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Show MONDAY, OCTOBER 21, 1974 PAGE FIFTEEN INTERMOUNTAIN COMMERCIAL RECORD Office of the Attorney of Utah General Stateprocedure during the first trimester. u,.j.uu ouauw oliptcme touru decisions. The State Department of Health docs, however, have the statutory authority to make "any necessary sanitary and health investigations and inspections in cooperation with the local health. department as to any matters affecting the public health. Utah Code Annotated, Section 1953, as amended. The Utah State Division of Health is to work with tho county health departments in conducting these investigations. Section of tho Utah code grants to the local health departments the authority to make necessary sanitary and health investigations and inspections on its own initiative. More specific authority is granted to tho Utah State Division of Health by Utah Code Annotated; Section (f) 1953, as amended. This statute gives the Utah State Division of Health the authority to establish and enforce minimum sanitary standards for "physicians' offices." By this statutory authority, the Utah State Division of Health can insure .that a physician's office is sanitary and meets the requirements set forth by the division. To this extent, the Utah State Division of Health has the authority to inspect a doctor's office where abortions may be and performed. If an abortion is performed in a home setting, but not in a physician's office, such premises may be exempt from inspection by the Utah State Division of Health oz its local health departments. 20-15-- 4(9) (11) 26-15-3(- 21) non-hospi- tal non-nursi- ng , 1(b). The Utah State Division of Health does not have the authority to require emergency equipment, proper sterilization methods and necessary instruments for the performance of an abortion. The practice of medicine and the procedures applied by the physician are regulated, by the Medical Practice Board under the Department of Business Regulation in accordance with the Medical practice Act. Utah Code Annotated, Section 1953, as amended, defines "unprofessional conduct." This statute indicates that the offering, undertaking or agreeing to cure or treat a disease, injury, ailment or infirmity by a secret moans, method, device or instrumentality 1953, as amended, is "unprofessional conduct." Section further defines "unprofessional conduct" as follows: ing to his best clinical v conduct or practice contrary to the recognized standards of ethics of the medical profession, or any conduct or practice which docs or might constitute a danger to the health, welfare or safety of the patient or the public, or any conduct, practice or condition which does or might impair the ability safely and skillfully to practice medicine. Id. Any a right to determine what equipment and and methods instruments he may use to perform an aborsterilization tion. If his conduct or practice by the failure to nisc proper equipment a'nd methods results in an endangerment health, welfare or he not exercised has proper medical judgsafety of tho patient, then ment. This may subject the physician to judicial and disciplinary action. The medical practice board is to determine who A physician has to-th- intra-professio- na "licensed physician." The issuance of a license to practice medicine in the State of Utah is a means of prohibiting "unprofessional conduct." qualifies as a licensed physician, accord judgment, may decide how and where the abor- tion is to be performed. He may further decide what staff and assistance he may need in carrying out that procedure during the first period. Again, his conduct in regard to tho performance of the abortion during the first trimester may be "unprofessional" and sub1 or ject to judicial discipline by the Medical PracBoard. tice The United States Supreme Court decisions arc very clear 90-d- ay intra-professio- na in establishing that the state may not require the presence of professional staff and specify their background and training during. the first trimester of pregnancy. The court decisions merely indicate that a licensed physician, in his own best clinical judgment, may determine for himself what staff and procedure and equipment he may need to perform tho abortion. In the United States Supreme Court decision of Doe v. Pol ton, the court indicated that tho Licensed physician was not roquircd to. receive tho confirmation of any other physicians in making his decision to cany out the medical procedure . There is no indication that a physician is roquLred to have tho assistance of other individuals in carrying out this medical procedure. 1(e). Section as follows: Any human 76-7-3- 09, tissue states Utah Code Annotated, 1974, removed during an abortion shall bo submitted to a pathologist who shall make a report, including, but not lj.mj.tod to who the r there was a pregnancy, and if possible, whether the pregnancy was aborted by evacuating the uterus. Id. " 58-12-3- 6(6) 50-12-36- The State statute is directly in accord with the United States Supreme Court decision of Roe v. Wade,- in that it permits a complete pathological examination of the materials removed during the abortion procedure. The state law requires that any human tissue removed during the abortion must be submitted to a pathologist who shall make a report. The pathologist's report is not limited to the issue as to whether there was a pregnancy or not. The pathologist's report may include a complete pathological examination of the materials removed during the abortion procedure. The new Utah - 1(f). The Utah State Division of Health does not have the period of observation statutory authority to require that a specificUnited States Supreme follow the abortion procedure. In fact, the state does not tho held v. that Roe Wade, Court, in the decision of mother until the have a legitimate interest in the health of tho "compelling point" has. been reached. The court further defined the "compelling point" as the end of the first trimester of the pregnancy. The court stated that until the end of the first trimester, the state had no authority to regulate the abortion procedure, and that the at tending physician, in consultation with his patient, is free to determine, without regulation by the state, that in his medical judgment the patient's pregnancy should be 'terminated, hop v. at 183. The Utah State Division of Health is not in a position to a impose requirement that a specific period of observation follow Wadc,--4-lQ.U-.S- . the medical1 procedure during the first trimester. Such a require1(c). The Utah State Division of Health is not in a posiment would be in direct conflict with the two United States Supreme tion to require specific structural and other physical features in Court decisions. The licensed physician may personally decide how be to trimester the the where is first areas abortion performed during he has state the is to treat and care for the patient. The physician is left with of pregnancy. After the first trimester of pregnancy, tho option to decide what period of observation should follow the a compelling interest, according to the United States Supreme Court an abortion procedure himself. which in the abortion is to performed place decisions, regulate to maternal of as health the and the procedures applied they relate the pregnant woman. The Utah State statute indicates that after, the 1(g). Tho Utah State Division of Hon 1th does not have the commencement 90 the of or the pregfirst days after statutory authority to require a licensed physician to seek consultafirst trimester, a faciltion by other physicians under specific guidelines during tho first hospital nancy, tho abortion procedure is to be undertaken in trimester of the pregnancy, in tho United States Supremo Court deciis not regulated during ity. The location of the abortion procedure sion of Doc v. Bolton, the court rejected tho Georgia requirement the is of the first trimester performed pregnancy, but, if procedure and that a licensed physician obtain confirmation by other physicians in in the "physician's office," the State Division of Health by deciding whether to carry out tho abortion. The Supreme Court furthrough its local boards, may inspect the premises to determine minimum meet standards ther rejected the accredited hospital requirement that tho hospital tho and whether are whether they they sanitary obtain the confirmation of two Georgia-licensof sanitation. physicians in addito the recommendation of the pregnant woman's own consultant. tion The Medical Practice Hoard, by and through tho DepartTho court held that only the physician's best clinical judgment is ment of Business Regulation, may prosecute a licensed physician for necessary in deciding the abortion procedure during the first trimester of pregnancy. The court indicated that no other any conduct or practice which would constitute a danger to the Section the and of medical or surgical procedure required the confirmation voluntary patient. safety health, welfare of two other Tho of the Utah Code gives tho Medical Practice Board the power to ashad no physicians. required acquiescence by sure tho professional conduct of the licensed physician in performrational connection with tho patient's nood:? ;md unduly infringed upon tho physician's 'right to practice. ing the abortion procedure during the first trimester of pregnancy. The Utah State Division of Health would, 1(d). The Utah State abortion law requires that the abortherefore, have a licensed no physician, "rhysician" to tion procedure be performed by the consultation of other authority require physicians under Utah Code Annotated (1974), as is defined in Section specific guidelines. ed (15) r 76-7-30- follows: . CONCLUSION doctor licensed to in all branches practice medicine and surgery a or state thereof in this physician in the employment of the government of the United States Id. who is similarly qualified. "Physician" means a medical Whether a particular operation is necessary for a patient's physical, or mental health is a judgment that tho physician is obviously called upon to make routinely whenever surgery is considered. In the United States Supreme Court decision of Doe v. Bolton, the court held that a professional judgment as to whether an abortion is necessary is a judgment which a licensed physician may bo called upon to After the first trimester of the pregnancy, the. state may regulate make routinely. The Utah State Division of Health is not in a posithe place and procedure of the abortion. The state may determine to impose its own guidelines as to the whereabouts and the type tion that the procedure is to be performed in a licensed hospital facilof procedure to be used during the first trimester of pregnancy. and perity or clinic or other medical facility with the equipmentsame The Supreme Court has held that such interference by the State would sonnel sufficient in quantity and quality to provide the degree be a direct infringement upon the right of the patient to obtain an of safety to the pregnant woman and the unborn child as would be provided for if the procedure were undertaken in a general hospital li- abortion and the right of the physician to practice medicine. The censed by the State Division of Health. This statutory authority is powers of inspection are statutorily defined in order to assure that a physician's office meets the minimum standards of sanitation. The Utah Code Annotated 1953, as so prescribed in Section a law does state permit the requirement of pathological examination Such is statutory auamended, under the definition of "hospital." of the materials These other renyoved during the abortion procedure. thority granted to the Utah State Division of Health after the first a areas would be of direct infringement upon suggested regulation trimester of the pregnancy. (3),. The Utah State Division of Health does not have the authority to require the presence of professional staff and specify their background and training in assisting a physician with the abortion 1 the constitutional rights of the physician and the patient. VERNON Utah B. R0MNEY state Attorney General |