BILL REQ. #:  S-1853.2 

Read first time 03/03/2003.   Referred to Committee on Children & Family Services & Corrections.

     AN ACT Relating to respecting and protecting the unborn; amending RCW 70.58.150, 68.50.610, 68.04.020, 68.50.110, 9.02.110, and 9.02.170; adding new sections to chapter 9.02 RCW; creating a new section; prescribing penalties; providing expiration dates; and declaring an emergency.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:

PART 1 PROHIBITING PARTIAL BIRTH ABORTIONS
PART 2 PROHIBITING THE SALE, DONATION, OR USE OF ABORTED FETAL BODY
PARTS
PART 3 PROHIBITING ABORTION NOT BASED ON FACTORS DELINEATED IN ROE AND
ITS PROGENY
PART 4 REQUIRING STANDARDS OF CARE FOR ABORTION CLINICS
PART 5 ENSURING HEALTH CARE PROVIDER AND INSURER RIGHT OF CONSCIENCE
PART 6 PROHIBITING NONPHYSICIANS FROM PERFORMING ABORTIONS
PART 7 REQUIRING PARENTAL CONSENT, INFORMED CONSENT, AND A TWENTY-FOUR
HOUR WAITING PERIOD
PART 8 REQUIRING NOTIFICATION OF BREAST CANCER RISKS RELATED TO
ABORTION
PART 9 REQUIRING ABORTION RELATED DATA COLLECTION
PART 10 PROHIBITING PUBLIC FUNDING OF ABORTION
PART 11 ELIMINATING PAIN FELT BY UNBORN CHILDREN RESULTING FROM
ABORTION
PART 12 MISCELLANEOUS

NEW SECTION.  Sec. 101   The legislature finds and declares the following:
     (1) A moral, medical, and ethical consensus exists that the practice of performing a partial birth abortion, an abortion in which a physician delivers an unborn child's body until only the head remains inside the womb, punctures the back of the child's skull with a sharp instrument, and sucks the child's brains out before completing delivery of the dead infant, is a gruesome and inhumane procedure that is never medically necessary and should be prohibited.
     (2) Rather than being an abortion procedure that is embraced by the medical community, particularly among physicians who routinely perform other abortion procedures, partial birth abortion remains a disfavored procedure that is not only unnecessary to preserve the health of the mother, but in fact poses serious risks to the long-term health of women and in some circumstances, their lives. As a result, at least twenty-seven states banned the procedure as did the United States Congress which voted to ban the procedure during the 104th, 105th, and 106th Congresses.
     (3) In Stenberg v. Carhart, 530 U.S. 914, 932 (2000), the United States supreme court opined "that significant medical authority supports the proposition that in some circumstances, [partial birth abortion] would be the safest procedure" for pregnant women who wish to undergo an abortion. Thus, the court struck down the state of Nebraska's ban on partial birth abortion procedures, concluding that it placed an "undue burden" on women seeking abortions because it failed to include an exception for partial birth abortions deemed necessary to preserve the "health" of the mother.
     (4) In reaching this conclusion, the court deferred to the federal district court's factual findings that the partial birth abortion procedure was statistically and medically as safe as, and in many circumstances safer than, alternative abortion procedures.
     (5) However, the great weight of evidence presented at the Stenberg trial and other trials challenging partial birth abortion bans, as well as at extensive congressional hearings, demonstrates that a partial birth abortion is never necessary to preserve the health of a woman, poses significant health risks to a woman upon whom the procedure is performed, and is outside of the standard of medical care.
     (6) Despite the dearth of evidence in the Stenberg trial court record supporting the district court's findings, the United States court of appeals for the eighth circuit and the supreme court refused to set aside the district court's factual findings because, under the applicable standard of appellate review, they were not "clearly erroneous." A finding of fact is clearly erroneous "when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed." Anderson v. City of Bessemer City, North Carolina, 470 U.S. 564, 573 (1985). Under this standard, "if the district court's account of the evidence is plausible in light of the record viewed in its entirety, the court of appeals may not reverse it even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently." Id. at 574.
     (7) Thus, in Stenberg, the United States supreme court was required to accept the very questionable findings issued by the district court judge; the effect of which was to render null and void the reasoned factual findings and policy determinations of the United States congress and at least twenty-seven state legislatures.
     (8) However, under well-settled supreme court jurisprudence, the United States congress is not bound to accept the same factual findings that the supreme court was bound to accept in Stenberg under the "clearly erroneous" standard. Rather, the United States congress is entitled to reach its own factual findings, findings that the supreme court accords great deference, and to enact legislation based upon these findings so long as it seeks to pursue a legitimate interest that is within the scope of the Constitution, and draws reasonable inferences based upon substantial evidence.
     (9) In Katzenbach v. Morgan, 384 U.S. 641 (1966), the supreme court articulated its highly deferential review of congressional factual findings when it addressed the constitutionality of section 4(e) of the voting rights act of 1965. Regarding congress's factual determination that section 4(e) would assist the Puerto Rican community in "gaining nondiscriminatory treatment in public services," the court stated that "[i]t was for congress, as the branch that made this judgment, to assess and weigh the various conflicting considerations.... It is not for us to review the congressional resolution of these factors. It is enough that we be able to perceive a basis upon which the congress might resolve the conflict as it did. There plainly was such a basis to support section 4(e) in the application in question in this case." Id. at 653.
     (10) Katzenbach's highly deferential review of congress's factual conclusions was relied upon by the United States district court for the District of Columbia when it upheld the bail-out provisions of the voting rights act of 1965, (42 U.S.C. 1973c), stating that "congressional fact finding, to which we are inclined to pay great deference, strengthens the inference that, in those jurisdictions covered by the act, state actions discriminatory in effect are discriminatory in purpose." City of Rome, Georgia v. U.S., 472 F. Supp. 221 (D.D. Col. 1979) aff'd City of Rome, Georgia v. U.S., 446 U.S. 156 (1980).
     (11) The court continued its practice of deferring to congressional factual findings in reviewing the constitutionality of the must-carry provisions of the cable television consumer protection and competition act of 1992. See Turner Broadcasting System, Inc. v. Federal Communications Commission, 512 U.S. 622 (1994) (Turner I) and Turner Broadcasting System, Inc. v. Federal Communications Commission, 520 U.S. 180 (1997) (Turner II). At issue in the Turner cases was congress's legislative finding that, absent mandatory carriage rules, the continued viability of local broadcast television would be "seriously jeopardized." The Turner I court recognized that as an institution, "congress is far better equipped than the judiciary to 'amass and evaluate the vast amounts of data' bearing upon an issue as complex and dynamic as that presented here." 512 U.S. at 665-66. Although the court recognized that "the deference afforded to legislative findings does not foreclose our independent judgment of the facts bearing on an issue of constitutional law," its "obligation to exercise independent judgment when first amendment rights are implicated is not a license to reweigh the evidence de novo, or to replace congress's factual predictions with our own. Rather, it is to assure that, in formulating its judgments, congress has drawn reasonable inferences based on substantial evidence." Id. at 666.
     (12) Three years later in Turner II, the court upheld the "must-carry" provisions based upon congress's findings, stating the court's "sole obligation" is "to assure that, in formulating its judgments, congress has drawn reasonable inferences based on substantial evidence." 520 U.S. at 195. Citing its ruling in Turner I, the court reiterated that "[w]e owe congress's findings deference in part because the institution is far better equipped than the judiciary to amass and evaluate the vast amounts of data bearing upon legislative questions," id. at 195, and added that it "owe[d] congress's findings an additional measure of deference out of respect for its authority to exercise the legislative power." Id. at 196.
     (13) There exists substantial record evidence upon which congress has reached its conclusion that a ban on partial birth abortion is not required to contain a "health" exception, because the facts indicate that a partial birth abortion is never necessary to preserve the health of a woman, poses serious risks to a woman's health, and lies outside the standard of medical care. Congress was informed by extensive hearings held during the 104th and 105th congresses and passed a ban on partial birth abortion in the 104th, 105th, and 106th congresses. These findings reflect the very informed judgment of the congress that a partial birth abortion is never necessary to preserve the health of a woman, poses serious risks to a woman's health, and lies outside the standard of medical care, and should, therefore, be banned.
     (14) Pursuant to the testimony received during extensive legislative hearings during the 104th and 105th congresses, the congress found that:
     (a) Partial birth abortion poses serious risks to the health of a woman undergoing the procedure. Those risks include, among other things: An increase in a woman's risk of suffering from cervical incompetence, a result of cervical dilation making it difficult or impossible for a woman to successfully carry a subsequent pregnancy to term; an increased risk of uterine rupture, abruption, amniotic fluid embolus, and trauma to the uterus as a result of converting the child to a footling breech position, a procedure which, according to a leading obstetrics textbook, "there are very few, if any, indications for... other than for delivery of a second twin"; and a risk of lacerations and secondary hemorrhaging due to the doctor blindly forcing a sharp instrument into the base of the unborn child's skull while he or she is lodged in the birth canal, an act which could result in severe bleeding, brings with it the threat of shock, and could ultimately result in maternal death.
     (b) There is no credible medical evidence that partial birth abortions are safe or are safer than other abortion procedures. No controlled studies of partial birth abortions have been conducted nor have any comparative studies been conducted to demonstrate its safety and efficacy compared to other abortion methods. Furthermore, there have been no articles published in peer-reviewed journals that establish that partial birth abortions are superior in any way to established abortion procedures. Indeed, unlike other more commonly used abortion procedures, there are currently no medical schools that provide instruction on abortions that include the instruction in partial birth abortions in their curriculum.
     (c) A prominent medical association has concluded that partial birth abortion is "not an accepted medical practice," that it has "never been subject to even a minimal amount of the normal medical practice development," that "the relative advantages and disadvantages of the procedure in specific circumstances remain unknown," and that "there is no consensus among obstetricians about its use." The association has further noted that partial birth abortion is broadly disfavored by both medical experts and the public, is "ethically wrong," and "is never the only appropriate procedure."
     (d) Neither the plaintiff in Stenberg v. Carhart, nor the experts who testified on his behalf, have identified a single circumstance during which a partial birth abortion was necessary to preserve the health of a woman.
     (e) The physician credited with developing the partial birth abortion procedure has testified that he has never encountered a situation where a partial birth abortion was medically necessary to achieve the desired outcome and, thus, is never medically necessary to preserve the health of a woman.
     (f) A ban on the partial birth abortion procedure will therefore advance the health interests of pregnant women seeking to terminate a pregnancy.
     (g) In light of this overwhelming evidence, congress and the states have a compelling interest in prohibiting partial birth abortions. In addition to promoting maternal health, such a prohibition will draw a bright line that clearly distinguishes abortion and infanticide, that preserves the integrity of the medical profession, and promotes respect for human life.
     (h) Based upon Roe v. Wade, 410 U.S. 113 (1973) and Planned Parenthood v. Casey, 505 U.S. 833 (1992), a governmental interest in protecting the life of a child during the delivery process arises by virtue of the fact that during a partial birth abortion, labor is induced and the birth process has begun. This distinction was recognized in Roe when the court noted, without comment, that the Texas parturition statute, which prohibited one from killing a child "in a state of being born and before actual birth," was not under attack. This interest becomes compelling as the child emerges from the maternal body. A child that is completely born is a full, legal person entitled to constitutional protections afforded a "person" under the United States constitution. Partial birth abortions involve the killing of a child that is in the process, in fact mere inches away from, becoming a "person." Thus, the government has a heightened interest in protecting the life of the partially born child.
     (i) This, too, has not gone unnoticed in the medical community, where a prominent medical association has recognized that partial birth abortions are "ethically different from other destructive abortion techniques because the fetus, normally twenty weeks or longer in gestation, is killed outside of the womb." According to this medical association, the "partial birth" gives the fetus an autonomy which separates it from the right of the woman to choose treatments for her own body.
     (j) Partial birth abortion also confuses the medical, legal, and ethical duties of physicians to preserve and promote life, as the physician acts directly against the physical life of a child, whom he or she had just delivered, all but the head, out of the womb, in order to end that life. Partial birth abortion thus appropriates the terminology and techniques used by obstetricians in the delivery of living children, obstetricians who preserve and protect the life of the mother and the child, and instead uses those techniques to end the life of the partially born child.
     (k) Thus, by aborting a child in the manner that purposefully seeks to kill the child after he or she has begun the process of birth, partial birth abortion undermines the public's perception of the appropriate role of a physician during the delivery process, and perverts a process during which life is brought into the world, in order to destroy a partially born child.
     (l) The gruesome and inhumane nature of the partial birth abortion procedure and its disturbing similarity to the killing of a newborn infant promotes a complete disregard for infant human life that can only be countered by a prohibition of the procedure.
     (m) The vast majority of babies killed during partial birth abortions are alive until the end of the procedure. It is a medical fact, however, that unborn infants at this stage can feel pain when subjected to painful stimuli and that their perception of this pain is even more intense than that of newborn infants and older children when subjected to the same stimuli. Thus, during a partial birth abortion procedure, the child will fully experience the pain associated with piercing his or her skull and sucking out his or her brain.
     (n) Implicitly approving such a brutal and inhumane procedure by choosing not to prohibit it will further coarsen society to the humanity of not only newborns, but all vulnerable and innocent human life, making it increasingly difficult to protect such life. Thus, congress has a compelling interest in acting, indeed it must act, to prohibit this inhumane procedure.
     (o) For these reasons, the congress found that partial birth abortion is never medically indicated to preserve the health of the mother; is in fact unrecognized as a valid abortion procedure by the mainstream medical community; poses additional health risks to the mother; blurs the line between abortion and infanticide in the killing of a partially born child just inches from birth; and confuses the role of the physician in childbirth and should, therefore, be banned.

NEW SECTION.  Sec. 102   (1) Any physician who, in or affecting interstate or foreign commerce, knowingly performs a partial birth abortion and thereby kills a human fetus shall be fined under this act or imprisoned not more than two years, or both. This subsection does not apply to a partial birth abortion that is necessary to save the life of a mother whose life is endangered by a physical disorder, physical illness, or physical injury, including a life-endangering physical condition caused by or arising from the pregnancy itself.
     (2) The definitions in this subsection apply throughout this section unless the context clearly requires otherwise.
     (a) "Partial birth abortion" means an abortion in which:
     (i) The person performing the abortion deliberately and intentionally vaginally delivers a living fetus until, in the case of a head-first presentation, the entire fetal head is outside the body of the mother, or, in the case of breech presentation, any part of the fetal trunk past the navel is outside the body of the mother for the purpose of performing an overt act that the person knows will kill the partially delivered living fetus; and
     (ii) Performs the overt act, other than completion of delivery, that kills the partially delivered living fetus.
     (b) "Physician" means a doctor of medicine or osteopathy legally authorized to practice medicine and surgery by the state in which the doctor performs such activity, or any other individual legally authorized by the state to perform abortions. However, any individual who is not a physician or not otherwise legally authorized by the state to perform abortions, but who nevertheless directly performs a partial birth abortion, is subject to the provisions of this section.
     (3)(a) The father, if married to the mother at the time she receives a partial birth abortion procedure, and if the mother has not attained the age of eighteen years at the time of the abortion, the maternal grandparents of the fetus, may in a civil action obtain appropriate relief, unless the pregnancy resulted from the plaintiff's criminal conduct or the plaintiff consented to the abortion.
     (b) Such relief shall include:
     (i) Money damages for all injuries, psychological and physical, occasioned by the violation of this section; and
     (ii) Statutory damages equal to three times the cost of the partial birth abortion.
     (4)(a) A defendant accused of an offense under this section may seek a hearing before the board of health on whether the physician's conduct was necessary to save the life of the mother whose life was endangered by a physical disorder, physical illness, or physical injury, including a life-endangering physical condition caused by or arising from the pregnancy itself.
     (b) The findings on that issue are admissible on that issue at the trial of the defendant. Upon a motion of the defendant, the court shall delay the beginning of the trial for not more than thirty days to permit such a hearing to take place.
     (5) A woman upon whom a partial birth abortion is performed may not be prosecuted under this section, for a conspiracy to violate this section.

Sec. 201   RCW 70.58.150 and 1961 ex.s. c 5 s 11 are each amended to read as follows:
     A fetal death means any product of conception that shows no evidence of life after complete expulsion or extraction from ((its)) his or her mother by or as the result of any means, including the application of any abortion procedure or technique. The words "evidence of life" include breathing, beating of the heart, pulsation of the umbilical cord, or definite movement of voluntary muscles.

NEW SECTION.  Sec. 202   The body, including the body parts, body organs, body tissue, and body fluids, of a fetus whose death is the result of the application of any abortion procedure or technique may not be sold, donated, or otherwise transferred, with or without valuable consideration, for any use, but shall be disposed of as human remains by burial or cremation in accordance with the requirements of this chapter and chapter 70.58 RCW.

Sec. 203   RCW 68.50.610 and 1993 c 228 s 10 are each amended to read as follows:
     (1) A person may not knowingly, for valuable consideration, purchase or sell a part for transplantation or therapy, if removal of the part is intended to occur after the death of the decedent.
     (2) Valuable consideration does not include reasonable payment for the removal, processing, disposal, preservation, quality control, storage, transportation, or implantation of a part.
     (3) The donation of any part of the body, including the body parts, body organs, body tissue, and body fluids, of a fetus whose death is the result of the application of any abortion procedure or technique is prohibited under any circumstance, with or without valuable consideration, for purposes of making an anatomical gift.
     (4) A person who violates this section is guilty of a felony and upon conviction is subject to a fine not exceeding fifty thousand dollars or imprisonment not exceeding five years, or both.

Sec. 204   RCW 68.04.020 and 1977 c 47 s 1 are each amended to read as follows:
     "Human remains" or "remains" means the body of ((a)) any deceased person, and includes the body in any stage of decomposition except cremated remains. "Human remains" or "remains" includes the body of a dead fetus.

Sec. 205   RCW 68.50.110 and 1987 c 331 s 60 are each amended to read as follows:
     Except for pathological waste as defined in RCW 70.95K.010, in cases of dissection provided for in RCW 68.50.070 and 68.50.100, and where ((a dead body)) human remains shall rightfully be carried through or removed from the state for the purpose of lawful burial or cremation elsewhere, ((every dead body of a human being lying)) all human remains within this state, ((and)) including the remains of any dissected body, after dissection, shall be decently buried, or cremated within a reasonable time after death.

NEW SECTION.  Sec. 206   For purposes of RCW 70.58.150, 68.50.610, and sections 202 and 207 of this act, "application of any abortion technique or procedure" means the exercise or use of any force, instrument, or drug, or other means, device, or substance, intended to cause the termination of a pregnancy resulting in the death of a fetus.

NEW SECTION.  Sec. 207   (1) Section 202 of this act is not intended, and may not be construed, to prevent a coroner, medical examiner, physician of the mother of the fetus, or prosecuting attorney from using that part of the body of a fetus whose death is the result of the application of any abortion procedure or technique that is necessary for the sole and exclusive purpose of diagnosing or determining: (a) A disease or condition or cause of death of the mother of the fetus if the abortion was performed because of such disease or condition of the mother of the fetus, or (b) cause of death of the fetus, if in either case no other reasonable means of making the diagnosis or determination is available without such use, and after the diagnosis or determination all that part of the body of the fetus used to make the diagnosis or determination that remains is disposed of as required in section 202 of this act.
     (2) Section 202 of this act and RCW 68.50.610(3) are not intended, and may not be construed, to apply to the donation for medical research or use of any part of the body of a fetus whose death is the result of a miscarriage, stillbirth, ectopic pregnancy, sickness, disease, accident, or crime caused to the fetus or the mother by a third party without the knowledge and consent of the mother. However, the donation may only be made if a parent or guardian knows of and approves the donation for such medical research or use.

NEW SECTION.  Sec. 301   A pregnancy may not be terminated solely because of the race, color, national origin, sex, or age of a fetus, or because of the race, color, national origin, creed, marital status, age, employment status, or financial condition of a parent of the fetus.

NEW SECTION.  Sec. 401   The legislature finds that:
     (1) Many 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 ask questions about the procedure, potential complications, and proper follow-up care.
     (2) The supreme court in H.L. v. Matheson, 450 U.S. 398, 411 (1981) stated that "The medical, emotional, and psychological consequences of an abortion are serious and can be lasting...."
     (3) The supreme court in Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833, 852 (1992) stated that "[T]he abortion decision... is more than a philosophic exercise. Abortion is a unique act. It is an act fraught with consequences for others: for the woman who must live with the implications of her decision; for the spouse, family, and society which must confront the knowledge that these procedures exist, procedures some deem nothing short of an act of violence against innocent human life; and, depending on one's beliefs, for the life or potential life that is aborted."
     (4) Abortion is an invasive, surgical procedure that can lead to numerous and serious medical complications. Potential complications for first trimester abortions include, among others, bleeding, hemorrhage, infection, uterine perforation, blood clots, cervical tears, incomplete abortion (retained tissue), failure to actually terminate the pregnancy, free fluid in the abdomen, acute abdomen, missed ectopic pregnancies, cardiac arrest, sepsis, respiratory arrest, reactions to anesthesia, fertility problems, emotional problems, and even death.
     (5) The risks for second trimester abortions are greater than for first trimester abortions. The risk of hemorrhage, in particular, is greater, and the resultant complications may require a hysterectomy, other reparative surgery, or a blood transfusion.
     (6) The state of Washington has a legitimate concern for the public's health and safety.
     (7) The state of Washington "has legitimate interests from the outset of pregnancy in protecting the health of women." Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833, 847 (1992).
     (8) More specifically, the state of Washington "has a legitimate concern with the health of women who undergo abortions." Akron v. Akron Ctr. for Reproductive Health, Inc., 462 U.S. 416, 428-29 (1983).
     (9) The state of Washington has "a legitimate interest in seeing to it that abortion, like any other medical procedure, is performed under circumstances that ensure maximum safety for the patient." Roe v. Wade, 410 U.S. 113, 150 (1973).
     (10) Since the supreme court's decision in Roe v. Wade, courts have recognized that for the purposes of regulation, abortion services are rationally distinct from other routine medical services, because of the "particular gravitas of the moral, psychological, and familial aspects of the abortion decision." Greenville Women's Clinic v. Bryant, 222 F.3d 157, 173 (4th Cir. 2000), cert. denied, 531 U.S. 1191 (2001).
     (11) In adopting an array of regulations that treat the often relatively simple medical procedures of abortion more seriously than other medical procedures, the state of Washington recognizes the importance of the abortion practice while yet permitting it to continue, as protected by the supreme court's cases on the subject. Greenville Women's Clinic v. Bryant, 222 F.3d 157, 175 (4th Cir. 2000), cert. denied, 531 U.S. 1191 (2001).
     (12) Therefore, the purpose of sections 402 through 410 of this act is to:
     (a) Regulate abortion consistent with and to the extent permitted by the decisions of the supreme court of the United States; and
     (b) Provide for the protection of public health through the development, establishment, and enforcement of standards of care of individuals in abortion clinics.

NEW SECTION.  Sec. 402   The definitions in this section apply throughout this section and sections 403 through 410 of this act unless the context clearly requires otherwise.
     (1) "Abortion" means the act of using or prescribing any instrument, machine, or device with the intent to terminate a woman's pregnancy for reasons other than to increase the probability of a live birth, to preserve the life or health of the child after live birth, to terminate an ectopic pregnancy, or to remove a dead fetus. "Abortion" does not include birth control devices or oral contraceptives.
     (2) "Abortion clinic" means a facility, other than an accredited hospital, in which five or more first trimester abortions in any month or any second or third trimester abortions are performed.
     (3) "Conception" and "fertilization" each mean the fusion of the human spermatozoon with a human ovum.
     (4) "Department" means the department of health.
     (5) "Gestation" means the time that has elapsed since the first day of the woman's last menstrual period.
     (6) "Licensee" means an individual, a partnership, an association, a limited liability company, or a corporation authorized by the department to operate an abortion clinic.
     (7) "Physician" means a person licensed to practice medicine in the state of Washington. This term includes medical doctors and doctors of osteopathy.
     (8) "Secretary" means the secretary of the department.

NEW SECTION.  Sec. 403   (1) Beginning on the effective date of this act, all abortion clinics shall be licensed by the department. Any existing abortion clinic shall make application for license within ninety days.
     (2) An application for a license shall be made to the department on forms provided by it and shall contain such information as the department reasonably requires, which may include affirmative evidence of ability to comply with department rules. Additional information required by the department shall be supplied on supplemental forms as needed.
     (3) Following receipt of an application for license, the department shall issue a license if the applicant and the facility meet the requirements established by this section and sections 404 through 407 of this act and the rules adopted under this section and sections 404 through 407 of this act, for one year.
     (4) A temporary or provisional license may be issued to an abortion clinic for six months if sufficient compliance with rules require an extension of time and a disapproval has not been received from any other state or local agency otherwise authorized to inspect such facilities. The failure to comply must not be detrimental to the health and safety of the public.
     (5) A license shall apply only to the location and licensee stated on the application, and such license, once issued, shall not be transferable from one place to another or from one person to another. If the location of the facility is changed, the license shall be automatically revoked. A new application form shall be completed prior to all license renewals.
     (6) An application for a license or renewal to operate an abortion clinic shall be accompanied by a fee. The fees shall be paid into the general fund.
     (7) Each license shall be for a period of one year from the date of issuance unless sooner revoked, shall be on a form prescribed by the department, and may be renewed from year to year upon application and payment of the license fee as in the case of procurement of the original license.
     (8) The department may deny, suspend, revoke, or refuse to renew a license in any case in which it finds that there has been a substantial failure of the applicant or licensee to comply with the requirements of this section and sections 404 through 407 of this act or the minimum standards, or administrative rules adopted by the department pursuant to this section and sections 404 through 407 of this act. In such case, the department shall furnish the person, applicant, or licensee thirty days' notice specifying reasons for the action.
     (9) Any person, applicant, or licensee who feels aggrieved by the action of the department in denying, suspending, revoking, or refusing to renew a license may appeal the department's action in accordance with chapter 34.05 RCW.
     (10) Any person, applicant, or licensee aggrieved by the action of the appellate board may, within thirty days after notification of such action, appeal suspensively to the superior court. A record of all proceedings before the appellate board shall be made and kept on file with the board. The board shall transmit a certified copy of the record to the superior court. The superior court shall try the appeal de novo.

NEW SECTION.  Sec. 404   (1) The department shall establish policies and procedures for conducting prelicensure and relicensure inspections of abortion clinics. Before issuing or reissuing a license, the department shall conduct an on-site inspection to ensure compliance with the rules adopted by the department under sections 403 through 407 of this act.
     (2) The department shall also establish policies and procedures for conducting inspections and investigations pursuant to complaints received by the department and made against any abortion clinic. The department shall receive, record, and dispose of complaints in accordance with the established policies and procedures.

NEW SECTION.  Sec. 405   The department shall adopt rules for the licensing and operation of abortion clinics.

NEW SECTION.  Sec. 406   (1) The department shall adopt rules for an abortion clinic's physical facilities. At a minimum these rules shall prescribe standards for:
     (a) Adequate private space that is specifically designated for interviewing, counseling, and medical evaluations;
     (b) Dressing rooms for staff and patients;
     (c) Appropriate lavatory areas;
     (d) Areas for preprocedure hand washing;
     (e) Private procedure rooms;
     (f) Adequate lighting and ventilation for abortion procedures;
     (g) Surgical or gynecologic examination tables and other fixed equipment;
     (h) Postprocedure recovery rooms that are supervised, staffed, and equipped to meet the patients' needs;
     (i) Emergency exits to accommodate a stretcher or gurney;
     (j) Areas for cleaning and sterilizing instruments;
     (k) Adequate areas for the secure storage of medical records and necessary equipment and supplies; and
     (l) The display in the abortion clinic, in a place that is conspicuous to all patients, of the clinic's current license issued by the department.
     (2) The department shall adopt rules to prescribe abortion clinic supplies and equipment standards, including supplies and equipment that are required to be immediately available for use or in an emergency. At a minimum these rules shall:
     (a) Prescribe required equipment and supplies, including medications, required for the conduct, in an appropriate fashion, of any abortion procedure that the medical staff of the clinic anticipates performing and for monitoring the progress of each patient throughout the procedure and recovery period;
     (b) Require that the number or amount of equipment and supplies at the clinic is adequate at all times to assure sufficient quantities of clean and sterilized durable equipment and supplies to meet the needs of each patient;
     (c) Prescribe required equipment, supplies, and medications that shall be available and ready for immediate use in an emergency and requirements for written protocols and procedures to be followed by staff in an emergency, such as the loss of electrical power;
     (d) Prescribe required equipment and supplies for required laboratory tests and requirements for protocols to calibrate and maintain laboratory equipment at the abortion clinic or as operated by clinic staff;
     (e) Require ultrasound equipment in those facilities that provide abortions after twelve weeks' gestation; and
     (f) Require that all equipment is safe for the patient and the staff, meets applicable federal standards, and is checked annually to ensure safety and appropriate calibration.
     (3) The department shall adopt rules relating to abortion clinic personnel. At a minimum these rules shall require that:
     (a) The abortion clinic designate a medical director of the abortion clinic who is licensed to practice medicine and surgery in the state of Washington;
     (b) Physicians performing surgery who are licensed to practice medicine and surgery in the state of Washington, demonstrate competence in the procedure involved, and are acceptable to the medical director of the abortion clinic;
     (c) A physician with admitting privileges at an accredited hospital in this state is available;
     (d) If a physician is not present, a registered nurse, nurse practitioner, licensed practical nurse, or physician's assistant is present and remains at the clinic when abortions are performed to provide postoperative monitoring and care until each patient who had an abortion that day is discharged;
     (e) Surgical assistants receive training in counseling, patient advocacy, and the specific responsibilities of the services the surgical assistants provide; and
     (f) Volunteers receive training in the specific responsibilities of the services the volunteers provide, including counseling and patient advocacy as provided in the rules adopted by the department for different types of volunteers based on their responsibilities.
     (4) The department shall adopt rules relating to the medical screening and evaluation of each abortion clinic patient. At a minimum these rules shall require:
     (a) A medical history including the following:
     (i) Reported allergies to medications, antiseptic solutions, or latex;
     (ii) Obstetric and gynecologic history; and
     (iii) Past surgeries;
     (b) A physical examination including a bimanual examination estimating uterine size and palpation of the adnexa;
     (c) The appropriate laboratory tests including:
     (i) For an abortion in which an ultrasound examination is not performed before the abortion procedure, urine or blood tests for pregnancy performed before the abortion procedure;
     (ii) A test for anemia;
     (iii) Rh typing, unless reliable written documentation of blood type is available; and
     (iv) Other tests as indicated from the physical examination;
     (d) An ultrasound evaluation for all patients who elect to have an abortion after twelve weeks' gestation. The rules shall require that if a person who is not a physician performs an ultrasound examination, that person shall have documented evidence that the person completed a course in the operation of ultrasound equipment as prescribed in rule. The physician or other health care professional shall review, at the request of the patient, the ultrasound evaluation results with the patient before the abortion procedure is performed, including the probable gestational age of the fetus; and
     (e) That the physician is responsible for estimating the gestational age of the fetus based on the ultrasound examination and obstetric standards in keeping with established standards of care regarding the estimation of fetal age as defined in rule and shall write the estimate in the patient's medical history. The physician shall keep original prints of each ultrasound examination of a patient in the patient's medical history file.
     (5) The department shall adopt rules relating to the abortion procedure. At a minimum these rules shall require:
     (a) That medical personnel is available to all patients throughout the abortion procedure;
     (b) Standards for the safe conduct of abortion procedures that conform to obstetric standards in keeping with established standards of care regarding the estimation of fetal age as defined in rule;
     (c) Appropriate use of local anesthesia, analgesia, and sedation if ordered by the physician;
     (d) The use of appropriate precautions, such as the establishment of intravenous access at least for patients undergoing second or third trimester abortions; and
     (e) The use of appropriate monitoring of the vital signs and other defined signs and markers of the patient's status throughout the abortion procedure and during the recovery period until the patient's condition is deemed to be stable in the recovery room.
     (6) The department shall adopt rules that prescribe minimum recovery room standards. At a minimum these rules shall require that:
     (a) Immediate postprocedure care consists of observation in a supervised recovery room for as long as the patient's condition warrants;
     (b) The clinic arrange hospitalization if any complication beyond the management capability of the staff occurs or is suspected;
     (c) A licensed health professional who is trained in the management of the recovery area and is capable of providing basic cardiopulmonary resuscitation and related emergency procedures remains on the premises of the abortion clinic until all patients are discharged;
     (d) A physician with admitting privileges at an accredited hospital in this state remains on the premises of the abortion clinic until all patients are stable and are ready to leave the recovery room and to facilitate the transfer of emergency cases if hospitalization of the patient or viable fetus is necessary. A physician shall sign the discharge order and be readily accessible and available until the last patient is discharged;
     (e) A physician discusses RhO(d) immune globulin with each patient for whom it is indicated and assures it is offered to the patient in the immediate postoperative period or that it will be available to her within seventy-two hours after completion of the abortion procedure. If the patient refuses, a refusal form approved by the department shall be signed by the patient and a witness and included in the medical record;
     (f) Written instructions with regard to postabortion coitus, signs of possible problems, and general aftercare are given to each patient. Each patient shall have specific instructions regarding access to medical care for complications, including a telephone number to call for medical emergencies;
     (g) There is a specified minimum length of time that a patient remains in the recovery room by type of abortion procedure and duration of gestation;
     (h) The physician assures that a licensed health professional from the abortion clinic makes a good faith effort to contact the patient by telephone, with the patient's consent, within twenty-four hours after surgery to assess the patient's recovery; and
     (i) Equipment and services are located in the recovery room to provide appropriate emergency resuscitative and life support procedures pending the transfer of the patient or viable fetus to the hospital.
     (7) The department shall adopt rules that prescribe standards for follow-up care. At a minimum these rules shall require that:
     (a) A postabortion medical visit is offered and, if requested, scheduled for two to three weeks after the abortion, including a medical examination and a review of the results of all laboratory tests; and
     (b) A urine pregnancy test is obtained at the time of the follow-up visit to rule out continuing pregnancy. If a continuing pregnancy is suspected, the patient shall be evaluated and a physician who performs abortions shall be consulted.
     (8) The department shall adopt rules to prescribe minimum abortion clinic incident reporting. At a minimum these rules shall require that:
     (a) The abortion clinic records each incident resulting in a patient's or viable fetus' serious injury occurring at an abortion clinic and shall report them in writing to the department within ten days after the incident. For the purposes of this subsection, "serious injury" means an injury that occurs at an abortion clinic and that creates a serious risk of substantial impairment of a major body organ;
     (b) If a patient's death occurs, other than a fetal death properly reported pursuant to law, the abortion clinic reports it to the department by the next department work day; and
     (c) Incident reports are filed with the department and appropriate professional regulatory boards.
     (9) The department shall not release personally identifiable patient or physician information.
     (10) The rules adopted by the department under this section do not limit the ability of a physician or other health professional to advise a patient on any health issue.
     (11) Sections 403 through 407 of this act and the rules adopted under sections 403 through 407 of this act are in addition to any other laws and rules that are applicable to facilities defined as abortion clinics under this section.

NEW SECTION.  Sec. 407   (1) Whoever operates an abortion clinic without a valid license issued by the department is guilty of a misdemeanor.
     (2) Any person who intentionally, knowingly, or recklessly violates sections 403 through 407 of this act or any rules adopted under sections 403 through 407 of this act is guilty of a gross misdemeanor.

NEW SECTION.  Sec. 408   (1) Any violation of sections 403 through 407 of this act or any rules adopted under sections 403 through 407 of this act may be subject to a civil penalty or fine up to five hundred dollars imposed by the department.
     (2) Each day of violation constitutes a separate violation for purposes of assessing civil penalties or fines.
     (3) In deciding whether and to what extent to impose fines, the department shall consider the following factors:
     (a) Gravity of the violation including the probability that death or serious physical harm to a patient or individual will result or has resulted;
     (b) Size of the population at risk as a consequence of the violation;
     (c) Severity and scope of the actual or potential harm;
     (d) Extent to which the applicable statutes or rules were violated;
     (e) Any indications of good faith exercised by the licensee;
     (f) The duration, frequency, and relevance of any previous violations committed by the licensee; and
     (g) Financial benefit to the licensee of committing or continuing the violation.
     (4) Both the attorney general and the office of the prosecuting attorney for the county in which the violation occurred may institute a legal action to enforce collection of civil penalties or fines.

NEW SECTION.  Sec. 409   In addition to any other penalty provided by law, whenever in the judgment of the secretary, any person has engaged, or is about to engage, in any acts or practices that constitute, or will constitute, a violation of sections 403 through 407 of this act, or any rule adopted under sections 403 through 407 of this act, the secretary shall make application to any court of competent jurisdiction for an order enjoining such acts and practices, and upon a showing by the secretary that such person has engaged, or is about to engage, in any such acts or practices, an injunction, restraining order, or such other order as may be appropriate shall be granted by such court without bond.

NEW SECTION.  Sec. 410   (1) Nothing in sections 403 through 407 of this act shall be construed as creating or recognizing a right to abortion.
     (2) It is not the intent of sections 403 through 407 of this act to make lawful an abortion that is currently unlawful.

NEW SECTION.  Sec. 501   The legislature finds and declares that people and organizations hold different beliefs about whether certain health care services are morally acceptable. It is the public policy of the state to respect and protect the right of conscience of all persons who refuse to obtain, receive, or accept, or who are engaged in, the delivery of, arrangement for, or payment of health care services and medical care whether acting individually, corporately, or in association with other persons; and to prohibit all forms of discrimination, disqualification, coercion, disability, or imposition of liability upon such persons or entities by reason of their refusing to act contrary to their conscience or conscientious convictions in refusing to obtain, receive, accept, deliver, pay for, or arrange for the payment of health care services and medical care.

NEW SECTION.  Sec. 502   The definitions in this section apply throughout this section and sections 503 through 518 of this act unless the context clearly requires otherwise.
     (1) "Health care" means any phase of patient care, including but not limited to: Testing; diagnosis; prognosis; ancillary research; instructions; family planning, counseling, referrals, or any other advice in connection with the use or procurement of contraceptives and sterilization or abortion procedures; medication; or surgery or other care or treatment rendered by a physician or physicians, nurses, paraprofessionals, or health care facility, intended for the physical, emotional, and mental well-being of persons.
     (2) "Physician" means any person who is licensed by the state of Washington under chapter 18.71 RCW.
     (3) "Health care personnel" means any nurse, nurses' aide, medical school student, professional, paraprofessional, or any other person who furnishes, or assists in the furnishing of, health care services.
     (4) "Health care facility" means any public or private hospital, clinic, center, medical school, medical training institution, laboratory or diagnostic facility, physician's office, infirmary, dispensary, ambulatory surgical treatment center, or other institution or location wherein health care services are provided to any person, including physician organizations and associations, networks, joint ventures, and all other combinations of those organizations.
     (5) "Conscience" means a sincerely held set of moral convictions arising from belief in and relation to God, or which, though not so derived, arises from a place in the life of its possessor parallel to that filled by God among adherents to religious faiths.
     (6) "Health care payer" means a health maintenance organization, insurance company, management services organization, or any other entity that pays for or arranges for the payment of any health care or medical care service, procedure, or product.

NEW SECTION.  Sec. 503   No physician or health care personnel shall be civilly or criminally liable to any person, estate, public or private entity, or public official by reason of his or her refusal to perform, assist, counsel, suggest, recommend, refer, or participate in any way in any particular form of health care service that is contrary to the conscience of such physician or health care personnel.

NEW SECTION.  Sec. 504   It is unlawful for any person, public or private institution, or public official to discriminate against any person in any manner, including but not limited to, licensing, hiring, promotion, transfer, staff appointment, hospital, managed care entity, or any other privileges, because of such person's conscientious refusal to receive, obtain, accept, perform, assist, counsel, suggest, recommend, refer, or participate in any way in any particular form of health care services contrary to his or her conscience.

NEW SECTION.  Sec. 505   (1) Nothing in sections 501 through 518 of this act relieves a physician from any duty, that may exist under any laws concerning current standards, normal medical practices, and procedures to inform his or her patient of the patient's condition, prognosis, and risks. However, such physician is under no duty to perform, assist, counsel, suggest, recommend, refer, or participate in any way in any form of medical practice or health care service that is contrary to his or her conscience.
     (2) Nothing in sections 501 through 518 of this act shall be construed so as to relieve a physician or other health care personnel from obligations under the law of providing emergency medical care.

NEW SECTION.  Sec. 506   It is unlawful for any public or private employer, entity, agency, institution, official, or person, including but not limited to, a medical, nursing, or other medical training institution, to deny admission because of, to place any reference in its application form concerning, to orally question about, to impose any burdens in terms or conditions of employment on, or to otherwise discriminate against, any applicant, in terms of employment, admission to, or participation in any programs for which the applicant is eligible, or to discriminate in relation thereto, in any other manner, on account of the applicant's refusal to receive, obtain, accept, perform, counsel, suggest, recommend, refer, assist, or participate in any way in any forms of health care services contrary to his or her conscience.

NEW SECTION.  Sec. 507   It is unlawful for any public official, guardian, agency, institution, or entity to deny any form of aid, assistance, or benefits, or to condition the reception in any way of any form of aid, assistance, or benefits, or in any other manner to coerce, disqualify, or discriminate against any person otherwise entitled to such aid, assistance, or benefits, because that person refuses to obtain, receive, accept, perform, assist, counsel, suggest, recommend, refer, or participate in any way in any form of health care services contrary to his or her conscience.

NEW SECTION.  Sec. 508   (1) No person, association, or corporation that owns, operates, supervises, or manages a health care facility shall be civilly or criminally liable to any person, estate, or public or private entity by reason of refusal of the health care facility to permit or provide any particular form of health care service that violates the facility's conscience as documented in its ethical guidelines, mission statement, constitution, bylaws, articles of incorporation, regulations, or other governing documents.
     (2) Nothing in sections 501 through 518 of this act shall be construed so as to relieve a physician or other health care personnel from obligations under the law of providing emergency medical care.

NEW SECTION.  Sec. 509   It is unlawful for any person, public or private institution, or public official to discriminate against any person, association, or corporation attempting to establish a new health care facility or operating an existing health care facility, in any manner, including but not limited to, denial, deprivation or disqualification in licensing, granting of authorizations, aids, assistance, benefits, medical staff, or any other privileges, and granting authorization to expand, improve, or create any health care facility, by reason of the refusal of such person, association, or corporation planning, proposing, or operating a health care facility, to permit or perform any particular form of health care service that violates the health care facility's conscience as documented in its existing or proposed ethical guidelines, mission statement, constitution, bylaws, articles of incorporation, regulations, or other governing documents.

NEW SECTION.  Sec. 510   It is unlawful for any public official, agency, institution, or entity to deny any form of aid, assistance, grants, or benefits; or in any other manner to coerce, disqualify, or discriminate against any person, association, or corporation attempting to establish a new health care facility or operating an existing health care facility that otherwise would be entitled to the aid, assistance, grant, or benefit because the existing or proposed health care facility refuses to perform, assist, counsel, suggest, recommend, refer, or participate in any way in any form of health care services contrary to the health care facility's conscience as documented in its existing or proposed ethical guidelines, mission statement, constitution, bylaws, articles of incorporation, regulations, or other governing documents.

NEW SECTION.  Sec. 511   No health care payer and no person, association, or corporation that owns, operates, supervises, or manages a health care payer shall be civilly or criminally liable to any person, estate, or public or private entity by reason of refusal of the health care payer to pay for or arrange for the payment of any particular form of health care services that violate the health care payer's conscience as documented in its ethical guidelines, mission statement, constitution, bylaws, articles of incorporation, regulations, or other governing documents.

NEW SECTION.  Sec. 512   It is unlawful for any person, public or private institution, or public official to discriminate against any person, association, or corporation: (1) Attempting to establish a new health care payer; or (2) operating an existing health care payer, in any manner, including but not limited to: Denial, deprivation, or disqualification in licensing; granting of authorizations, aids, assistance, benefits, or any other privileges; and granting authorization to expand, improve, or create any health care payer, because the person, association, or corporation planning, proposing, or operating a health care payer refuses to pay for or arrange for the payment of any particular form of health care services that violates the health care payer's conscience as documented in the existing or proposed ethical guidelines, mission statement, constitution, bylaws, articles of incorporation, regulations, or other governing documents.

NEW SECTION.  Sec. 513   It is unlawful for any public official, agency, institution, or entity to deny any form of aid, assistance, grants, or benefits; or in any other manner to coerce, disqualify, or discriminate against any person, association, or corporation attempting to establish a new health care payer or operating an existing health care payer that otherwise would be entitled to the aid, assistance, grant, or benefit because the existing or proposed health care payer refuses to pay for, arrange for the payment of, or participate in any way in any form of health care services contrary to the health care payer's conscience as documented in its existing or proposed ethical guidelines, mission statement, constitution, bylaws, articles of incorporation, regulations, or other governing documents.

NEW SECTION.  Sec. 514   Any person, association, corporation, entity, or health care facility injured by any public or private person, association, agency, entity, or corporation by reason of any action prohibited by sections 501 through 518 of this act may commence a suit therefor, and shall recover treble damages, including pain and suffering, sustained by such person, association, corporation, entity, or health care facility, the costs of the suit, and reasonable attorneys' fees; but in no case shall recovery be less than two thousand five hundred dollars for each violation in addition to costs of the suit and reasonable attorneys' fees. These damage remedies shall be cumulative, and not exclusive of other remedies afforded under any other state or federal law.

NEW SECTION.  Sec. 515   If an insurer provides any insurance coverage, services, or benefits to any employer or individual, the insurer may elect but may not be required to provide the employer or individual contraception or abortion related coverage, services, or benefits.

NEW SECTION.  Sec. 516   If an employer provides any insurance coverage, services, or benefits for any employee or any dependent of any employee by paying the costs or premiums in whole or in part for such coverage, services, or benefits or by participating in negotiating the terms of such coverage, services, or benefits, the employer may elect but may not be required to provide the employee contraception or abortion related coverage, services, or benefits.

NEW SECTION.  Sec. 517   If an employer provides disability coverage, services, or benefits, including sick leave plans or temporary disability benefit plans, for any employee by paying the costs or premiums in whole or in part for such coverage, services, or benefits or by participating in negotiating the terms of such coverage, services, or benefits, the employer may elect but may not be required to provide the employee such coverage, services, or benefits for any illness or disability caused or contributed to by any contraception or abortion related services.

NEW SECTION.  Sec. 518   Nothing in this section and sections 501 through 517 of this act shall be construed as excusing any person, public or private institution, or public official from liability for refusal to permit or provide a particular form of health care service if:
     (1) The person, public or private institution, or public official has entered into a contract specifically to provide that particular form of health care service; or
     (2) The person, public or private institution, or public official has accepted federal or state funds for the sole purpose of, and specifically conditioned upon, permitting or providing that particular form of health care service.

NEW SECTION.  Sec. 601   The legislature finds that the medical risks to the health of women as a result of obtaining an abortion makes it necessary to clarify that only qualified health care personnel may perform abortions or assist in performing abortions.

Sec. 602   RCW 9.02.110 and 1992 c 1 s 2 are each amended to read as follows:
     The state may not deny or interfere with a woman's right to choose to have an abortion prior to viability of the fetus, or to protect her life or health.
     ((A physician may terminate and a health care provider may assist a physician in terminating a pregnancy as permitted by this section.)) A person who is not a health care provider may not perform an abortion.

Sec. 603   RCW 9.02.170 and 1992 c 1 s 8 are each amended to read as follows:
     For purposes of this chapter:
     (1) "Viability" means the point in the pregnancy when, in the judgment of the physician on the particular facts of the case before such physician, there is a reasonable likelihood of the fetus's sustained survival outside the uterus without the application of extraordinary medical measures.
     (2) "Abortion" means any medical treatment intended to induce the termination of a pregnancy except for the purpose of producing a live birth.
     (3) "Pregnancy" means the reproductive process beginning with the implantation of an embryo.
     (4) "Physician" means a physician licensed to practice under chapter 18.57 or 18.71 RCW in the state of Washington.
     (5) "Health care provider" means a physician or ((a)) another person ((acting under the general direction of a physician)) licensed by this state under Title 18 RCW to provide health care services.
     (6) "State" means the state of Washington and counties, cities, towns, municipal corporations, and quasi-municipal corporations in the state of Washington.
     (7) "Private medical facility" means any medical facility that is not owned or operated by the state.

NEW SECTION.  Sec. 701   (1) No abortion shall be performed or induced except with 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:
     (a) At least twenty-four hours before the abortion, the physician who is to perform the abortion or the referring physician has orally informed the woman of:
     (i) The nature of the proposed procedure or treatment and of those risks and alternatives to the procedure or treatment that a reasonable patient would consider material to the decision of whether or not to undergo the abortion;
     (ii) The probable gestational age of the unborn child at the time the abortion is to be performed; and
     (iii) The medical risks associated with carrying her child to term;
     (b) At least twenty-four hours before the abortion, the physician who is to perform the abortion or the referring physician, or a qualified physician assistant, health care practitioner, technician, or social worker to whom the responsibility has been delegated by either physician, has informed the pregnant woman that:
     (i) The department publishes printed materials that describe the unborn child and list agencies that offer alternatives to abortion and she has a right to review the printed materials and a copy will be provided to her free of charge if she chooses to review it;
     (ii) 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 published by the department; and
     (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;
     (c) A copy of the printed materials has been provided to the pregnant woman if she chooses to view these materials; and
     (d) The pregnant woman certifies in writing, before the abortion, that the information required to be provided under this subsection has been provided.
     (2) If a medical emergency compels the performance of an abortion, the physician shall inform the woman, before the abortion if possible, of the medical indications supporting the judgment that an abortion is necessary to avert her death or to avert substantial and irreversible impairment of major bodily function.
     (3) Any physician who violates the provisions of this section is guilty of unprofessional conduct and his or her license for the practice of medicine and surgery shall be subject to suspension or revocation. Any physician who performs or induces an abortion without first obtaining the certification required by subsection (1)(d) of this section or with knowledge or reason to know that the informed consent of the woman has not been obtained is for the first offense guilty of a misdemeanor and for each subsequent offense is guilty of a gross misdemeanor. No physician is guilty of violating this section for failure to furnish the information required by subsection (1) of this section if he or she can demonstrate, by a preponderance of the evidence, that he or she reasonably believed that furnishing the information would have resulted in a severely adverse effect on the physical or mental health of the patient.
     (4) Any physician who complies with the provisions of this section may not be held civilly liable to his or her patient for failure to obtain informed consent to the abortion.

NEW SECTION.  Sec. 702   (1) Except in a medical emergency, or except as provided in this section, if a pregnant woman is less than eighteen years of age and not emancipated, or if she has been adjudged an incapacitated person, a physician shall not perform an abortion upon her unless, in the case of a woman who is less than eighteen years of age, he or she first obtains the informed consent both of the pregnant woman and of one of her parents; or, in the case of a woman who is an incapacitated person, he or she first obtains the informed consent of her guardian. In deciding whether to grant such consent, a pregnant woman's parent or guardian shall consider only their child's or ward's best interests. In the case of a pregnancy that is the result of incest where the father is a party to the incestuous act, the pregnant woman need only obtain the consent of her mother.
     (2) If both parents have died or are otherwise unavailable to the physician within a reasonable time and in a reasonable manner, consent of the pregnant woman's guardian or guardians is sufficient. If the pregnant woman's parents are divorced, consent of the parent having custody is sufficient. If neither parent nor the legal guardian is available to the physician within a reasonable time and in a reasonable manner, consent of any adult person standing in loco parentis is sufficient.
     (3) If both of the parents or guardians of the pregnant woman refuse to consent to the performance of an abortion or if she elects not to seek the consent of either of her parents or of her guardian, the superior court in which the applicant resides or in which the abortion is sought shall, upon petition or motion, after an appropriate hearing, authorize a physician to perform the abortion if the court determines that the pregnant woman is mature and capable of giving informed consent to the proposed abortion, and has, in fact, given such consent.
     (4) If the court determines that the pregnant woman is not mature and capable of giving informed consent or if the pregnant woman does not claim to be mature and capable of giving informed consent, the court shall determine whether the performance of an abortion upon her would be in her best interests. If the court determines that the performance of an abortion would be in the best interests of the woman, it shall authorize a physician to perform the abortion.
     (5) The pregnant woman may participate in proceedings in the court on her own behalf and the court may appoint a guardian ad litem to assist her. The court shall, however, advise her that she has a right to court-appointed counsel, and shall provide her with such counsel unless she wishes to appear with private counsel or has knowingly and intelligently waived representation by counsel.
     (6)(a) Court proceedings under this section are confidential and shall be given such precedence over other pending matters as will ensure that the court may reach a decision promptly and without delay in order to serve the best interests of the pregnant woman. In no case shall the court fail to rule within three business days of the date of application. A court that conducts proceedings under this section shall make in writing specific factual findings and legal conclusions supporting its decision and shall, upon the initial filing of the minor's petition for judicial authorization of an abortion, order a sealed record of the petition, pleadings, submissions, transcripts, exhibits, orders, evidence, and any other written material to be maintained which shall include its own findings and conclusions.
     (b) The application to the court of common pleas shall be accompanied by a nonnotarized verification stating that the information therein is true and correct to the best of the applicant's knowledge, and the application shall set forth the following facts:
     (i) The initials of the pregnant woman;
     (ii) The age of the pregnant woman;
     (iii) The names and addresses of each parent, guardian or, if the minor's parents are deceased and no guardian has been appointed, any other person standing in loco parentis to the minor;
     (iv) That the pregnant woman has been fully informed of the risks and consequences of the abortion;
     (v) Whether the pregnant woman is of sound mind and has sufficient intellectual capacity to consent to the abortion;
     (vi) A prayer for relief asking the court to either grant the pregnant woman full capacity for the purpose of personal consent to the abortion, or to give judicial consent to the abortion under subsection (4) of this section based upon a finding that the abortion is in the best interest of the pregnant woman;
     (vii) That the pregnant woman is aware that any false statements made in the application are punishable by law; and
     (viii) The signature of the pregnant woman. If necessary to serve the interest of justice, the family court shall refer the pregnant woman to the appropriate personnel for assistance in preparing the application.
     (c) The name of the pregnant woman shall not be entered on any docket that is subject to public inspection. All persons shall be excluded from hearings under this section except the applicant and such other persons whose presence is specifically requested by the applicant or her guardian.
     (d) At the hearing, the court shall hear evidence relating to the emotional development, maturity, intellect, and understanding of the pregnant woman, the fact and duration of her pregnancy, the nature, possible consequences, and alternatives to the abortion, and any other evidence that the court may find useful in determining whether the pregnant woman should be granted full capacity for the purpose of consenting to the abortion or whether the abortion is in the best interest of the pregnant woman. The court shall also notify the pregnant woman at the hearing that it must rule on her application within three business days of the date of its filing and that, should the court fail to rule in favor of her application within the allotted time, she has the right to appeal to the superior court.
     (7) Except in a medical emergency, no parent, guardian, or other person standing in loco parentis shall coerce a minor or incapacitated woman to undergo an abortion. Any minor or incapacitated woman who is threatened with such coercion may apply to the superior court for relief. The court shall provide the minor or incapacitated woman with counsel, give the matter expedited consideration, and grant such relief as may be necessary to prevent such coercion. Should a minor be denied the financial support of her parents by reason of her refusal to undergo abortion, she shall be considered emancipated for purposes of eligibility for assistance benefits.
     (8) No filing fees shall be required of any woman availing herself of the procedures provided by this section. An expedited confidential appeal shall be available to any pregnant woman whom the court fails to grant an order authorizing an abortion within the time specified in this section. Any court to which an appeal is taken under this section shall give prompt and confidential attention thereto and shall rule thereon within five business days of the filing of the appeal. The supreme court may issue such rules as may further assure that the process provided in this section is conducted in such a manner as will ensure confidentiality and sufficient precedence over other pending matters to ensure promptness of disposition.
     (9) Any person who performs an abortion upon a woman who is an unemancipated minor or incapacitated person to whom this section applies either with knowledge that she is a minor or incapacitated person to whom this section applies, or with reckless disregard or negligence as to whether she is a minor or incapacitated person to whom this section applies, and who intentionally, knowingly, or recklessly fails to conform to any requirement of this section is guilty of unprofessional conduct and his or her license for the practice of medicine and surgery shall be suspended for a period of at least three months. Failure to comply with the requirements of this section is prima facie evidence of failure to obtain informed consent and of interference with family relations in appropriate civil actions. The law shall not be construed to preclude the award of exemplary damages or damages for emotional distress even if unaccompanied by physical complications in any appropriate civil action relevant to violations of this section. Nothing in this section shall be construed to limit the common law rights of parents.

NEW SECTION.  Sec. 801   (1) The legislature finds that there is a serious problem of increasing incidents of breast cancer in the United States; and that virtually every known risk factor for breast cancer involves elevated levels of estrogen.
     (2) The legislature further finds that the first trimester of pregnancy is a time of very high estrogen concentrations in a woman's body, that abortion terminates pregnancy in an artificial manner, that abortion before the first live birth has been linked to an increased risk of breast cancer in over twenty published articles in reputable journals, and that no cancer expert has denied that abortion may cause breast cancer.
     (3) This section expires January 1, 2011.

NEW SECTION.  Sec. 802   (1) The secretary of health shall hold hearings to compile and summarize research linking abortion to breast cancer. This research shall be updated annually until 2010.
     (2) This section expires January 1, 2011.

NEW SECTION.  Sec. 803   It is unlawful to perform an abortion on a woman without advising her of research linking abortion to breast cancer. The department of health summary of research under section 802 of this act shall be presumed to be sufficient information about this research.

NEW SECTION.  Sec. 804   A minor cannot give informed consent to a substantial cancer risk.

NEW SECTION.  Sec. 805   It is unlawful for a person to perform an abortion unless that person has sufficient malpractice insurance to cover potential liability for reproductive cancers.

NEW SECTION.  Sec. 901   (1) To develop necessary and meaningful statistical data relating to abortion, a report shall be certified and filed with the department of health by the physician who performed the abortion no later than ten days after the abortion was performed. The department shall produce a form to be used for purposes of this section.
     (2) The report shall indicate the type of abortion performed, the stated or medical reason for the abortion, the name of the person who performed the abortion, the name and address of the facility where the abortion occurred, the age, race, and general health condition of the patient, the stage of development of the fetus, the reason for the abortion, any medical complications which may have occurred, and whether public funds were used, in whole or in part, to pay for the abortion.
     (3) The report forms shall not identify any patient by name but by an individual identifier to be noted in the patient's permanent record in the possession of the physician. The department shall establish an individual identifier system to be used for purposes of this section.
     (4) The department shall report to the legislature by December 31st of each year all statistical data gathered under this section. The report shall not include the name of any physician or the name or address of any facility but shall include the county in which a facility was located.

NEW SECTION.  Sec. 1001   Public funds shall not be used by state or local governments, or any political subdivision or agency thereof, to pay or otherwise reimburse, either directly or indirectly, any person, agency, organization, or facility for the performance of any induced abortion. Public funds may be used to pay for the performance of an induced abortion necessary to prevent the death of either the pregnant woman or her unborn child under circumstances where every reasonable effort is made to preserve the life of each.

NEW SECTION.  Sec. 1101   (1) If an abortion is to be performed and the unborn child is viable, an anesthetic or analgesic shall be applied to the unborn child to eliminate or alleviate the organic pain to the unborn child caused by the abortion. The physician who is to perform the abortion shall inform the woman upon whom the abortion is to be performed that an anesthetic or analgesic is to be used to eliminate or alleviate the organic pain caused to the unborn child by the abortion.
     (2) The requirements of this section shall not apply when:
     (a) In the medical judgment of the physician who is to perform the abortion or the referring physician based upon the particular facts of the case:
     (i) There exists a medical emergency that so complicates the pregnancy as to require an immediate abortion without opportunity to provide an anesthetic or analgesic;
     (ii) The anesthetic or analgesic would decrease a known possibility of sustained survival of the unborn child apart from the body of the mother, with or without artificial support; or
     (iii) The use of any anesthetic or analgesic would so substantially increase the medical risk to the pregnant woman as to be contraindicated; or
     (b) The physician who is to perform the abortion administers an anesthetic or analgesic to the woman to eliminate or alleviate pain caused to her by the particular method of abortion employed and the physician knows there exists reasonable medical certainty that the anesthetic or analgesic will eliminate organic pain caused to the fetus during the course of the abortion.
     (3) As used in this section, "viable" means that stage of fetal development when, in the medical judgment of the attending physician based on the particular facts of the case, there is a reasonable likelihood of sustained survival of the fetus outside the womb, with or without artificial support.

NEW SECTION.  Sec. 1201   Table of contents and part headings used in this act are not part of the law.

NEW SECTION.  Sec. 1202   If any provision of this act or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected.

NEW SECTION.  Sec. 1203   This act is necessary for the immediate preservation of the public peace, health, morals, or safety, or support of the state government and its existing public institutions, and takes effect immediately.

NEW SECTION.  Sec. 1204   Sections 101, 102, 202, 206, 207, 301, 401 through 410, 501 through 518, 601, 701, 702, 801 through 805, 901, 1001, and 1101 of this act are each added to chapter 9.02 RCW.