Chapter 8.60
ABORTION PROVIDER INFORMATION REQUIREMENTS
Sections:
8.60.030 Informed choice – General rule establishing standard of care.
8.60.040 Measure of the standard of care.
8.60.070 Medical emergency – Post-abortion notice.
8.60.080 Penalty for performance of abortions without providing information.
8.60.090 Civil damages for performance of abortions without providing information.
8.60.100 Privacy of woman upon whom an abortion is performed or attempted.
8.60.010 Chief purpose.
The chief purpose of this measure is to ensure that abortion providers make information on the unborn child and abortion alternatives available to a woman contemplating abortion, sufficiently in advance of the abortion procedure so as to enable the woman to make an informed choice concerning termination of her pregnancy. [Initiative Ord. 24-27 § 1, 1994.]
8.60.020 Definitions.
“Abortion” means the use or prescription of any procedure, instrument, medicine, drug or any other substance or device intentionally to terminate the pregnancy of a woman known to be pregnant with a conscious objective other than to increase the probability of a live birth, to preserve the life or health of the child after live birth, or to remove a dead fetus.
“Abortion provider” means any individual, sole proprietorship, partnership, corporation, business trust, or other profit or nonprofit legal entity, association or group of individuals associated in fact although not a legal entity, and both licit and illicit enterprises and governmental and nongovernmental entities offering or performing abortions.
“Medical emergency” means a condition which, on the basis of a physician’s good faith clinical judgment, so complicates the medical condition of a pregnant woman as to necessitate the immediate termination of her pregnancy to avert her death or for which a delay will create serious risk of substantial and irreversible impairment of a major bodily function.
“Physician” means any person licensed to practice medicine or surgery under ORS Chapter 677.
“Probable gestational age of the unborn child” means what, in the judgment of a physician or registered nurse, will with reasonable probability be the gestational age of the unborn child at the time the abortion is planned to be performed.
“Qualified person” means an agent of the abortion provider who is a physician, psychologist, licensed clinical social worker, licensed professional counselor, or registered nurse.
“Unborn child” means the offspring of the human species after conception and before birth, and includes the human embryo as well as the human fetus. [Initiative Ord. 24-27 § 2, 1994.]
8.60.030 Informed choice – General rule establishing standard of care.
To comply with the minimum standard of care for the provision of reproductive health care services within Marion County, except in the case of a medical emergency, abortion providers shall give or otherwise make available to women seeking abortions the information described in MCC 8.60.040 and 8.60.050, sufficiently in advance of the proposed abortion procedure so as to enable the woman to make an informed choice concerning termination of her pregnancy. [Initiative Ord. 24-27 § 3, 1994.]
8.60.040 Measure of the standard of care.
As a measure of the standard of care within Marion County, except in the case of a medical emergency, a woman’s consent to an abortion is voluntary and informed only if:
A. The woman is told the following orally and in person by the individual who is to perform the abortion or by a referring physician, at least 24 hours before the abortion:
1. The name and medical qualification of the individual who will perform the abortion;
2. The nature of the proposed abortion procedure and the particular medical risks associated with the particular procedure to be employed including, when medically accurate, the risks of infection, hemorrhage, danger to subsequent pregnancies and infertility;
3. The probable gestational age of the unborn child at the time the abortion is to be performed, and the effect of the abortion procedure upon the unborn child; and
4. The medical risks associated with carrying the unborn child to term.
B. The woman is informed, by a qualified person, orally and in person, at least 24 hours before the abortion:
1. That medical assistance benefits may be available for prenatal care, childbirth, and neonatal care;
2. That the father may be liable to assist in the support of her child, even in instances where the father has offered to pay for the abortion;
3. That she has the right to review the printed materials described in MCC 8.60.050 (relating to printed information). The qualified person shall orally inform the woman the materials have been provided by Marion County and that they describe the unborn child and list agencies which offer alternatives to abortion. If the woman chooses to view the materials, copies of them shall be furnished to her; and
4. That she has a right to withhold or withdraw consent to the abortion at any time.
C. The woman certifies in writing, prior to the abortion, that the information described in subsections (A) and (B) of this section has been furnished to her, and that she has been informed of her opportunity to review the information referred to in subsection (B)(3) of this section.
D. Prior to the performance of the abortion, the person who is to perform the abortion or his agent receives a copy of the written certification prescribed by subsection (C) of this section.
E. The woman not required to pay any amount for the abortion procedure until at least 24 hours after receiving the information described in subsections (A) and (B) of this section. A reasonable initial consultation fee may be collected without violating this section. [Initiative Ord. 24-27 § 4, 1994.]
8.60.050 Printed information.
A. Marion County shall cause to be published in English and Spanish languages, within 60 days after this measure becomes law, and shall update on an annual basis the following printed materials in such a way as to ensure that the information is current, accurate, and easily comprehensible:
1. Geographically indexed materials designed to inform the women of public and private agencies and services available to assist a woman through pregnancy, upon childbirth and while the child is dependent, including adoption agencies, which shall include a comprehensive list of the agencies available, a description of the services they offer, and a description of the manner, including telephone numbers, in which they might be contacted.
2. Materials designed to inform the woman of the probable anatomical and physiological characteristics of the unborn child at two-week gestational increments from the time when a woman can be known to be pregnant to full term, including pictures or drawings representing the development of unborn children at two-week gestational increments; provided, that any such pictures or drawings must contain the dimensions of the unborn child and must be realistic and appropriate for the stage of pregnancy depicted, and any reasonably relevant information on the possibility of the unborn child’s survival. 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 commonly employed, the medical risks commonly associated with each such procedure, the detrimental psychological effects of abortion, and the medical risks commonly associated with carrying a child to full term.
B. Format. The materials shall be printed in a typeface large enough to be clearly legible.
C. Distribution. The material outlined for distribution under this section shall be available without cost from the Marion County health department upon request of a pregnant woman, a medical doctor, nurse practitioner, registered nurse, hospital, or any government agency/program. All other requests for copies of this material shall be provided for as a public records request under ORS Chapter 192. [Ord. 1007 § 3, 1995; Initiative Ord. 24-27 § 5, 1994.]
8.60.060 Private counseling.
The information described in MCC 8.60.040 and 8.60.050 must be provided to the pregnant woman individually and in a private room:
A. To protect privacy and maintain the confidentiality of the woman’s decision;
B. To ensure that the information focuses on the woman’s individual circumstances; and
C. To ensure that the woman has an adequate opportunity to ask questions. [Initiative Ord. 24-27 § 6, 1994.]
8.60.070 Medical emergency – Post-abortion notice.
When a medical emergency compels the performance of an abortion, without first fulfilling the requirements of MCC 8.60.030 and 8.60.040, the person performing the abortion shall inform the woman, before the abortion, if possible, or as soon thereafter as practicable, of the medical indications supporting his judgment that an abortion is or was necessary to avert her death or that a delay will create or would have created serious risk of substantial and irreversible impairment of a major bodily function. [Initiative Ord. 24-27 § 7, 1994.]
8.60.080 Penalty for performance of abortions without providing information.
Anyone who intentionally performs or attempts to perform an abortion without complying with this chapter shall be guilty of a Class C misdemeanor. No penalty may be assessed against the woman upon whom the abortion is performed or attempted to be performed. No criminal penalty or civil liability for failure to comply with MCC 8.60.040(B)(3) or that portion of MCC 8.60.040(C) requiring a written certification that the woman has been informed of her opportunity to review the information referred to in MCC 8.60.040(B)(3) may be assessed unless Marion County has made the printed materials available at the time the person is required to inform the woman of her right to review them. [Initiative Ord. 24-27 § 8, 1994.]
8.60.090 Civil damages for performance of abortions without providing information.
Any person upon whom an abortion has been performed or attempted without complying with this chapter may maintain an action against the person who performed or attempted the abortion for damages including economic, noneconomic and punitive damages. [Initiative Ord. 24-27 § 9, 1994.]
8.60.100 Privacy of woman upon whom an abortion is performed or attempted.
In every civil or criminal proceeding or action brought under this chapter, the court shall rule whether the anonymity of any woman upon whom an abortion is performed or attempted should be preserved from public disclosure if she does not give her consent to such disclosure. The court, upon motion or sua sponte, shall make such a ruling and, upon determining that her anonymity should be preserved, shall issue orders to the parties, witnesses, and counsel, and shall direct the sealing of the record and exclusion of individuals from courtrooms or hearing rooms, to the extent necessary to safeguard her identity from public disclosure. Each such order shall be accompanied by specific written findings explaining why the anonymity of the woman should be preserved from public disclosure, why the order is essential to that end, how the order is narrowly tailored to serve that interest, and why no reasonable less restrictive alternative exists. In the absence of written consent of the woman upon whom an abortion has been performed or attempted, anyone, other than a public official, who brings an action under MCC 8.60.090 shall do so under a pseudonym. This section may not be construed to conceal the identity of the plaintiff or of witnesses from the defendant or defendants. [Initiative Ord. 24-27 § 10, 1994.]