Regular Session 2021-2022 House Bill 2847 P.N. 3550

PRINTER'S NO. 3550

THE GENERAL ASSEMBLY OF PENNSYLVANIA

HOUSE BILL

No.

2847

Session of

2022

INTRODUCED BY FIEDLER, FRANKEL, KINKEAD, OTTEN, HILL-EVANS,

RABB, MADDEN, CEPHAS, HANBIDGE, BENHAM, SCHLOSSBERG,

KENYATTA, T. DAVIS, HOHENSTEIN, KINSEY, DELLOSO, STURLA,

SHUSTERMAN, GUENST AND DALEY, OCTOBER 17, 2022

REFERRED TO COMMITTEE ON HEALTH, OCTOBER 17, 2022

AN ACT

Amending Title 18 (Crimes and Offenses) of the Pennsylvania

Consolidated Statutes, in abortion, further providing for

definitions, for medical consultation and judgment, for

informed consent, for parental consent, for printed

information, for determination of gestational age, for

prohibited acts, for reporting, for civil penalties and for

State Board of Medicine and State Board of Osteopathic

Medicine.

The General Assembly of the Commonwealth of Pennsylvania

hereby enacts as follows:

Section 1. The definitions of "probable gestational age of

the unborn child" and "viability" in section 3203 of Title 18 of

the Pennsylvania Consolidated Statutes are amended and the

section is amended by adding a definition to read:

§ 3203. Definitions.

The following words and phrases when used in this chapter

shall have, unless the context clearly indicates otherwise, the

meanings given to them in this section:

* * *

"Probable gestational age of the unborn child." What, in the

judgment of the attending physician or qualified practitioner,

will with reasonable probability be the gestational age of the

unborn child at the time the abortion is planned to be

performed.

"Qualified practitioner." Includes:

(1) A physician assistant as defined in section 2 of the

act of October 5, 1978 (P.L.1109, No.261), known as the

Osteopathic Medical Practice Act.

(2) A certified registered nurse practitioner as defined

in section 2(12) of the act of May 22, 1951 (P.L.317, No.69),

known as The Professional Nursing Law.

(3) A nurse-midwife as defined in section 2 of the act

of December 20, 1985 (P.L.457, No.112), known as the Medical

Practice Act of 1985.

* * *

"Viability." That stage of fetal development when, in the

judgment of the physician or qualified practitioner based on the

particular facts of the case before [him] the physician or

qualified practitioner and in light of the most advanced medical

technology and information available to [him] the physician or

qualified practitioner, there is a reasonable likelihood of

sustained survival of the unborn child outside the body of his

or her mother, with or without artificial support.

Section 2. Sections 3204, 3205(a)(1) introductory paragraph

and (2) introductory paragraph, (c) and (d), 3206(a), (b), (c),

(d) and (i), 3208(a)(1), 3210, 3213(b), (c) and (d), 3214(a)(1)

and (10), (b), (c), (e)(3), (g), (h) introductory paragraph and

(i), 3217 and 3219 of Title 18 are amended to read:

§ 3204. Medical consultation and judgment.

[(a) Abortion prohibited; exceptions.--No abortion shall be

20220HB2847PN3550 - 2 -

performed except by a physician after either:

(1) he determines that, in his best clinical judgment,

the abortion is necessary; or

(2) he receives what he reasonably believes to be a

written statement signed by another physician, hereinafter

called the "referring physician," certifying that in this

referring physician's best clinical judgment the abortion is

necessary.

(b) Requirements.--Except in a medical emergency where there

is insufficient time before the abortion is performed, the woman

upon whom the abortion is to be performed shall have a private

medical consultation either with the physician who is to perform

the abortion or with the referring physician. The consultation

will be in a place, at a time and of a duration reasonably

sufficient to enable the physician to determine whether, based

on his best clinical judgment, the abortion is necessary.

(a) or (b) whether an abortion is necessary, a physician's best

clinical judgment may be exercised in the light of all factors

(physical, emotional, psychological, familial and the woman's

age) relevant to the well-being of the woman. No abortion which

is sought solely because of the sex of the unborn child shall be

deemed a necessary abortion.]

(a.1) General rule.--Except as provided under subsection

(a.2), an abortion shall be performed by a physician.

(a.2) Exception.--A qualified practitioner may perform a

medication or aspiration abortion.

(b.1) Sovereignty over body.--Notwithstanding any other

provision of this chapter, the decision to have an abortion

shall be solely that of the patient in consultation with the

20220HB2847PN3550 - 3 -

patient's physician or qualified practitioner.

(d) Penalty.--Any person who intentionally, knowingly or

recklessly violates the provisions of this section commits a

felony of the third degree, and any physician or qualified

practitioner who violates the provisions of this section is

guilty of "unprofessional conduct" and [his] the physician's or

qualified practitioner's license [for the practice of medicine

and surgery] shall be subject to suspension or revocation in

accordance with procedures provided under the act of October 5,

1978 (P.L.1109, No.261), known as the Osteopathic Medical

Practice Act, the act of December 20, 1985 (P.L.457, No.112),

known as the Medical Practice Act of 1985, the act of May 22,

1951 (P.L.317, No.69), known as the Professional Nursing Law, or

their successor acts.

§ 3205. Informed consent.

(a) General rule.--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:

(1) At least 24 hours prior to the abortion, the

physician or qualified practitioner who is to perform the

abortion [or the referring physician] has orally informed the

woman of:

* * *

(2) At least 24 hours prior to the abortion, the

physician or qualified practitioner 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

20220HB2847PN3550 - 4 -

by [either] the physician or qualified practitioner, has

informed the pregnant woman that:

* * *

violates the provisions of this section is guilty of

"unprofessional conduct" and [his] the physician's or qualified

practitioner's license [for the practice of medicine and

surgery] shall be subject to suspension or revocation in

accordance with procedures provided under the act of October 5,

1978 (P.L.1109, No.261), known as the Osteopathic Medical

Practice Act, the act of December 20, 1985 (P.L.457, No.112),

known as the Medical Practice Act of 1985, the act of May 22,

1951 (P.L.317, No.69), known as the Professional Nursing Law, or

their successor acts. Any physician or qualified practitioner

who performs or induces an abortion without first obtaining the

certification required by subsection (a)(4) or with knowledge or

reason to know that the informed consent of the woman has not

been obtained shall for the first offense be guilty of a summary

offense and for each subsequent offense be guilty of a

misdemeanor of the third degree. No physician or qualified

practitioner shall be guilty of violating this section for

failure to furnish the information required by subsection (a) 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.

(d) Limitation on civil liability.--Any physician or

qualified practitioner who complies with the provisions of this

section may not be held civilly liable to [his] a patient for

failure to obtain informed consent to the abortion within the

20220HB2847PN3550 - 5 -

meaning of that term as defined by [the act of October 15, 1975

(P.L.390, No.111), known as the Health Care Services Malpractice

Act.] section 503 of the act of March 20, 2002 (P.L.154, No.13),

known as the Medical Care Availability and Reduction of Error

(Mcare) Act.

§ 3206. Parental consent.

(a) General rule.--Except in the case of a medical

emergency, or except as provided in this section, if a pregnant

woman is less than 18 years of age and not emancipated, or if

she has been adjudged an incapacitated person under 20 Pa.C.S. §

5511 (relating to petition and hearing; independent evaluation),

a physician or qualified practitioner shall not perform an

abortion upon her unless, in the case of a woman who is less

than 18 years of age, [he] the physician or qualified

practitioner 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] the physician or

qualified practitioner 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.

(b) Unavailability of parent or guardian.--If both parents

have died or are otherwise unavailable to the physician or

qualified practitioner within a reasonable time and in a

reasonable manner, consent of the pregnant woman's guardian or

guardians shall be sufficient. If the pregnant woman's parents

are divorced, consent of the parent having custody shall be

20220HB2847PN3550 - 6 -

sufficient. If neither any parent nor a legal guardian is

available to the physician or qualified practitioner within a

reasonable time and in a reasonable manner, consent of any adult

person standing in loco parentis shall be sufficient.

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 court

of common pleas of the judicial district in which the applicant

resides or in which the abortion is sought shall, upon petition

or motion, after an appropriate hearing, authorize a physician

or qualified practitioner 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.

(d) Court order.--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 or qualified practitioner to perform the

abortion.

* * *

(i) Penalty.--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

20220HB2847PN3550 - 7 -

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] the physician's or qualified practitioner's

license [for the practice of medicine and surgery] shall be

suspended in accordance with procedures provided under the act

of October 5, 1978 (P.L.1109, No.261), known as the Osteopathic

Medical Practice Act, the act of December 20, 1985 (P.L.457,

No.112), known as the Medical Practice Act of 1985, the act of

May 22, 1951 (P.L.317, No.69), known as the Professional Nursing

Law, or their successor acts, 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 of this Commonwealth 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.

§ 3208. Printed information.

(a) General rule.--The department shall cause to be

published in English, Spanish and Vietnamese, within 60 days

after this chapter becomes law, and shall update on an annual

basis, the following easily comprehensible printed materials:

(1) Geographically indexed materials designed to inform

the woman of public and private agencies and services

available to assist a woman through pregnancy, upon

childbirth and while the child is dependent, including

adoption agencies, which shall include a comprehensive list

20220HB2847PN3550 - 8 -

of the agencies available, a description of the services they

offer and a description of the manner, including telephone

numbers, in which they might be contacted, or, at the option

of the department, printed materials including a toll-free,

24-hour a day telephone number which may be called to obtain,

orally, such a list and description of agencies in the

locality of the caller and of the services they offer. The

materials shall provide information on the availability of

medical assistance benefits for prenatal care, childbirth and

neonatal care, and state that it is unlawful for any

individual to coerce a woman to undergo abortion, that any

physician or qualified practitioner who performs an abortion

upon a woman without obtaining her informed consent or

without according her a private medical consultation may be

liable to her for damages in a civil action at law, that the

father of a child is liable to assist in the support of that

child, even in instances where the father has offered to pay

for an abortion and that the law permits adoptive parents to

pay costs of prenatal care, childbirth and neonatal care.

* * *

§ 3210. Determination of gestational age.

(a) Requirement.--Except in the case of a medical emergency

which prevents compliance with this section, no abortion shall

be performed or induced unless the [referring physician or the]

physician or qualified practitioner performing or inducing [it]

the abortion has first made a determination of the probable

gestational age of the unborn child. In making such

determination, the physician or qualified practitioner shall

make such inquiries of the patient and perform or cause to be

performed such medical examinations and tests as a prudent

20220HB2847PN3550 - 9 -

physician would consider necessary to make or perform in making

an accurate diagnosis with respect to gestational age. The

physician or qualified practitioner who performs or induces the

abortion shall report the type of inquiries made and the type of

examinations and tests utilized to determine the gestational age

of the unborn child and the basis for the diagnosis with respect

to gestational age on forms provided by the department.

(b) Penalty.--Failure of any physician or qualified

practitioner to conform to any requirement of this section

constitutes "unprofessional conduct" within the meaning of the

act of October 5, 1978 (P.L.1109, No.261), known as the

Osteopathic Medical Practice Act, the act of December 20, 1985

(P.L.457, No.112), known as the Medical Practice Act of 1985,

the act of May 22, 1951 (P.L.317, No.69), known as the

Professional Nursing Law, or their successor acts. Upon a

finding by the State Board of Medicine [or], the State Board of

Osteopathic Medicine or the State Board of Nursing that any

physician or qualified practitioner has failed to conform to any

requirement of this section, the board shall not fail to suspend

that physician's or qualified practitioner's license for a

period of at least three months. Intentional, knowing or

reckless falsification of any report required under this section

is a misdemeanor of the third degree.

§ 3213. Prohibited acts.

* * *

(b) Referral fee.--The payment or receipt of a referral fee

in connection with the performance of an abortion is a

misdemeanor of the first degree. For purposes of this section,

"referral fee" means the transfer of anything of value between a

physician or qualified practitioner who performs an abortion or

20220HB2847PN3550 - 10 -

an operator or employee of a clinic at which an abortion is

performed and the person who advised the woman receiving the

abortion to use the services of that physician, qualified

practitioner or clinic.

assure that prior to the performance of any abortion, including

abortions performed in the first trimester of pregnancy, the

maternal Rh status shall be determined and that anti-Rh

sensitization prophylaxis shall be provided to each patient at

risk of sensitization unless the patient refuses to accept the

treatment. Except when there exists a medical emergency or, in

the judgment of the physician or qualified practitioner, there

exists no possibility of Rh sensitization, the intentional,

knowing, or reckless failure to conform to the regulations

issued pursuant to this subsection constitutes "unprofessional

conduct" and [his] the physician's or qualified practitioner's

license [for the practice of medicine and surgery] shall be

subject to suspension or revocation in accordance with

procedures provided under the act of October 5, 1978 (P.L.1109,

No.261), known as the Osteopathic Medical Practice Act, the act

of December 20, 1985 (P.L.457, No.112), known as the Medical

Practice Act of 1985, the act of May 22, 1951 (P.L.317, No.69),

known as the Professional Nursing Law, or their successor acts.

(d) Participation in abortion.--Except for a facility

devoted exclusively to the performance of abortions, no medical

personnel or medical facility, nor any employee, agent or

student thereof, shall be required against [his or its] the

individual's conscience to aid, abet or facilitate performance

of an abortion or dispensing of an abortifacient and failure or

refusal to do so shall not be a basis for any civil, criminal,

20220HB2847PN3550 - 11 -

administrative or disciplinary action, penalty or proceeding,

nor may it be the basis for refusing to hire or admit anyone.

Nothing herein shall be construed to limit the provisions of the

act of October 27, 1955 (P.L.744, No.222), known as the

"Pennsylvania Human Relations Act." Any person who knowingly

violates the provisions of this subsection shall be civilly

liable to the person thereby injured and, in addition, shall be

liable to that person for punitive damages in the amount of

$5,000.

* * *

§ 3214. Reporting.

(a) General rule.--For the purpose of promotion of maternal

health and life by adding to the sum of medical and public

health knowledge through the compilation of relevant data, and

to promote the Commonwealth's interest in protection of the

unborn child, a report of each abortion performed shall be made

to the department on forms prescribed by [it] the department.

The report forms shall not identify the individual patient by

name and shall include the following information:

(1) Identification of the physician or qualified

practitioner who performed the abortion, the concurring

physician as required by section 3211(c)(2) (relating to

abortion on unborn child of 24 or more weeks gestational

age), the second physician as required by section 3211(c)(5)

and the facility where the abortion was performed [and of the

referring physician, agency or service, if any].

* * *

(10) Basis for any medical judgment that a medical

emergency existed which excused the physician or qualified

practitioner from compliance with any provision of this

20220HB2847PN3550 - 12 -

chapter.

* * *

(b) Completion of report.--The reports shall be completed by

the hospital or other licensed facility, signed by the physician

or qualified practitioner who performed the abortion and

transmitted to the department within 15 days after each

reporting month.

performed during the first trimester of pregnancy, the tissue

that is removed shall be subjected to a gross or microscopic

examination, as needed, by the physician, qualified practitioner

or a qualified person designated by the physician or qualified

practitioner to determine if a pregnancy existed and was

terminated. If the examination indicates no fetal remains, that

information shall immediately be made known to the physician or

qualified practitioner and sent to the department within 15 days

of the analysis. When there is an abortion performed after the

first trimester of pregnancy where the physician or qualified

practitioner has certified the unborn child is not viable, the

dead unborn child and all tissue removed at the time of the

abortion shall be submitted for tissue analysis to a board

eligible or certified pathologist. If the report reveals

evidence of viability or live birth, the pathologist shall

report such findings to the department within 15 days and a copy

of the report shall also be sent to the physician or qualified

practitioner performing the abortion. Intentional, knowing,

reckless or negligent failure of the physician or qualified

practitioner to submit such an unborn child or such tissue

remains to such a pathologist for such a purpose, or

intentional, knowing or reckless failure of the pathologist to

20220HB2847PN3550 - 13 -

report any evidence of live birth or viability to the department

in the manner and within the time prescribed is a misdemeanor of

the third degree.

* * *

(e) Statistical reports; public availability of reports.--

* * *

(3) Original copies of all reports filed under

subsections (a), (f) and (h) shall be available to the State

Board of Medicine [and], the State Board of Osteopathic

Medicine and the State Board of Nursing for use in the

performance of their official duties.

* * *

(g) Report of maternal death.--After 30 days' public notice,

the department shall [henceforth] require that all reports of

maternal deaths occurring within the Commonwealth arising from

pregnancy, childbirth or intentional abortion in every case

state the cause of death, the duration of the woman's pregnancy

when her death occurred and whether or not the woman was under

the care of a physician or qualified practitioner during her

pregnancy prior to her death and shall issue such regulations as

are necessary to assure that such information is reported,

conducting its own investigation if necessary in order to

ascertain such data. A woman shall be deemed to have been under

the care of a physician or qualified practitioner prior to her

death for the purpose of this chapter when she had either been

examined or treated by a physician or qualified practitioner,

not including any examination or treatment in connection with

emergency care for complications of her pregnancy or

complications of her abortion, preceding the woman's death at

any time which is both 21 or more days after the time she became

20220HB2847PN3550 - 14 -

pregnant and within 60 days prior to her death. Known incidents

of maternal mortality of nonresident women arising from induced

abortion performed in this Commonwealth shall be included as

incidents of maternal mortality arising from induced abortions.

Incidents of maternal mortality arising from continued pregnancy

or childbirth and occurring after induced abortion has been

attempted but not completed, including deaths occurring after

induced abortion has been attempted but not completed as the

result of ectopic pregnancy, shall be included as incidents of

maternal mortality arising from induced abortion. The department

shall annually compile a statistical report for the General

Assembly based upon the data gathered under this subsection, and

all such statistical reports shall be available for public

inspection and copying.

(h) Report of complications.--Every physician or qualified

practitioner who is called upon to provide medical care or

treatment to a woman who is in need of medical care because of a

complication or complications resulting, in the good faith

judgment of the physician or qualified practitioner, from having

undergone an abortion or attempted abortion shall prepare a

report thereof and file the report with the department within 30

days of the date of [his] the physician's or qualified

practitioner's first examination of the woman, which report

shall be on forms prescribed by the department, which forms

shall contain the following information, as received, and such

other information except the name of the patient as the

department may from time to time require:

* * *

(i) Penalties.--

(1) Any person required under this section to file a

20220HB2847PN3550 - 15 -

report, keep any records or supply any information, who

willfully fails to file such report, keep such records or

supply such information at the time or times required by law

or regulation is guilty of "unprofessional conduct" and [his]

the physician's or qualified practitioner's license [for the

practice of medicine and surgery] shall be subject to

suspension or revocation in accordance with procedures

provided under the act of October 5, 1978 (P.L.1109, No.261),

known as the Osteopathic Medical Practice Act, the act of

December 20, 1985 (P.L.457, No.112), known as the Medical

Practice Act of 1985, the act of May 22, 1951 (P.L.317,

No.69), known as the Professional Nursing Law, or their

successor acts.

(2) Any person who willfully delivers or discloses to

the department any report, record or information known by

[him] the person to be false commits a misdemeanor of the

first degree.

(3) In addition to the above penalties, any person,

organization or facility who willfully violates any of the

provisions of this section requiring reporting shall upon

conviction thereof:

(i) For the first time, have [its] the person's,

organization's or facility's license suspended for a

period of six months.

(ii) For the second time, have [its] the person's,

organization's or facility's license suspended for a

period of one year.

(iii) For the third time, have [its] the person's,

organization's or facility's license revoked.

§ 3217. Civil penalties.

20220HB2847PN3550 - 16 -

Any physician or qualified practitioner who knowingly

violates any of the provisions of section 3204 (relating to

medical consultation and judgment) or 3205 (relating to informed

consent) shall, in addition to any other penalty prescribed in

this chapter, be civilly liable to [his] a patient for any

damages caused thereby and, in addition, shall be liable to

[his] a patient for punitive damages in the amount of $5,000,

and the court shall award a prevailing plaintiff a reasonable

attorney fee as part of costs.

§ 3219. [State Board of Medicine; State Board of Osteopathic

Medicine.] Duties of the State Board of Medicine,

State Board of Osteopathic Medicine and State Board

of Nursing.

(a) Enforcement.--It shall be the duty of the State Board of

Medicine [and], the State Board of Osteopathic Medicine and the

State Board of Nursing to vigorously enforce those provisions of

this chapter, violation of which constitutes "unprofessional

conduct" within the meaning of the act of October 5, 1978

(P.L.1109, No.261), known as the Osteopathic Medical Practice

Act, the act of December 20, 1985 (P.L.457, No.112), known as

the Medical Practice Act of 1985, the act of May 22, 1951

(P.L.317, No.69), known as the Professional Nursing Law, or

their successor acts. Each board shall have the power to

conduct, and its responsibilities shall include, systematic

review of all reports filed under this chapter.

(b) Penalties.--Except as otherwise herein provided, upon a

finding of "unprofessional conduct" under the provisions of this

chapter, the board shall, for the first such offense, prescribe

such penalties as it deems appropriate; for the second such

offense, suspend the license of the physician or qualified

20220HB2847PN3550 - 17 -

practitioner for at least 90 days; and, for the third such

offense, revoke the license of the physician or qualified

practitioner.

report of its enforcement efforts under this chapter to the

General Assembly, which shall contain the following items:

(1) number of violations investigated, by section of

this chapter;

(2) number of physicians or qualified practitioner

complained against;

(3) number of physicians or qualified practitioner

investigated;

(4) penalties imposed; and

(5) such other information as any committee of the

General Assembly shall require.

Such reports shall be available for public inspection and

copying.

Section 3. This act shall take effect immediately.

20220HB2847PN3550 - 18 -