Bill Text: FL S0404 | 2020 | Regular Session | Comm Sub


Bill Title: Parental Consent for Abortion

Spectrum: Moderate Partisan Bill (Republican 8-1)

Status: (Introduced) 2019-12-13 - Now in Judiciary [S0404 Detail]

Download: Florida-2020-S0404-Comm_Sub.html
       Florida Senate - 2020                              CS for SB 404
       
       
        
       By the Committee on Health Policy; and Senators Stargel, Hutson,
       Harrell, Gruters, Mayfield, Baxley, Diaz, and Albritton
       
       
       
       
       588-02031-20                                           2020404c1
    1                        A bill to be entitled                      
    2         An act relating to parental consent for abortion;
    3         creating s. 390.01117, F.S.; providing a short title;
    4         defining terms; prohibiting a physician from
    5         performing an abortion on a minor unless the physician
    6         has been presented with consent from the minor’s
    7         parent or guardian, as appropriate; providing an
    8         exception for a medical emergency; requiring a monthly
    9         report to be filed by certain physicians with the
   10         Department of Health on a form adopted by department
   11         rule; requiring the department to compile data
   12         collected from such forms and make it available on its
   13         website; authorizing a minor to petition any circuit
   14         court in which the minor resides for a waiver of
   15         consent required to obtain an abortion; requiring a
   16         specified statement to be included in the petition;
   17         providing for court-appointed counsel and
   18         confidentiality; requiring the court to give
   19         preference to waiver of consent proceedings and
   20         requiring a court to rule within a specified
   21         timeframe; providing for an extension of time at the
   22         request of the minor; authorizing a minor to petition
   23         for a hearing upon the expiration of the time allowed
   24         and requiring the chief judge of the circuit to ensure
   25         that a hearing is held and that an order is entered
   26         within specified timeframes; providing for appeals
   27         within a specified timeframe; requiring the court to
   28         dismiss the petition if it does not make specified
   29         findings; requiring the court to consider undue
   30         influence on the minor’s decision and specified
   31         factors; requiring the court to report any findings of
   32         evidence of child abuse or sexual abuse of the
   33         petitioner; requiring a court to provide for a written
   34         transcript of waiver of consent proceedings and
   35         include certain findings and conclusions in its order;
   36         prohibiting filing fees or costs for a minor who
   37         petitions the court for a waiver of consent;
   38         specifying that a county is not required to pay the
   39         salaries, costs, or expenses of certain court
   40         appointed counsel; requesting the Supreme Court to
   41         adopt certain rules and forms relating to waiver of
   42         consent proceedings; providing criminal penalties and
   43         disciplinary action; providing construction and
   44         severability; providing an effective date.
   45  
   46         WHEREAS, the United States Supreme Court has consistently
   47  recognized that a state statute requiring parental consent to a
   48  minor’s abortion is constitutional if it provides a judicial
   49  alternative in which the consent is waived if the minor is
   50  mature enough to make the decision to obtain an abortion or if
   51  the abortion is in the minor’s best interest, and
   52         WHEREAS, the medical, emotional, and psychological
   53  consequences associated with having an abortion are serious and
   54  can be long lasting, particularly when a patient is immature,
   55  and
   56         WHEREAS, the status of minors under the law is unique
   57  because of their need for parental guidance and decisionmaking,
   58  and
   59         WHEREAS, minors’ disability of nonage defaults to a legal
   60  disability to contract which only the Legislature can remove,
   61  and such legislative removals of disability of nonage are
   62  codified in chapter 743, Florida Statutes, and
   63         WHEREAS, while the laws of this state allow minors who are
   64  mothers to make life and death decisions for their children,
   65  there is a distinction between making day-to-day decisions for a
   66  child and deciding to abort a child, and
   67         WHEREAS, the only circumstance in which medical decisions
   68  for a minor are not made by the minor’s parents is when the
   69  minor is pregnant, and
   70         WHEREAS, s. 743.065, Florida Statutes, allows unwed
   71  pregnant minors to make medical decisions relating to their
   72  pregnancies and allows them to consent to the performance of
   73  medical or surgical care of services for their children, except
   74  for decisions to terminate pregnancies, and
   75         WHEREAS, the United States Supreme Court has determined
   76  that the constitutional rights of minors are not equal to the
   77  rights of adults because children are vulnerable and unable to
   78  make informed critical decisions and because of the unique role
   79  of parents in childrearing, and
   80         WHEREAS, requiring parental consent for a minor to obtain
   81  an abortion will serve the interests of this state by protecting
   82  immature minors, preserving the family unit, and guarding the
   83  fundamental right of parents to raise their children, and
   84         WHEREAS, the inclusion of provisions for a medical
   85  emergency exception to the consent requirement; the judicial
   86  waiver of consent process; the appointment of counsel for
   87  indigent minors; and procedural safeguards, including guidelines
   88  relating to admissible evidence and a required hearing within an
   89  extendable 3-day period after the filing of a petition for a
   90  judicial waiver of consent, are necessary to further the
   91  interests of this state, but accomplish this purpose by imposing
   92  the least restrictive means, NOW, THEREFORE,
   93  
   94  Be It Enacted by the Legislature of the State of Florida:
   95  
   96         Section 1. Section 390.01117, Florida Statutes, is created
   97  to read:
   98         390.01117Parental consent for abortion.—
   99         (1) SHORT TITLE.—This section may be cited as the “Parental
  100  Consent for Abortion Act.”
  101         (2) DEFINITIONS.—As used in this section, the term:
  102         (a) “Consent” means a notarized written statement signed by
  103  a minor and either her mother, her father, or her legal guardian
  104  declaring that the minor is pregnant, that she intends to seek
  105  an abortion, and that her mother, father, or legal guardian, as
  106  applicable, consents to the abortion because the abortion is in
  107  the best interest of the minor.
  108         (b) “Minor” means an unemancipated person younger than 18
  109  years of age.
  110         (3) CONSENT OF ONE PARENT OR GUARDIAN REQUIRED.—A physician
  111  may not perform an abortion on a minor unless the physician has
  112  been presented with consent as defined in this section.
  113         (4) EXCEPTIONS.—Consent is not required under subsection
  114  (3) if the attending physician certifies in the minor’s medical
  115  record that a medical emergency, as defined in s.
  116  390.01114(2)(d), exists and there is insufficient time to obtain
  117  consent or if consent is waived under subsection (6).
  118         (5) REPORTS.—
  119         (a) A physician who has performed an abortion on a minor in
  120  the past calendar month shall submit a monthly report to the
  121  department which must include the following information for each
  122  minor upon whom an abortion was performed:
  123         1.If the abortion was performed with consent;
  124         2. If the abortion was performed during a medical emergency
  125  that excepted the minor from the consent requirement, and the
  126  nature of the medical emergency;
  127         3.If the abortion was performed with a judicial waiver of
  128  consent;
  129         4.Her age; and
  130         5. The number of times she has been pregnant and the number
  131  of abortions that have been performed on her.
  132         (b) The department shall adopt by rule a form to be used
  133  for such monthly reports. Patient names may not be included on
  134  the forms. The department shall prepare an annual compilation of
  135  the data reported and make it available to the public on the
  136  department website.
  137         (6) PROCEDURE FOR JUDICIAL WAIVER OF CONSENT.—
  138         (a) A minor may petition any circuit court in which the
  139  minor resides for a waiver of the consent required to obtain an
  140  abortion and may participate in proceedings on her own behalf.
  141  The petition must include a statement that the minor is pregnant
  142  and is unemancipated, that consent from a parent or a legal
  143  guardian of the minor has not been obtained, and that the minor
  144  wishes to obtain an abortion without first obtaining consent.
  145  The circuit court shall advise the minor that she has a right to
  146  court-appointed counsel and shall provide her with counsel upon
  147  her request. The court also may appoint a guardian ad litem for
  148  the minor. A guardian ad litem appointed under this subsection
  149  must maintain the confidentiality of the minor’s identity.
  150         (b) Court proceedings under this subsection shall be
  151  confidential and must ensure the anonymity of the minor. All
  152  court proceedings under this section shall be sealed. The minor
  153  may file her petition in the court using a pseudonym or using
  154  solely her initials. All documents related to this petition
  155  shall be confidential and may not be made available to the
  156  public. These proceedings shall be given precedence over other
  157  pending matters to the extent necessary to ensure that the court
  158  reaches a decision promptly. The court shall rule, and issue
  159  written findings of fact and conclusions of law, within 3
  160  business days after the petition is filed, except that the 3
  161  business-day limitation may be extended at the request of the
  162  minor.
  163         1. If the court fails to rule within the 3-business-day
  164  period and an extension has not been requested, the minor may
  165  immediately petition for a hearing upon the expiration of the 3
  166  business-day period to the chief judge of the circuit, who must
  167  ensure that a hearing is held within 48 hours after receipt of
  168  the minor’s petition and that an order is entered within 24
  169  hours after the hearing.
  170         2. If the circuit court does not grant a judicial waiver of
  171  consent, the minor has the right to an appeal. An appellate
  172  court must rule within 7 days after receipt of the appeal, but a
  173  ruling may be remanded with further instruction, in which case a
  174  ruling must be made within 3 business days after the remand. The
  175  reason for overturning a ruling on appeal must be based on abuse
  176  of discretion by the court and may not be based on the weight of
  177  the evidence presented to the circuit court, since the
  178  proceeding is a nonadversarial proceeding.
  179         (c) If the court finds, by clear and convincing evidence,
  180  that the minor is sufficiently mature to decide whether to
  181  terminate her pregnancy, the court shall issue an order
  182  authorizing the minor to obtain an abortion without the consent
  183  of a parent or guardian. If the court does not make the finding
  184  specified in this paragraph or paragraph (d), it must dismiss
  185  the petition. The court shall consider whether there may be any
  186  undue influence by another on the minor’s decision to have an
  187  abortion and all of the following factors concerning the minor:
  188         1. Age.
  189         2. Overall intelligence.
  190         3. Emotional development and stability.
  191         4. Credibility and demeanor as a witness.
  192         5. Ability to accept responsibility.
  193         6. Ability to assess both the immediate and long-range
  194  consequences of her choices.
  195         7. Ability to understand and explain the medical risks of
  196  terminating her pregnancy and to apply that understanding to her
  197  decision.
  198         (d) If the court finds, by a preponderance of the evidence,
  199  that the petitioner is the victim of child abuse or sexual
  200  abuse, as those terms are defined in s. 390.01114(2), inflicted
  201  by one or both of her parents or her guardian, or finds, by
  202  clear and convincing evidence, that requiring the consent of a
  203  parent or guardian is not in the best interest of the
  204  petitioner, the court shall issue an order authorizing the minor
  205  to obtain an abortion without the consent of a parent or
  206  guardian. The best-interest standard does not include financial
  207  best interest or financial considerations or the potential
  208  financial impact on the minor or her family if she does not
  209  terminate the pregnancy. If the court finds evidence of child
  210  abuse or sexual abuse of the petitioner by any person, the court
  211  shall report the evidence of child abuse or sexual abuse of the
  212  petitioner, as provided in s. 39.201. If the court does not make
  213  the finding specified in this paragraph or paragraph (c), it
  214  must dismiss the petition.
  215         (e) A court that conducts proceedings under this section
  216  shall:
  217         1. Provide for a written transcript of all testimony and
  218  proceedings;
  219         2. Issue a final written order containing factual findings
  220  and legal conclusions supporting its decision, including factual
  221  findings and legal conclusions relating to the maturity of the
  222  minor as provided under paragraph (c); and
  223         3. Order that a confidential record be maintained.
  224         (f) All hearings under this section, including appeals,
  225  shall remain confidential and closed to the public, as provided
  226  by court rule.
  227         (g) An expedited appeal shall be made available, as the
  228  Supreme Court provides by rule, to any minor to whom the circuit
  229  court denies a waiver of consent. An order authorizing an
  230  abortion without consent is not subject to appeal.
  231         (h) Filing fees or court costs may not be required of any
  232  minor who petitions a court for a waiver of consent under this
  233  subsection at either the trial or the appellate level.
  234         (i) A county is not required to pay the salaries, costs, or
  235  expenses of any counsel appointed by the court under this
  236  subsection.
  237         (7) RULEMAKING.—The Supreme Court is requested to adopt
  238  rules and forms for petitions to ensure that proceedings under
  239  subsection (6) are handled expeditiously and in a manner
  240  consistent with this section. The Supreme Court is also
  241  requested to adopt rules to ensure that the hearings protect the
  242  confidentiality of the minor’s identity and the confidentiality
  243  of the proceedings.
  244         (8) CRIMINAL PENALTIES AND CIVIL REMEDIES.—
  245         (a) Any person who willfully and intentionally performs an
  246  abortion with knowledge that, or with reckless disregard as to
  247  whether, the minor upon whom the abortion is to be performed is
  248  unemancipated without obtaining the required consent commits a
  249  misdemeanor of the first degree, punishable as provided in s.
  250  775.082 or s. 775.083. It is a defense to prosecution under this
  251  section that the minor falsely represented her age or identity
  252  to the physician to be at least 18 years of age by displaying an
  253  apparently valid governmental record of identification such that
  254  a careful and prudent person under similar circumstances would
  255  have relied on the representation. The defense does not apply if
  256  the physician is shown to have had independent knowledge of the
  257  minor’s actual age or identity or failed to use due diligence in
  258  determining her age or identity.
  259         (b) Any person not authorized to provide consent under this
  260  section who provides consent commits a misdemeanor of the first
  261  degree, punishable as provided in s. 775.082 or s. 775.083.
  262         (c) Failure to obtain consent from a person from whom
  263  consent is required under this section is prima facie evidence
  264  of failure to obtain consent and of interference with family
  265  relations in appropriate civil actions. Such prima facie
  266  evidence does not apply to any issue other than failure to
  267  obtain consent from the parent or legal guardian and
  268  interference with family relations in appropriate civil actions.
  269  The civil action may be based on a claim that the act was a
  270  result of negligence, gross negligence, wantonness, willfulness,
  271  intention, or other legal standard of care. Exemplary damages
  272  may be awarded in appropriate civil actions relevant to
  273  violations of this section.
  274         (d)Failure to comply with the requirements of this section
  275  constitutes grounds for disciplinary action under each
  276  respective practice act and under s. 456.072.
  277         (9) CONSTRUCTION.—
  278         (a) This section may not be construed to create or
  279  recognize a right to abortion.
  280         (b) This section may not be construed to limit the common
  281  law rights of parents or legal guardians.
  282         (c) By enacting this section, the Legislature does not
  283  intend to make lawful an abortion that is currently unlawful.
  284         (10) SEVERABILITY.—Any provision of this section held to be
  285  invalid or unenforceable by its terms, or as applied to any
  286  person or circumstance, shall be construed so as to give it the
  287  maximum effect permitted by law, unless such holding is one of
  288  utter invalidity or unenforceability, in which event such
  289  provision shall be deemed severable and may not affect the
  290  remainder hereof or the application of such provision to other
  291  persons not similarly situated or to other, dissimilar
  292  circumstances.
  293         Section 2. This act shall take effect July 1, 2020.

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