THE MISSISSIPPI LEGISLATURE

Introduction

The PEER Committee received complaints regarding the state's enforcement of informed consent laws for abortion. These complaints alleged improper counseling at abortion facilities and the Department of Health's toleration of these practices. In response, the PEER Committee authorized a review of the Department of Health's overall enforcement efforts, including the scope of the department's statutory authority to enforce informed consent laws, its obligation to produce printed materials on informed consent, and an evaluation of its policies and procedures for informed consent.

The Department of Health's statutory authority to regulate abortions directly in one form or another in the state of Mississippi is limited. The department's licensing authority for abortion extends only to abortion facilities themselves, as defined by state law. The Department of Health is without statutory authority to regulate any physician's office or other type of medical facility performing abortions that is not "primarily" organized or used for such procedures.

The informed consent statute imposes requirements for compliance on all physicians, whether practicing at an abortion facility or not. However, the department's licensing authority does not extend either to physicians themselves, or to facilities that were not established primarily as abortion facilities, but where abortions are nonetheless performed.

Overview

At present, state law does not place responsibility for the enforcement of Mississippi's informed consent laws within any state agency. While the Board of Medical Licensure and Department of Health have statutory authority to regulate the conduct of physicians and health care facilities, respectively, state law provides neither agency with explicit statutory authority to enforce informed consent laws.

In the absence of specific statutory authority, the Department of Health's assumption of responsibility for enforcement of the state's informed consent laws is an appropriate extension of the department's explicit statutory authority. The Department of Health has incorporated informed consent enforcement within its annual licensure inspections of abortion facilities. Since 1991, the department has identified four instances in which abortion facilities did not comply with informed consent statutes. To date, the Department of Health has not sanctioned any abortion facility for failing to comply with informed consent laws.

Despite acting as the enforcement authority for informed consent laws since 1991, the Department of Health has not promulgated written policies and procedures to govern informed consent compliance and inspections. The department relies on the facility inspector's personal knowledge of state informed consent laws to guide the inspection process and result in a conclusion regarding an abortion facility's compliance with informed consent laws.

The Department of Health has satisfied its statutory obligations to compile and make available written materials on informed consent. However, until March 1995, the department had not updated the information contained in the printed materials since the booklet was first published in 1991. The department's failure to update these materials has led to the continued use and distribution of potentially unreliable and inaccurate information.

Recommendations

1. If the Legislature intends for the Department of Health to enforce compliance with the state's informed consent laws, the Legislature should amend Section 41-41-33, MISS. CODE ANN. (1972), to make the department's authority and responsibility in this area of abortion regulation explicit. (See Appendix C, page 20, for proposed legislation.)
2. By December 31, 1995, the Department of Health should promulgate written policies and procedures governing the elements of compliance department inspectors are to use for informed consent enforcement. (See Appendix D, page 22, for PEER's list of criteria that should be satisfied for these policies and procedures.)
3. The Legislature should amend Section 41-41-35 of the MISS. CODE ANN. to require the Department of Health to review the printed materials required by that statute on an annual basis to assess whether the materials should be revised or updated.
4. The Department of Health should immediately establish written guidelines for reviewing annually, and if needed, revising and updating the printed materials mandated by Section 41-41-35.

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