of 2012.
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(a) Definitions. For the purposes of this § 3218.1, the following words and phrases are defined to mean: (1) Abortion means the use or prescription of any instrument, medicine, drug, or other substance or device to terminate the pregnancy of a woman known to be pregnant with an intention other than to increase the probability of a live birth, to preserve the life or health of the child after live birth, to act upon an ectopic pregnancy, or to remove a dead unborn child who died as the result of natural causes in utero, accidental trauma, or a criminal assault on a pregnant woman or her unborn child, and which causes the premature termination of the pregnancy; (2) Act means the Women's Reproductive Health Information Act of 2012 codified at Title 10 GCA § 3218.1; (3) Complication means that condition which includes but is not limited to hemorrhage, infection, uterine perforation, cervical laceration, pelvic inflammatory disease, endometriosis, and retained products. The Department may further define the term “complication” as necessary and in a manner not inconsistent with this § 3218.1; (4) Conception means the fusion of a human spermatozoon with a human ovum; (5) Department means the Department of Public Health and Social Services; (6) Facility or medical facility means any public or private hospital, clinic, center, medical school, medical training institution, health care facility, physician's office, infirmary, dispensary, ambulatory surgical treatment center, or other institution or location wherein medical care is provided to any person; (7) First trimester means the first twelve (12) weeks of gestation; (8) Gestational age means the time that has elapsed since the first day of the woman's last occurring menstruation;
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(9) Hospital means any building, structure, institution or place, public or private, whether organized for profit or not, devoted primarily to the maintenance and operation of facilities for the diagnosis, treatment and provision of medical or surgical care for three (3) or more non-related individuals, admitted for overnight stay or longer in order to obtain medical, including obstetric, psychiatric and nursing care of illness, disease, injury or deformity, whether physical or mental and regularly making available at least clinical laboratory services and diagnostic x-ray services and treatment facilities for surgery or obstetrical care or other definitive medical treatment; (10) Medical emergency means a condition which, in reasonable medical judgment, so complicates the medical condition of the pregnant woman as to necessitate the immediate termination of her pregnancy to avert her death or for which a delay will create a serious risk of substantial and irreversible physical impairment of a major bodily function. No condition shall be deemed a medical emergency if based on a claim or diagnosis that the woman will engage in conduct which would result in her death or in substantial and irreversible physical impairment of a major bodily function; (11) Physician means any person licensed to practice medicine or surgery or osteopathic medicine under the Physicians Practice Act (Title 10 GCA § 12201, et seq.) or in another jurisdiction of the United States; (12) Pregnant or pregnancy means that female reproductive condition of having an unborn child in the mother's uterus; (13) Qualified person means an agent of a physician who is a psychologist, licensed social worker, licensed professional counselor, registered nurse, or physician; (14) Records Section means the Guam Memorial Hospital Medical Records Section; (15) Unborn child or fetus each means an individual organism of the species homo sapiens from conception until live birth;
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(16) Viability means the state of fetal development when, in the reasonable judgment of a physician based on the particular facts of the case before him or her and in light of the most advanced medical technology and information available to him or her, 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; and (17) Woman means a female human being whether or not she has reached the age of majority. (b) Informed Consent Requirement. No abortion shall be performed or induced without 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 twenty-four (24) hours before the abortion, the physician who is to perform the abortion or a qualified person has informed the woman in person of the following: (A) the name of the physician who will perform the abortion; (B) the following medically accurate information that a reasonable person would consider material to the decision of whether or not to undergo the abortion: (i) a description of the proposed abortion method and (ii) the immediate and long-term medical risks associated with the proposed abortion method, including but not limited to any risks of infection, hemorrhage, cervical or uterine perforation, and any potential effect upon future capability to conceive as well as to sustain a pregnancy to full term; (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
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abortion is to be performed; (E) the medical risks associated with carrying the child to term; (F) any need for anti-Rh immune globulin therapy if she is Rh negative, the likely consequences of refusing such therapy, and the cost of the therapy; (2) at least twenty-four (24) hours before the abortion, the physician who is to perform the abortion or a qualified person has informed the woman 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 given to her and described in Subsection (c) of this § 3218.1; (B) public assistance may be available to provide medical insurance and other support for her child while he or she is a dependent and that more detailed information on the availability of such assistance is contained in the printed materials given to her and described in Subsection (c) of this § 3218.1; (C) public services exist which will help to facilitate the adoption of her child and that more detailed information on the availability of such services is contained in the printed materials given to her and described in Subsection (c) of this § 3218.1; (D) the printed materials in Subsection (c) of this Section 3218.1 describe the unborn child; (E) the father of the unborn child is liable to assist in the support of this child, even in instances where he has offered to pay for the abortion. In the case of rape or incest, this information may be omitted; and (F) she 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 locally or federally funded benefits to which she might
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otherwise be entitled. (3) At least twenty-four (24) hours before the abortion, the physician who is to perform the abortion or a qualified person has given the woman a copy of the printed materials described in Subsection (c) of this § 3218.1. If the woman is unable to read the materials, they shall be read to her. If the woman asks questions concerning any of the information or materials, answers shall be provided to her in a language she can understand. (4) The information in Subsections (b)(l), (b)(2) and (b)(3) of this § 3218.1 is provided to the woman individually and in a private room to protect her privacy and maintain the confidentiality of her decision and to ensure that the information focuses on her individual circumstances and that she has an adequate opportunity to ask questions. (5) Prior to the abortion, the woman certifies in writing on a checklist certification provided by the Department that the information required to be provided under Subsections (b)(l), (b)(2) and (b)(3) of this § 3218.1 has been provided. All physicians who perform abortions shall report the total number of certifications received monthly to the Records Section. The Records Section shall make the number of certifications received available to the public on an annual basis. (6) Except in the case of a medical emergency, the physician who is to perform the abortion shall receive and sign a copy of the written checklist certification prescribed in Subsection (b)(5) of this § 3218.1 prior to performing the abortion. The physician shall retain a copy of the checklist certification in the woman's medical record. (7) In the event of a medical emergency requiring an immediate termination of the pregnancy, the physician who performed the abortion shall clearly certify in writing the nature of the medical emergency and the circumstances which necessitated the waiving of the informed consent requirements of this § 3218.1. This certification shall be signed by the physician who performed the emergency
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termination of pregnancy, and shall be permanently filed in both the patient records maintained by the physician performing the emergency procedure and the records maintained by the facility where the emergency procedure occurred. (8) A physician shall not require or obtain payment from anyone for providing the information and certification required by this § 3218.1 until the expiration of the twenty- four (24) hour reflection period required by this § 3218.1. (c) Publication of Materials. The Department shall cause to be published printed materials in English and any other culturally sensitive languages which the Department deems appropriate within one hundred eighty (180) days after this Act becomes law. The printed materials shall be printed in a typeface large enough to be clearly legible and shall be presented in an objective, unbiased manner designed to convey only accurate scientific information. On an annual basis, the Department shall review and update, if necessary, the following easily comprehensible printed materials: (1) Printed materials that inform the woman of any entities available to assist a woman through pregnancy, upon childbirth and while her child is dependent, including but not limited to adoption services. The printed materials shall include a list of the entities, a description of the services they offer, and the telephone numbers of the entities, and shall inform the woman about available medical assistance benefits for prenatal care, childbirth, and neonatal care. The Department shall ensure that the materials described in this § 3218.1 are comprehensive and do not directly or indirectly promote, exclude, or discourage the use of any entity described in this § 3218.1. These printed materials shall state that it is unlawful for any individual to coerce a woman to undergo an abortion. The printed materials shall also state that any physician who performs an abortion upon a woman without her informed consent may be liable to her for damages in a civil action and
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that the law permits adoptive parents to pay costs of prenatal care, childbirth, and neonatal care. The printed materials shall include the following statement: “The Territory of Guam strongly urges you to contact the resources provided in this booklet before making a final decision about abortion. The law requires that your physician or his or her agent give you the opportunity to call agencies and service providers like these before you undergo an abortion.” (2) Printed materials that include information on the support obligations of the father of a child who is born alive, including but not limited to the father's legal duty to support his child, which may include child support payments and health insurance, and the fact that paternity may be established by written declaration of paternity or by court action. The printed material shall also state that more information concerning paternity establishment and child support services and enforcement may be obtained by calling the Office of the Attorney General of Guam, Child Support Enforcement Division. (3) Printed materials that inform the pregnant woman of the probable anatomical and physiological characteristics of an unborn child at two (2) - week gestational increments from fertilization to full term, including color photographs of the developing unborn child at two (2) - week gestational increments. The descriptions shall include information about brain and heart functions, the presence of external members and internal organs during the applicable stages of development, and any relevant information on the possibility of the child's survival at several and equidistant increments throughout a full term pregnancy. If a photograph is not available, a picture must contain the dimensions of the unborn child and must be anatomically accurate and realistic. The materials shall be objective, nonjudgmental, and designed to convey only accurate scientific information about the unborn child at the various gestational ages.
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(4) Printed materials which contain objective information describing the various surgical and drug-induced methods of abortion, as well as the immediate and long-term medical risks commonly associated with each abortion method including but not limited to the risks of infection, hemorrhage, cervical or uterine perforation or rupture, any potential effect upon future capability to conceive as well as to sustain a pregnancy to full term, the possible adverse psychological effects associated with an abortion, and the medical risks associated with carrying a child to term. (5) A checklist certification to be used by the physician or a qualified person under Subsection (b)(5) of this § 3218.1, which will list all the items of information which are to be given to the woman by the physician or a qualified person under this § 3218.1. (d) Cost of Materials. The Department shall make available the materials enumerated in Subsection (c) of this § 3218.1 for purchase by the physician or qualified person who is required to provide these materials to women pursuant to Subsection (b)(3) of this § 3218.1 at such cost as reasonably determined by the Department. No claim of inability to pay the cost charged by the Department for these materials will excuse any party from complying with the requirements set forth in this § 3218.1. (e) Emergencies. When a medical emergency compels the performance of an abortion or termination of pregnancy, the physician shall inform the woman, before the abortion if possible, of the medical indications supporting the physician's judgment that an immediate abortion or termination of pregnancy is necessary to avert her death or that a twenty-four (24) hour delay would cause substantial and irreversible impairment of a major bodily function. (f) Criminal Penalties. Any person who intentionally, knowingly, or recklessly violates this Act is guilty of a misdemeanor. (g) Civil and Administrative Claims. In addition to whatever remedies are available under the common law or statutory laws of Guam, failure to comply with the requirements of this Act shall:
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(1) in the case of an intentional violation of the Act, constitute prima facie evidence of a failure to obtain informed consent. When requested, the court shall allow a woman upon whom an abortion was performed or attempted to be performed allegedly in violation of this Act to be identified in any action brought pursuant to this Act using solely her initials or the pseudonym “Jane Doe.” Further, with or without a request, the court may close any proceedings in the case from public attendance, and the court may enter other protective orders in its discretion to preserve the privacy of the woman upon whom the abortion was performed or attempted to be performed allegedly in violation of this Act. (2) Provide a basis for professional disciplinary action under 10 GCA § 11110. (3) Provide a basis for recovery for the woman for the wrongful death of her unborn child under Title 7 GCA § 12109, whether or not the unborn child was born alive or was viable at the time the abortion was performed. SOURCE: Added by P.L. 31-235:2 (Nov. 1, 2012). 2013 NOTE: This provision was to become effective sixty (60) days after the “printed materials” described in § 3218.1 (c) and the “checklist certification” described in § 3218.1(c)(5) were approved by the Department of Public Health and Social Services (DPHSS) pursuant to the rule-making process set forth in Title 5, Chapter 9, Article 3 of the Guam Code Annotated. P.L. 31-235:4 (Nov. 1, 2012). P.L. 32-089:2 (Nov. 27, 2013) amended the approving authority from DPHSS to “a majority vote of a team consisting of the Director of DPHSS, who shall serve as the Chairperson, the Medical Director of the DPHSS; and OB/GYN doctor from the Guam Medical Association; a Social Worker from the National Association of Social Workers; and a Psychiatrist from the Guam Behavioral Health and Wellness Center.” The “printed materials” described in § 3218.1 (c) and the “checklist certification” described in § 3218.1(c)(5) were to be approved no later than 120 days after enactment, pursuant to P.L. 32-089:2. 2012 NOTE: Subsection designations in subsection (b) were altered to adhere to the Compiler’s alpha-numeric scheme in accordance with the authority granted by 1 GCA § 1606.
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