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Biased Counseling & Mandatory Delay

A woman may not obtain an abortion until at least 72 hours after the attending or referring physician, , physician, nurse, nurse-midwife, genetic counselor, or physician's assistant orally, in a face-to-face consultation in any location in the state, tells her:  (1) the probable gestational age of the "unborn child"; (2) a description of its development; (3) the risks and nature of the procedure, "specifically how th[e] procedure will affect the fetus"; (4) the alternatives to abortion, including private and agency adoption methods; (5) that adoptive parents may legally pay the costs of prenatal care and childbirth; and (6) the medical risks of carrying the pregnancy to term.  If the person providing this information at least 72 hours before an abortion is not the attending or referring physician, physician, the attending or referring physician must also provide this information in a face-to-face consultation in any location in the state.

In addition, at least 72 hours prior to an abortion, the woman must receive a state-mandated lecture by the attending or referring physician, nurse, nurse-midwife, clinical laboratory technologist, psychologist, marriage and family therapist, genetic counselor, or social worker, orally and in person, that includes:  (1) that medical assistance benefits may be available for prenatal care, childbirth, and neonatal care; (2) that the "father" is liable for child support, even if he offered to pay for an abortion, and that a state agency will assist her in collecting child support; (3) that she has a right to view a free ultrasound of the "unborn child"; and (4) that the health department produces printed materials and a video that describe gestational stages, abortion methods, and public and private agencies and services, including adoption agencies and services, available to assist the woman through pregnancy, upon childbirth, and while the child is dependent.

In addition, the woman must receive state-prepared printed materials and be asked to view a video immediately or at another designated time and location.  A woman who declines to view the video immediately or when designated must be provided a copy.

The state-prepared printed materials and video must:  (1) describe with pictures, in a manner that conveys the state's preference for childbirth over abortion, the anatomical and physiological characteristics of the "unborn child" at two-week gestational increments, including the possibility of survival; (2) describe abortion methods, the consequences of each procedure to the fetus at various stages of development, the "possible detrimental psychological effects of abortion," and the medical risks associated with each procedure, including those related to subsequent child-bearing; (3) describe the risks associated with carrying the pregnancy to term; (4) include information about medical assistance benefits for prenatal care, childbirth, and neonatal care and the "father's" liability for child support; (5) state that a physician who provides abortion services without a woman's "informed" consent may be liable to her for damages in a civil action and that adoptive parents may legally pay the costs of prenatal care, childbirth, and neonatal care; (6) list public and private agencies and services available through pregnancy, at childbirth, and while the child is dependent, including a comprehensive list of names, addresses, and telephone numbers of public and private agencies and private attorneys whose practices include adoption, and an explanation of possible financial aid available during the adoption process, or include a 24-hour hotline that may be called to obtain such a list; (7) present adoption "as a preferred and positive choice and alternative to abortion"; and (8) convey the state's preference for childbirth over abortion.

In addition to including the information provided in the state-prepared materials, the video must show an ultrasound of the heartbeat of an "unborn child" in monthly increments from three to 14 weeks gestational age in a manner designed to convey the state's preference for childbirth over abortion, and the positive aspects of adoption.

A woman is not required to receive the information otherwise required if:  (1) her physician can demonstrate that he or she reasonably believed imparting the information would have caused a "severely adverse" effect on the woman's physical or mental health; (2) the abortion is necessary to preserve the woman's life or avert a serious risk of substantial and irreversible impairment of a major bodily function; (3) the pregnancy is the result of rape or incest; (4) the fetus would have been born with grave defects; (5) the woman is 14 or younger; (6) if the abortion was necessary in a case where a ruptured membrane would cause a serious infection; or (7) two physicians concur that the fetus has an anomaly incompatible with live birth.

Utah Code Ann. §§ 76-7-305 (Original Statute Enacted 1973; Repealed and Reenacted 1974; Last Amended 2014), -305.5 (Enacted 1981; Last Amended 2012).

A court held that a previous version of this law was constitutional.  Utah Women's Clinic v. Leavitt, 844 F. Supp. 1482 (D. Utah 1994), rev'd in part, appeal dismissed in part, 75 F.3d 564 (10th Cir. 1995), cert. denied, 518 U.S. 1019 (1996).

The state-prepared materials include enlarged color photographs of fetuses.  Div. Of Comm. & Family Health Servs., Utah Dep't Of Health, Information About The Developing Embryo And Fetus, About Abortion, And About Abortion Alternatives (Mar. 2001).

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