2019 -- H 5125

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     STATE OF RHODE ISLAND

IN GENERAL ASSEMBLY

JANUARY SESSION, A.D. 2019

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A N   A C T

RELATING TO HEALTH AND SAFETY - THE REPRODUCTIVE PRIVACY ACT

     Introduced By: Representatives Williams, Blazejewski, Alzate, Barros, and Shanley

     Date Introduced: January 16, 2019

     Referred To: House Judiciary

     It is enacted by the General Assembly as follows:

     SECTION 1. Title 23 of the General Laws entitled "HEALTH AND SAFETY" is hereby

amended by adding thereto the following chapter:

CHAPTER 4.13

REPRODUCTIVE PRIVACY ACT

     23-4.13-1. Short title.

     This chapter shall be known and may be cited as the "Reproductive Privacy Act."

     23-4.13-2. Noninterference in reproductive health care.

     (a) Except where restricted by federal law, neither the state, nor any of its agencies, or

political subdivisions shall:

     (1) Restrict an individual person from preventing, commencing, continuing, or

terminating that individual's pregnancy prior to fetal viability;

     (2) Interfere with an individual person’s decision to continue that individual's pregnancy

after fetal viability;

     (3) Restrict an individual person from terminating that individual's pregnancy after fetal

viability when necessary to preserve the health or life of that individual;

     (4) Restrict the use of evidence-based, medically recognized methods of contraception or

abortion except in accordance with evidence-based medically recognized standards that are in

compliance with all applicable federal and state law; or

     (5) Restrict access to evidence-based, medically recognized methods of contraception or

abortion or the provision of such contraception or abortion except in accordance with evidence-

based medically recognized standards that are in compliance with all applicable federal and state

law.

     (b) For purposes of this section, "fetal viability" means that stage of gestation where the

attending physician, taking into account the particular facts of the case, has determined that there

is a reasonable likelihood of the fetus' sustained survival outside of the womb with or without

artificial support.

     (c) Notwithstanding the foregoing, this section shall not be construed to:

     (1) Abrogate the provisions of §§ 11-9-18, 11-54-1, 23-4.6-1, 23-4.7-1 through 23-4.7-8,

23-13-21, 23-17-11, 42-157-3(d), or 18 U.S.C. § 1531.

     (2) Prevent the department of health from applying to licensed health care facilities that

provide abortion, any generally applicable regulations or standards that are in accordance with

evidence-based, medically recognized standards that are in compliance with all applicable federal

and state law for the provision of abortion and that which comply with the provisions of this

section, provided that such adoption or enforcement is not a pretext for violating subsection (a) of

this section.

     SECTION 2. Chapter 11-3 of the General Laws entitled "Abortion" is hereby repealed in

its entirety:

CHAPTER 3

Abortion

     11-3-1. Procuring, counseling or attempting miscarriage.

     Every person who, with the intent to procure the miscarriage of any pregnant woman or

woman supposed by such person to be pregnant, unless the same be necessary to preserve her life,

shall administer to her or cause to be taken by her any poison or other noxious thing, or shall use

any instrument or other means whatsoever or shall aid, assist or counsel any person so intending

to procure a miscarriage, shall if the woman die in consequence thereof, be imprisoned not

exceeding twenty (20) years nor less than five (5) years, and if she does not die in consequence

thereof, shall be imprisoned not exceeding seven (7) years nor less than one (1) year; provided

that the woman whose miscarriage shall have been caused or attempted shall not be liable to the

penalties prescribed by this section.

     11-3-2. Murder charged in same indictment or information.

     Any person who shall be charged with the murder of any infant child, or of any pregnant

woman, or of any woman supposed by such person to be or to have been pregnant, may also be

charged in the same indictment or information with any or all the offenses mentioned in 11-3-1,

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and if the jury shall acquit such person on the charge of murder and find him guilty of the other

offenses or either of them, judgment and sentence may be awarded against him accordingly.

      11-3-3. Dying declarations admissible.

     In prosecutions for any of the offenses described section 11-3-1, in which the death of a

woman is alleged to have resulted from the means therein described, dying declarations of the

deceased woman shall be admissible as evidence, as in homicide cases.

     11-3-4. Construction and application of section 11-3-1.

     It shall be conclusively presumed in any action concerning the construction, application

or validity of section 11-3-1, that human life commences at the instant of conception and that said

human life at said instant of conception is a person within the language and meaning of the

fourteenth amendment of the constitution of the United States, and that miscarriage at any time

after the instant of conception caused by the administration of any poison or other noxious thing

or the use of any instrument or other means shall be a violation of said section 11-3-1, unless the

same be necessary to preserve the life of a woman who is pregnant.

     11-3-5. Constitutionality.

     If any part, clause or section of this act shall be declared invalid or unconstitutional by a

court of competent jurisdiction, the validity of the remaining provisions, parts or sections shall

not be affected.

     SECTION 3. Chapter 23-4.8 of the General Laws entitled "Spousal Notice for Abortion"

is hereby repealed in its entirety.

CHAPTER 23-4.8

Spousal Notice for Abortion

     23-4.8-1. Declaration of purpose.

     The purpose of this chapter is to promote the state's interest in furthering the integrity of

the institutions of marriage and the family.

     23-4.8-2. Spousal notice requirements.

     If a married woman consents to an abortion, as that consent is required by chapter 4.7 of

this title, the physician who is to perform the abortion or his or her authorized agent shall, if

reasonably possible, notify the husband of that woman of the proposed abortion before it is

performed.

     23-4.8-3. Exceptions.

     The requirements of § 23-4.8-2 shall not apply if:

     (1) The woman having the abortion furnishes to the physician who is to perform the

abortion or the physician's authorized agent prior to the abortion being performed a written

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statement that she has given notice to her husband of the proposed abortion or a written statement

that the fetus was not fathered by her husband;

     (2) The woman and her husband are living separate and apart or either spouse has filed a

petition or complaint for divorce in a court of competent jurisdiction;

     (3) The physician who is to perform the abortion or his or her authorized agent receives

the written affirmation of the husband that he has been notified of the proposed abortion; or

     (4) There is an emergency requiring immediate action. In the case of an emergency, the

woman's attending physician shall certify in writing on the patient's medical record that an

emergency exists and the medical basis for his or her opinion.

     23-4.8-4. Penalties.

     In the event a physician performs an abortion, as defined by chapter 4.7 of this title, upon

a woman who he or she knows is married and the physician knowingly and intentionally violates

the requirements of this chapter, he or she shall be guilty of "unprofessional conduct" for the

purposes of § 5-37-5.1.

     23-4.8-5. Severability.

     If any section or provision of this chapter or the application of any section or provision is

held invalid, that invalidity shall not affect other sections, provisions or applications, and to this

end the sections and provisions of this chapter are declared severable.

     SECTION 4. Section 11-23-5 of the General Laws in Chapter 11-23 entitled "Homicide"

is hereby amended to read as follows:

     11-23-5. Willful killing of unborn quick child.

     (a) The willful killing of an unborn quick child by any injury to the mother of the child,

which would be murder if it resulted in the death of the mother; the administration to any woman

pregnant with a quick child of any medication, drug, or substance or the use of any instrument or

device or other means, with intent to destroy the child, unless it is necessary to preserve the life of

the mother; in the event of the death of the child; shall be deemed manslaughter.

     (b) In any prosecution under this section, it shall not be necessary for the prosecution to

prove that any necessity existed.

     (c) For the purposes of this section, "quick child" means an unborn child whose heart is

beating, who is experiencing electronically-measurable brain waves, who is discernibly moving,

and who is so far developed and matured as to be capable of surviving the trauma of birth with

the aid of usual medical care and facilities available in this state.

     SECTION 5. Section 27-18-28 of the General Laws in Chapter 27-18 entitled "Accident

and Sickness Insurance Policies" is hereby repealed.

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     27-18-28. Health insurance contracts -- Abortion.

     (a) No health insurance contract, plan, or policy, delivered or issued for delivery in the

state, shall provide coverage for induced abortions, except where the life of the mother would be

endangered if the fetus were carried to term or where the pregnancy resulted from rape or incest,

and except by an optional rider for which there must be paid an additional premium. This section

shall be applicable to all contracts, plans, or policies of:

     (1) All health insurers subject to this title;

     (2) All group and blanket health insurers subject to this title;

     (3) All nonprofit hospital, medical, surgical, dental, and health service corporations; and

     (4) All health maintenance organizations;

     (5) Any provision of medical, hospital, surgical, and funeral benefits, and of coverage

against accidental death or injury, when the benefits or coverage are incidental to or part of other

insurance authorized by the statutes of this state.

     (b) Nothing contained in this section shall be construed to pertain to insurance coverage

for complications as the result of an abortion.

     SECTION 6. Section 36-12-2.1 of the General Laws in Chapter 36-12 entitled "Insurance

Benefits" is hereby amended to read as follows:

     36-12-2.1. Health insurance benefits -- Coverage for abortions excluded.

     (a) The state of Rhode Island or any city or town shall not include in any health insurance

contracts, plans, or policies covering employees, any provision which shall provide coverage for

induced abortions (except where the life of the mother would be endangered if the fetus were

carried to term, or where the pregnancy resulted from rape or incest). This section shall be

applicable to all contracts, plans or policies of:

     (1) All health insurers subject to title 27;

     (2) All group and blanket health insurers subject to title 27;

     (3) All nonprofit hospital, medical, surgical, dental, and health service corporations;

     (4) All health maintenance organizations; and

     (5) Any provision of medical, hospital, surgical, and funeral benefits and of coverage

against accidental death or injury when the benefits or coverage are incidental to or part of other

insurance authorized by the statutes of this state.

     (b) Provided, however, that the provisions of this section shall not apply to benefits

provided under existing collective bargaining agreements entered into prior to June 30, 1982.

     (c) Nothing contained herein shall be construed to pertain to insurance coverage for

complications as the result of an abortion.

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     SECTION 7. Section 42-12.3-3 of the General Laws in Chapter 42-12.3 entitled "Health

Care for Children and Pregnant Women" is hereby amended to read as follows:

     42-12.3-3. Medical assistance expansion for pregnant women/RIte Start.

     (a) The director of the department of human services is authorized to amend its title XIX

state plan pursuant to title XIX of the Social Security Act to provide Medicaid coverage and to

amend its title XXI state plan pursuant to Title XXI of the Social Security Act to provide medical

assistance coverage through expanded family income disregards for pregnant women whose

family income levels are between one hundred eighty-five percent (185%) and two hundred fifty

percent (250%) of the federal poverty level. The department is further authorized to promulgate

any regulations necessary and in accord with title XIX [42 U.S.C. § 1396 et seq.] and title XXI

[42 U.S.C. § 1397 et seq.] of the Social Security Act necessary in order to implement said state

plan amendment. The services provided shall be in accord with title XIX [42 U.S.C. § 1396 et

seq.] and title XXI [42 U.S.C. § 1397 et seq.] of the Social Security Act.

     (b) The director of the department of human services is authorized and directed to

establish a payor of last resort program to cover prenatal, delivery and postpartum care. The

program shall cover the cost of maternity care for any woman who lacks health insurance

coverage for maternity care and who is not eligible for medical assistance under title XIX [42

U.S.C. § 1396 et seq.] and title XXI [42 U.S.C. § 1397 et seq.] of the Social Security Act

including, but not limited to, a non-citizen pregnant woman lawfully admitted for permanent

residence on or after August 22, 1996, without regard to the availability of federal financial

participation, provided such pregnant woman satisfies all other eligibility requirements. The

director shall promulgate regulations to implement this program. Such regulations shall include

specific eligibility criteria; the scope of services to be covered; procedures for administration and

service delivery; referrals for non-covered services; outreach; and public education. Excluded

services under this paragraph will include, but not be limited to, induced abortion except to

prevent the death of the mother in cases of rape or incest or to save the life of the woman.

     (c) The department of human services may enter into cooperative agreements with the

department of health and/or other state agencies to provide services to individuals eligible for

services under subsections (a) and (b) above.

     (d) The following services shall be provided through the program:

     (1) Ante-partum and postpartum care;

     (2) Delivery;

     (3) Cesarean section;

     (4) Newborn hospital care;

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     (5) Inpatient transportation from one hospital to another when authorized by a medical

provider;

     (6) Prescription medications and laboratory tests;

     (e) The department of human services shall provide enhanced services, as appropriate, to

pregnant women as defined in subsections (a) and (b), as well as to other pregnant women

eligible for medical assistance. These services shall include: care coordination, nutrition and

social service counseling, high risk obstetrical care, childbirth and parenting preparation

programs, smoking cessation programs, outpatient counseling for drug-alcohol use, interpreter

services, mental health services, and home visitation. The provision of enhanced services is

subject to available appropriations. In the event that appropriations are not adequate for the

provision of these services, the department has the authority to limit the amount, scope and

duration of these enhanced services.

     (f) The department of human services shall provide for extended family planning services

for up to twenty-four (24) months postpartum. These services shall be available to women who

have been determined eligible for RIte Start or for medical assistance under title XIX [42 U.S.C.

§ 1396 et seq.] or title XXI [42 U.S.C. § 1397 et seq.] of the Social Security Act.

     SECTION 8. Section 23-4.7-6 of the General Laws in Chapter 23-4.7 entitled "Informed

Consent for Abortion" is hereby amended to read as follows:

     23-4.7-6. Minors -- Parental consent -- Judicial proceedings.

     Except in the case of a minor who has been found by a court of competent jurisdiction to

be emancipated, if a pregnant woman is less than eighteen (18) years of age and has not married,

an abortion shall not be performed upon her unless both the consent of the pregnant woman and

that of at least one of her parents is obtained, except as provided in this section. In deciding

whether to grant consent, a pregnant woman's parents shall consider only their child's best

interests. If both parents have died or are otherwise unavailable to the physician within a

reasonable time and in a reasonable manner, consent of the pregnant woman's legal guardian or

one of her guardians or a grandparent or adult sibling over the age of twenty-five (25) shall be

sufficient. If a pregnant woman less than eighteen (18) years of age has not married and if neither

of her parents or guardians or a grandparent or adult sibling over the age of twenty-five (25) agree

to consent to the performance of an abortion, or if she elects not to seek the consent of either of

her parents or guardians or a grandparent or adult sibling over the age of twenty-five (25), a judge

of the family court shall, upon petition, or motion, and after an appropriate hearing, authorize a

physician to perform the abortion, if the judge determines that the pregnant woman is mature and

capable of giving informed consent to the proposed abortion or if the judge determines that she is

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not mature, but that the performance of an abortion upon her would be in her best interests. A

pregnant woman less than eighteen (18) years of age may participate in proceedings in the family

court on her own behalf, and she shall be represented in her proceeding by a guardian ad litem.

Proceedings in the family court under this section shall be confidential and shall be given such

precedence over other pending matters that the court may reach a decision promptly and without

delay so as to serve the best interests of the pregnant woman. A judge of the family court who

conducts proceedings under this section shall make in writing specific factual findings and legal

conclusions supporting his or her decision and shall order a record of the evidence to be

maintained including his or her own findings and conclusions.

     SECTION 9. This act shall take effect upon passage.

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EXPLANATION

BY THE LEGISLATIVE COUNCIL

OF

A N   A C T

RELATING TO HEALTH AND SAFETY - THE REPRODUCTIVE PRIVACY ACT

***

     This act would serve to codify the privacy rights guaranteed by the decision reached in

the United States Supreme Court case of Roe v. Wade, 410 U.S. 113 (1973) and its progeny.

     This act would take effect upon passage.

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