Chapter solely because the pregnant woman chooses not to request an ultrasound print, view the ultrasound images, or hear the heart auscultation.

(4) Medical Emergencies.

(a) "Medical emergency" as used in this Section, means the existence of any physical condition, not including any emotional, psychological, or mental condition, which a reasonably prudent physician, with knowledge of the case and treatment possibilities with respect to the medical conditions involved, would determine necessitates the immediate abortion of the pregnancy to avert the pregnant woman's death or to avert substantial and irreversible impairment of a major bodily function arising from continued pregnancy.

(b) Upon a determination by a physician that a medical emergency exists with respect to a pregnant woman, the provider shall certify in writing the specific medical conditions that constitute the emergency. The certification shall be placed in the medical file of the woman and shall be kept by the abortion provider for a period of not less than seven years. If the woman is a minor, then the certification shall be placed in the medical file of the minor and kept for at least seven years or for five years after the minor reaches the age of majority, whichever is greater. The woman's medical files shall be kept confidential as provided by law.

(5) Penalties. Any person who intentionally or knowingly fails to comply with any requirement of this Section shall be subject to the penalties as provided for in R.S. 40:1061.29.

(6) Protection of privacy in court proceedings. In every civil or criminal proceeding or action brought under this Section, the court shall rule whether the anonymity of any female upon whom an abortion has been performed or attempted shall be preserved from public disclosure if she does not give her consent to such disclosure. The court may close any proceedings in the case and enter other protective orders to preserve the privacy of the woman upon whom the abortion has been performed or attempted. This Section may not be construed to conceal the identity of the plaintiff or of witnesses from the defendant.

E. Pregnant rape survivors or victims of crime against nature as defined by R.S. 14:89(A)(2) who have reported the act to law enforcement officials shall have the opportunity to opt out of the oral explanation provisions of Subparagraph (D)(2)(b) of this Section, in addition to having the same options to view or listen to the required medical information as provided in Paragraph (D)(3) of this Section.

Added by Acts 1978, No. 435, §1. Amended by Acts 1981, No. 774, §1, eff. July 23, 1981; Acts 1999, No. 1232, §1, eff. July 9, 1999; Acts 2001, No. 1110, §1, eff. June 28, 2001; Acts 2010, No. 888, §1; Acts 2011, No. 411, §1; Acts 2012, No. 685, §1; Acts 2013, No. 259, §1, eff. June 10, 2013; Acts 2014, No. 602, §6, eff. June 12, 2014; Acts 2014, No. 620, §1, eff. Sept. 1, 2014; Redesignated from R.S. 40:1299.35.2 by HCR 84 of 2015 R.S.; Acts 2016, No. 97, §1; Acts 2016, No. 98, §1.