2019 -- S 0152 SUBSTITUTE A

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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 HEALTH CARE ACT

     

     Introduced By: Senators Goldin, Sosnowski, Lynch Prata, Miller, and Coyne

     Date Introduced: January 24, 2019

     Referred To: Senate Judiciary

     It is enacted by the General Assembly as follows:

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

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amended by adding thereto the following chapter:

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CHAPTER 4.13

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REPRODUCTIVE PRIVACY ACT

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     23-4.13-1. Short title.

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

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

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     (a) Neither the state, nor any of its agencies, or political subdivisions shall:

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

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terminating that individual's pregnancy prior to fetal viability;

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

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after fetal viability;

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

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

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

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

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compliance with state and federal statutes enumerated in subsections (c)(1) and (c)(2), department

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of health regulations and standards referenced in subsection (c)(3), and subsection (d); or

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

 

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

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based medically appropriate standards that are in compliance with state and federal statutes

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enumerated in subsections (c)(1) and (c)(2), department of health regulations and standards

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referenced in subsection (c)(3), and subsection (d).

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

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

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

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artificial support.

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

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     (1) Abrogate the provisions of §§ 11-9-18 titled "Care of babies born alive during

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attempted abortions", 11-54-1 titled "Experimentation on human fetuses", 23-4.6-1 titled

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"Consent to medical and surgical care", 23-4.7-1 through 23-4.7-8 titled "Informed consent for

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abortion", 23-13-21 titled "Comprehensive reproductive health services", 23-17-11 titled

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"Abortion and sterilization -- Protection for nonparticipation -- Procedure", or 42-157-3(d) of the

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section titled "Rhode Island Health Benefit Exchange -- General requirements";

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     (2) Abrogate the provisions of 18 U.S. Code § 1531, titled "Partial-birth abortions

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prohibited" and cited as the "Partial-Birth Abortion Ban Act of 2003";

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

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

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evidence-based, medically recognized standards for the provision of abortion in compliance with

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state and federal statutes enumerated in subsections (c)(1) and (c)(2) and with subsection (d),

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provided that such application, adoption or enforcement is not a pretext for violating subsection

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(a) of this section.

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     (d) The termination of an individual's pregnancy after fetal viability is expressly

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prohibited except when necessary, in the medical judgment of the physician, to preserve the life

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or health of that individual.

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     (1) Any physician who knowingly violates the provisions of this subsection shall be

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deemed to have engaged in "unprofessional conduct" for the purpose of § 5-37-5.1.

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

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its entirety:

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CHAPTER 3

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Abortion

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

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

 

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

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

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

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

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

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

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

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penalties prescribed by this section.

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

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

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

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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

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

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     11-3-3. Dying declarations admissible.

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

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

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

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

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

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

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

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

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

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

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

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     11-3-5. Constitutionality.

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

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

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not be affected.

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     SECTION 3. Section 11-23-5 of the General Laws in Chapter 11-23 entitled "Homicide"

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is hereby repealed.

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

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

 

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

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

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

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

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

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prove that any necessity existed.

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

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

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

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

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     SECTION 4. Chapter 23-4.8 of the General Laws entitled "Spousal Notice for Abortion"

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is hereby repealed in its entirety.

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CHAPTER 23-4.8

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Spousal Notice for Abortion

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     23-4.8-1. Declaration of purpose.

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

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the institutions of marriage and the family.

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     23-4.8-2. Spousal notice requirements.

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

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

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

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performed.

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     23-4.8-3. Exceptions.

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

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

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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

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that the fetus was not fathered by her husband;

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

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

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

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

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

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

 

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

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     23-4.8-4. Penalties.

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

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

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

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purposes of § 5-37-5.1.

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     23-4.8-5. Severability.

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

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

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

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     SECTION 5. Chapter 23-4.12 of the General Laws entitled "Partial Birth Abortion" is

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hereby repealed in its entirety.

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CHAPTER 23-4.12

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Partial Birth Abortion

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     23-4.12-1. Definitions.

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     (a) For purposes of this chapter, "partial birth abortion" means an abortion in which the

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person performing the abortion vaginally delivers a living human fetus before killing the infant

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and completing the delivery.

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     (b) For purposes of this chapter, the terms "fetus" and "infant" are used interchangeably

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to refer to the biological offspring of human parents.

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     (c) As used in this section, "vaginally delivers a living fetus before killing the infant"

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means deliberately and intentionally delivers into the vagina a living fetus, or a substantial

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portion of the fetus, for the purpose of performing a procedure the person performing the abortion

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knows will kill the infant, and kills the infant.

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     23-4.12-2. Prohibition of partial birth abortions.

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     No person shall knowingly perform a partial birth abortion.

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     23-4.12-3. Life of the mother exception.

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     Section 23-4.12-2 shall not apply to a partial birth abortion that is necessary to save the

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life of a mother because her life is endangered by a physical disorder, physical illness, or physical

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injury, including a life-endangering condition caused by or arising from the pregnancy itself;

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provided, that no other medical procedure would suffice for that purpose.

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     23-4.12-4. Civil remedies.

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     (a) The woman upon whom a partial birth abortion has been performed in violation of §

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23-4.12-2, the father of the fetus or infant, and the maternal grandparents of the fetus or infant,

 

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and the maternal grandparents of the fetus or infant if the mother has not attained the age of

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eighteen (18) years at the time of the abortion, may obtain appropriate relief in a civil action,

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unless the pregnancy resulted from the plaintiff's criminal conduct or the plaintiff consented to

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the abortion.

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     (b) The relief shall include:

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     (1) Money damages for all injuries, psychological and physical, occasioned by the

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violation of this chapter; and

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     (2) Statutory damages equal to three (3) times the cost of the partial birth abortion.

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     (c) If judgment is rendered in favor of the plaintiff in an action described in this section,

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the court shall also render judgment for a reasonable attorney's fee in favor of the plaintiff against

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the defendant. If the judgment is rendered in favor of the defendant and the court finds that the

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plaintiff's suit was frivolous and brought in bad faith, the court shall also render judgment for a

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reasonable attorney's fee in favor of the defendant against the plaintiff.

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     23-4.12-5. Penalty.

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     (a) Performance of a partial birth abortion deliberately and intentionally is a violation of

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this chapter and shall be a felony.

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     (b) A woman upon whom a partial birth abortion is performed may not be prosecuted

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under this chapter for violating this chapter or any provision this chapter, or for conspiracy to

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violate this chapter or any provision this chapter.

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     23-4.12-6. Severability.

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     (a) If any one or more provisions, clauses, phrases, or words of § 23-4.12-3 or the

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application of that section to any person or circumstance is found to be unconstitutional, it is

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declared to be inseverable.

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     (b) If any one or more provisions, sections, subsections, sentences, clauses, phrases or

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words of the remaining sections or the application of them to any person or circumstance is found

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to be unconstitutional, they are declared to be severable and the balance of the chapter shall

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remain effective notwithstanding the unconstitutionality. The legislature declares that it would

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have passed this chapter, and each provision, section, subsection, sentence, clause, phrase, or

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words, with the exception of § 23-4.12-3, irrespective of the fact that any one or more provisions,

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sections, subsections, sentences, clauses, phrases, or words be declared unconstitutional.

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     SECTION 6. Section 27-18-28 of the General Laws in Chapter 27-18 entitled "Accident

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and Sickness Insurance Policies" is hereby repealed.

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

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

 

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

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

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

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

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     (1) All health insurers subject to this title;

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

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

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     (4) All health maintenance organizations;

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

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

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insurance authorized by the statutes of this state.

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

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for complications as the result of an abortion.

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     SECTION 7. Section 36-12-2.1 of the General Laws in Chapter 36-12 entitled "Insurance

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Benefits" is hereby amended to read as follows:

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

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

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

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

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

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applicable to all contracts, plans or policies of:

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     (1) All health insurers subject to title 27;

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

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

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     (4) All health maintenance organizations; and

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

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

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insurance authorized by the statutes of this state.

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

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

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

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complications as the result of an abortion.

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     SECTION 8. Section 42-12.3-3 of the General Laws in Chapter 42-12.3 entitled "Health

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

 

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

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

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

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

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assistance coverage through expanded family income disregards for pregnant women whose

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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individual.

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

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

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

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

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     (1) Ante-partum and postpartum care;

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     (2) Delivery;

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     (3) Cesarean section;

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     (4) Newborn hospital care;

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

 

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provider;

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     (6) Prescription medications and laboratory tests;

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

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

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

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

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

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

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

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

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duration of these enhanced services.

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

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

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

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

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     SECTION 9. Section 23-4.7-6 of the General Laws in Chapter 23-4.7 entitled "Informed

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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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

 

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

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

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

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

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

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

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

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maintained including his or her own findings and conclusions.

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     SECTION 10. Section 5-37-5.1 of the General Laws in Chapter 5-37 entitled "Board of

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Medical Licensure and Discipline" is hereby amended to read as follows:

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     5-37-5.1. Unprofessional conduct.

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     The term "unprofessional conduct" as used in this chapter includes, but is not limited to,

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the following items or any combination of these items and may be further defined by regulations

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established by the board with the prior approval of the director:

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     (1) Fraudulent or deceptive procuring or use of a license or limited registration;

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     (2) All advertising of medical business, which is intended or has a tendency to deceive

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the public;

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     (3) Conviction of a crime involving moral turpitude; conviction of a felony; conviction of

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a crime arising out of the practice of medicine;

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     (4) Abandoning a patient;

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     (5) Dependence upon controlled substances, habitual drunkenness, or rendering

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professional services to a patient while the physician or limited registrant is intoxicated or

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incapacitated by the use of drugs;

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     (6) Promotion by a physician or limited registrant of the sale of drugs, devices,

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appliances, or goods or services provided for a patient in a manner as to exploit the patient for the

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financial gain of the physician or limited registrant;

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     (7) Immoral conduct of a physician or limited registrant in the practice of medicine;

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     (8) Willfully making and filing false reports or records in the practice of medicine;

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     (9) Willfully omitting to file or record, or willfully impeding or obstructing a filing or

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recording, or inducing another person to omit to file or record, medical or other reports as

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required by law;

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     (10) Failing to furnish details of a patient's medical record to succeeding physicians,

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health care facility, or other health care providers upon proper request pursuant to § 5-37.3-4;

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     (11) Soliciting professional patronage by agents or persons or profiting from acts of those

 

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representing themselves to be agents of the licensed physician or limited registrants;

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     (12) Dividing fees or agreeing to split or divide the fees received for professional services

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for any person for bringing to or referring a patient;

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     (13) Agreeing with clinical or bioanalytical laboratories to accept payments from these

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laboratories for individual tests or test series for patients;

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     (14) Making willful misrepresentations in treatments;

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     (15) Practicing medicine with an unlicensed physician except in an accredited

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preceptorship or residency training program, or aiding or abetting unlicensed persons in the

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practice of medicine;

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     (16) Gross and willful overcharging for professional services; including filing of false

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statements for collection of fees for which services are not rendered, or willfully making or

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assisting in making a false claim or deceptive claim or misrepresenting a material fact for use in

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determining rights to health care or other benefits;

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     (17) Offering, undertaking, or agreeing to cure or treat disease by a secret method,

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procedure, treatment or medicine;

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     (18) Professional or mental incompetency;

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     (19) Incompetent, negligent, or willful misconduct in the practice of medicine which

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includes the rendering of medically unnecessary services, and any departure from, or the failure

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to conform to, the minimal standards of acceptable and prevailing medical practice in his or her

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area of expertise as is determined by the board. The board does not need to establish actual injury

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to the patient in order to adjudge a physician or limited registrant guilty of the unacceptable

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medical practice in this subdivision;

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     (20) Failing to comply with the provisions of chapter 4.7 of title 23;

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     (21) Surrender, revocation, suspension, limitation of privilege based on quality of care

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provided, or any other disciplinary action against a license or authorization to practice medicine

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in another state or jurisdiction; or surrender, revocation, suspension, or any other disciplinary

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action relating to a membership on any medical staff or in any medical or professional association

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or society while under disciplinary investigation by any of those authorities or bodies for acts or

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conduct similar to acts or conduct which would constitute grounds for action as described in this

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chapter;

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     (22) Multiple adverse judgments, settlements or awards arising from medical liability

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claims related to acts or conduct which would constitute grounds for action as described in this

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chapter;

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     (23) Failing to furnish the board, its chief administrative officer, investigator or

 

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representatives, information legally requested by the board;

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     (24) Violating any provision or provisions of this chapter or the rules and regulations of

3

the board or any rules or regulations promulgated by the director or of an action, stipulation, or

4

agreement of the board;

5

     (25) Cheating on or attempting to subvert the licensing examination;

6

     (26) Violating any state or federal law or regulation relating to controlled substances;

7

     (27) Failing to maintain standards established by peer review boards, including, but not

8

limited to, standards related to proper utilization of services, use of nonaccepted procedure,

9

and/or quality of care;

10

     (28) A pattern of medical malpractice, or willful or gross malpractice on a particular

11

occasion;

12

     (29) Agreeing to treat a beneficiary of health insurance under title XVIII of the Social

13

Security Act, 42 U.S.C. § 1395 et seq., "Medicare Act", and then charging or collecting from this

14

beneficiary any amount in excess of the amount or amounts permitted pursuant to the Medicare

15

Act; or

16

     (30) Sexual contact between a physician and patient during the existence of the

17

physician/patient relationship; or

18

     (31) Knowingly violating the provisions of subsection 23-4.13-2(d).

19

     SECTION 11. 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 HEALTH CARE ACT

***

1

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

2

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

3

     This act would take effect upon passage.

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