NEW
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TITLE 2A
ADMINISTRATION
OF CIVIL AND CRIMINAL JUSTICE
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2A:65A-1. Requirement of person to perform;
prohibition [The provisions of
2A:65A-1 to 2A:65A-4 have been held to be unconstitutional as applied to
non-sectarian, nonprofit hospitals, which do no have the right to refuse to
permit their facilities to be used for elective abortions during the first
trimester of pregnancy.]
No person shall be required to perform
or assist in the performance of an abortion or
sterilization.
2A:65A-2. Requirement of hospital or other health care facility to
provide services or procedures; prohibition
No hospital or other health care
facility shall be required to provide abortion or
sterilization services or procedures.
2A:65A-3. Refusal to perform or provide services or procedures;
nonliability
The refusal to perform, assist in the
performance of, or provide abortion services or
sterilization procedures shall not constitute grounds for civil or criminal
liability, disciplinary action or discriminatory treatment.
2A:65A-4. Severability
If any part of this act shall be invalid, such holding
shall not affect the validity of the remaining parts of this act.
If a part of this act is invalid in one or more of its
applications, the remaining parts of this act shall remain in effect in
all valid applications that are severable from the invalid application.
2A:65A-5 Short title. [The provisions of 2A:65A-5 to 2A:65A-7 have been held to be
unconstitutional and unenforceable.]
1.
This act shall be known and may be cited as the "Partial-Birth Abortion
Ban Act of 1997."
2A:65A-6 Partial-birth abortions prohibited; definitions.
2.
a. No physician licensed in this State, other licensed
health care professional authorized to perform abortions in this State, or
ambulatory care facility licensed in this State shall perform a partial-birth abortion
and thereby kill a human fetus.
b.
The provisions of subsection a. of this section shall not apply to a
partial-birth abortion that is necessary to save the life of the mother whose
life is endangered by a physical disorder, illness or injury.
c.
A physician or other health care professional licensed pursuant to Title 45 of
the Revised Statutes who knowingly performs a partial-birth abortion
in violation of this act shall be subject to immediate revocation of his
professional license by the appropriate licensing board and subject to a
penalty of $25,000 for each incident.
d.
An ambulatory health care facility licensed pursuant to P.L.1971, c.136
(C.26:2H-1 et seq.) in which a partial-birth abortion is
performed in violation of this act shall be subject to immediate revocation of
its license by the Department of Health and Senior Services.
e.
As used in this act, "partial-birth abortion "
means an abortion in which the person performing the abortion partially vaginally delivers a living human fetus
before killing the fetus and completing the delivery.
f.
As used in subsection e. of this section "vaginally delivers a living
human fetus before killing the fetus" means deliberately and intentionally
delivering into the vagina a living fetus, or a substantial portion thereof,
for the purpose of performing a procedure the physician or other health care
professional knows will kill the fetus, and the subsequent killing of the human
fetus.
2A:65A-7 Patient immune from liability.
3.
A woman upon whom a partial-birth abortion is performed
shall be immune from civil or criminal liability for a violation of the
provisions of this act.
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TITLE 9
CHILDREN--JUVENILE
AND DOMESTIC RELATIONS COURTS
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9:17A-1.1. Short title [The provisions of 9:17A-1.1
to 9:17A-1.12 have been held to be unconstitutional and unenforceable.]
2.Sections
2 through 13 of this act shall be known and may be cited as the "Parental
Notification for Abortion Act."
9:17A-1.2. Findings relative to parental notification for abortion
3.The
Legislature finds that there exist compelling and important State interests in
protecting minors against their own immaturity, in fostering the family
structure and preserving it as a viable social unit, and in protecting the
rights of parents to rear their children.
The
Legislature further finds that minors often lack the ability to make fully informed
choices that take into account both immediate and long-range consequences of
their actions; that the medical, emotional, and psychological consequences of abortion
are serious and of indeterminate duration, particularly when the patient is a
minor; that parents ordinarily possess information essential to a physician's
exercise of his best medical judgment concerning their child; and that parents
who are aware that their minor daughter has had an abortion may better insure
that the minor receives adequate medical attention after her abortion.
The Legislature further finds that parental consultation regarding abortion is
desirable and in the best interests of the minor.
It
is, therefore, the intent of the Legislature to further the interests stated
above by enacting this parental notice provision.
9:17A-1.3. Definitions relative to parental notification for abortion
4.As
used in this act:
"
Abortion " means the use of any means to terminate the pregnancy of a
female known to be pregnant with knowledge that the termination with those
means will, with reasonable likelihood, cause the death of the fetus.
"Medical
emergency" means a condition which, on the basis of the physician's good
faith clinical judgment, so complicates the medical condition of a pregnant
unemancipated minor as to necessitate the immediate abortion of her pregnancy
to avert her death or for which a delay will create serious risk of substantial
and irreversible impairment of a major bodily function.
"Parent"
means a parent with care and control of the unemancipated minor, unless the
parent has no custodial rights; or if there is no parent with care and control,
then the foster parent or the guardian of the unemancipated minor; or a person
standing in loco parentis to the unemancipated minor.
"Person
standing in loco parentis" means (1) that the biological or adoptive
parent consented to and fostered, the person's formation and establishment of a
parent-like relationship with the minor; (2) that the person and the minor live
together in the same household; (3) that the person assumed obligations of
parenthood by taking significant responsibility for the minor's care, education
and development, including contributing towards the minor's support, without
expectation of financial compensation; and (4) that the person has been in a
parental role for a length of time sufficient to have established with the
minor a bonded, dependent relationship parental in nature.
"Unemancipated
minor" means a female under the age of 18 years who is unmarried and is
not currently serving active duty in one of the military services of the
9:17A-1.4. Written notice of pending operation
5.
a. Notwithstanding any other provision of law to the contrary, an abortion
shall not be performed upon an unemancipated minor until at least 48 hours
after written notice of the pending operation has been delivered in the manner
specified in this act.
b.The
notice shall be addressed to the parent at the parent's last known address and
delivered personally to the parent by the physician.
c.In
lieu of the personal delivery required in subsection b. of this section, notice
may be made by certified mail addressed to the parent at the parent's last
known address with return receipt requested and restricted delivery to the
addressee, which means a postal employee may only deliver the mail to the
authorized addressee. At the same time that notice is mailed by certified
mail, it shall also be sent by first class mail to the parent at the parent's
last known address. The 48-hour period for notice sent under the
provisions of this subsection shall begin at
9:17A-1.5. Notice not required if parent already notified
6.Notice
of a pending abortion shall not be required under this act if the parent
who is entitled to notice has set forth in a notarized writing that notice was
received.
9:17A-1.6. Notice not required if abortion due
to medical emergency
7.Notice
of a pending abortion shall not be required under this act if the attending
physician certifies in the unemancipated minor's medical records that the
abortion is necessary due to a medical emergency.
9:17A-1.7. Waiver of parental notification by court
proceedings
8.
a. A minor may, by petition or motion, seek a waiver of parental
notification from a judge of the Superior Court. The petition or motion
shall include a statement that the minor is pregnant and is not
emancipated.
b.The
minor may participate in proceedings in the court on her own behalf, and the
court may appoint a guardian ad litem for her. The court shall, however,
advise her that she has a right to court appointed counsel, and shall, upon her
request, provide her with such counsel.
c.Proceedings
in the court under this section shall be confidential and insure the anonymity
of the minor and shall be given such precedence over other pending matters so
that the court may reach a decision promptly and without delay so as to serve
the best interests of the minor. A judge of the Superior Court who
conducts proceedings under this section shall make written factual
findings and legal conclusions within 48 hours of the time that the petition or
motion is filed unless the time is extended at the request of the unemancipated
minor. If the court fails to rule within 48 hours and the time is
not extended, the petition is granted and the notice requirement shall be
waived. The judge shall order a record of the evidence to be maintained
including the judge's written factual findings and legal conclusions supporting
the decision.
d.
(1) If the judge finds, by clear and convincing evidence, that the
unemancipated minor is sufficiently mature to decide whether to have an abortion,
the judge shall authorize a waiver of notification.
(2)
If the judge finds, by clear and convincing evidence, that there is evidence of
a pattern of physical, sexual or emotional abuse of the minor by the parent,
guardian or legal custodian, the judge shall authorize a waiver of
notification. Notice of a determination made under this paragraph shall
be made to the Division of Youth and Family Services.
(3)
If the judge finds, by clear and convincing evidence, that the notification of
the parent is not in the best interests of the minor, the judge shall authorize
a waiver of notification.
e.If
the judge does not make a finding specified in subsection d. of this section,
the judge shall dismiss the petition or motion and notice shall be given as
provided for in section 5 of this act.
f.An
expedited confidential appeal shall be available to a minor for whom the court
denies an order waiving notification. No filing fees shall be required of
any minor at either the trial or the appellate level. Access to the trial
court for the purposes of such a petition or motion, and access to the
appellate courts for purposes of making an appeal from denial of the same,
shall be afforded such a minor on an emergent basis in accordance with the
Rules of Court.
9:17A-1.8. Fact sheet for distribution to unemancipated pregnant
minors
9.The
Department of Health and Senior Services shall prepare a fact sheet for
distribution to unemancipated pregnant minors who are seeking abortion services.
a.The
fact sheet shall be written in terms generally understood by a teenager and
shall explain the parental notification requirements of this act, including,
but not limited to:
(1)
that a minor may, by petition or motion, seek a waiver of parental notification
from a judge of the Superior Court;
(2)
that a minor may participate in proceedings in the court on her own behalf,
that the court may appoint a guardian ad litem for her and that the minor has a
right to court appointed counsel, which shall be provided to her by the court
upon her request; and
(3)
the procedure established by the court for petitioning or making a motion
before the court.
b.The
department shall distribute the fact sheet, at no charge, to ambulatory
care facilities and hospitals licensed pursuant to P.L.1971, c.136 (C.26:2H-1
et seq.), public and private agencies and physicians' offices that provide
family planning services and prenatal care.
c.The
physician who is responsible for providing notification to an
unemancipated minor's parent pursuant to this act, or his designee, shall
provide the unemancipated minor with a copy of the fact sheet at the time
the minor initially requests abortion services from the physician.
9:17A-1.9. Entitlement to benefits unaffected
10.
Nothing in this act shall be interpreted to deny a pregnant unemancipated minor who is under the age of 18 any benefits to which she would
otherwise be entitled pursuant to law.
9:17A-1.10. Violation; penalty
11.
Any person who performs an abortion in violation of this act shall be subject
to a civil penalty of not less than $1,000 and not more than $5,000 and shall
be liable in a civil action by a parent wrongfully denied notification. A
person shall not be liable under this act if the person establishes by written
evidence that the person relied upon evidence sufficient to convince a careful
and prudent person that the representations of the unemancipated minor
regarding information necessary to comply with this section are bona fide and
true, or if the person has attempted with reasonable diligence to deliver
notice, but has been unable to do so.
9:17A-1.11. Rules, regulations
12.
The Commissioner of the Department of Health and Senior Services, in
consultation with the Department of Law and Public Safety, shall
promulgate rules and regulations pursuant to the "Administrative Procedure
Act," P.L.1968, c.410 (C.52:14B-1 et seq.), concerning procedures for
physicians to follow in effectuating the notice required pursuant to the
provisions of P.L.1999, c.145 (C.9:17A-1.1 et al.).
9:17A-1.12. Provisions of act severable
13.
If any provision of this act or the application thereof to any person or
circumstance is held invalid, the invalidity shall not affect other provisions
or applications of the sections which can be given effect without the invalid
provision or application, and to this end the provisions
of this act are severable.
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TITLE 30 INSTITUTIONS AND AGENCIES
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30:4D-6.1. Abortions; payment of claims [These provisions have been held to be
unconstitutional and unenforceable.]
No payments for medical assistance
shall be made under the act hereby supplemented for the termination of a
woman's pregnancy for any reason except where it is medically indicated to be
necessary to preserve the woman's life. In any case where a pregnancy is so
terminated, the act shall be performed in a hospital and the physician performing
the act shall submit in writing a report to the division stating in detail his
reasons for finding it necessary to terminate the pregnancy.
--------------------------------------------------------
NEW
[Title
10.
Chapter
54. Physician Services.]
* * *
10:54-5.43
Termination of pregnancy
(a) The Division shall reimburse for medically necessary termination of pregnancy procedures
on Medicaid beneficiaries when performed by a physician in accordance with N.J.A.C. 13:35-
4.2, of the rules of the New Jersey State Department of Law and Safety, Division of Consumer
Affairs, Board of Medical Examiners.
(b) A physician may take the following factors into consideration in determining whether a
termination of pregnancy is medically necessary on a Medicaid beneficiary:
1. To save the life of the mother; or
2. That the pregnancy was the result of an act of rape; or
3. That the pregnancy was the result of an act of incest; or
4. That in the physician's professional judgement, the termination was medically necessary and
consistent with the Federal court ruling that a physician may take the following factors into
consideration in determining whether a termination of pregnancy is medically necessary:
i. Physical, emotional, and psychological factors;
ii. Family reasons; and,
iii. Age.
(c) The determination of medical necessity shall be subject to review by Medicaid in
accordance with existing rules and regulations of the Medicaid program and consistent with the
New Jersey State Department of Law and Safety, Division of Consumer Affairs, Board of
Medical
Examiners, N.J.A.C.
(d) A "Physician Certification" (Form FD-179) shall be attached to the hospital's Medicaid claim
form, either for inpatient or outpatient services, if any of the procedures on the claim relate to a
voluntary elective abortion.
1. A copy of the completed FD-179 shall also be attached to:
i. The physician's Medicaid claim form, as appropriate; and,
ii. The anesthesiologist's Medicaid claim form.
(e)
Any
the HCFA 1500 claim form (for inpatient or outpatient services) for all termination of pregnancy
claims with the "Physician Certification" attached to the claim form and must not submit the
claim through EMC claim processing.
* * *
[TITLE
13.
CHAPTER 35. BOARD OF MEDICAL EXAMINERS\
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13:35-4.2 Termination of pregnancy
(a) This rule is intended to regulate the quality of medical care offered by licensed physicians for the protection of
the public, and is not intended to affect rules of the Department of Health establishing institutional requirements.
To the extent that rules of the two agencies may overlap, the Medical Board recognizes and relies upon the
regulatory procedures of the Department of Health in establishing minimum acceptable standards for nonphysician
personnel, equipment and resources, the adequacy of the physical plant of the facility in which surgical
procedures shall be performed, and the facility's interrelationship with an adequate network of health care-related
resources such as ambulance service, etc.
(b) The termination of a pregnancy at any stage of gestation is a procedure which may be performed only by a
physician
licensed to practice medicine and surgery in the State of
(c) Provisions of this rule referring to stage of pregnancy shall be in terms of weeks from start of last menstrual
period or "weeks LMP." For example, the stage of pregnancy at 12 weeks' gestational size, as determined by a
physician, is the equivalent of 14 weeks from the first day of the last menstrual period (LMP).
(d) After 14 weeks LMP, any termination procedure other than dilatation and evacuation (D & E) shall be
performed only in a licensed hospital.
(e) Fifteen weeks through 18 weeks LMP: After 14 weeks LMP and through 18 weeks LMP, a D & E procedure
may be performed either in a licensed hospital or in a licensed ambulatory care facility (referred to herein as
LACF) authorized to perform surgical procedures by the Department of Health. The physician may perform the
procedure in an LACF which shall have a Medical Director who shall chair a Credentials Committee. The
Committee shall grant to operating physicians practice privileges relating to the complexity of the procedure and
commensurate with an assessment of the training, experience and skills of each physician for the health, safety
and welfare of the public. A list of the privileges of each physician shall contain the effective date of each
privilege conferred, shall be reviewed at least biennially, and shall be preserved in the files of the LACF.
(f) Nineteen weeks through 20 weeks LMP: A physician planning to perform a D & E procedure after 18 weeks
LMP and through 20 weeks LMP in an LACF shall first file with the Board a certification signed by the Medical
Director that the physician meets the eligibility standards set forth in (f)1 through 7 below and shall comply with its
requirements.
1. The physician is certified or eligible for certification by the American Board of Obstetrics-Gynecology or the
American Osteopathic Board of Obstetrics-Gynecology, and the physician satisfactorily completes at least 15
hours of Continuing Medical Education each year in obstetrics-gynecology.
2. The physician has admitting and surgical privileges at a nearby licensed hospital which has an operating room,
blood bank, and an intensive care unit. The hospital shall be accessible within 20 minutes driving time during the
usual hours of operation of the clinic.
3. The procedure shall be done in a location which is designated by the Department of Health as a licensed
ambulatory care facility (LACF) authorized to perform surgical procedures as in subsection (e) above. The LACF
shall be licensed by the Department of Health as an ambulatory care facility authorized to perform surgical
procedures. The facility shall be in current and good standing at all times when surgical procedures are
performed there. The LACF shall have a written agreement with an ambulance service assuring immediate
transportation of a patient at all times when a patient has been admitted for surgery and until the patient has been
discharged from the recovery room.
4. The procedure shall be done in an LACF which shall have a Medical Director and a Credentials Committee
which have duly evaluated the training, experience and skill of the physician at continuous and successive levels
of complexity of the D & E procedure in pregnancies advancing in stages from 18 weeks LMP through 19 weeks
LMP through 20 weeks LMP, and the physician has been granted successive practice privileges consistent with
management of the increased risk to the health and safety of the patient at that stage documented in the
personnel file maintained for that physician. (Where the applicant physician is also the Medical Director, the
physician shall submit a certificate from the Administrator or Chief of Department of a hospital or the Medical
Director of an LACF where the applicant has been evaluated and credentialed in a comparable manner.) The
physician new to the LACF shall have his or her operating technique evaluated initially and at least yearly by the
Medical Director or his or her designee who shall possess appropriate experience with D & E procedures at least
as advanced as those for which the applicant physician seeks approval. The applicant shall be evaluated during
that number of procedures which shall be adequate to achieve a sufficient professional skill, and the evaluation
procedure shall be documented in the personnel file maintained for that physician. The Medical Director shall
agree to review the charts of all patients who suffer complications and in addition shall review charts at random,
and shall calculate the complication rate of each physician.
5. The physician shall perform the procedure only on a patient who has been examined and found to be within the
eligibility criteria established for advanced D & E procedures in the LACF setting.
6. The procedure shall be performed in an LACF providing adequate staff support and resources for the operative
procedure as well as interim follow-up and post-operative care, and where a physician is available and readily
accessible 24 hours/day to respond to any postoperative problem.
7. The physician shall cooperate with the Medical Director to maintain contemporaneous and cumulative
statistical records demonstrating the utilization and safety record of each stage procedure and of each surgeon.
Said records shall be available for inspection by the Board and copies shall be submitted to the Board semiannually.
These records shall include the following information and data shall be maintained in records compiled
monthly, but individual patients comprising the lists shall be identified only by date and by initials and/or case
number:
i. Number of patients who received termination procedures;
ii. Number of patients who received laminaria or osmotic cervical dilators who failed to return for completion of the
procedure;
iii. Number of patients who reported for postoperative visits;
iv. Number of patients who needed repeat procedures;
v. Number of patients who received transfusions;
vi. Number of patients suspected of perforation;
vii. Number of patients who developed pelvic inflammatory disease within two weeks;
viii. Number of patients who were admitted to a hospital within two weeks of the procedure;
ix. Number of patients who died within 30 days.
Subparagraphs ii. through ix. above shall be summarized by number and percentage of monthly total for post-18
week procedures. The Board shall inspect such reports monthly for the first five months and at such further
monthly intervals as it deems necessary.
(g) After 20 weeks: A physician may request from the Board permission to perform D & E procedures in an LACF
after 20 weeks LMP. Such request shall be accompanied by proof, to the satisfaction of the Board, of superior
training and experience as well as proof of support staff and facilities adequate to accommodate the increased
risk to the patient of such procedure.
(h) The physician shall make suitable arrangements to insure that all tissues removed shall be properly disposed
of by submission to a qualified physician for pathologic analysis or by incineration or by delivery to a person/entity
licensed to make biologic and/or tissue disposals in accordance with law including rules of the Department of
Health applicable to an LACF.
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