LOUISIANA.  Revised Statutes. 

 

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Title 9 - Civil code-ancillaries

 

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§975.  Non-legal custodian; consent for certain services; affidavit, form

A.(1)  A non-legal custodian, who is not a foster parent caring for a child in the custody of the Office of Community Services, shall be authorized to give legal consent for a child in his custody to receive any medical or educational services for which parental consent is usually required by executing the affidavit described in Paragraph (B)(4) of this Section.  The affidavit shall not be valid for more than one year after the date on which it is executed.

(2)  The decision of a non-legal custodian to consent to or to refuse medical or educational services for a child in his custody shall be superseded by any contravening decision of a parent or a person having legal custody of the child, provided the decision of the legal custodian does not jeopardize the life, health, safety, or welfare of the child.

(3)  Nothing in this Section shall apply to, or give authority for, an abortion as provided in R.S. 40:1299.35.5.

 

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§2800.12.  Liability for termination of a pregnancy

A.  Any person who performs an abortion is liable to the mother of the unborn child for any damage occasioned or precipitated by the abortion, which action survives for a period of three years from the date of discovery of the damage with a peremptive period of ten years from the date of the abortion.

B.  For purposes of this Section:

(1)  "Abortion" means the deliberate termination of an intrauterine human pregnancy after fertilization of a female ovum, by any person, including the pregnant woman herself, with an intention other than to produce a live birth or to remove a dead unborn child.

(2)  "Damage" includes all special and general damages which are recoverable in an intentional tort, negligence, survival, or wrongful death action for injuries suffered or damages occasioned by the unborn child or mother.

(3)  "Unborn child" means the unborn offspring of human beings from the moment of conception through pregnancy and until termination of the pregnancy.

C.(1)  The signing of a consent form by the mother prior to the abortion does not negate this cause of action, but rather reduces the recovery of damages to the extent that the content of the consent form informed the mother of the risk of the type of injuries or loss for which she is seeking to recover.

(2)  The laws governing medical malpractice or limitations of liability thereof provided in Title 40 of the Louisiana Revised Statutes of 1950 are not applicable to this Section.

 

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Title 14 - Criminal law

 

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§32.5.  Feticide defined; exceptions

A.  Feticide is the killing of an unborn child by the act, procurement, or culpable omission of a person other than the mother of the unborn child.  The offense of feticide shall not include acts which cause the death of an unborn child if those acts were committed during any abortion to which the pregnant woman or her legal guardian has consented or which was performed in an emergency as defined in R.S. 40:1299.35.12.  Nor shall the offense of feticide include acts which are committed pursuant to usual and customary standards of medical practice during diagnostic testing or therapeutic treatment.  

B.  Criminal feticide is of three grades:

(1)  First degree feticide.  

(2)  Second degree feticide.  

(3)  Third degree feticide.  

 

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§32.9.  Partial birth abortion [These provisions have been held to unconstitutional and unenforceable.]

A.(1)  Partial birth abortion is the performance of a procedure on a female by a licensed physician or any other person whereby a living fetus or infant is partially delivered or removed from the female's uterus by vaginal means and with specific intent to kill or do great bodily harm is then killed prior to complete delivery or removal.

(2)  As used in this Section, the terms "fetus" and "infant" are used interchangeably to mean the biological offspring of human parents.

B.  It shall not be unlawful for a licensed physician to perform a partial birth abortion where the procedure is necessary to save the life of the mother because her life is endangered by a physical disorder, physical illness, or physical injury, and further provided that no other medical procedure would suffice for that purpose.

C.  As used in this Section, the term "person" shall not include the female upon whom the partial birth abortion is performed, and she shall not be subject to prosecution hereunder or as accessory to the offense or as a co-conspirator thereto.

D.  Whoever commits the crime of partial birth abortion shall be imprisoned at hard labor for not less than one nor more than ten years or fined not less than ten thousand nor more than one hundred thousand dollars.

 

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§87.  Abortion [These provisions have been held to unconstitutional and unenforceable.]

A.(1)  Abortion is the performance of any of the following acts, with the specific intent of terminating a pregnancy:

(a)  Administering or prescribing any drug, potion, medicine, or any other substance to a female; or

(b)  Using any instrument or external force whatsoever on a female.

(2)  This Section shall not apply to the female who has an abortion.

B.  It shall not be unlawful for a physician to perform any of the acts described in Subsection A of this Section if performed under the following circumstances:

(1)  The physician terminates the pregnancy in order to preserve the life or health of the unborn child or to remove a dead unborn child.  

(2)  The physician terminates a pregnancy for the express purpose of saving the life of the mother.  

(3)  The physician terminates a pregnancy which is the result of rape as defined in either R.S. 14:42, R.S. 14:42.1, or R.S. 14:43 and in which all of the following requirements are met prior to the pregnancy termination:

(a) The rape victim obtains a physical examination and/or treatment from a physician other than the physician who is to terminate the pregnancy within five days of the rape to determine whether she was pregnant prior to the rape and to prevent pregnancy and venereal disease, unless the rape victim is incapacitated to such a degree that she is unable to obtain this examination.  If the victim is unable to obtain the examination due to such incapacity, then an examination shall be performed within five days after the incapacity is removed; and

(b)  The rape victim reports the rape to law enforcement officials within seven days of the rape unless the victim is incapacitated to such a degree that she is unable to report the rape.  If the victim is unable to report the rape due to such incapacity, then a report shall be made within seven days after the incapacity is removed; and

(c)  The abortion is performed within thirteen weeks of conception.

(4)  The physician terminates a pregnancy which is the result of incest as defined in R.S. 14:78, provided the crime is reported to law enforcement officials and the abortion is performed within thirteen weeks of conception.  

C.(1)  Prior to the performance of any abortion under Subsection (B)(3) or (B)(4) of this Section, the physician who is to perform the abortion shall obtain from the victim a statement in writing verifying that she has obtained the physical examination and shall obtain written verification by a law enforcement official that the victim reported the rape to law enforcement officials as required under this Section.  

(2)  Every physician who conducts a physical examination of a rape victim within five days of the rape shall immediately, upon written request of either the victim or the physician who is to perform the abortion on the victim, provide to the victim or the requesting physician written verification of his examination.  

(3)  Every law enforcement official who receives a report of a rape victim within seven days of the rape or receives a report of incest shall immediately, upon written request of either the victim or the physician who is to perform the abortion, provide to the victim or requesting physician written verification of the report which was made to the official.  

D.  As used in this Section, the following words and phrases are defined as follows:

(1)  "Law enforcement official or officer" means any peace officer or agency empowered to enforce the law in criminal matters within his or its respective jurisdiction, including but not limited to a state police officer, sheriff, constable, local police officer, and district attorney.  

(2)  "Physician" means any person licensed to practice medicine in this state.  

(3)  "Unborn child" means the unborn offspring of human beings from the moment of conception until birth.  

(4)  "Conception" means the contact of spermatozoan with the ovum.

E.(1)  Whoever commits the crime of abortion shall be imprisoned at hard labor for not less than one nor more than ten years and shall be fined not less than ten thousand dollars nor more than one hundred thousand dollars.  

(2)  This penalty shall not apply to the female who has an abortion.

 

§87.1.  Killing a child during delivery

Killing a child during delivery is the intentional destruction, during parturition of the mother, of the vitality or life of a child in a state of being born and before actual birth, which child would otherwise have been born alive; provided, however, that the crime of killing a child during delivery shall not be construed to include any case in which the death of a child results from the use by a physician of a procedure during delivery which is necessary to save the life of the child or of the mother and is used for the express purpose of and with the specific intent of saving the life of the child or of the mother.  

Whoever commits the crime of killing a child during delivery shall be imprisoned at hard labor in the penitentiary for life.  

  

§87.2.  Human experimentation

Human experimentation is the use of any live born human being, without consent of that live born human being, as hereinafter defined, for any scientific or laboratory research or any other kind of experimentation or study except to protect or preserve the life and health of said live born human being, or the conduct, on a human embryo or fetus in utero, of any experimentation or study except to preserve the life or to improve the health of said human embryo or fetus.  

A human being is live born, or there is a live birth, whenever there is the complete expulsion or extraction from its mother of a human embryo or fetus, irrespective of the duration of pregnancy, which after such separation, breathes or shows any other evidence of life such as beating of the heart, pulsation of the umbilical cord, or movement of voluntary muscles, whether or not the umbilical cord has been cut or the placenta is attached.  

Whoever commits the crime of human experimentation shall be imprisoned at hard labor for not less than five nor more than twenty years, or fined not more than ten thousand dollars, or both.  

Added by Acts 1973, No. 77, §1.  

 

§87.4.  Abortion advertising  [These provisions have been held to unconstitutional and unenforceable.]

Abortion advertising is the placing or carrying of any advertisement of abortion services by the publicizing of the availability of abortion services.  

Whoever commits the crime of abortion advertising shall be imprisoned, with or without hard labor, for not more than one year or fined not more than five thousand dollars, or both.  

 

§87.5.  Intentional failure to sustain life and health of aborted viable infant

The intentional failure to sustain the life and health of an aborted viable infant shall be a crime.  The intentional failure to sustain the life and health of an aborted viable infant is the intentional failure, by any physician or person performing or inducing an abortion, to exercise that degree of professional care and diligence, and to perform such measures as constitute good medical practice, necessary to sustain the life and health of an aborted viable infant, when the death of the infant results.  For purposes of this Section, "viable" means that stage of fetal development when the life of the unborn child may be continued indefinitely outside the womb by natural or artificial life-supporting systems.  Any person who commits the crime of intentional failure to sustain the life and health of an aborted viable infant shall be imprisoned at hard labor for not more than twenty-one years.  

 

§88.  Distribution of abortifacients  [These provisions have been held to unconstitutional and unenforceable.]

Distribution of abortifacients is the intentional:

(1)  Distribution or advertisement for distribution of any drug, potion, instrument, or article for the purpose of procuring an abortion; or

(2)  Publication of any advertisement or account of any secret drug or nostrum purporting to be exclusively for the use of females, for preventing conception or producing abortion or miscarriage.  

Whoever commits the crime of distribution of abortifacients shall be fined not more than five hundred dollars, or imprisoned for not more than six months, or both.  

 

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Title 17 - Education

 

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§281.  Instruction in sex education

A.(1)(a)  Any public elementary or secondary school in Louisiana may, but is not required to, offer instruction in subject matter designated as "sex education", provided such instruction and subject matter is integrated into an existing course of study such as biology, science, physical hygiene, or physical education.  When offered, such instruction shall be available also to nongraded special education students at age-appropriate levels.  Except as otherwise required to comply with the provisions of Subparagraph (b) of this Paragraph, whether or not instruction in such matter is offered and at what grade level it is to be offered shall be at the option of each public local or parish school board, provided that no such instruction shall be offered in kindergarten or in grades one through six.  Such instruction may be offered at times other than during the regular school day, at such times to be determined by each school board.  All instruction in "sex education" shall be identified and designated "sex education".  

(b)  Effective beginning with the spring semester of the 1992-1993 school year and thereafter, whenever instruction in sex education is offered by any school, such instruction shall be available also to any student in such school, regardless of the student's grade level, who is pregnant or who is a mother or father.  

(2)  It is the intent of the legislature that, for the purposes of this Section, "sex education" shall mean the dissemination of factual biological or pathological information that is related to the human reproduction system and may include the study of sexually transmitted disease, pregnancy, childbirth, puberty, menstruation, and menopause, as well as the dissemination of factual information about parental responsibilities under the child support laws of the state.  It is the intent of the legislature that "sex education" shall not include religious beliefs, practices in human sexuality, nor the subjective moral and ethical judgments of the instructor or other persons.  Students shall not be tested, quizzed, or surveyed about their personal or family beliefs or practices in sex, morality, or religion.  

(3)  No contraceptive or abortifacient drug, device, or other similar product shall be distributed at any public school.  No sex education course offered in the public schools of the state shall utilize any sexually explicit materials depicting male or female homosexual activity.  

(4)  The major emphasis of any sex education instruction offered in the public schools of this state shall be to encourage sexual abstinence between unmarried persons and any such instruction shall:

(a)  Emphasize abstinence from sexual activity outside of marriage as the expected standard for all school-age children.  

(b)  Emphasize that abstinence from sexual activity is a way to avoid unwanted pregnancy, sexually transmitted diseases, including acquired immune deficiency syndrome, and other associated health problems.  

(c)  Emphasize that each student has the power to control personal behavior and to encourage students to base action on reasoning, self-esteem, and respect for others.  

B.  Notwithstanding any other provisions of law, the qualifications for all teachers or instructors in "sex education" shall be established and the selection of all such teachers or instructors shall be made solely and exclusively by the public local or parish school board.  

C.  All books, films, and other materials to be used in instruction in "sex education" shall be submitted to and approved by the local or parish school board and by a parental review committee, whose membership shall be determined by such board.  

D.  Any child may be excused from receiving instruction in "sex education" at the option and discretion of his parent or guardian.  The local or parish school board shall provide procedures for the administration of this Subsection.  

E.  In the event of any violation of the provisions of this Section, the public local or parish school board in charge of administering and supervising the school where said violation has occurred, after proper investigation and hearing, shall correct the violation and take appropriate action to punish the offending party or parties responsible for said violation.

F.  No program offering sex education instruction shall in any way counsel or advocate abortion.  

G.  A city or parish school system may accept federal funds for programs offering sex education only when the use of such funds does not violate the provisions of this Section and only upon approval by the local school board.  The acceptance and use of federal funds for sex education shall in no way be construed to permit the use of any federally supplied materials that violate Louisiana law regulating sex education.  

H.  Notwithstanding any other provision of law, the Orleans Parish School Board may offer instruction in sex education at the third grade level or higher.  

 

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Title 37 - Professions and occupations

 

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§1285.  Causes for nonissuance; suspension; revocation; or the imposition of restrictions; fines; reinstatement; publication of action; stays

A.  The board may refuse to issue, or may suspend or revoke any license or permit, or impose probationary or other restrictions on any license or permit issued under this Part for the following causes:

(1)  Conviction of a crime or entry of a plea of guilty or nolo contendere to a criminal charge constituting a felony under the laws of Louisiana or of the United States.

(2)  Conviction of a crime or entry of a plea of guilty or nolo contendere to any criminal charge arising out of or in connection with the practice of medicine;

(3)  Fraud, deceit, or perjury in obtaining any diploma, license, or permit pertaining to this Part;

(4)  Providing false testimony before the board or providing false sworn information to the board;

(5)  Habitual or recurring abuse of drugs, including alcohol, which affect the central nervous system and which are capable of inducing physiological or psychological dependence;

(6)  Prescribing, dispensing, or administering legally controlled substances or any dependency-inducing medication without legitimate medical justification therefor or in other than a legal or legitimate manner;

(7)  Solicitation of patients or self-promotion through advertising or communication, public or private, which is fraudulent, false, deceptive, or misleading;

(8)(a)  Performing, or assisting in the performance of, or procuring or abetting in procuring an abortion or termination of pregnancy during the third trimester of pregnancy or after viability of the fetus, unless the physician determines that such abortion or termination of pregnancy is necessary, in his best medical judgment, in order to save the life or health of the pregnant woman and/or of the fetus (unborn child):

(b)  Performing or assisting in the performance of, or procuring, or abetting in the procuring of an abortion or termination of pregnancy after the first trimester:

(i)  When the abortion or termination of pregnancy is contrary to or unnecessary in the best medical judgment of that physician; or,

(ii)  When the operating physician lacks the training and experience to perform the procedure; or,

(iii)  When the procedure is performed outside of a hospital licensed by the Department of Health and Hospitals, or its successor;

(9)  Performing, or assisting in the performance of, or procuring, or abetting in the procuring of an abortion or termination of pregnancy:

(i)  When the abortion or termination of pregnancy is contrary to or unnecessary in the best medical judgment of that physician; or,

(ii)  When the operating physician lacks the training and experience to perform the procedure; or,

(iii)  When the procedure is performed outside of a hospital licensed by the Louisiana Health and Hospitals Administration, or its successor;

(10)  Efforts to deceive or defraud the public;

(11)  Making or submitting false, deceptive, or unfounded claims, reports, or opinions to any patient, insurance company or indemnity association, company, individual, or governmental authority for the purpose of obtaining anything of economic value;

(12)  Professional or medical incompetency;

(13)  Unprofessional conduct;

(14)  Continuing or recurring medical practice which fails to satisfy the prevailing and usually accepted standards of medical practice in this state;

(15)  Immoral conduct in exercising the privileges provided for by license or permit issued under this Part;

(16)  Gross, willful, and continued overcharging for professional services;

(17)  Abandonment of a patient;

(18)  Knowingly performing any act which, in any way, assists an unlicensed person to practice medicine, or having professional connection with or lending one's name to an illegal practitioner;

(19)  Soliciting, accepting, or receiving anything of economic value in return for and based on the referral of patients to another person, firm, or corporation or in return for the prescription of medications or medical devices;

(20)  Persistent violation of federal or state laws relative to control of social diseases;

(21)  Interdiction or commitment by due process of law;

(22)  Utilizing a physician's assistant without approval and recordation as required by law or permitting a physician's assistant, within his employment, to conduct activities outside of the designated scope of the assistant's approval and registration;

(23)  Knowingly employing a physician's assistant whose conduct includes any of the causes enumerated in this Section;

(24)  Knowingly misstating or misrepresenting the qualifications and certification of competency of any physician's assistant in order to obtain approval and registration of such person;

(25)  Inability to practice medicine with reasonable skill or safety to patients because of mental illness or deficiency; physical illness, including but not limited to deterioration through the aging process or loss of motor skills; and/or, excessive use or abuse of drugs, including alcohol;

(26)  Refusing to submit to the examinations and inquiry of an examining committee of physicians appointed or designated by the board to inquire into the physician's physical and mental fitness and ability to practice medicine with reasonable skill and safety to patients;

(27)  Failure, by any physician or person performing, inducing or assisting an abortion, to exercise that degree of professional care and diligence and failure to take such measures as may constitute good medical practice, necessary to encourage or sustain the life and health of an aborted viable infant, when the death of the infant results.  "Viable" means that stage of fetal development when the life of the unborn child may be continued indefinitely outside the womb by natural or artificial life-supporting systems;

(28)  Taking the life of a viable infant aborted alive;

(29)  The refusal of a licensing authority of another state to issue or renew a license, permit, or certificate to practice medicine in that state or the revocation, suspension, or other restriction imposed on a license, permit, or certificate issued by such licensing authority which prevents or restricts practice in that state, or the surrender of a license, permit, or certificate issued by another state when criminal or administrative charges are pending or threatened against the holder of such license, permit, or certificate;

(30)  Violation of any rules and regulations of the board, or any provisions of this Part.

(31)  Failure by a physician to self-report in writing to the board any personal action which constitutes a violation of this Part within thirty days of the occurrence.  A report shall not be required if the violation relates to a physician's ability to practice medicine with reasonable skill and safety by reason of substance abuse or psychiatric condition, provided such physician has, since the occurrence, executed a treatment contract with the Louisiana State Medical Society's Physicians Health Program, its successor program, or such other program as may be designated by the board, and is in full compliance with the terms and conditions of such contract.

(32)  Terminated by Acts 1999, No. 788, §3 eff. July 1, 2003.

B.  The board may, in instances it deems proper, implement the above recited causes, by establishing appropriate regulations and standards pertaining thereto.

C.  The board may, as a probationary condition, or as a condition of the reinstatement of any license or certificate suspended or revoked hereunder, require the license or permit holder to pay all costs of the board proceedings, including investigators', stenographers', and attorneys' fees, and to pay a fine not to exceed the sum of five thousand dollars.

D.  Any license or permit suspended, revoked, or otherwise restricted by the board may be reinstated by the board.

E.  The board's final decision in an adjudication proceeding under this Section, other than by consent order, agreement, or other informal disposition, shall constitute a public record, and the board may disclose and provide such final decision to any person, firm, or corporation, or to the public generally.  The board's disposition of an adjudication proceeding by consent order shall not constitute a public record, but the board shall have authority and discretion to disclose such disposition.

F.  No judicial order staying or enjoining the effectiveness or enforcement of a final decision or order of the board in an adjudication proceeding, whether issued pursuant to R.S. 49:964(C) or otherwise, shall be effective, or be issued to be effective beyond the earlier of:

(1)  One hundred twenty days from the date on which the board's decision or order was rendered.

(2)  The date on which the court enters judgment in a proceeding for judicial review of the board's decision or order pursuant to R.S. 49:964.

G.  Notwithstanding any other law to the contrary, no judicial order staying, enjoining, or continuing an adjudication proceeding before, or a preliminary, procedural, or intermediate decision, ruling, order, or action of, the board shall be effective or issued to be effective, whether pursuant to R.S. 49:964 or otherwise, prior to the exhaustion of all administrative remedies and issuance of a final decision or order by the board.

H.  No order staying or enjoining a final decision or order of the board shall be issued unless the district court finds that the applicant or petitioner has established that the issuance of the stay does not:

(1)  Threaten harm to other interested parties, including individuals for whom the applicant or petitioner may render medical services; or

(2)  Constitute a threat to the health, safety, and welfare of the citizens of this state.

I.  No stay of a final decision or order of the board shall be granted ex parte.  The court shall schedule a hearing on a request for a stay order within ten days from filing of the request.  The court's decision to either grant or deny the stay order shall be rendered within five days after the conclusion of the hearing.

 

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Title 40 - Public health and safety

 

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§31.3.  Adolescent school health initiative; health centers in schools

A.  The office of public health, Department of Health and Hospitals, shall establish an adolescent school health initiative to facilitate and encourage development of comprehensive health centers in public middle and secondary schools in Louisiana which shall provide preventive health services, counseling, acute health services, and appropriate referral for acute health services.  Such initiative shall be subject to the approval of the local school systems.  

B.  The office of public health shall:

(1)  Coordinate efforts to facilitate and encourage establishment of health centers in schools by providing information, technical assistance, direction, and, to the extent appropriate, funds to locally based entities for the establishment and operation of health centers in middle and secondary schools.  

(2)  Convene and participate in an intergovernmental coordinating council which shall be composed of representatives from the departments of education, social services, health and hospitals, and other governmental entities or programs related to health services to assist in implementation, oversight, and funding assistance for health centers in schools.  

(3)  Apply for and assist local efforts to apply for all available public and private funds to establish and operate health centers in schools.  

(4)  Establish procedures for allocation of funds appropriated or otherwise available to the program in a manner which prioritizes funding according to the urgency and degree of health care needs among the various middle and secondary school populations.  

(5)  Establish criteria to be considered in selection of locations for placement of health centers in schools.  

C.  Health centers in schools are prohibited from:

(1)  Counseling or advocating abortion in any way or referring any student to any organization for counseling or advocating abortion.  

(2)  Distributing at any public school any contraceptive or abortifacient drug, device, or other similar product.  

D.  The provisions of this Section shall be applicable only to the extent that funds are made available for this purpose from public or private sources.  

 

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§32.  Definition of terms  [Vital Statistics]

As used in this Chapter, the following terms shall have the meanings ascribed to them in this Section unless otherwise provided for or unless the context otherwise indicates:

(1)  "Biological parents" means a husband and wife, joined by legal marriage recognized as valid in this state, who provide sperm and egg for in vitro fertilization, performed by a licensed physician, when the resulting fetus is carried and delivered by a surrogate birth parent who is a blood relative of either the husband or wife.

(2)  "Dead body" means a lifeless human body or such severed parts of the human body, or the bones thereof, from the state of which it may be reasonably concluded that death has recently occurred.

(3)  "Fetal death" means death prior to the complete expulsion or extraction from its mother of a product of human conception, irrespective of the duration of pregnancy; the death is indicated by the fact that after such expulsion or extraction the fetus does not breathe or show any other evidence of life such as beating of the heart, pulsation of the umbilical cord, or definite movement of voluntary muscles.

(4)  "File" means the presentation of a vital record provided for in this Chapter for registration by the vital records registry.

(5)  "Final disposition" means the burial, interment, cremation, removal from the state, or other authorized disposition of a dead body or fetus.

(6)  "Funeral director or person acting as such" is a licensed funeral director or embalmer as defined in R.S. 37:831 et seq. or persons acting under the authority of the state health officer in accordance with R.S. 40:5.

(7)  "Induced termination of pregnancy" (abortion) means the purposeful interruption of pregnancy with the intention other than to produce a live-born infant or to remove a dead fetus and if 1 such interruption does not result in a live birth.

(8)  "Institution" means any establishment, public or private, which provides inpatient medical, surgical, or diagnostic care or treatment or nursing, custodial, or domiciliary care, or to which persons are committed by law.

(9)  "Live birth" means a birth in which the child shows evidence of life after complete birth.  A birth is complete when the child is entirely outside the mother, even if the umbilical cord is uncut and the placenta still attached.  The words "evidence of life" include heart action, breathing, or movement of voluntary muscles.

(10)  "Person in charge of interment" means any person who places or causes to be placed a deceased or stillborn child, dead body, or, after cremation, the ashes thereof, in the earth, a grave, tomb, vault, urn, or other receptacle, either in a cemetery or at any other place, or otherwise disposes thereof.

(11)  "Physician" means a person authorized under the laws of this state to practice medicine.

(12)  "Public health statistics unit" means that section which codes, tabulates, analyzes, reports, and coordinates vital records and other health status indicator data for the office of preventive and health services.

(13)  "Registration" as otherwise qualified in rules and regulations means the acceptance of vital records by the vital records registry and the incorporation thereof into its official records.

(14)  "Removal" means the transportation of a dead human body or the remains thereof from the jurisdiction of the state of Louisiana.

(15)  "Signature" or "sign(ed)" means a written signature or an electronic signature.

(16)  "Spontaneous fetal death" (stillbirth) means the expulsion or extraction of a product of human conception resulting in other than a live birth and1 when the expulsion or extraction is not the result of an induced termination of pregnancy.

(17)  "System of vital records" means the registration, collection, preservation, amendment, certification, and issuance of certified copies of vital records required by this Chapter and activities related thereto.

(18)  "Vital records", "certificates", or "forms" means paper or electronic reports of birth, death, fetal death, marriage, divorce, dissolution of marriage, or annulment, and data related thereto.

(19)  "Vital records registry" means a central registry as provided for in R.S. 40:33(A) which maintains the vital records archives and operates the system of vital records.

 

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§48.  Abortions (induced termination of pregnancy); birth and death certificates

A.  Whenever an abortion procedure results in a live birth, a birth certificate shall be issued certifying the birth of said born human being even though said human being may thereafter die.  For the purposes of this Section a human being is live born, or there is a live birth, whenever there is the complete expulsion or extraction from its mother of a human embryo or fetus, irrespective of the duration of pregnancy, which after such separation, breathes or shows any other evidence of life such as beating of the heart, pulsation of the umbilical cord, or movement of the voluntary muscles, whether or not the umbilical cord has been cut or the placenta is attached.  In the event death does ensue after a short time, a death certificate shall be issued.  Both the birth and the death certificates shall be issued in accordance with the provisions of this Part and of rules and regulations of the Department of Health and Hospitals.

B.  Each induced termination of pregnancy which occurs in this state shall be reported to the vital records registry within fifteen days by the person in charge of the institution in which the induced termination of pregnancy was performed.  If the induced termination of pregnancy was performed outside an institution, the physician in attendance at or immediately after delivery shall prepare and file the report.

 

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§63.  Abortion, induced termination of pregnancy; purpose

The purpose of this Part shall be the compilation of relevant maternal life and health factors and data concerning abortions which may be used in the improvement of maternal health and life.  The further purpose and function of this Part shall be to serve as a monitor on all induced terminations of pregnancies performed in the state of Louisiana to assure that they are performed only in accordance with the provisions of law.  

 

§64.  Forms for collection of data

The state registrar shall prescribe forms for the collection of information and statistics with respect to abortions.  Such forms shall require, but not be limited to, the following information:

(1)  The age, marital status, and state and parish (county) of residence of the woman who is aborted.  

(2)  The place where the abortion is performed.  

(3)  The full name and address of the physician or physicians performing the abortion.  

(4)  The age, marital status, and state and parish (county) of residence of the father, if known.  

(5)  Medical reason for the abortion.  

(6)  Medical procedure employed to procure the abortion.  

(7)  The length of the aborted fetus.  

(8)  The weight of the aborted fetus.  

(9)  Other significant conditions of the fetus and mother; and

(10)  The results of pathological examinations of all aborted fetuses, as required by R.S. 40:1299.35.4.  

 

§65.  Completion of forms; filing with vital records registry

The information required by the form for which provision is made in R.S. 40:64 shall be completed by the physician or physicians performing the abortion in each case in which an abortion is performed.  Such completed form shall be transmitted by the physician or physicians to the vital records registry within fifteen days of the performing of such abortion.

 

§66.  Failure to complete form; penalty

Failure to complete such form as required in R.S. 40:65 shall be a misdemeanor punishable by imprisonment for ninety days in jail or by a five hundred dollar fine, or both.  Such failure to complete such form and to timely transmit same shall be admissible as evidence that the unreported abortion was illegal.  

 

 

* * *

 

§1299.  Programs for combating phenylketonuria, congenital hypothyroidism, galactosemia, sickle cell diseases, biotinidase deficiency, and other genetic conditions

A.  The Department of Health and Hospitals is hereby authorized and directed to establish, maintain, and carry out programs designed to reduce mortality and morbidity from sickle cell disease and to prevent central nervous system damage in children with phenylketonuria, congenital hypothyroidism, biotinidase deficiency, and genetic conditions tested under the authority of R.S. 40:1299.1(B).

B.(1)  The Department of Health and Hospitals shall establish and maintain a diagnostic laboratory for each of the following purposes:

(a)  Conducting experiments, projects, and other undertakings as may be necessary to develop tests for the early detection of phenylketonuria, congenital hypothyroidism, galactosemia, sickle cell diseases, biotinidase deficiency, and other genetic conditions.

(b)  Developing ways or discovering methods to be used for the prevention and treatment of these diseases.

(c)  Such other purposes as may be deemed necessary by the department to carry out any program adopted under the authority of this Part, including conducting experiments, projects, and other undertakings as may be necessary to develop tests for genetic conditions made part of the battery of tests by the Department of Health and Hospitals under R.S. 40:1299.1(B).

(2)  Notwithstanding the foregoing, the term "prevention" as used with respect to sickle cell anemia shall not mean mandatory sterilization or abortion.

C.  The department is authorized to adopt rules and regulations necessary to carry out any program which may be established.

D.  The Department of Health and Hospitals shall establish a program for informing physicians and hospitals of the current medical standards for diagnosing and treating children who exhibit clinical symptoms which suggest the existence of galactosemia.  This program shall be established in consultation with and shall be based on the recommendations of the Louisiana Hospital Association and the Louisiana State Medical Society.

 

* * *

 

§1299.31.  Discrimination against certain persons; prohibition

A.  No physician, nurse, student or other person or corporation shall be held civilly or criminally liable, discriminated against, dismissed, demoted, or in any way prejudiced or damaged because of his refusal for any reason to recommend, counsel, perform, assist with or accommodate an abortion.  

B.  No worker or employee in any social service agency, whether public or private, shall be held civilly or criminally liable, discriminated against, dismissed, demoted, in any way prejudiced or damaged, or pressured in any way for refusal to take part in, recommend or counsel an abortion for any woman.  

 

§1299.32.  Discrimination against hospitals, clinics, etc.; prohibition

No hospital, clinic or other facility or institution of any kind shall be held civilly or criminally liable, discriminated against, or in any way prejudiced or damaged because of any refusal to permit or accommodate the performance of any abortion in said facility or under its auspices.  

 

§1299.33.  Governmental assistance; discrimination for refusal to participate in an abortion; prohibition

A.  The term governmental assistance as used in this section shall include federal, state and local grants, loans and all other forms of financial and other aid from any level of government or from any governmental agency.  

B.  No woman shall be denied governmental assistance or be otherwise discriminated against or pressured in any way for refusing to accept or submit to an abortion, which she may do for any reason and without explanation.  

C.  No hospital, clinic, or other medical or health facility, whether public or private, shall ever be denied governmental assistance or be otherwise discriminated against or otherwise be pressured in any way for refusing to permit its facilities, staff or employees to be used in any way for the purpose of performing any abortion.  

D.  No abortion shall be performed on any woman unless prior to the abortion she shall have been advised, orally and in writing, that she is not required to submit to the abortion and that she may refuse any abortion for any reason and without explanation and that she shall not be deprived of any governmental assistance or any other kind of benefits for refusing to submit to an abortion.  This provision shall be of full force and effect notwithstanding the fact that the woman in question is a minor, in which event said minor's parents, or if a minor emancipated by marriage, the minor's husband, shall also be fully advised of their right to refuse an abortion for the minor in the same manner as the minor is advised.  Compliance with this provision shall be evidenced by the written consent of the woman that she submits to the abortion voluntarily and of her own free will, and by written consent of her parents, if she is an unmarried minor, and by consent of her husband if she is a minor emancipated by marriage, such written consent to set forth the written advice given and the written consent and acknowledgment that a full explanation of the abortion procedure to be performed has been given and is understood.  [These provisions (D) have been held to be unconstitutional and unenforceable]

 

§1299.34.  Employees of state and political subdivisions; counseling abortion prohibited

No person employed by the state of Louisiana, by contract or otherwise, or any subdivision or agency thereof, and no person employed in any public or private social service agency, by contract or otherwise, including workers therein, which is a recipient of any form of governmental assistance, shall require or recommend that any woman have an abortion.  Notwithstanding anything contained herein to the contrary, this Section shall not apply to a doctor of medicine, currently licensed by the Louisiana State Board of Medical Examiners pursuant to R.S. 37:1261 et seq., who is acting to save or preserve the life of the pregnant woman.  

 

§1299.34.5.  Use of public funds

A.  Notwithstanding any other provision of law to the contrary, no public funds, made available to any institution, board, commission, department, agency, official, or employee of the state of Louisiana, or of any local political subdivision thereof, whether such funds are made available by the government of the United States, the state of Louisiana, or of a local governmental subdivision, or from any other public source shall be used in any way for, to assist in, or to provide facilities for an abortion, except when the abortion is medically necessary to prevent the death of the mother.

B.  Notwithstanding any other provision of law to the contrary, no public funds made available to any institution, board, commission, department, agency, official, or employee of the state of Louisiana, or of any local political subdivision thereof, whether such funds are made available by the government of the United States, the state of Louisiana, or a local governmental subdivision, or from any other public source, shall be used in any way for, to assist in, or to provide facilities for an abortion, except for any of the following:

(1)  Whenever the abortion is necessary to save the life of the mother.

(2)  Whenever the abortion is being sought to terminate a pregnancy resulting from an alleged act of rape and all of the requirements of R.S. 40:1299.35.7(A) are met.

(3)  Whenever the abortion is being sought to terminate a pregnancy resulting from an alleged act of incest and all of the requirements of R.S. 40:1299.35.7(B) are met.

C.  The secretary of the Department of Health and Hospitals shall promulgate rules to insure that no funding of any abortion shall be made based upon a claim of rape or incest until the applicable requirements of R.S. 40:1299.35.7 have been complied with and written verification has been obtained from the physician performing the abortion and from the law enforcement official to whom the report is made, if applicable.

D.  Subsection A of this Section shall be superseded and Subsections B and C and R.S. 40:1299.35.7 shall become effective only when the circumstances in Subparagraph (1)(a) or in Subparagraph (2)(a) occur:

(1)(a)  A decision or order of a court of competent jurisdiction is rendered declaring the provisions of Subsection A unconstitutional, inconsistent with federal law, or otherwise unenforceable based on inconsistency with the Hyde Amendment, or enjoins the state or any of its officials from enforcing Subsection A while at the same time accepting federal funds pursuant to Title XIX, as modified by the Hyde Amendment, and then only if, as, and when a stay pending all appeals of the decision or order is denied, or, if a stay is granted, such stay expires or is no longer effective.

(b)  If such a decision or order is rendered, the state Department of Justice, on behalf of the state, shall vigorously and expeditiously pursue judicial remedies seeking to obtain a stay pending all appeals of the decision or order and its reversal.

(2)(a)  An order or decision of a court of competent jurisdiction is rendered affirming a finding of the administrator of the Health Care Financing Administration of the United States Department of Health and Human Services that Subsection A fails to substantially comply with the Hyde Amendment or denying a stay of the finding of the administrator and then only if, as, and when the state receives formal notification from the administrator that Medicaid funds, including but not limited to the federal percentage of Medicaid assistance payments pursuant to 42 U.S.C. 1396 et seq. allocated to the state from the United States government, will be withheld or terminated on a specified date.

(b)  If the administrator finds that the state is in noncompliance with the Hyde Amendment as it relates to funding certain abortions, the governor, the state Department of Justice, and the state Department of Health and Hospitals, on behalf of the state, shall vigorously and expeditiously pursue administrative and judicial remedies to obtain a stay of the finding and its reversal.

(c)  If such a decision or order is rendered by a court, the state Department of Justice, on behalf of the state, shall vigorously and expeditiously pursue judicial remedies seeking to obtain a stay of the decision or order and to seek its reversal.

E.  If Subsections B and C and R.S. 40:1299.35.7 become effective and subsequently the federal requirement for acceptance of Medicaid funds, that public funds be made available for abortions resulting from pregnancy due to rape or incest, is no longer applicable to the state of Louisiana, then on the same day, the provisions of Subsections B and C and R.S. 40:1299.35.7 shall be superseded and the provisions of Subsection A shall be effective to the fullest extent allowed by law.

 

§1299.35.  Repealed by Acts 1980, No. 418, §2

 

§1299.35.0.  Legislative intent

It is the intention of the Legislature of the State of Louisiana to regulate abortion to the extent permitted by the decisions of the United States Supreme Court.  The Legislature does solemnly declare and find in reaffirmation of the longstanding policy of this State, that the unborn child is a human being from the time of conception and is, therefore, a legal person for purposes of the unborn child's right to life and is entitled to the right to life from conception under the laws and Constitution of this State.  Further, the Legislature finds and declares that the longstanding policy of this State is to protect the right to life of the unborn child from conception by ppregnancy.

(2)  "Conception" and "fertilization" each mean the fusion of a human spermatozoon with a human ovum.

(3)  "Gestational age" means the age of the unborn child as measured by the time elapsed since the first day of the last menstrual period as determined by a physician and confirmed through the use of an ultrasound test of a quality generally used in existing medical practice.

(4)  "Good faith medical judgment" means a physician's use of reasonable care and diligence, along with his best judgment, in the application of his skill.  The standard of care required of every health care provider, except a hospital, in rendering professional services or health care to a patient, shall be to exercise that degree of skill ordinarily employed, under similar circumstances, by the members of his profession in good standing in the same community or locality, but if the physician was performing abortion procedures that are considered to be included in the areas of a medical specialty, then the standard shall be that of the degree of skill ordinarily employed, under similar circumstances, by one practicing in good standing in that specialty.

(5)  "Infant" means the offspring of human parents from the moment of live birth, regardless of the duration of gestation in the womb prior to live birth.

(6)  "Live birth" or "born alive", with respect to a member of the species homo sapiens, means the complete expulsion or extraction from its mother of that member, at any stage of development, who after that expulsion or extraction breathes or shows signs of life such as beating of the heart, pulsation of the umbilical cord, or definite movement of voluntary muscles, whether or not the umbilical cord has been cut or the placenta is attached, and regardless of whether the expulsion or extraction occurs as a result of natural or induced labor, cesarean section, or induced abortion.

(7)  "Physician" means a person licensed to practice medicine in the state of Louisiana.

(8)  "Pregnant" means that female reproductive condition of having a developing embryo or fetus in the uterus which commences at fertilization and implantation.

(9)  "Unborn child" or "fetus" means the unborn offspring of human beings from the moment of conception through pregnancy and until live birth.

(10)  "Viable" and "viability" each mean that stage of fetal development when, in the judgment of the physician based upon the particular facts of the case before him, and in light of the most advanced medical technology and information available to him, there is a reasonable likelihood of sustained survival of the unborn child outside the body of his mother, with or without artificial support.

 

§1299.35.2.  Abortion by physician; determination of viability; ultrasound test required; exceptions

A.  No person shall perform or induce an abortion unless that person is a physician licensed to practice medicine in the state of Louisiana.

B.  Before a physician performs an abortion on a woman he has reason to believe is carrying an unborn child of twenty or more weeks gestational age, the physician, by use of his good faith medical judgment, shall first determine if the unborn child is viable.

C.  In order to preserve the health of the woman, and in order to make a finding of the gestational age, weight, and lung maturity of the unborn child, the physician intending to terminate a pregnancy of twenty or more weeks gestational age shall first perform or cause to be performed an ultrasound examination of the unborn child of a quality commonly used by the ordinary skillful, careful, and prudent physician engaged in similar practice under the same or similar conditions.  The physician shall provide the option of viewing the ultrasound images to the pregnant woman as the test is being performed.  The physician shall enter such findings and determination of viability in the medical record of the pregnant woman, along with photographs or prints of the ultrasound evidencing the findings.

 

§1299.35.3.  Born-Alive Infant Protection Act

A.  In determining the meaning of any statute or of any rule, regulation, or interpretation of the various administrative agencies of this state, the words "person", "human being", "child", and "individual" include every infant member of the species homo sapiens who is born alive at any stage of development.

B.  An infant at any stage of development who has survived an abortion procedure resulting in his or her live birth shall be given reasonable and immediate medical care as provided in R.S. 40:1299.35.4(C).

 

§1299.35.4.  Abortion after viability; second attendant physician required; duties

A.  Before a physician may perform an abortion upon a pregnant woman whose unborn child is viable, such physician shall first certify in writing that the abortion is necessary to preserve the life or health of the woman and shall further certify in writing the medical indications for such abortion and the probable health consequences.

B.  Any physician who performs an abortion upon a woman carrying a viable unborn child shall utilize the available method or technique of abortion most likely to preserve the life and health of the unborn child.  In cases where the method or technique of abortion which would most likely preserve the life and health of the unborn child would present a greater risk to the life and health of the woman than another available method or technique, the physician may utilize such other method or technique.  In all cases where the physician performs an abortion upon a viable unborn child, the physician shall certify in writing the available method or techniques considered and the reasons for choosing the method or technique employed.

C.  An abortion of a viable unborn child shall be performed or induced only when there is in attendance a physician other than the physician performing or inducing the abortion who shall take control of and provide immediate medical care for an infant born alive as a result of the abortion.  During the performance of the abortion, the physician performing it, and subsequent to the abortion, the physician required by this Section to be in attendance, shall take all reasonable steps in keeping with good medical practice, consistent with the procedure used, to preserve the life and health of the viable unborn child and born-alive infant, respectively, provided that it does not pose an increased risk to the life or health of the woman.

 

§1299.35.5.  Minors [Provisions requiring parental notice of judicial by-pass proceedings have been held to be unconstitutional and unenforceable.]

A.  No physician shall perform or induce an abortion upon any pregnant woman who is under the age of eighteen years and who is not emancipated judicially or by marriage unless the physician has received one of the following documents:

(1)  A notarized statement signed by the mother, father, legal guardian, or tutor of the minor declaring that the affiant has been informed that the minor intends to seek an abortion and that the affiant consents to the abortion.

(2)  A court order as provided in Subsection B of this Section.

B.  The following provisions shall apply to all applications for court orders by minors seeking abortions and appeals from denials of applications:

(1)  Jurisdiction to hear applications shall be in the court having juvenile jurisdiction in the parish where the abortion is to be performed or the parish in which the minor is domiciled.

(2)  Each clerk of each court which has jurisdiction to hear such applications shall prepare application forms in clear and concise language which shall provide step-by-step instructions for filling out and filing the application forms.  All application forms shall be submitted to the attorney general for his approval.  Each clerk shall assist each minor who requests assistance in filling out or filing the application forms.

(3)(a)  Each application shall be heard in chambers, anonymously, in a summary manner, within  four days, excluding legal holidays, of the filing thereof.

(b)(i)  Prior to such ex parte hearing, the court may require the minor to participate in an evaluation and counseling session with a mental health professional from the Department of Health and Hospitals, office of mental health, or a staff member from the Department of Social Services, office of community services, or both.  The court may refer the petitioner, if necessary, to the appropriate Department of Health and Hospitals, office of mental health regional office to arrange the evaluation and counseling session within the four- day period prior to the ex parte hearing, as provided in this Paragraph.  This referral may be made by the clerk upon the minor's filing the application when the court has issued a standing order authorizing same and the circumstances fit the criteria of the standing order therefor.

(ii)  Such evaluation and counseling session shall be for the purpose of developing trustworthy and reliable expert opinion concerning the minor's sufficiency of knowledge, insight, judgment, and maturity with regard to her abortion decision in order to aid the court in its decision and to make the state's resources available to the court for this purpose.  Persons conducting such sessions may employ the information and printed materials referred to in R.S. 40:1299.35.6 in examining how well the minor interviewed is informed about pregnancy, fetal development, abortion risks and consequences, and abortion alternatives, and should also endeavor to verify that the minor is seeking an abortion of her own free will and is not acting under intimidation, threats, abuse, undue pressure, or extortion by any other persons.

(iii)  The results of such evaluation and counseling shall be reported to the court by the most expeditious means, commensurate with security and confidentiality, to assure receipt by the court prior to or at the ex parte hearing.

(4)  If the court, using reasoned judgment and evidentiary evaluation, finds, by clear and convincing evidence, that the minor is sufficiently mature and well enough informed to make the decision concerning the abortion on her own, the court shall issue an order authorizing the minor to act on the matter without parental consultation or consent.

(5)  If the court finds that the minor is not sufficiently mature and well enough informed to make a decision intelligently among the alternatives, the court shall decide whether or not it would be in the best interest of the minor to notify her parents or guardian of the proceedings.  If the court finds that it is in the minor's best interest to notify her parents or guardian, the court shall so notify and reconvene the proceedings within forty-eight hours with the parents or guardian present to advise and counsel the minor and aid the court in making its determination whether or not the abortion would be in the best interest of the minor.

(6)  If the court finds that the minor is not  sufficiently mature and well enough informed to make the decision concerning the abortion  and further finds that it would not be in the minor's best interest to notify her parents or guardian, the court shall issue an order authorizing the abortion if the court finds, by clear and convincing evidence, that the abortion would be in the best interest of the minor.  However, as stated in Bellotti v. Baird, 443 U.S. 622, 647 (1979), "the court may deny the abortion request of an immature minor in the absence of parental consultation if it concludes that her best interests would be served thereby."

(7)  In all cases, the court shall issue its final judgment and order immediately upon completion of the reconvened hearing, if there is one, or immediately upon completion of the original ex parte hearing, if there is no reconvened hearing, and in any case where unusual justification exists for taking the matter under advisement, the court shall report taking the matter under advisement to the Supreme Court of Louisiana and to the court of appeal for the circuit to which appeals lie from the court and shall issue its final judgment and order within forty-eight hours after taking the matter under advisement at the completion of such hearing.  Appeals from decisions of the court hearing the application shall be by trial de novo in the court of appeal.

(8)  Each clerk of each court of appeal shall prepare appeal forms in clear and concise language which shall provide step-by-step instructions for filling out and filing the appeal forms. All appeal forms shall be submitted to the attorney general for his approval.  Each clerk shall assist each minor who requests assistance in filling out or filing the appeal forms.

(9)  Each appeal shall be heard in chambers, anonymously, in a summary manner, and within forty-eight hours of the filing thereof.

(10)  The decision of the court of appeal shall be based on the criteria provided in Paragraphs (4), (5), and (6) of this Subsection, and such court shall issue its final judgment and order within forty-eight hours of its hearing.

(11)  Each minor who declares to the clerk of the court hearing the application or appeal that she does not have sufficient funds to pay for the costs of the application or the appeal shall be allowed to proceed in forma pauperis.

(12)  Each minor who files an application or an appeal shall be entitled to an initial hearing and a determination by the court independently of any notice to or consultation with her parents, tutor, or guardian.

(13)  Except as otherwise provided in this Section, or as otherwise provided by rule of court, hearings of applications and appeals shall be conducted in accordance with the provisions of the Louisiana Children's Code.

C.(1)  Nothing in this Section shall be construed as creating or recognizing a right to abortion.

(2)  It is not the intention of this Section to make lawful an abortion that is unlawful on July 10, 1997, or which later becomes unlawful.

D.  Nothing in this Section shall be deemed or construed to affect or alter existing law on the confidentiality of proceedings and records related thereto, except to the extent specifically contained in this Section.

 

§1299.35.6.  Woman's Right To Know

A.  Legislative findings and purposes.  The Legislature of Louisiana finds that:

(1)  Act No. 435 of the 1978 Regular Session of the Legislature required the obtaining of the informed consent of a pregnant woman to the performance of an abortion.  This law was declared unconstitutional in the cases of Margaret S. v. Edwards, and in Margaret S. v. Treen.

(2)  By Act No. 435 of the 1978 Regular Session of the Legislature (R.S. 40:1299.35.7) a twenty-four-hour waiting period was required between the signing of an informed consent and the performance of an abortion.  This law was repealed by Act No. 418 of the 1980 Regular Session of the Legislature because of the decision of the federal court in Margaret S. v. Edwards.

(3)  Subsequent to the above-referenced court decisions and legislative enactments, the United States Supreme Court has rendered a decision in the case of Planned Parenthood of Pennsylvania v. Casey, which upheld the constitutionality of the Pennsylvania law which required informed consent, parental consent, and a twenty-four-hour waiting period prior to an abortion, and which decision has therefore impliedly overruled the decisions in the Margaret S. cases.

(4)  The judicial obstacles to such legislation now having been removed by virtue of the Casey decision, the legislature finds that it is in the public interest and in furtherance of the general health and welfare of the citizens of this state to reenact provisions of law similar to those heretofore either declared unconstitutional or repealed for the following reasons:

(a)  It is essential to the psychological and physical well-being of a woman considering an abortion that she receive complete and accurate information on her alternatives.

(b)  The knowledgable exercise of a woman's decision to have an abortion depends on the extent to which the woman receives sufficient information to make an informed choice between two alternatives, giving birth or having an abortion.

(c)  The vast majority of all abortions are performed in clinics devoted solely to providing abortions and family planning services.  Most women who seek abortions at these facilities do not have any relationship with the physician who performs the abortion, before or after the procedure.  They do not return to the facility for postsurgical care.  In most instances, the woman's only actual contact with the physician occurs simultaneously with the abortion procedure, with little opportunity to receive counseling concerning her decision.

(d)  The decision to abort "is an important, and often a stressful one, and it is desirable and imperative that it be made with full knowledge of its nature and consequences", Planned Parenthood v. Danforth.

(e)  "The medical, emotional, and psychological consequences of an abortion are serious and can be lasting...", H. L. v. Matheson.

(f)  Abortion facilities or providers offer only limited and/or impersonal counseling opportunities.

(g)  Many abortion facilities or providers hire untrained and unprofessional "counselors" whose primary goal is to sell abortion services.

(5)  Based on the above findings, it is the purpose of this Act to:

(a)  Ensure that every woman considering an abortion receive complete information on her alternatives and that every woman submitting to an abortion do so only after giving her voluntary and informed consent to the abortion procedure.

(b)  Protect unborn children from a woman's uninformed decision to have an abortion.

(c)  Reduce "the risk that a woman may elect an abortion only to discover later, with devastating psychological consequences, that her decision was not fully informed",  Planned Parenthood v. Casey.

B.  Informed consent; requirements.  After a woman is determined to be pregnant, 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 if and only if:

(1)  At least twenty-four hours before the abortion, the physician who is to perform the abortion or the referring physician has informed the woman, orally and in person, of:

(a)  The name of the physician who will perform the abortion.

(b)  A description of the proposed abortion method and of those risks (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.

(c)  The probable gestational age of the unborn child at the time the abortion is to be performed;  and, if the unborn child is viable or has reached the gestational age of twenty-four weeks and the abortion may be otherwise lawfully performed under existing law, that:

(i)  The unborn child may be able to survive outside the womb.

(ii)  The woman has the right to request the physician to use the method of abortion that is most likely to preserve the life of the unborn child.

(iii)  If the unborn child is born alive, that attending physicians have the legal obligation to take all reasonable steps necessary to maintain the life and health of the child.

(d)  The probable anatomical and physiological characteristics of the unborn child at the time the abortion is to be performed.

(e)  The medical risks associated with carrying her child to term.

(f)  Any need for anti-Rh immune globulin therapy, if she is Rh negative, the likely consequences of refusing such therapy, and a good faith estimate of the cost of the therapy.

(2)(a)  At least twenty-four hours before the abortion, the physician who is to perform the abortion, the referring physician, or a qualified person has informed the woman, orally and in person, that:

(i)  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 which shall be given to her and described in this Section.

(ii)  The printed materials describe the unborn child and list agencies which offer alternatives to abortion.

(iii)  The father of the unborn child is liable to assist in the support of her child, even in instances where he has offered to pay for the abortion.  In the case of rape, this information may be omitted.

(iv)  She is free to withhold or withdraw her consent to the abortion at any time before or during the abortion 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.

(b)  For purposes of this Paragraph, "qualified person" shall mean an agent of the physician who is a psychologist, licensed social worker, licensed professional counselor, registered nurse, or physician.

(3)  The information required by this Section is provided to the woman individually and in a private room to protect her privacy and maintain the confidentiality of her decision, to ensure that the  information focuses on her individual circumstances, and that she has an adequate opportunity to ask questions.

(4)  At least twenty-four hours before the abortion, the woman is given a copy of the printed materials described in this Section by the physician who is to perform the abortion, the referring physician, or a qualified person as defined in Subparagraph (2)(b) of this Subsection.  If the woman is unable to read the materials, they shall be read to her.  If the woman asks questions concerning any of the information or materials, answers shall be provided to her in her own language.  If an interpreter is necessary, the cost of such interpreter shall be borne by the state of Louisiana.

(5)  The woman certifies in writing on a form provided by the Department of Health and Hospitals, prior to the abortion, that the information and materials required to be provided under this Section have been provided.  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.

(6)  Prior to the performance of the abortion, the physician who is to perform the abortion or his agent receives a copy of the written certification required by this Section.

(7)  The woman is not required to pay any amount for the abortion procedures until the twenty-four-hour period has expired.

C.(1)  Publication of materials.  The Department of Health and Hospitals shall cause to be published in English, within ninety days after June 20, 1995, and shall update on an annual basis, the following easily comprehensible printed materials:

(a)  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 number 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, all-hours-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.  Such toll-free telephone number shall be funded by the Department of Health and Hospitals.  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 in a civil action at law, and that the law permits adoptive parents to pay costs of prenatal care, childbirth, and neonatal care.  The materials shall include the following statement:

"There are many public and private agencies willing and able to help you to carry your child to term, and to assist you and your child after your child is born, whether you choose to keep your child or to place her or him for adoption.  The state of Louisiana strongly urges you to contact them before making a final decision about abortion.  The law requires that your physician or his agent give you the opportunity to call agencies like these before you undergo an abortion."

(b)  Materials that inform the pregnant woman of the probable anatomical and physiological characteristics of the unborn child at two-week gestational increments from fertilization to full term, including color pictures or drawings representing the development of unborn children at two-week gestational increments, and any relevant information on the possibility of the unborn child's survival; provided that any such color pictures or drawings must contain the dimensions of the unborn child and must be realistic.  The materials shall be objective, nonjudgmental, and designed to convey only accurate scientific information about the unborn child at the various gestational ages.  The material shall also contain objective information describing the methods of abortion procedures commonly employed, the medical risks commonly associated with each such procedure, and the medical risks commonly associated with carrying a child to term.

(c)  A certification form to be used by physicians or their agents as provided in Paragraph B(5) of this Section, which will list all the items of information which are to be given to women by physicians or their agents as required by this Section.

(2)  The materials shall be printed in a typeface large enough to be clearly legible.

(3)  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.

(4)  The department shall promulgate rules and regulations relative to the appropriate number and methods of reporting at no cost.

D.  Medical emergency.  Where a medical emergency compels the performance of an abortion, the physician shall orally inform the woman, before the abortion, if possible, of the medical indications supporting his judgment that an abortion is necessary to avert her death or to avert substantial and irreversible impairment of a major bodily function.

E.  Reporting requirements.  Any physician who has provided the information and materials to any woman in accordance with the requirements of this Section shall provide to the department:

(1)  With respect to a woman upon whom an abortion is performed, all information as required by R.S. 40:1299.35.10 as well as the date upon which the information and materials required to be provided under this Section were provided, as well as an executed copy of the certification form required by Paragraph B(5) of this Section.

(2)  With respect to any woman to whom the information and materials have been provided in accordance with this Section, but upon whom the physician has not performed an abortion, the name and address of the facility where the required information was provided and the information as required by R.S. 40:1299.35.10(A)(1) and (4) through (18) inclusive, and if executed by the woman, a copy of the certification form required by Paragraph B(5) of this Section.

F.  Criminal penalties.

(1)  Any person who intentionally, knowingly, or recklessly fails to comply with all the requirements of this Section shall be subject to the penalties provided in R.S. 40:1299.35.18.

(2)  No physician shall be guilty of violating this Section if he or she can demonstrate, by a preponderance of the evidence, that he or she reasonably believed that furnishing the required information would have resulted in a severely adverse effect on the physical or mental health of the pregnant woman.

G.  Civil penalties.  In addition to whatever remedies are otherwise available under the law of this state, failure to comply with the requirements of this Section shall:

(1)  Provide a basis for a civil malpractice action.  Any intentional violation of this Section shall be admissible in a civil suit as prima facie evidence of a failure to obtain an informed consent.  When requested, the court shall allow a woman to proceed using solely her initials or a pseudonym and may close any proceedings in the case and enter other protective orders to preserve the privacy of the woman upon whom the abortion was performed.

(2)  Provide a basis for professional disciplinary action under R.S. 37:1261 et seq.

(3)  Provide a basis for recovery for the woman for the death of her unborn child under Louisiana Civil Code Article 2315.2, whether or not the unborn child was viable at the time the abortion was performed, or was born alive.

H.  Limitation on civil liability.  Any physician who complies with the provisions of this Section may not be held civilly liable to his patient for failure to obtain informed consent to the abortion under this Section.  Any and all other rights and remedies are preserved to the patient.

I.  Severability.  The provisions of the Act which originated as House Bill No. 2246 of the 1995 Regular Session of the Legislature 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 Act.

J.  Construction.

(1)  Nothing in this Section shall be construed as creating or recognizing a right to abortion.

(2)  It is not the intention of this Section to make lawful an abortion that is unlawful on June 20, 1995, or which later becomes unlawful.

K.  Right of intervention.  The author and coauthors who sponsored or cosponsored the Act which originated as House Bill No. 2246 of the 1995 Regular Session of the Legislature in his or her official standing and capacity shall intervene as a matter of right in any case in which the constitutionality of this Section is challenged.

 

§1299.35.7.  Abortion sought due to rape or incest; reporting and certification

A.  Whenever an abortion is being sought pursuant to R.S. 40:1299.34.5 to terminate a pregnancy resulting from an alleged act of rape, prior to the abortion all of the following requirements shall be met:

(1)  The rape victim shall report the rape to a law enforcement official unless the treating physician certifies in writing that in the physician's professional opinion, the victim was too physically or psychologically incapacitated to report the rape.

(2)  The victim certifies that the pregnancy is the result of rape, which certificate shall be witnessed by the treating physician.

B.  Whenever an abortion is being sought pursuant to R.S. 40:1299.34.5 to terminate a pregnancy resulting from an alleged act of incest, prior to the abortion all of the following requirements shall be met:

(1)  The victim of incest shall report the act of incest to a law enforcement official unless the treating physician certifies in writing that in the physician's professional opinion the victim was too physically or psychologically incapacitated to report the incest.

(2)  The victim certifies that the pregnancy is the result of incest, which certificate shall be witnessed by the treating physician.

C.  The failure of the victim to comply with Subsection A or B, as applicable, shall not subject the victim to the provisions of R.S. 40:1299.35.18.

D.  Whenever an abortion is being sought pursuant to R.S. 40:1299.34.5 to terminate a pregnancy resulting from an alleged act of rape or incest, the victim may request spiritual counseling and shall be offered the same informed consent information, without the twenty-four-hour delay, contained in R.S. 40:1299.35.6(B), prior to the performance of the abortion.

 

§1299.35.8.  Records

A.  Each physician shall retain and make part of the medical record of each pregnant woman upon whom an abortion is performed or induced, copies of the following:

(1)  The certificate required by R.S. 40:1299.35.4.  

(2)  The consent form or court order required by R.S. 40:1299.35.5, if applicable.  

(3)  The consent form required by R.S. 40:1299.35.6.  

(4)  The reports required by R.S. 40:1299.35.10.  

(5)  The certificate required by R.S. 40:1299.35.12, if applicable.  

B.  The physician shall retain the documents required in Subsection A of this Section for not less than seven years.  

 

§1299.35.9.  Repealed by Acts 1980, No. 418, §2

 

§1299.35.10.  Reports

A.  An individual abortion report for each abortion performed or induced shall be completed by the attending physician.  The report shall be confidential and shall not contain the name or address of the woman.  The report shall include:

(1)  Patient number.

(2)  Name and address of the facility at which the abortion was performed or induced.

(3)  Date of abortion.

(4)  The parish and municipality, if any, in which the pregnant woman resides.

(5)  Age of pregnant woman.

(6)  Race.

(7)  Marital status.

(8)  Number of previous pregnancies.

(9)  Educational background.

(10)  Number of living children.

(11)  Number of previous induced abortions.

(12)  Date of last induced abortion.

(13)  Date of live birth.

(14)  Method of contraception at time of conception, if any.

(15)  Date of beginning of last menstrual period.

(16)  Medical condition of woman at time of abortion.

(17)  Rh type of pregnant woman.

(18)  A photographic print or image produced as the result of the ultrasound test required to inform the woman of the probable gestational age of the unborn child in accordance with R.S. 40:1299.35.6(B)(1)(c) and R.S. 40:1299.35.1(3) to determine viability of the unborn child in accordance with R.S. 40:1299.35.2(C).

(19)  Type of abortion procedure.

(20)  Reason for abortion.

(21)  Complications by type.

(22)  Type of procedure done after the abortion.

(23)  Type of family planning recommended.

(24)  Type of additional counseling given.

(25)  Signature of attending physician.

(26)  Copies, with the name and address obliterated, of the certificates and consent forms required by R.S. 40:1299.35.8.

B.  An individual complication report for any post-abortion care performed upon a woman shall be completed by the physician providing such post-abortion care.  The report shall include:

(1)  The date of the abortion.

(2)  The name and address of the facility where the abortion was performed or induced.

(3)  The nature of the abortion complication diagnosed or treated.

(4)  The name and address of the facility where the post-abortion care was performed.

C.  All abortion reports shall be signed by the attending physician and submitted to the Department of Health and Hospitals within thirty days after the date of the abortion.  All complication reports shall be signed by the physician providing the post-abortion care and submitted to the Department of Health and Hospitals within thirty days after the date of the completion of the post-abortion care.

D.  The Department of Health and Hospitals shall be responsible for collecting all abortion reports and complication reports and collating and evaluating all data gathered therefrom, and shall annually publish a statistical report based on such data from abortions performed in the previous calendar year.

 

§1299.35.11.  Forms

The Department of Health and Hospitals shall make available to physicians performing abortions in this state the forms for preparing the records and reports required by R.S. 40:1299.35.8 and R.S. 40:1299.35.10.

 

§1299.35.12.  Emergency

The provisions of R.S. 40:1299.35.2, 1299.35.4, 1299.35.5, and 1299.35.6 shall not apply when a medical emergency compels the immediate performance of an abortion because the continuation of the pregnancy poses an immediate threat and grave risk to the life or permanent physical health of the pregnant woman.  Within twenty-four hours, the attending physician shall certify to the emergency need for the abortion and shall enter such certification in the medical record of the pregnant woman.

 

§1299.35.13.  Experimentation

No person shall experiment on an unborn child or on a child born as the result of an abortion, whether the unborn child or child is alive or dead, unless the experimentation is therapeutic to the unborn child or child.  

 

§1299.35.14.  Disposal of remains

A.  Each physician who performs or induces an abortion which does not result in a live birth shall insure that the remains of the child are disposed of in accordance with rules and regulations which shall be adopted by the Department of Health and Human Resources.  

B.  The provisions of this Section shall not apply to, and shall not preclude, instances in which the remains of the child are provided for in accordance with the provisions of R.S. 8:651 et seq.  

C.  The attending physician shall inform each woman upon whom he performs or induces an abortion of the provisions of this Section within twenty-four hours after the abortion is performed or induced.  

 

§1299.35.15.  Instructions to be provided subsequent to abortion

Any physician who shall perform or induce an abortion, shall subsequent to the abortion being performed or induced, provide his patient with specific oral and written medical instructions to be followed by that patient in order to insure her safe recovery from the abortion.  

 

§1299.35.16.  Partial birth abortion [These provisions have been held to be unconstitutional and unenforceable.]

A.  No licensed physician or any other person shall perform a partial birth abortion on a female unless the procedure is necessary to save the life of the female because her life is endangered by a physical disorder, physical illness, or physical injury; and further provided that no other medical procedure would suffice for that purpose.

B.(1)  As used in this Section, partial birth abortion means the intentional performance of a procedure on a female by a licensed physician or any other person whereby a living fetus or infant is partially delivered or removed from the female's uterus by vaginal means and then killed prior to complete delivery or removal.

(2)  As used in this Section, the terms "fetus" and "infant" are used interchangeably to mean the biological offspring of human parents.

C.  There is hereby created a cause of action against the licensed physician or any other person who performs a partial birth abortion for civil damages for survival and wrongful death as more fully set forth in Louisiana Civil Code Articles 2315.1 and 2315.2, except that such causes of action shall only be in favor of the natural or biological father of the aborted infant or fetus, the mother of the aborted infant or fetus or the parents or guardian on behalf of the mother of the aborted infant or fetus if the mother was a minor at the time of the abortion, unless such person's criminal conduct caused the pregnancy, or the person consented to the partial birth abortion.

 

§1299.35.18.  Penalties

Whoever violates the provisions of this Part shall be fined not more than one thousand dollars, or imprisoned for not more than two years, or both.  

 

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§1300.241.  Women's Health Commission; creation; appointment of members; officers; compensation; meetings; domicile

A.  The Women's Health Commission, hereinafter referred to as the "commission", is created within the Department of Health and Hospitals.

B.  The commission shall consist of the following members:

(1)  The secretary of the Department of Health and Hospitals or his designee.

(2)  The secretary of the Department of Social Services or her designee.

(3)  The executive director of the Office of Women's Policy or her designee.

(4)  The assistant secretary of the office of public health, Department of Health and Hospitals, or his designee.

(5)  The director of the Louisiana Coalition Against Domestic Violence or her designee.

(6)  A representative of the Louisiana Medical Association selected by the association.

(7)  Four persons appointed by the governor who have actively participated in health issues for women.

(8)  One representative of the Louisiana Primary Care Association selected by the association.

(9)  One representative of the Women's Health Foundation.

(10)  One representative of the New Orleans Medical Association selected by the association.

(11)  One representative of the Pelican Dental Association selected by the association.

(12)  One representative of the Louisiana State Medical Society selected by the society.

(13)  One representative from Xavier University School of Pharmacy to be appointed by the dean of the pharmacy school.

(14)  One member of the Louisiana Optometry Association selected by the association.

(15)  One representative of the Louisiana Maternal and Child Health Coalition selected by the coalition.

(16)  The president of the Senate or his designee.

(17)  The speaker of the House of Representatives or his designee.

(18)  One representative of the Senate Select Committee on Women and Children Issues.

(19)  The chairman of the Senate Committee on Health and Welfare or his designee, who shall serve as an ex officio member.

(20)  The chairman of the House Committee on Health and Welfare or his designee, who shall serve as an ex officio member.

(21)  One representative of the Tulane/Xavier National Women's Center and Clinic.

(22)  One representative of the New Orleans City AIDS Awareness Project.

(23)  One member from the Catholic Health Association of Louisiana.

(24)  One member from Catholic Community Services of Baton Rouge.

(25)  One representative from the University of Louisiana at Monroe School of Pharmacy to be appointed by the dean of pharmacy.

(26)  One representative of the National Rifle Association's Refuse To Be A Victim Program, who is certified by the association to teach personal safety strategies for women.

(27)  One representative of the Louisiana State Comprehensive Cancer Control Plan Coalition selected by the coalition.

C.  Each appointment shall be subject to Senate confirmation.

D.  A vacancy shall be filled in the manner of the original appointment.

E.  The secretary of the Department of Health and Hospitals shall call the commission to convene for its first meeting not later than October 1, 2004.  At the first meeting of the commission, the members shall elect a chairman, vice chairman, and secretary.

F.  Legislative members of the commission shall receive the same per diem and travel allowance for attending meetings of the board or any meeting thereof as they receive for attendance at legislative committee meetings during the interim between sessions and from the same source.

G.  Nonlegislative members of the commission shall receive no compensation for services rendered in their capacity as a member of the commission.

H.  The commission shall be domiciled in Baton Rouge, Louisiana, but may hold public meetings elsewhere in the state.

I.  The commission shall meet on the call of the chairman or at the call of a quorum of its membership.

J.  The Department of Health and Hospitals shall provide staff assistance to the commission upon the request of the chairman.

 

§1300.242.  Powers and duties

A.  The commission shall:

(1)  Study issues relating to educating women on women's health. It shall focus on the delivery of and access to health and social services for women in the state.

(2)  Identify any gaps in the health and social services delivery system that particularly affect women and their access to health care services.

(3)  Study issues relative to affordability, availability, and why such services should be accessed.

(4)  Identify wellness and preventive efforts such as the types of critical screening tests (pap smears, mammograms and colorectal cancer detection) women should utilize, as well as factors relative to prevention, management and education about good health.

(5)  Study key health conditions, diseases, and causes of death for women.

(6)  Identify methods for communities to foster good health, efforts to bolster the economic security of women, to address the discrimination they face, to reduce injuries and to improve the environment in which they live.

(7)  Make recommendations to the Department of Health and Hospitals, other appropriate state agencies, and the legislature for improving the delivery of and access to health and social services for women.  The recommendations required by this Paragraph shall be submitted in a written report to the House and Senate committees on health and welfare not later than October 1, 2006.

(8)  Not promote or advocate abortion, abortafacia drugs or gun control. The commission shall, at all times, comply with R.S. 40:1299.34.

B.  The commission may:

(1)  Hold public hearings and conduct investigations, if necessary, to fulfill the mandates of Paragraphs (A)(1) through (6) of this Section.

(2)  Create committees and subcommittees from its membership as it may deem necessary to accomplish its purposes.

(3)  Employ a director and other staff necessary to carry out the provisions of this Part.  The director and other staff members employed by the commission shall be appointed by the governor and confirmed by the Senate.

 

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§2175.1.  Short title

This Part may be cited as the "Outpatient Abortion Facility Licensing Law".

 

§2175.2.  Purpose

The purpose of this Part is to authorize the Department of Health and Hospitals to promulgate and publish rules and regulations to provide for the health, safety, and welfare of women in outpatient abortion facilities and for the safe operation of such facilities.  The rules shall be reasonably related to the purpose expressed in this Section and shall not impose a legally significant burden on a woman's freedom to decide whether to terminate her pregnancy.

 

§2175.3.  Definitions

For purposes of this Part, the following definitions apply:

(1)  "Abortion" means any surgical procedure performed after pregnancy has been medically verified with the intent to cause the termination of the pregnancy other than for the purpose of producing a live birth, removing an ectopic pregnancy, or removing a dead fetus caused by a spontaneous abortion.

(2)  "First trimester" means the time period from six to fourteen weeks after the first day of the last menstrual period.

(3)  "Licensee" means the person, partnership, corporation, association, organization, or professional entity on whom rests the ultimate responsibility and authority for the conduct of the outpatient abortion facility.

(4)  "Licensing agency" means the Louisiana Department of Health and Hospitals.

(5)  "Outpatient abortion facility" means any outpatient facility, other than a hospital as defined in R.S. 40:2102 or an ambulatory surgical center as defined in R.S. 40:2133, in which any second trimester or five or more first trimester abortions per month are performed.

(6)  "Second trimester" means the time period from fourteen to twenty-three weeks after the first day of the last menstrual period.

(7)  "Secretary" means the secretary of the Louisiana Department of Health and Hospitals.

 

§2175.4.  License required

A.  An outpatient abortion facility may not be established or operated in this state without  an appropriate license issued under this Part.

B.  A license issued to an outpatient abortion facility is valid for only one location.

C.  A license issued to an outpatient abortion facility shall be valid for one year from the date of issuance, unless revoked prior to that date.

D.  A license issued to an outpatient abortion facility is not transferable or assignable.

E.  A license issued to an outpatient abortion facility shall be posted in a conspicuous place on the licensed premises.

Acts 2001, No. 391, §1

 

§2175.5.  Rules; regulations; licensing standards

The licensing agency shall promulgate and publish rules, regulations, and licensing standards to provide for the health, safety, and welfare of women in outpatient abortion facilities and for the safe operation of such facilities.  The rules, regulations, and licensing standards shall become effective upon approval of the secretary of the Department of Health and Hospitals in accordance with the Administrative Procedure Act.  The initial rules, regulations, and licensing standards shall not become effective until approved by the House Committee on Health and Welfare and the Senate Committee on Health and Welfare.  No outpatient abortion facility shall be required to obtain a license under this Part until the initial rules, regulations, and licensing standards are adopted and promulgated in accordance with the Administrative Procedure Act.

 

§2175.6.  License issuance; application; on-site inspection

A.  An applicant for an outpatient abortion facility license must submit an application to the licensing agency on a form prescribed by the agency.

B.  Each application must be accompanied by a nonrefundable license fee in an amount set by the licensing agency in accordance with R.S. 40:2006. The fees herein levied and collected shall be paid into the general fund.

C.  Following receipt of the application and licensing fee, the licensing agency shall issue a license if, after an on-site inspection, it finds that the outpatient abortion facility meets the requirements established under this Part and the licensing standards adopted in pursuance thereof.  The licensing agency must perform an on-site inspection of the outpatient abortion facility prior to issuance of the initial license.

D.  As a condition for renewal of a license, the licensee must submit to the licensing agency the annual renewal application along with the annual renewal licensing fee.  Upon receipt of the annual renewal application and the annual renewal licensing fee, the licensing agency shall determine if the outpatient abortion facility continues to meet the requirements established under this Part and the licensing standards adopted in pursuance thereof.  The licensing agency may perform an on-site inspection upon annual renewal.  If the outpatient abortion facility continues to meet the requirements established under this Part and the licensing standards adopted in pursuance thereof, a license shall be issued which is valid for one year.

E.  A provisional license may be issued in cases where additional time is needed for the outpatient abortion facility to comply fully with the requirements established under this Part and the licensing standards adopted in pursuance thereof.  The licensing agency may issue a provisional license to an outpatient abortion facility for a period not to exceed six months only if the failure to comply is  not detrimental to the health or safety of the women seeking treatment in the outpatient abortion facility.  The deficiencies which preclude the outpatient abortion facility from being in full compliance must be cited at the time the provisional license is issued.

F.  The licensing agency may perform an on-site inspection at reasonable times as necessary to ensure compliance with this Part.

G.  The procedure of denial, suspension, or revocation of a license, and appeal therefrom, shall be the same as provided for the licensing of hospitals as contained in R.S. 40:2110.

 

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§2199.  Violations; penalties; fines; notice; hearings; appeal; licensed entities

A.(1)  For purposes of this Part, "facility" shall mean any one or more of the following:  an adult day health care facility, substance abuse/addiction treatment facility, ambulatory surgery center, case management facility, urine drug screening facility, mobile cholesterol screening facility, end stage renal disease facility, supplier of portable X-ray services, home health agency, hospice, hospital, ICF/MR facility, outpatient abortion facility, or any other health care provider licensed or certified by the Department of Health and Hospitals.

(2)  The opening or operation of a facility without a license or registration therefor shall be a misdemeanor, punishable upon conviction by a fine of not less than one thousand dollars nor more than five thousand dollars.  Each day's violation shall constitute a separate offense.

(3)  It shall be a violation to operate a facility which holds a current license, registration, or certificate if one of the following apply:

(a)  As a result of a licensure or certification survey, it is determined by an agency to be in violation of one or more conditions of licensure or certification and has failed to correct such conditions of violation within the time prescribed by law or by the agency.

(b)  As a result of one or more third-party complaints, it is determined by an agency to have been in violation of one or more conditions of licensure or certification resulting directly in the incident which gave rise to such third-party complaint.

(4)  Any violation provided for in Paragraph (3) of this Subsection shall entitle both the facility and the complainant to an administrative appeal.

(5)  A "facility" shall not include any individual health care provider who is licensed or certified by one of the boards under the Department of Health and Hospitals.  These boards include but are not limited to Board of Pharmacy, Board of Physical Therapy, Board of Licensed Medical Examiners, Board of Dentistry, Board of Podiatry, Board of Optometrists.

B.(1)  Any person or entity violating the provisions  of Paragraph A(3) of this Section when such a violation poses a threat to the health, safety, rights, or welfare of a resident or client may be liable for civil fines in addition to any criminal action which may be brought under other applicable laws.  The department shall adopt rules in accordance with the Administrative Procedure Act which define specific classifications of violations, articulate factors in assessing civil fines including mitigating circumstances such as an effective corporate compliance program, and explain the treatment of continuing and repeat deficiencies.

(2)  A schedule of civil fines by class of violations shall be as follows:

(a)  Class A -Violations that create a condition or occurrence relating to the operation and maintenance of a facility, which result in death or serious harm to a resident or client.  Civil fines shall not exceed two thousand five hundred dollars for the first violation and shall not exceed five thousand dollars per day for repeat violations.

(b)  Class B -Violations that create a condition or occurrence relating to the operation and maintenance of a facility which create a substantial probability that death or serious physical harm to a resident or client will result from the violation.  Civil fines shall not exceed one thousand five hundred dollars for the first violation and shall not exceed three thousand dollars per day for repeat violations.

(c)  Class C -Violations that create a condition or occurrence relating to the operation and maintenance of a facility which create a potential for harm by directly threatening the health, safety, rights, or welfare of a resident or client.  Civil fines shall not exceed one thousand dollars for the first violation and shall not exceed two thousand dollars per day for repeat violations.

(d)  Class D -Violations related to administrative and reporting requirements that do not directly threaten the health, safety, rights, or welfare of a resident or client.  Civil fines shall not exceed one hundred dollars for the first violation and shall not exceed two hundred fifty dollars per day for repeat violations.

(e)  Class E -Violations for failure of a facility to submit a statistical or financial report in a timely manner as required by regulation.  Civil fines shall not exceed fifty dollars for the first offense and shall not exceed one hundred dollars per day for repeat violations.

(3)  The aggregate fines assessed for violations determined in any one month shall not exceed five thousand dollars, except that the aggregate fines assessed for Class A or B repeat violations shall not exceed ten thousand dollars in any one month.

C.  The department shall adopt rules and regulations in accordance with the Administrative Procedure Act to provide for notice to the facility of any violation, for an informal reconsideration process, and for an appeal procedure including judicial review.  Such appeal shall be suspensive.  The facility shall have the right to a devolutive appeal.

D.  The facility shall furnish, with an appeal, a bond in the minimum amount of one and one-half times the amount of the fine imposed by the department.  The bond furnished shall provide in substance that it is furnished as security that the facility will prosecute its appeal, that any judgment against it, including court costs, will be paid or satisfied from the amount furnished, or that otherwise the surety is liable for the amount assessed against the facility.  The appeal shall be heard in a summary proceeding which shall be given precedence over other pending matters.

E.  The department may institute all necessary civil action to collect fines imposed and not timely appealed.  No facility may claim imposed fines or interest as reimbursable costs, nor increase charges to residents or clients as a result of such fines or interest.  Interest shall begin to accrue at the current judicial rate on the day following the date on which any fines become due and payable.

F.(1)  Civil fines collected under the provisions of this Section shall be deposited in the state general fund after compliance with the requirements of Article VII, Section 9(B) of the Constitution of Louisiana relative to the Bond Security and Redemption Fund.

(2)  The secretary of the Department of Health and Hospitals is authorized to promulgate rules and regulations in accordance with the Administrative Procedure Act to provide for the administration of the fund.

 

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Title 46 - Public welfare and assistance

 

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§447.1.  Public assistance recipients; family planning education; contraceptives

A.(1)  Subject to the provisions of appropriation acts, the secretary of the Department of Health and Hospitals shall establish a program to provide information to public assistance recipients regarding family planning, including information regarding abstinence, but excluding abortion.  The secretary shall promulgate a list of contraceptive methods and devices that have been approved by the secretary based on their safety and effectiveness.  Such list shall include long-term contraceptive methods, but shall not include abortifacients.  

(2)  Information regarding family planning, including the use of contraceptive methods and devices and abstinence, but excluding abortion, shall be disseminated in such a manner that is reasonably calculated to make the information easily accessible to such recipients and in accordance with the provisions of Subsection C herein.  For those recipients who have contact with a case worker or other such person acting on behalf of the state, dissemination shall include but not be limited to a method whereby each such recipient is provided written information concerning the effective use of contraceptive methods and devices by the case worker or other appropriate person working with the recipient on behalf of the state.  

(3)  The secretary shall make the approved contraceptive methods and devices available to each public assistance recipient who is receiving aid to families with dependent children or who is receiving public assistance with the cost of medical care under the medical assistance program (Medicaid).

B.  The program shall provide for examinations by health care providers for the health and safety of public assistance recipients who elect to avail themselves of or to practice forms of family planning approved and/or made available by the secretary.  Any recipient of aid to families with dependent children or recipient of public assistance with the cost of medical care through the medical assistance program (Medicaid) who elects to avail himself or herself of the services or contraceptives offered under the program shall be provided with such an examination within fourteen days of his or her initial request.  If his or her choice of family planning methods involves the use of contraceptives or requires the performance of medical procedures, excluding abortions, he or she shall be provided with his or her choice of approved contraceptive or given the opportunity to undergo the appropriate medical procedure within seven days of his or her request for the contraceptive or procedure.  

C.  The secretary of the Department of Health and Hospitals shall provide specific written descriptions of the services available in the program established under this Section to all recipients of aid to families with dependent children and to all recipients of public assistance with the cost of medical care through the medical assistance program (Medicaid) at least semiannually through methods that may include direct mail to all such recipients.  

D.  The secretary of the Department of Health and Hospitals shall adopt rules and regulations for the administration of the program established under this Section, including appropriate requirements and procedures for participants to receive prompt examinations by and consultations with health care providers in accordance with Subsection B herein.  

E.  The provisions of this Section shall be administered in accordance with R.S. 40:1299.34 and 1299.34.5.  

 

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Code of Civil Procedure

 

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Art. 4566.  Management of affairs of the interdict

A.  Except as otherwise provided by law, the relationship between interdict and curator is the same as that between minor and tutor.  The rules provided by Articles 4261 through 4269, 4270 through 4274, 4301 through 4342, and 4371 apply to curatorship of interdicts.  Nevertheless, provisions establishing special rules for natural tutors and parents shall not apply in the context of interdiction.

B.  A curator who owns an interest in property with the interdict or who holds a security interest or lien that encumbers the property of the interdict may acquire the property, or any interest therein, from the interdict upon compliance with Article 4271, with prior court authorization, and when it would be in the best interest of the interdict.  Except for good cause shown, the court shall appoint an independent appraiser to value the interest to be acquired by the curator.

C.  A curator may accept donations made to the interdict.  A curator shall not make donations of the property of the interdict except as provided by law.

D.  A curator may place the property of the interdict in trust in accordance with the provisions of Article 4269.1.  The trust shall be subject to termination at the option of the interdict upon termination of the interdiction, or if the interdict dies during the interdiction, at the option of his heirs or legatees.

E.  A curator shall inform the undercurator reasonably in advance of any material changes in the living arrangements of the interdict and any transactions materially affecting his person or affairs.

F.  A curator shall not establish or move the place of dwelling of the interdict outside this state without prior court authorization.

G.  A curator may not consent to an abortion or sterilization of the interdict without prior court authorization.

H.  Neither a curator nor a court shall admit or commit an interdict to a mental health treatment facility except in accordance with the provisions of R.S. 28:50 through 64.

I.  A curator appointed in an order of temporary interdiction shall have no authority to admit the defendant to a residential or long- term care facility in the absence of good cause shown at a contradictory hearing.

 

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Children’s Code

 

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Art. 1553.  Deprivation of comfort care prohibited

No child, including any infant born alive, shall be denied or deprived of food or nutrients, water, oxygen, or comfort care by any person with the intent to cause or allow the death of the child for any reason, including but not limited to the following situations:

(1)  The child was born with physical or mental handicapping conditions which, in the opinion of the parent, the physician, or other persons, diminishes the quality of the child's life.

(2)  The child was born alive in the course of an attempted abortion.

(3)  The child is not wanted by the parent.

 

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