Arkansas Code Title 20. Public Health and Welfare § 20-16-1703. Informed consent requirement

(a) A person shall not perform or induce an abortion without the voluntary and informed consent of the woman upon whom the abortion is to be performed or induced.

(b) Except in the case of a medical emergency, consent to an abortion is voluntary and informed only if:

(1) At least forty-eight (48) hours before the abortion, the physician who is to perform the abortion or the referring physician has informed the woman, orally and in person, of the following:

(A) The name of the physician who will perform the abortion;

(B) Medically accurate information that a reasonable patient would consider material to the decision concerning whether or not to undergo the abortion, including:

(i) A description of the proposed abortion method;

(ii) The immediate and long-term medical risks associated with the proposed abortion method, including without limitation the risks of:

(a) Cervical or uterine perforation;

(b) Danger to subsequent pregnancies;

(c) Hemorrhage;  and

(d) Infection;  and

(iii) Alternatives to the abortion;

(C) The probable gestational age of the unborn child at the time the abortion is to be performed;

(D) The probable anatomical and physiological characteristics of the unborn child at the time the abortion is to be performed;

(E) The medical risks associated with carrying the unborn child to term;

(F) Any need for anti-Rh immune globulin therapy if the woman is Rh negative, the likely consequences of refusing such therapy, and the cost of the therapy;  and

(G) Information on reversing the effects of abortion-inducing drugs;

(2) At least forty-eight (48) hours before the abortion, the physician who is to perform the abortion, the referring physician, or a qualified person informs the woman, orally and in person, that:

(A) 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 and informational DVD given to her under § 20-16-1704 ;

(B) The printed materials and informational DVD under § 20-16-1704 describe the unborn child and list agencies that offer alternatives to abortion;

(C)(i) The father of the unborn child is liable to assist in the support of the child, even in instances in which he has offered to pay for the abortion.

(ii) In a case of rape or incest, the information required under subdivision (b)(2)(C)(i) of this section may be omitted;

(D) The woman is free to withhold or withdraw her consent to the abortion at any time without affecting her right to future care or treatment and without the loss of any state or federally funded benefits to which she otherwise might be entitled;  and

(E) The information contained in the printed materials and informational DVD given to her under § 20-16-1704 is also available on a state website;

(3)(A) The information required under subdivisions (b)(1) and (2) of this section is provided to the woman individually and in a private room to protect her privacy, to maintain the confidentiality of her decision, to ensure that the information focuses on her individual circumstances, and to ensure that she has an adequate opportunity to ask questions.

(B) Subdivision (b)(3)(A) of this section does not preclude the provision of required information through a translator in a language understood by the woman;

(4)(A) At least forty-eight (48) hours before the abortion, the woman is given a copy of the printed materials and permitted to view and given a copy of the informational DVD under § 20-16-1704 .

(B) If the woman is unable to read the materials, the materials shall be read to her in a language she can understand.

(C) If the woman asks questions concerning any of the information or materials under this subdivision (b)(4), the person who provides or reads the information or materials shall answer her questions in a language she can understand;

(5)(A) At least forty-eight (48) hours before an abortion is performed or induced on a woman whose pregnancy has progressed to twenty (20) weeks gestation or more, the physician performing the abortion on the pregnant woman, the referring physician, or a qualified person assisting the physician, orally and in person, offers information on fetal pain to the patient.

(B) The information required under subdivision (b)(5)(A) of this section and counseling related to that information shall include without limitation the following:

(i) That by twenty (20) weeks gestational age, the unborn child possesses all anatomical links in its nervous system, including spinal cord, nerve tracts, thalamus, and cortex, that are necessary in order to feel pain;

(ii) That an unborn child at twenty (20) weeks gestation or more is fully capable of experiencing pain;

(iii) A description of the actual steps in the abortion procedure to be performed or induced and at which steps in the abortion procedure the unborn child is capable of feeling pain;

(iv) That maternal anesthesia typically offers little pain prevention for the unborn child;  and

(v) That an anesthetic or analgesic, or both, are available so that pain to the fetus is minimized or alleviated;

(6)(A) Before the abortion, the pregnant woman certifies in writing on a checklist form provided or approved by the Department of Health that the information required under § 20-16-1704 has been provided.

(B) A physician who performs an abortion shall report monthly to the department the total number of certifications the physician has received.

(C) The department shall make available to the public annually the number of certifications received under subdivision (b)(6)(B) of this section;

(7)(A) Except in the case of a medical emergency, the physician who is to perform the abortion receives and signs a copy of the written certification required under subdivision (b)(6)(A) of this section before performing the abortion.

(B) The physician shall retain a copy of the checklist certification form in the pregnant woman's medical record;  and

(8) At least forty-eight (48) hours before an abortion that is being performed or induced utilizing abortion-inducing drugs, the physician who is to perform the abortion, the referring physician, or a qualified person informs the pregnant woman, orally and in person, that:

(A) It may be possible to reverse the effects of the abortion if the pregnant woman changes her mind, but that time is of the essence;  and

(B) Information on reversing the effects of abortion-inducing drugs is available in materials prepared by the department.

(c)(1) In the event of a medical emergency requiring an immediate termination of pregnancy, the physician who performed the abortion clearly certifies in writing the nature of the medical emergency and the circumstances that necessitated the waiving of the informed consent requirements under this subchapter.

(2) The certification required under subdivision (c)(1) of this section shall be signed by the physician who performed the emergency abortion and shall be permanently filed in both the records of the physician performing the abortion and the records of the facility where the abortion took place.

(d) A physician, facility, employee or volunteer of a facility, or any other person or entity shall not require or obtain payment for a service provided in relation to abortion to a patient who has inquired about an abortion or scheduled an abortion until the expiration of the forty-eight-hour reflection period required in this section.

(e) All ultrasound images, test results, and forms signed by the patient or legal guardian shall be retained as a part of the patient's medical record and be made available for inspection by the department or other authorized agency.


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