HD 1383, An Act relative to Abortion Pill Reversal; Informed Consent

Co-sponsors: Jeffrey Rosario Turco (D-19th Suffolk), Joseph D. McKenna (R-18th Worcester)

SECTION 1. Chapter 112 of the General Laws, as appearing in the 2020 Official Edition is hereby amended by inserting after section 12L, as amended by section 12L of chapter 263 of the Acts of 2020, the following section:-

Section 12L½. Abortion Pill Reversal; Informed Consent.

(a) Definitions applicable to section 12½:

“Abortion” means the use or prescription of any instrument, medicine, drug, or other substance or device to intentionally kill an unborn child; or intentionally terminate the pregnancy of a female known to be pregnant, with an intention other than after viability to produce a live birth and preserve the life and health of a child born alive; or to remove a dead unborn child.

“Chemical abortion” means the use or prescription of an abortion-inducing drug, dispensed with the intent to cause the death of an unborn child.

“Medical emergency” means a condition which, in reasonable medical judgment, so complicates the medical condition of a pregnant female 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 physical impairment of a major bodily function, not including psychological or emotional conditions. No condition shall be deemed a medical emergency if based on a claim or diagnosis that the female will engage in conduct which she intends to result in her death or in a substantial irreversible physical impairment of a major bodily function.

“Stable internet website” means a website that, to the extent reasonably practicable, is safeguarded from having its content altered by anyone other than by the Massachusetts Department of Public Health.

“Department” means the Massachusetts Department of Public Health.

(b) Except in the case of a medical emergency, a chemical abortion involving the two-drug process of dispensing mifepristone first and then misoprostol shall not be performed or induced or attempted to be performed or induced without the following: (1) the pregnant female is informed, by telephone, virtual telehealth mechanism, print resource or in person, by the physician who is to prescribe the abortion drugs, by a referring physician or by an agent of either physician at least 24 hours before the abortion that: (i) it may be possible to safely prevent the intended effects of a chemical abortion, if the pregnant female changes her mind, but that time is of the essence and (ii) information on and assistance with reversing the effects of a chemical abortion utilizing mifepristone is available on the Department’s website. 

(c) When the first drug involved in the two-drug process is dispensed in a chemical abortion utilizing mifepristone, the physician or an agent of the physician, including pharmacies and mail- order companies, shall provide written medical discharge instructions to the pregnant female which must include the following statement:

“Recent developing research has indicated that mifepristone alone, also known as RU-486 or Mifeprex, is not always effective in ending a pregnancy. It may be possible to prevent the intended effects of a chemical abortion utilizing mifepristone if the second pill has not been taken. Please consult with a knowledgeable health-care provider regarding the abortion pill reversal process, or call the Abortion Pill Reversal Hotline at 877-558-0333, or visit: //www.abortionpillreversal.com/ as soon as possible.”

(d) When a medical emergency compels the performance of an abortion, the physician shall inform the pregnant female, prior to the abortion, if possible, of the medical indications supporting the physician’s judgment that an abortion is necessary to avert her death or that a 24-hour delay will create serious risk of substantial and irreversible physical impairment of a major bodily function, not including psychological or emotional conditions.

(e)Within 90 days after enactment of this section, the Department shall cause to be published, in English and in each language which is the primary language of 2 per cent or more of the commonwealth’s population, and shall cause to be available on the commonwealth’s website provided for in subsection (f): materials designed to inform the pregnant female of the possibility of reversing the effects of a chemical abortion utilizing mifepristone, if she changes her mind; and information on and assistance with the resources that may be available to help reverse the effects of a chemical abortion. The materials shall be printed so as to ensure that the information provided is easily comprehensible.

(f)The Department shall develop and maintain a stable internet website to provide the information described in subsection (c). No information regarding who uses the website shall be collected or maintained. The Department shall monitor the website on a daily basis to prevent and correct tampering. The website shall be maintained at a minimum resolution of 70 DPI (dots per inch). All pictures appearing on this website shall be a minimum of 200x300 pixels. All letters on the website shall be a minimum 12 point font. All information and pictures shall be accessible with an industry standard browser, requiring no additional plug-ins.

(g)Any person who knowingly or recklessly performs or induces or attempts to perform or induce an abortion in violation of this section, shall be guilty of a felony. No penalty may be assessed against the pregnant female upon whom the abortion is performed or induced or attempted to be performed or induced. No penalty or civil liability may be assessed for failure to comply with subsection (b) or (c) unless the Department has made the information available on the website at the time the physician or the physician’s agent is required to inform the pregnant female.

(h)(1) Any person upon whom an abortion has been performed without this section having been complied with; the father of the unborn child, who was the subject of such an abortion; or if the female has not attained the age of 18 years at the time of the chemical abortion, or has died as a result of the chemical abortion, the grandparents of such unborn child; may maintain an action against any person who performed the abortion in knowing or reckless violation of this section, for actual and punitive damages. Any person upon whom an abortion has been attempted without this section having been complied with may maintain an action against the person who attempted to perform the abortion in knowing or reckless violation of this section for actual and punitive damages. No damages may be awarded a plaintiff if the pregnancy resulted from the plaintiff’s criminal conduct.

(2) If judgment is rendered in favor of the plaintiff in an action described in paragraph (h)(1), the court shall also render judgment for reasonable attorney’s fees in favor of the plaintiff against the defendant. If judgment is rendered in favor of the defendant and the court finds that the plaintiff’s suit was frivolous and brought in bad faith, the court shall render judgment for reasonable attorney’s fees in favor of the defendant against the plaintiff.

(j)In every civil or criminal proceeding or action brought under this section, the court shall rule whether or not the anonymity of any female upon whom an abortion has been performed or attempted shall be preserved from public disclosure, if she does not give her consent to such disclosure. The court, upon motion or sua sponte, shall make such a ruling and upon determining that her anonymity should be preserved, shall issue orders to the parties, witnesses, and counsel that shall direct the sealing of the record and exclusion of individuals from courtrooms or hearing rooms to the extent necessary to safeguard her identity from public disclosure. Each order shall be accompanied by specific written findings, explaining why the anonymity of the female should be preserved from public disclosure; why the order is essential to that end; how the order is narrowly tailored to serve that interest; and why no reasonable, less restrictive alternative exists. In the absence of a written consent of the female upon whom an abortion has been performed or attempted, anyone, other than a public official, who brings an action under subsection (h) shall do so under a pseudonym. This section may not be construed to conceal the identity of the plaintiff or of witnesses from the defendant.

(k) If any one or more provision, section, subsection, sentence, clause, phrase, or word of this section or the application thereof to any person or circumstance is found to be unconstitutional, the same is hereby declared to be severable and the balance of this section shall remain effective notwithstanding such unconstitutionality.