28-327 Abortion; voluntary and informed consent required; exception. - Nebraska Statutes

28-327. Abortion; voluntaryand informed consent required; exception.No abortionshall be performed except with the voluntary and informed consent of the womanupon whom the abortion is to be performed. Except in the case of an emergencysituation, consent to an abortion is voluntary and informed only if:(1) The woman is told the following by the physician who isto perform the abortion, by the referring physician, or by a physician assistantor registered nurse licensed under the Uniform Credentialing Act who is anagent of either physician, at least twenty-four hours before the abortion:(a) The particular medical risks associated with the particularabortion procedure to be employed including, when medically accurate, therisks of infection, hemorrhage, perforated uterus, danger to subsequent pregnancies,and infertility;(b) The probable gestational age of the unborn child at thetime the abortion is to be performed;(c) The medical risks associated with carrying her child toterm; and(d) That she cannot be forced or required by anyone to havean abortion and is free to withhold or withdraw her consent for an abortion.The person providing the information specified in this subdivisionto the person upon whom the abortion is to be performed shall be deemed qualifiedto so advise and provide such information only if, at a minimum, he or shehas had training in each of the following subjects: Sexual and reproductivehealth; abortion technology; contraceptive technology; short-term counselingskills; community resources and referral; and informed consent. The physicianor the physician's agent may provide this information by telephone withoutconducting a physical examination or tests of the patient, in which case theinformation required to be supplied may be based on facts supplied by thepatient and whatever other relevant information is reasonably available tothe physician or the physician's agent;(2) The woman is informed by telephone or in person, by thephysician who is to perform the abortion, by the referring physician, or byan agent of either physician, at least twenty-four hours before the abortion:(a) The name of the physician who will perform the abortion;(b) That medical assistance benefits may be available forprenatal care, childbirth, and neonatal care;(c) That the father is liable to assist in the support ofher child, even in instances in which the father has offered to pay for theabortion;(d) That she has the right to review the printed materialsdescribed in section 28-327.01. The physician or his or her agent shall orallyinform the woman that the materials have been provided by the Department ofHealth and Human Services and that they describe the unborn child and listagencies which offer alternatives to abortion. If the woman chooses to reviewthe materials, they shall either be given to her at least twenty-four hoursbefore the abortion or mailed to her at least seventy-two hours before theabortion by certified mail, restricted delivery to addressee, which meansthe postal employee can only deliver the mail to the addressee. The physicianand his or her agent may disassociate themselves from the materials and maycomment or refrain from commenting on them as they choose; and(e) That she has the right to request a comprehensive list,compiled by the Department of Health and Human Services, of health care providers,facilities, and clinics that offer to have ultrasounds performed by a personat least as qualified as a registered nurse licensed under the Uniform CredentialingAct, including and specifying those that offer to perform such ultrasoundsfree of charge. The list shall be arranged geographically and shall includethe name, address, hours of operation, and telephone number of each entity.If requested by the woman, the physician who is to perform the abortion, thereferring physician, or his or her agent shall provide such a list as compiledby the department;(3) If an ultrasound is used prior to the performance of anabortion, the physician who is to perform the abortion, the referring physician,or a physician assistant or registered nurse licensed under the Uniform CredentialingAct who is an agent of either physician, or any qualified agent of eitherphysician, shall:(a) Perform an ultrasound of the woman's unborn child of aquality consistent with standard medical practice in the community at leastone hour prior to the performance of the abortion;(b) Simultaneously display the ultrasound images so that thewoman may choose to view the ultrasound images or not view the ultrasoundimages. The woman shall be informed that the ultrasound images will be displayedso that she is able to view them. Nothing in this subdivision shall be construedto require the woman to view the displayed ultrasound images; and(c) If the woman requests information about the displayedultrasound image, her questions shall be answered. If she requests a detailed,simultaneous, medical description of the ultrasound image, one shall be providedthat includes the dimensions of the unborn child, the presence of cardiacactivity, if present and viewable, and the presence of external members andinternal organs, if present and viewable;(4) At leastone hour prior to the performance of an abortion, a physician, psychiatrist,psychologist, mental health practitioner, physician assistant, registerednurse, or social worker licensed under the Uniform Credentialing Act has:(a) Evaluatedthe pregnant woman to identify if the pregnant woman had the perception offeeling pressured or coerced into seeking or consenting to an abortion;(b) Evaluatedthe pregnant woman to identify the presence of any risk factors associatedwith abortion;(c) Informed the pregnant woman and the physician who is to performthe abortion of the results of the evaluation in writing. The written evaluationshall include, at a minimum, a checklist identifying both the positive andnegative results of the evaluation for each risk factor associated with abortionand both the licensed person's written certification and the woman's writtencertification that the pregnant woman was informed of the risk factors associatedwith abortion as discussed; and(d) Retained a copy of the written evaluationresults in the pregnant woman's permanent record;(5) If any risk factorsassociated with abortion were identified, the pregnant woman was informedof the following in such manner and detail that a reasonable person wouldconsider material to a decision of undergoing an elective medical procedure:(a) Each complicationassociated with each identified risk factor; and(b) Any quantifiable riskrates whenever such relevant data exists;(6) The physician performing the abortionhas formed a reasonable medical judgment, documented in the permanent record,that:(a) The preponderance of statistically validated medical studiesdemonstrates that the physical, psychological, and familial risks associatedwith abortion for patients with risk factors similar to the patient's riskfactors are negligible risks;(b) Continuance of the pregnancy would involverisk of injury to the physical or mental health of the pregnant woman greaterthan if the pregnancy were terminated by induced abortion; or(c) Continuanceof the pregnancy would involve less risk of injury to the physical or mentalhealth of the pregnant woman than if the pregnancy were terminated by an inducedabortion;(7) The woman certifies inwriting, prior to the abortion, that:(a) The information described in subdivisions (1) and (2)(a),(b), and (c) of this section has been furnished her;(b) She has been informed of her right to review the informationreferred to in subdivision (2)(d) of this section; and(c) The requirements of subdivision (3) of this section havebeen performed if an ultrasound is performed prior to the performance of theabortion; and(8) Prior to the performanceof the abortion, the physician who is to perform the abortion or his or heragent receives a copy of the written certification prescribed by subdivision (7) of this section. The physician or his orher agent shall retain a copy of the signed certification form in the woman'smedical record. SourceLaws 1977, LB 38, § 42; Laws 1979, LB 316, § 2; Laws 1984, LB 695, § 2; Laws 1993, LB 110, § 2; Laws 1996, LB 1044, § 60; Laws 2009, LB675, § 2; Laws 2010, LB594, § 4.Effective Date: July 15, 2010 Cross ReferencesUniform Credentialing Act, see section 38-101. AnnotationsThis section does not create an independent cause of action under section 25-206. The right of action for violation of this section is "against the person who performed the abortion or attempted to perform the abortion". Hill v. Women's Med. Ctr. of Neb., 254 Neb. 827, 580 N.W.2d 102 (1998).Sections 28-326(8), 28-327, 28-333, and 28-343 (1979) regulating abortion were unconstitutional. Womens Services, P.C. v. Thone, 690 F.2d 667 (8th Cir. 1982).The interest of the state in having women who seek abortions make a thoughtful decision after receiving certain information, while legitimate, is not sufficiently compelling to justify the substantial burden imposed by the requirement of a forty-eight hour wait between the expression of informed consent and the performance of the abortion. Therefor, sections 28-327 and 28-328 (1979) imposing the waiting period are unconstitutional and their implementation is permanently enjoined. Womens Services, P.C. v. Thone, 483 F.Supp. 1022 (D. Neb. 1979).