[Chapter
21.--CRIMES AND PUNISHMENTS
PART
II.--PROHIBITED CONDUCT
Article
37.--CRIMES AGAINST PROPERTY ]
21-3721. Criminal trespass. (a) Criminal trespass is: (1) Entering or remaining upon or in any land, nonnavigable body of water, structure, vehicle, aircraft or watercraft other than railroad property as defined in K.S.A. 2004 Supp. 21-3761 and amendments thereto by a person who knows such person is not authorized or privileged to do so, and:
(A) Such person enters or remains therein in defiance of an order not to enter or to leave such premises or property personally communicated to such person by the owner thereof or other authorized person; or
(B) such premises or property are posted in a manner reasonably likely to come to the attention of intruders, or are locked or fenced or otherwise enclosed, or shut or secured against passage or entry; or
(C) such person enters or remains therein in defiance of a restraining order issued pursuant to K.S.A. 2004 Supp. 60-31a05, 60-31a06, K.S.A. 60-1607, 60-3105, 60-3106 or 60-3107 or K.S.A. 38-1542, 38-1543 or 38-1563, and amendments thereto, and the restraining order has been personally served upon the person so restrained; or
(2) entering or remaining upon or in any public or private land or structure in a manner that interferes with access to or from any health care facility by a person who knows such person is not authorized or privileged to do so and such person enters or remains thereon or therein in defiance of an order not to enter or to leave such land or structure personally communicated to such person by the owner of the health care facility or other authorized person.
(b) As used in this section:
(1) "Health care facility" means any licensed medical care facility, certificated health maintenance organization, licensed mental health center, or mental health clinic, licensed psychiatric hospital or other facility or office where services of a health care provider are provided directly to patients.
(2) "Health care provider" means any person: (A) Licensed to practice a branch of the healing arts; (B) licensed to practice psychology; (C) licensed to practice professional or practical nursing; (D) licensed to practice dentistry; (E) licensed to practice optometry; (F) licensed to practice pharmacy; (G) registered to practice podiatry; (H) licensed as a social worker; or (I) registered to practice physical therapy.
(c) (1) Criminal trespass is a class B nonperson misdemeanor.
(2) Upon a conviction of a violation of subsection (a)(1)(C), a person shall be sentenced to not less than 48 consecutive hours of imprisonment which must be served either before or as a condition of any grant of probation or suspension, reduction of sentence or parole.
(d) This section shall not apply to a land surveyor, licensed pursuant to article 70 of chapter 74 of the Kansas Statutes Annotated, and amendments thereto, and such surveyor's authorized agents and employees who enter upon lands, waters and other premises in the making of a survey.
[Chapter 38.--MINORS
Article 20.--INSURANCE COVERAGE
FOR CHILDREN ]
38-2003. Same; abortion exclusion; "health
benefits coverage" defined. (a) (1) None of the funds appropriated to
implement this act shall be expended for any abortion.
(2) None of the funds appropriated to implement this act
shall be expended for health benefits coverage that includes coverage of
abortion.
(3) The term "health benefits coverage" means
the package of services covered by entities in subsection (c) of K.S.A. 38-2001
and amendments thereto authorized to transact health insurance business in this
state pursuant to a contract or other arrangement entered into under sections
of this act.
(b) The limitations established in subsection (a) shall
not apply to an abortion:
(1) If the pregnancy is the result of an act of rape,
aggravated indecent liberties with a child or incest; or
(2) if necessary to save the life of the pregnant woman.
[Chapter 65.--PUBLIC HEALTH
Article 4.--HOSPITALS AND OTHER
FACILITIES ]
65-443. Termination of human pregnancy;
performance or participation in medical procedures not required. No person
shall be required to perform or participate in medical procedures which result
in the termination of a pregnancy, and the refusal of any person to perform or
participate in those medical procedures shall not be a basis for civil
liability to any person. No hospital, hospital administrator or governing board
of any hospital shall terminate the employment of, prevent or impair the
practice or occupation of or impose any other sanction on any person because of
such person's refusal to perform or participate in the termination of any human
pregnancy.
65-444. Same; performance in hospital; refusal
to permit; adoption of criteria and procedures; conditions; emergency. No
hospital, hospital administrator or governing board shall be required to permit
the termination of human pregnancies within its institution and the refusal to
permit such procedures shall not be grounds for civil liability to any person.
A hospital may establish criteria and procedures under which pregnancies may be
terminated within its institution, in addition to those which may be prescribed
by licensing, regulating or accrediting agencies: Provided, No pregnancy
shall be purposely terminated until the opinions of three (3) duly licensed
physicians attesting to the necessity of such termination have been recorded in
writing in the permanent records of the hospital, except in an emergency as
defined in section 21-3407 (2) (b) of the Kansas criminal code.
65-445. Same; records; annual report to
secretary of health and environment; confidentiality of information,
exceptions; penalties for violations. (a) Every medical care facility shall
keep written records of all pregnancies which are lawfully terminated within
such medical care facility and shall annually submit a written report thereon
to the secretary of health and environment in the manner and form prescribed by
the secretary. Every person licensed to practice medicine and surgery shall
keep a record of all pregnancies which are lawfully terminated by such person
in a location other than a medical care facility and shall annually submit a
written report thereon to the secretary of health and environment in the manner
and form prescribed by the secretary.
(b) Each report required by this section shall include the
number of pregnancies terminated during the period of time covered by the
report, the type of medical facility in which the pregnancy was terminated,
information required to be reported under K.S.A. 65-6703 and amendments thereto
if applicable to the pregnancy terminated, and such other information as may be
required by the secretary of health and environment, but the report shall not
include the names of the persons whose pregnancies were so terminated.
(c) Information obtained by the secretary of health and
environment under this section shall be confidential and shall not be disclosed
in a manner that would reveal the identity of any person licensed to practice
medicine and surgery who submits a report to the secretary under this section
or the identity of any medical care facility which submits a report to the
secretary under this section, except that such information, including
information identifying such persons and facilities may be disclosed to the
state board of healing arts upon request of the board for disciplinary action
conducted by the board and may be disclosed to the attorney general upon a
showing that a reasonable cause exists to believe that a violation of this act
has occurred. Any information disclosed to the state board of healing arts or
the attorney general pursuant to this subsection shall be used solely for the
purposes of a disciplinary action or criminal proceeding. Except as otherwise
provided in this subsection, information obtained by the secretary under this
section may be used only for statistical purposes and such information shall
not be released in a manner which would identify any county or other area of
this state in which the termination of the pregnancy occurred. A violation of
this subsection (c) is a class A nonperson misdemeanor.
(d) In addition to such criminal penalty under subsection
(c), any person licensed to practice medicine and surgery or medical care
facility whose identity is revealed in violation of this section may bring a
civil action against the responsible person or persons for any damages to the
person licensed to practice medicine and surgery or medical care facility
caused by such violation.
(e) For the purpose of maintaining confidentiality as
provided by subsections (c) and (d), reports of terminations of pregnancies
required by this section shall identify the person or facility submitting such
reports only by confidential code number assigned by the secretary of health and
environment to such person or facility and the department of health and
environment shall maintain such reports only by such number.
* * *
[Chapter 65.--PUBLIC HEALTH
Article 67.--ABORTION ]
65-6701. Definitions. As used in this act:
(a) "Abortion" means the use of any means to
intentionally terminate a pregnancy except for the purpose of causing a live
birth. Abortion does not include: (1) The use of any drug or device that
inhibits or prevents ovulation, fertilization or the implantation of an embryo;
or (2) disposition of the product of in vitro fertilization prior to
implantation.
(b) "Counselor" means a person who is: (1)
Licensed to practice medicine and surgery; (2) licensed to practice psychology;
(3) licensed to practice professional or practical nursing; (4) registered to
practice professional counseling; (5) licensed as a social worker; (6) the
holder of a master's or doctor's degree from an accredited graduate school of
social work; (7) registered to practice marriage and family therapy; (8) a
licensed physician assistant; or (9) a currently ordained member of the clergy
or religious authority of any religious denomination or society. Counselor does
not include the physician who performs or induces the abortion or a physician
or other person who assists in performing or inducing the abortion.
(c) "Department" means the department of health
and environment.
(d) "Gestational age" means the time that has
elapsed since the first day of the woman's last menstrual period.
(e) "Medical emergency" means that condition
which, on the basis of the physician's good faith clinical judgment, so
complicates the medical condition of a pregnant woman as to necessitate the
immediate abortion 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.
(f) "Minor" means a person less than 18 years of
age.
(g) "Physician" means a person licensed to practice
medicine and surgery in this state.
(h) "Pregnant" or "pregnancy" means
that female reproductive condition of having a fetus in the mother's body.
(i) "Qualified person" means an agent of the
physician who is a psychologist, licensed social worker, registered
professional counselor, registered nurse or physician.
(j) "Unemancipated minor" means any minor who
has never been: (1) Married; or (2) freed, by court order or otherwise, from
the care, custody and control of the minor's parents.
(k) "Viable" means that stage of gestation when,
in the best medical judgment of the attending physician, the fetus is capable
of sustained survival outside the uterus without the application of
extraordinary medical means.
65-6702. Drugs or devices for birth control or fertilization lawful; political subdivisions prohibited from limiting abortion. (a) The use of any drug or device that inhibits or prevents ovulation, fertilization or implantation of an embryo and disposition of the product of in vitro fertilization prior to implantation are lawful in this state and neither the state nor any political subdivision of the state shall prohibit the use of any such drug or device or the disposition of such product.
(b) No political subdivision of the state shall regulate
or restrict abortion.
65-6703. Abortion prohibited when fetus viable,
exceptions; determination of age of fetus; determination of viability; reports;
retention of medical records; viable, defined; criminal penalties. (a) No
person shall perform or induce an abortion when the fetus is viable unless such
person is a physician and has a documented referral from another physician not
legally or financially affiliated with the physician performing or inducing the
abortion and both physicians determine that: (1) The abortion is necessary to
preserve the life of the pregnant woman; or (2) a continuation of the pregnancy
will cause a substantial and irreversible impairment of a major bodily function
of the pregnant woman.
(b) (1) Except in the case of a medical emergency, prior
to performing an abortion upon a woman, the physician shall determine the
gestational age of the fetus according to accepted obstetrical and neonatal
practice and standards applied by physicians in the same or similar
circumstances. If the physician determines the gestational age is less than 22
weeks, the physician shall document as part of the medical records of the woman
the basis for the determination.
(2) If the physician determines the gestational age of the
fetus is 22 or more weeks, prior to performing an abortion upon the woman the
physician shall determine if the fetus is viable by using and exercising that
degree of care, skill and proficiency commonly exercised by the ordinary
skillful, careful and prudent physician in the same or similar circumstances.
In making this determination of viability, the physician shall perform or cause
to be performed such medical examinations and tests as are necessary to make a
finding of the gestational age of the fetus and shall enter such findings and
determinations of viability in the medical record of the woman.
(3) If the physician determines the gestational age of a
fetus is 22 or more weeks, and determines that the fetus is not viable and
performs an abortion on the woman, the physician shall report such
determinations and the reasons for such determinations in writing to the
medical care facility in which the abortion is performed for inclusion in the
report of the medical care facility to the secretary of health and environment
under K.S.A. 65-445 and amendments thereto or if the abortion is not performed
in a medical care facility, the physician shall report such determinations and
the reasons for such determinations in writing to the secretary of health and
environment as part of the written report made by the physician to the
secretary of health and environment under K.S.A. 65-445 and amendments thereto.
(4) If the physician who is to perform the abortion
determines the gestational age of a fetus is 22 or more weeks, and determines
that the fetus is viable, both physicians under subsection (a) determine in
accordance with the provisions of subsection (a) that an abortion is necessary
to preserve the life of the pregnant woman or that a continuation of the
pregnancy will cause a substantial and irreversible impairment of a major
bodily function of the pregnant woman and the physician performs an abortion on
the woman, the physician who performs the abortion shall report such
determinations, the reasons for such determinations and the basis for the
determination that an abortion is necessary to preserve the life of the
pregnant woman or that a continuation of the pregnancy will cause a substantial
and irreversible impairment of a major bodily function of the pregnant woman in
writing to the medical care facility in which the abortion is performed for
inclusion in the report of the medical care facility to the secretary of health
and environment under K.S.A. 65-445 and amendments thereto or if the abortion
is not performed in a medical care facility, the physician who performs the
abortion shall report such determinations, the reasons for such determinations
and the basis for the determination that an abortion is necessary to preserve
the life of the pregnant woman or that a continuation of the pregnancy will
cause a substantial and irreversible impairment of a major bodily function of
the pregnant woman in writing to the secretary of health and environment as
part of the written report made by the physician to the secretary of health and
environment under K.S.A. 65-445 and amendments thereto.
(5) The physician shall retain the medical records
required to be kept under paragraphs (1) and (2) of this subsection (b) for not
less than five years and shall retain a copy of the written reports required
under paragraphs (3) and (4) of this subsection (b) for not less than five
years.
(c) A woman upon whom an abortion is performed shall not
be prosecuted under this section for a conspiracy to violate this section
pursuant to K.S.A. 21-3302, and amendments thereto.
(d) Nothing in this section shall be construed to create a
right to an abortion. Notwithstanding any provision of this section, a person
shall not perform an abortion that is prohibited by law.
(e) As used in this section, "viable" means that
stage of fetal development when it is the physician's judgment according to
accepted obstetrical or neonatal standards of care and practice applied by
physicians in the same or similar circumstances that there is a reasonable
probability that the life of the child can be continued indefinitely outside
the mother's womb with natural or artificial life-supportive measures.
(f) If any provision of this section is held to be invalid
or unconstitutional, it shall be conclusively presumed that the legislature
would have enacted the remainder of this section without such invalid or
unconstitutional provision.
(g) Upon a first conviction of a violation of this
section, a person shall be guilty of a class A nonperson misdemeanor. Upon a
second or subsequent conviction of a violation of this section, a person shall
be guilty of a severity level 10, nonperson felony.
65-6704. Abortion upon minor; required
information and counseling. (a) Before the performance of an abortion upon
a minor, a counselor shall provide pregnancy information and counseling in a
manner that can be understood by the minor and allows opportunity for the
minor's questions to be addressed. A parent or guardian, or a person 21 or more
years of age who is not associated with the abortion provider and who has a
personal interest in the minor's well-being, shall accompany the minor and be
involved in the minor's decision-making process regarding whether to have an
abortion. Such information and counseling shall include:
(1) The alternatives available to the minor, including
abortion, adoption and other alternatives to abortion;
(2) an explanation that the minor may change a decision to
have an abortion at any time before the abortion is performed or may decide to
have an abortion at any time while an abortion may be legally performed;
(3) make available to the minor information on agencies
available to assist the minor and agencies from which birth control information
is available;
(4) discussion of the possibility of involving the minor's
parent or parents, other adult family members or guardian in the minor's
decision-making; and
(d) The counselor shall also sign and date the statement
and shall include the counselor's business address and business telephone
number. The counselor shall keep a copy for the minor's medical record and
shall give the form to the minor or, if the minor requests and if the counselor
is not the attending physician, transmit the statement to the minor's attending
physician. Such medical record shall be maintained as otherwise provided by
law.
(e) The provision by a counselor of written materials
which contain information and counseling meeting the requirements of
subsections (a) and (b) and which is signed by the minor shall be presumed to
be evidence of compliance with the requirements of this section.
(f) The requirements of subsection (a) shall not apply
when, in the best medical judgment of the attending physician based on the facts
of the case, an emergency exists that threatens the health, safety or
well-being of the minor as to require an abortion. A physician who does not
comply with the requirements of this section by reason of this exception shall
state in the medical record of the abortion the medical indications on which
the physician's judgment was based.
65-6705. Same; notice to certain persons
required before performance of abortion; waiver of notice; court proceedings;
penalties. (a) Before a person performs an abortion upon an unemancipated
minor, the person or the person's agent must give actual notice of the intent
to perform such abortion to one of the minor's parents or the minor's legal
guardian or must have written documentation that such notice has been given
unless, after receiving counseling as provided by subsection (a) of K.S.A.
65-6704, the minor objects to such notice being given. If the minor so objects,
the minor may petition, on her own behalf or by an adult of her choice, the
district court of any county of this state for a waiver of the notice
requirement of this subsection. If the minor so desires, the counselor who
counseled the minor as required by K.S.A. 65-6704 shall notify the court and
the court shall ensure that the minor or the adult petitioning on the minor's
behalf is given assistance in preparing and filing the application.
(b) The minor may participate in proceedings in the court
on the minor's own behalf or through the adult petitioning on the minor's
behalf. The court shall provide a court-appointed counsel to represent the
minor at no cost to the minor.
(c) Court proceedings under this section shall be
anonymous and the court shall ensure that the minor's identity is kept
confidential. The court shall order that a confidential record of the evidence
in the proceeding be maintained. All persons shall be excluded from hearings
under this section except the minor, her attorney and such other persons whose
presence is specifically requested by the applicant or her attorney.
(d) Notice shall be waived if the court finds by a
preponderance of the evidence that either: (1) The minor is mature and
well-informed enough to make the abortion decision on her own; or (2)
notification of a person specified in subsection (a) would not be in the best
interest of the minor.
(e) A court that conducts proceedings under this section
shall issue written and specific factual findings and legal conclusions
supporting its decision as follows:
(1) Granting the minor's application for waiver of notice
pursuant to this section, if the court finds that the minor is mature and
well-enough informed to make the abortion decision without notice to a person
specified in subsection (a);
(2) granting the minor's application for waiver if the
court finds that the minor is immature but that notification of a person
specified in subsection (a) would not be in the minor's best interest; or
(3) denying the application if the court finds that the
minor is immature and that waiver of notification of a person specified in
subsection (a) would not be in the minor's best interest.
(f) The court shall give proceedings under this section
such precedence over other pending matters as necessary to ensure that the
court may reach a decision promptly. The court shall issue a written order
which shall be issued immediately to the minor, or her attorney or other
individual designated by the minor to receive the order. If the court fails to
rule within 48 hours, excluding Saturdays and Sundays, of the time of the
filing of the minor's application, the application shall be deemed granted.
(g) An expedited anonymous appeal shall be available to any
minor. The record on appeal shall be completed and the appeal shall be
perfected within five days from the filing of the notice to appeal.
(h) The supreme court shall promulgate any rules it finds
are necessary to ensure that proceedings under this act are handled in an
expeditious and anonymous manner.
(i) No fees shall be required of any minor who avails
herself of the procedures provided by this section.
(j) (1) No notice shall be required under this section if:
(A) The pregnant minor declares that the father of the
fetus is one of the persons to whom notice may be given under this section;
(B) in the best medical judgment of the attending
physician based on the facts of the case, an emergency exists that threatens
the health, safety or well-being of the minor as to require an abortion; or
(C) the person or persons who are entitled to notice have
signed a written, notarized waiver of notice which is placed in the minor's
medical record.
(2) A physician who does not comply with the provisions of
this section by reason of the exception of subsection (j)(1)(A) must inform the
minor that the physician is required by law to report the sexual abuse to the
department of social and rehabilitation services. A physician who does not
comply with the requirements of this section by reason of the exception of
subsection (j)(1)(B) shall state in the medical record of the abortion the
medical indications on which the physician's judgment was based.
(k) Any person who intentionally performs an abortion with
knowledge that, or with reckless disregard as to whether, the person upon whom
the abortion is to be performed is an unemancipated minor, and who
intentionally and knowingly fails to conform to any requirement of this
section, is guilty of a class A person misdemeanor.
(l) Except as necessary for the conduct of a proceeding
pursuant to this section, it is a class B person misdemeanor for any individual
or entity to willfully or knowingly: (1) Disclose the identity of a minor
petitioning the court pursuant to this section or to disclose any court record
relating to such proceeding; or (2) permit or encourage disclosure of such
minor's identity or such record.
65-6706. [nothing]
65-6707. Same; severability clause. If any
provision of this act or its application to any person or circumstance is held
invalid, the remainder of the act or the application of the provision to other
persons or circumstances is not affected.
65-6708. Woman's-right-to-know act; citation.
K.S.A. 65-6701 and K.S.A. 65-6708 to 65-6715, inclusive, and amendments thereto
shall be known and may be cited as the woman's-right-to-know act.
65-6709. Same; abortion, informed consent required;
certain information required to be in writing; meeting with physician; copy of
certain printed materials to be given women, when; certification in writing of
receipt of information; payment not required until waiting period has expired.
No abortion shall be performed or induced without the voluntary and informed
consent of the woman upon whom the abortion is to be performed or induced.
Except in the case of a medical emergency, consent to an abortion is voluntary
and informed only if:
(a) At least 24 hours before the abortion the physician
who is to perform the abortion or the referring physician has informed the
woman in writing of:
(1) The name of the physician who will perform the
abortion;
(2) a description of the proposed abortion method;
(3) a description of risks related to the proposed
abortion method, including risks to the woman's reproductive health and
alternatives to the abortion that a reasonable patient would consider material
to the decision of whether or not to undergo the abortion;
(4) the probable gestational age of the fetus at the time
the abortion is to be performed and that Kansas law requires the following:
"No person shall perform or induce an abortion when the fetus is viable
unless such person is a physician and has a documented referral from another
physician not financially associated with the physician performing or inducing
the abortion and both physicians determine that: (1) The abortion is necessary
to preserve the life of the pregnant woman; or (2) the fetus is affected by a
severe or life-threatening deformity or abnormality."[*] If the child is
born alive, the attending physician has the legal obligation to take all
reasonable steps necessary to maintain the life and health of the child;
(5) the probable anatomical and physiological
characteristics of the fetus at the time the abortion is to be performed;
(6) the medical risks associated with carrying a fetus to
term; and
(7) any need for anti-Rh immune globulin therapy, if she
is Rh negative, the likely consequences of refusing such therapy and the cost
of the therapy.
(b) At least 24 hours before the abortion, the physician
who is to perform the abortion, the referring physician or a qualified person
has informed the woman in writing that:
(1) Medical assistance benefits may be available for
prenatal care, childbirth and neonatal care, and that more detailed information
on the availability of such assistance is contained in the printed materials
given to her and described in K.S.A. 65-6710 and amendments thereto;
(2) the printed materials in K.S.A. 65-6710 and amendments
thereto describe the fetus and list agencies which offer alternatives to
abortion with a special section listing adoption services;
(3) the father of the fetus is liable to assist in the
support of her child, even in instances where he has offered to pay for the
abortion except that in the case of rape this information may be omitted; and
(4) the woman is free to withhold or withdraw her consent
to the abortion at any time prior to invasion of the uterus without affecting
her right to future care or treatment and without the loss of any state or federally-funded
benefits to which she might otherwise be entitled.
(c) Prior to the abortion procedure, prior to physical
preparation for the abortion and prior to the administration of medication for
the abortion, the woman shall meet privately with the physician who is to
perform the abortion and such person's staff to ensure that she has an adequate
opportunity to ask questions of and obtain information from the physician
concerning the abortion.
(d) At least 24 hours before the abortion, the woman is
given a copy of the printed materials described in K.S.A. 65-6710 and
amendments thereto. If the woman asks questions concerning any of the
information or materials, answers shall be provided to her in her own language.
(e) The woman certifies in writing on a form provided by
the department, prior to the abortion, that the information required to be
provided under subsections (a), (b) and (d) has been provided and that she has
met with the physician who is to perform the abortion on an individual basis as
provided under subsection (c). All physicians who perform abortions shall
report the total number of certifications received monthly to the department.
The department shall make the number of certifications received available on an
annual basis.
(f) Prior to the performance of the abortion, the
physician who is to perform the abortion or the physician's agent receives a
copy of the written certification prescribed by subsection (e) of this section.
(g) The woman is not required to pay any amount for the
abortion procedure until the 24-hour waiting period has expired.
65-6710. Same; printed materials to be published
and distributed by the department of health and environment; materials to be
available at no cost. (a) The department shall cause to be published and
distributed widely, within 30 days after the effective date of this act, and
shall update on an annual basis, the following easily comprehensible printed
materials:
(1) Geographically indexed materials designed to inform
the woman of public and private agencies and services available to assist a
woman through pregnancy, upon childbirth and while her child is dependent,
including but not limited to, adoption agencies. The materials shall include a
comprehensive list of the agencies, a description of the services they offer
and the telephone numbers and addresses of the agencies; and inform the woman
about available medical assistance benefits for prenatal care, childbirth and
neonatal care and about the support obligations of the father of a child who is
born alive. The department shall ensure that the materials described in this
section are comprehensive and do not directly or indirectly promote, exclude or
discourage the use of any agency or service described in this section. The
materials shall also contain a toll-free 24-hour a day telephone number which
may be called to obtain, orally, such a list and description of agencies in the
locality of the caller and of the services they offer. The materials shall
state that it is unlawful for any individual to coerce a woman to undergo an
abortion, that any physician who performs an abortion upon a woman without her
informed consent may be liable to her for damages.
"Many public and private agencies exist to provide
counseling and information on available services. You are strongly urged to
seek their assistance to obtain guidance during your pregnancy. In addition,
you are encouraged to seek information on abortion services, alternatives to
abortion, including adoption, and resources available to post-partum mothers.
The law requires that your physician or the physician's agent provide the
enclosed information."
(2) Materials that inform the pregnant woman of the probable anatomical and physiological characteristics of the fetus at two-week gestational increments from fertilization to full term, including pictures or drawings representing the development of a fetus at two-week gestational increments, and any relevant information on the possibility of the fetus' survival. Any such pictures or drawings shall contain the dimensions of the fetus and shall be realistic. The materials shall be objective, nonjudgmental and designed to convey only accurate scientific information about the fetus 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 and the medical risks associated with carrying a fetus to term.
(3) A certification form to be used by physicians or their
agents under subsection (e) of K.S.A. 65-6709 and amendments thereto, which
will list all the items of information which are to be given to women by
physicians or their agents under the woman's-right-to-know act.
(b) The materials required under this section shall be
printed in a typeface large enough to be clearly legible. The materials shall
be made available in both English and Spanish language versions.
(c) The materials required under this section shall be
available at no cost from the department upon request and in appropriate number
to any person, facility or hospital.
65-6711. Same; information where medical
emergency compels performances of an abortion. Where a medical emergency
compels the performance of an abortion, the physician shall inform the woman,
before the abortion if possible, of the medical indications supporting the
physician's judgment that an abortion is necessary to avert her death or to
avert substantial and irreversible impairment of a major bodily function.
65-6712. Same; failure to provide informed
consent and printed materials under act is unprofessional conduct. Any
physician who intentionally, knowingly or recklessly fails to provide in
accordance with K.S.A. 65-6709 and amendments thereto the printed materials
described in K.S.A. 65-6710 and amendments thereto, whether or not an abortion
is actually performed on the woman, is guilty of unprofessional conduct as
defined in K.S.A. 65-2837 and amendments thereto.
65-6713. Same; physician who complies with act
not civilly liable to patient for failure to obtain informed consent to the
abortion. Any physician who complies with the provisions of this act shall
not be held civilly liable to a patient for failure to obtain informed consent
to the abortion.
65-6714. Same; severability clause. The
provisions of this act are declared to be severable, and if any provision,
word, phrase or clause of the act or the application thereof to any person
shall be held invalid, such invalidity shall not affect the validity of the
remaining portions of the woman's-right-to-know act.
65-6715. Same; act does not create or recognize
a right to abortion or make lawful an abortion that is currently unlawful.
(a) Nothing in the woman's-right-to-know act shall be construed as creating or
recognizing a right to abortion.
(b) It is not the intention of the woman's-right-to-know
act to make lawful an abortion that is currently unlawful.
* * *
65-6721. Prohibition against partial birth
abortion on viable fetus, exceptions; partial birth abortion, defined; report
of determination; criminal penalties. (a) No person shall perform or induce
a partial birth abortion on a viable fetus unless such person is a physician
and has a documented referral from another physician not legally or financially
affiliated with the physician performing or inducing the abortion and both
physicians determine: (1) The abortion is necessary to preserve the life of the
pregnant woman; or (2) a continuation of the pregnancy will cause a substantial
and irreversible impairment of a major physical or mental function of the
pregnant woman.
(b) As used in this section:
(1) "Partial birth abortion" means an abortion
procedure which includes the deliberate and intentional evacuation of all or a
part of the intracranial contents of a viable fetus prior to removal of such
otherwise intact fetus from the body of the pregnant woman.
(2) "Partial birth abortion" shall not include
the: (A) Suction curettage abortion procedure; (B) suction aspiration abortion
procedure; or (C) dilation and evacuation abortion procedure involving
dismemberment of the fetus prior to removal from the body of the pregnant
woman.
(c) If a physician determines in accordance with the
provisions of subsection (a) that a partial birth abortion is necessary and
performs a partial birth abortion on the woman, the physician shall report such
determination and the reasons for such determination in writing to the medical
care facility in which the abortion is performed for inclusion in the report of
the medical care facility to the secretary of health and environment under
K.S.A. 65-445 and amendments thereto or if the abortion is not performed in a
medical care facility, the physician shall report the reasons for such
determination in writing to the secretary of health and environment as part of
the written report made by the physician to the secretary of health and
environment under K.S.A. 65-445 and amendments thereto. The physician shall
retain a copy of the written reports required under this subsection for not
less than five years.
(d) A woman upon whom an abortion is performed shall not
be prosecuted under this section for a conspiracy to violate this section
pursuant to K.S.A. 21-3302, and amendments thereto.
(e) Nothing in this section shall be construed to create a
right to an abortion. Notwithstanding any provision of this section, a person
shall not perform an abortion that is prohibited by law.
(f) Upon conviction of a violation of this section, a
person shall be guilty of a severity level 10 person felony.
[Chapter 65.--PUBLIC HEALTH
Article 67a.--FETAL ORGANS AND
TISSUE ]
65-67a01. Fetal organs or tissue; definitions.
As used in this act:
(a) "Abortion" means an abortion as defined by
K.S.A. 65-6701, and amendments thereto.
(b) (1) "Consideration" means:
(A) Any payment made or debt incurred;
(B) any gift, honorarium or recognition of value bestowed;
(C) any price, charge or fee which is waived, forgiven,
reduced or indefinitely delayed;
(D) any loan or debt which is canceled or otherwise
forgiven; or
(E) the transfer of any item from one person to another or
provision of any service or granting of any opportunity for which a charge is
customarily made, without charge or for a reduced charge.
(2) "Consideration" shall not mean:
(A) A payment in an amount not to exceed $25 for the cost
of transporting, processing, preserving and storing fetal tissue; or
(B) a payment in an amount not to exceed the actual cost,
as documented by the delivery service, of transporting fetal tissue.
(c) "Delivery service" means a common carrier as
defined by K.S.A. 66-105, and amendments thereto, or other person or entity
used to transport fetal tissue.
(d) "Fetal tissue" means any tissue, cells or
organs obtained from a dead human embryo or fetus after an abortion or after a
stillbirth.
(e) "Person" means a person as defined by K.S.A.
65-425, and amendments thereto.
(f) "Stillbirth" means a stillbirth as defined
by K.S.A. 65-2401, and amendments thereto.
65-67a02. Same; construction of act. Except
as specifically provided by this act, nothing in this act shall be construed as
either permitting or prohibiting the use of fetal tissue for any type of
scientific, research, laboratory or other kind of experimentation either prior
to or subsequent to any abortion or stillbirth.
65-67a03. Same; when act not applicable.
This act shall not apply to:
(a) The transfer of fetal tissue to a pathologist for
testing or examination; or
(b) the transfer of fetal tissue for the purpose of
immediate burial, cremation or final disposition.
65-67a04. Same; prohibitions; penalty. (a) No person shall solicit, offer, knowingly acquire or accept or transfer any fetal tissue for consideration.
(b) No person shall solicit, offer or knowingly acquire or
accept or transfer any fetal tissue for the purpose of transplantation of such
tissue into another person if:
(1) The fetal tissue will be or is obtained pursuant to an
abortion; and
(2) (A) the donation of such fetal tissue will be or is
made pursuant to a promise to the donating individual that the donated tissue
will be transplanted into a recipient specified by such donating individual;
(B) such fetal tissue will be transplanted into a relative
of the donating individual; or
(C) the person who solicits or knowingly acquires or
accepts the donation of such fetal tissue has provided consideration for the costs
associated with such abortion.
(c) Any person who intentionally, knowingly or recklessly
violates this section shall be guilty of a severity level 2, nonperson felony.
65-67a05. Same; transfers of tissue; reports.
(a) Every person who transfers fetal tissue to another person shall submit
annually a written report to the secretary of the department of health and
environment which contains the following:
(1) The date of transfer;
(2) a description of the fetal tissue;
(3) the name and address of the transferor and the
transferee;
(4) the amount of consideration received by the transferor
for making the transfer;
(5) the mode of transfer or shipment; and
(6) the name of the delivery service.
(b) The identity of the woman donating the fetal tissue
shall be confidential and shall not be included in any report required by this
section.
(c) No person shall ship fetal tissue without disclosing
to the delivery service that human tissue is contained in such shipment.
(d) Except as provided herein, information obtained by the
secretary of health and environment under this section shall be confidential
and shall not be disclosed in a manner that would reveal the identity of any
person who submits a report to the secretary under this section. Such
information, including information identifying any person submitting a report
hereunder, may be disclosed to the attorney general upon a showing that a
reasonable cause exists to believe that a violation of this act has occurred.
Any information disclosed to the attorney general pursuant to this subsection
shall be used solely for the purposes of a criminal prosecution.
(e) For the purpose of maintaining confidentiality,
reports required by this section shall identify the name and address of the
person submitting such report only by confidential code number assigned by the
secretary of health and environment to such person and the department of health
and environment shall maintain such reports only by such number.
(f) Any person who intentionally, knowingly or recklessly
violates this section shall be guilty of a class A nonperson misdemeanor.
Chapter 65.--PUBLIC HEALTH
Article 67a.--FETAL ORGANS AND
TISSUE
65-67a06. Same; prohibitions; penalty. (a)
No person shall offer any monetary or other inducement to any other person for
the purpose of procuring an abortion for the medical, scientific, experimental
or therapeutic use of fetal organs or tissue.
(b) No person shall offer or accept any valuable
consideration for the fetal organs or tissue resulting from an abortion.
Nothing in this subsection shall prohibit payment for burial or other final
disposition of the fetal remains or payment for a pathological examination,
autopsy or postmortem examination of the fetal remains.
(c) Any person who intentionally, knowingly or recklessly
violates this section shall be guilty of a severity level 2, nonperson felony.
65-67a07. Same; consent of donor. (a) No
person shall use fetal organs or tissue for medical, scientific, experimental
or therapeutic use without the voluntary and informed consent of the woman
donating such tissue. Such consent shall not be discussed or obtained prior to
obtaining the consent required under K.S.A. 65-6709, and amendments thereto.
(b) A person who intentionally, knowingly or recklessly
violates this section shall be guilty of a severity level 2, nonperson felony.
65-67a08. Same; severability. If any
provision of this section [act] is held to be invalid or unconstitutional, it
shall be presumed conclusively that the legislature would have enacted the
remainder of this section [act] without such invalid or unconstitutional
provision.
* * *
[Chapter 76.--STATE INSTITUTIONS
AND AGENCIES; HISTORICAL PROPERTY
Article 33.--
76-3308. Powers and duties of authority;
limitations on performance of abortions in authority facilities. (a) The
authority shall have all the powers necessary to carry out the purposes and
provisions of this act, including, without limitation, the following powers to:
(1) Have the duties, privileges, immunities, rights,
liabilities and disabilities of a body corporate and a political
instrumentality of the state;
(2) have perpetual existence and succession;
(3) adopt, have and use a seal and to alter the same at
its pleasure;
(4) sue and be sued in its own name;
(5) make and execute contracts, guarantees or any other
instruments and agreements necessary or convenient for the exercise of its
powers and functions including, without limitation, to make and execute
contracts with hospitals or other health care businesses to operate and manage
any or all of the hospital facilities or operations and to incur liabilities
and secure the obligations of any entity or individual;
(6) borrow money and to issue bonds evidencing the same
and pledge all or any part of the authority's assets therefor;
(7) purchase, lease, trade, exchange or otherwise acquire,
maintain, hold, improve, mortgage, sell, lease and dispose of personal
property, whether tangible or intangible, and any interest therein; and to
purchase, lease, trade, exchange or otherwise acquire real property or any
interest therein, and to maintain, hold, improve, mortgage, lease and otherwise
transfer such real property, so long as such transactions do not conflict with
the mission of the authority as specified in this act;
(8) incur or assume indebtedness to, and enter into
contracts with the
(9) develop policies and procedures generally applicable
to the procurement of goods, services and construction, based upon sound
business practices;
(10) contract for and to accept any gifts, grants and
loans of funds, property, or any other aid in any form from the federal
government, the state, any state agency, or any other source, or any
combination thereof, and to comply with the provisions of the terms and
conditions thereof;
(11) acquire space, equipment, services, supplies and
insurance necessary to carry out the purposes of this act;
(12) deposit any moneys of the authority in any banking
institution within or without the state or in any depository authorized to
receive such deposits, one or more persons to act as custodians of the moneys
of the authority, to give surety bonds in such amounts in form and for such
purposes as the board requires;
(13) procure such insurance, participate in such insurance
plans or provide such self insurance or both as it deems necessary or
convenient to carry out the purposes and provisions of this act; the purchase
of insurance, participation in an insurance plan or creation of a
self-insurance fund by the authority shall not be deemed as a waiver or
relinquishment of any sovereign immunity to which the authority or its
officers, directors, employees or agents are otherwise entitled;
(14) appoint, supervise and set the salary and
compensation of a president of the authority who shall be appointed by and serve
at the pleasure of the board;
(15) fix, revise, charge and collect rates, rentals, fees
and other charges for the services or facilities furnished by or on behalf of
the authority, and to establish policies and procedures regarding any such service
rendered for the use, occupancy or operation of any such facility; such charges
and policies and procedures not to be subject to supervision or regulation by
any commission, board, bureau or agency of the State; and
(16) do any and all things necessary or convenient to
carry out the authority's purposes and exercise the powers given in this act.
(b) The authority may create, own in whole or in part, or
otherwise acquire or dispose of any entity organized for a purpose related to
or in support of the mission of the authority.
(c) The authority may participate in joint ventures with
individuals, corporations, governmental bodies or agencies, partnerships,
associations, insurers or other entities to facilitate any activities or
programs consistent with the public purpose and intent of this act.
(d) The authority may create a nonprofit entity or
entities for the purpose of soliciting, accepting and administering grants,
outright gifts and bequests, endowment gifts and bequests and gifts and
bequests in trust which entity or entities shall not engage in trust business.
(e) In carrying out any activities authorized by this act,
the authority may provide appropriate assistance, including the making of loans
and providing time of employees, to corporations, partnerships, associations,
joint ventures or other entities, whether or not such corporations,
partnerships, associations, joint ventures or other entities are owned or
controlled in whole or in part, directly or indirectly, by the authority.
(f) Effective with the transfer date, all moneys of the
authority shall be deposited in one or more banks or trust companies in one or
more special accounts. All banks and trust companies are authorized to give
security for such deposits if required by the authority. The moneys in such
accounts shall be paid out on a warrant or other orders of the treasurer of the
authority or any such other person or persons as the authority may authorize to
execute such warrants or orders.
(g) Notwithstanding any provision of law to the contrary,
the authority, effective with the transfer date, may invest the authority's
operating funds in any obligations or securities as authorized by the board.
The board shall adopt written investment guidelines.
(h) The authority is authorized to negotiate contracts
with one or more qualified parties to provide collection services. The
selection of a collection services provider shall be based on responses to a
request for proposals from qualified professional firms and shall be
administered in accordance with policies adopted by the board.
(i)
Notwithstanding any provision of law to the contrary, no abortion shall
be performed, except in the event of a medical emergency, in any medical
facility, hospital or clinic owned, leased or operated by the authority. The
provisions of this subsection are not applicable to any member of the physician
faculty of the
*
* *
-------------------------------------------------------
KANSAS MEDICAL
ASSISTANCE PROGRAM PROVIDER MANUAL
* * *
BENEFITS & LIMITATIONS
8400. MEDICAID PROGRAM OVERVIEW Updated 1/04
The following Benefits and Limitations
provide an overview of covered Kansas Medical Assistance
Program services that can be utilized in the
total treatment of the consumer. The following
information is intended to be general in
nature and not inclusive of every benefit and limitation.
If more information is desired, call the EDS
Provider Assistance Unit. (Refer to Section 1000.)
Abortions:
Abortions are covered only under the
following conditions:
· In the case where a woman suffers from a
physical disorder, physical injury, or
physical illness, including a
life-endangering physical condition caused by or arising
from the pregnancy itself.
· If the pregnancy is the result of an act of
rape or incest. Use the G7 modifier
The physician must complete the abortion
necessity form to certify that the woman's physical health is
in danger, or that this pregnancy is a result
of rape or incest. A copy of the form can be found in the
forms section at the end of this manual The
form may be photocopied for your use. All blanks must
be completed, including the patient's
complete address. All pertinent information must be retained
with the medical record.
* *
*