Hawaii Acts of the 2023 Legislative Session
SB 1, Act 2
A BILL FOR AN ACT
RELATING TO HEALTH CARE.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:
However, the legislature further finds that existing developments in the legal landscape threaten the State's policy to protect an individual's right to privacy and personal autonomy over their body within state boundaries. In June 2022, the Supreme Court of the United States held in Dobbs v. Jackson Women's Health Organization, 142 S.Ct. 2228 (2022), that the United States Constitution does not confer a right to an abortion. Dobbs overrules Roe v. Wade, 410 U.S. 113 (1973), and Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992), and the nearly fifty years of federal precedent regarding reproductive rights. The impact of Dobbs has resulted in many states either banning or severely restricting access to abortion. Additionally, some states are pursuing laws or policies purporting to impose civil or criminal liability or professional discipline in connection with the provision or receipt of, or assistance with, reproductive health care services outside of these states' borders.
It is the policy of this State that the rights of equality, liberty, and privacy guaranteed under article I, sections 3, 5, and 6, of the Hawaii State Constitution are fundamental rights and that those rights include an individual's right to make reproductive health care decisions about one's own body and to decide whether to bear a child or obtain an abortion. Due to the shifting legal landscape regarding the right to privacy and an individual's bodily autonomy, the legislature finds it is imperative to reiterate and bolster the State's policy to affirm protection of these rights and freedoms within the state boundaries. The previous governor initiated this process by issuing Executive Order 22-5 on October 11, 2022, which outlined the governor's policy to limit cooperation with other states in investigations, proceedings, or warrants involving the provision of reproductive health care services in the State, provided that the provision of the reproductive health care service is legal in the State. This Act codifies and expands on that policy.
Additionally, this Act is intended to maintain the constitutional right to an abortion guaranteed by Roe v. Wade. While the legal landscape has fundamentally changed, this Act will amend the State's laws on abortion and reproductive rights so that they are reasonably similar to those that have existed for the past fifty years.
The purpose of this Act is to bolster the State's policy to protect an individual's right to privacy and bodily autonomy within the boundaries of the State, including minors, and to declare that the laws of other states authorizing civil actions and criminal prosecutions for receiving, seeking, providing, or aiding and abetting the provision of reproductive health care services are contrary to the State's public policy and to prohibit recognition and enforcement of other states' laws that impose civil or criminal liability relating to reproductive health care services.
PART I
"§453-16 Intentional termination of pregnancy; [penalties;] refusal to perform. (a) [No abortion shall be performed in this State unless:
(1) The abortion is performed by a] A licensed physician or surgeon[,] or [by a] licensed osteopathic physician and surgeon [; and
(2) The abortion is performed in a hospital licensed by the department of health or operated by the federal government or an agency thereof, or in a clinic or physician's or osteopathic physician's office.
(b) Abortion shall mean an operation to intentionally terminate the pregnancy of a nonviable fetus. The termination of a pregnancy of a viable fetus is not included in this section.
(c)] may provide abortion care. A licensed physician assistant may provide medication or aspiration abortion care in the first trimester of pregnancy.
(b) The State shall not deny or interfere with [a female's right to choose or obtain an abortion of a nonviable fetus or an abortion that] a pregnant person's right to choose to:
(1) Obtain an abortion; or
(2) Terminate a pregnancy if the termination is necessary to protect the life or health of the [female.
(d) Any person who knowingly violates subsection (a) shall be fined not more than $1,000 or imprisoned not more than five years, or both.
(e)] pregnant person.
(c) Nothing in this section shall require any hospital or any person to participate in an abortion nor shall any hospital or any person be liable for a refusal.
(d) For purposes of this section:
"Abortion" means an intentional termination of the pregnancy of a nonviable fetus.
"Nonviable fetus" means a fetus that does not have a reasonable likelihood of sustained survival outside of the uterus."
"[[]§457-8.7[]] Advanced practice registered nurses; abortions by medication or aspiration; [penalties;] refusal to perform. (a) Notwithstanding section 453-16 or any other law to the contrary, an advanced practice registered nurse may provide medication or aspiration abortion care in the first trimester of pregnancy, so long as the advanced practice registered nurse:
(1) Has prescriptive authority;
(2) Practices within the advanced practice registered nurse's practice specialty; and
(3) Has a valid, unencumbered license obtained in accordance with this chapter[; and
(4) The aspiration abortion is performed in a hospital licensed by the department of health or operated by the federal government or an agency thereof, or in a clinic or advance practice registered nurse's office.
(b) Abortion shall mean an intentional termination of the pregnancy of a nonviable fetus. The termination of a pregnancy of a viable fetus is not included in this section].
[(c)] (b) The State shall not deny or interfere with [a female's right to choose or obtain an abortion of a nonviable fetus or an abortion that] a pregnant person's right to choose to:
(1) Obtain an abortion; or
(2) Terminate a pregnancy if the termination is necessary to protect the life or health of the [female.
(d) Any person who knowingly violates subsection (a) shall be fined no more than $1,000 or imprisoned no more than five years, or both.
(e)] pregnant person.
(c) Nothing in this section shall require any hospital or any person to participate in an abortion, nor shall any hospital or any person be liable for a refusal.
(d) For purposes of this section, "abortion" and "nonviable fetus" shall have the same meaning as defined in section 453-16."
PART II
"Chapter
REPRODUCTIVE HEALTH CARE SERVICES
§ -1 Definitions. As used in this chapter, unless the context otherwise requires:
"Person" includes an individual, partnership, joint venture, corporation, association, business, trust, or any organized group of persons or legal entity, or any combination thereof.
"Reproductive health care services" includes all medical, surgical, pharmaceutical, counseling, or referral services relating to the human reproductive system, including but not limited to services relating to pregnancy, contraception, or the termination of a pregnancy.
§ -2 Disclosures prohibited. (a) Except as provided in rules 504, 504.1, and 505.5 of the Hawaii rules of evidence and subsection (b) or as authorized under the Health Insurance Portability and Accountability Act of 1996, P.L. 104-191, and federal regulations promulgated thereunder, in any civil action or any proceeding preliminary thereto or in any probate, legislative, or administrative proceeding, no covered entity, as defined in title 45 Code of Federal Regulations section 160.103, or as the same as may be from time to time amended or modified, shall disclose:
(1) Any communication made to the covered entity, or any information obtained by the covered entity from a patient or the conservator, guardian, or other authorized legal representative of a patient relating to reproductive health care services that are permitted under the laws of the State; or
(2) Any information obtained by personal examination of a patient relating to reproductive health care services that are permitted under the laws of the State, unless the patient or that patient's conservator, guardian, or other authorized legal representative explicitly consents to the disclosure in writing in the form of a release of protected health information compliant with the federal Health Insurance Portability and Accountability Act of 1996, P.L. 104-191, as amended. A covered entity shall inform the patient or the patient's conservator, guardian...
