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

NOTE: There are more recent revisions of this legislation. Read Latest Draft

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Bill Title: Abortion

Spectrum: Moderate Partisan Bill (Republican 9-2)

Status: (Passed) 2020-07-01 - Chapter No. 2020-147 [S0404 Detail]

Download: Florida-2020-S0404-Comm_Sub.html

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       Florida Senate - 2020                       CS for CS for SB 404
       
       
        
       By the Committees on Rules; and Health Policy; and Senators
       Stargel, Hutson, Harrell, Gruters, Mayfield, Baxley, Diaz,
       Albritton, and Broxson
       
       
       
       595-02451-20                                           2020404c2
    1                        A bill to be entitled                      
    2         An act relating to abortion; amending s. 390.0111,
    3         F.S.; reclassifying the criminal offense for a
    4         specified violation; amending s. 390.01114, F.S.;
    5         revising the short title; prohibiting physicians from
    6         performing or inducing the termination of the
    7         pregnancy of a minor unless specified requirements are
    8         satisfied; requiring a physician to obtain written
    9         consent from a minor’s parent or legal guardian before
   10         performing or inducing a termination of the pregnancy
   11         of a minor; requiring the consenting parent or legal
   12         guardian to provide specified proof of identification
   13         and a specified document to the physician; providing
   14         requirements for the document; providing exceptions to
   15         such consent requirement; providing criminal penalties
   16         for physicians; revising provisions relating to the
   17         procedures for judicial waiver to conform to changes
   18         made by the act; amending s. 27.511, F.S.; conforming
   19         a provision to changes made by the act; providing
   20         severability; providing an effective date.
   21          
   22  Be It Enacted by the Legislature of the State of Florida:
   23  
   24         Section 1. Paragraph (e) of subsection (12) of section
   25  390.0111, Florida Statutes, is amended to read:
   26         390.0111 Termination of pregnancies.—
   27         (12) INFANTS BORN ALIVE.—
   28         (e) A person who violates this subsection commits a felony
   29  of the third misdemeanor of the first degree, punishable as
   30  provided in s. 775.082, or s. 775.083, or s. 775.084. This
   31  subsection shall not be construed as a specific provision of law
   32  relating to a particular subject matter that would preclude
   33  prosecution of a more general offense, regardless of the
   34  penalty.
   35         Section 2. Present subsections (3), (4), (5), and (6) of
   36  section 390.01114, Florida Statutes, are redesignated as
   37  subsections (4), (6), (7), and (8), respectively, new
   38  subsections (3) and (5) are added to that section, and
   39  subsection (1), paragraph (b) of present subsection (3), and
   40  present subsections (4), (5), and (6) are amended, to read:
   41         390.01114 Parental Notice of and Consent for Abortion Act.—
   42         (1) SHORT TITLE.—This section may be cited as the “Parental
   43  Notice of and Consent for Abortion Act.”
   44         (3) TERMINATION OF THE PREGNANCY OF A MINOR.—A physician
   45  may not perform or induce the termination of a pregnancy of a
   46  minor unless the physician has complied with the notice and
   47  consent requirements of this section.
   48         (4)(3) NOTIFICATION REQUIRED.—
   49         (b) Notice is not required if:
   50         1. In the physician’s good faith clinical judgment, a
   51  medical emergency exists and there is insufficient time for the
   52  attending physician to comply with the notification
   53  requirements. If a medical emergency exists, the physician shall
   54  make reasonable attempts, whenever possible, without endangering
   55  the minor, to contact the parent or legal guardian, and may
   56  proceed, but must document reasons for the medical necessity in
   57  the patient’s medical records. The physician shall provide
   58  notice directly, in person or by telephone, to the parent or
   59  legal guardian, including details of the medical emergency and
   60  any additional risks to the minor. If the parent or legal
   61  guardian has not been notified within 24 hours after the
   62  termination of the pregnancy, the physician shall provide notice
   63  in writing, including details of the medical emergency and any
   64  additional risks to the minor, signed by the physician, to the
   65  last known address of the parent or legal guardian of the minor,
   66  by first-class mail and by certified mail, return receipt
   67  requested, with delivery restricted to the parent or legal
   68  guardian;
   69         2. Notice is waived in writing by the person who is
   70  entitled to notice and such waiver is notarized, dated not more
   71  than 30 days before the termination of pregnancy, and contains a
   72  specific waiver of the right of the parent or legal guardian to
   73  notice of the minor’s termination of pregnancy;
   74         3. Notice is waived by the minor who is or has been married
   75  or has had the disability of nonage removed under s. 743.015 or
   76  a similar statute of another state;
   77         4. Notice is waived by the patient because the patient has
   78  a minor child dependent on her; or
   79         5. Notice is waived under subsection (6) (4).
   80         (5) PARENTAL CONSENT REQUIRED.—
   81         (a) A physician must obtain written consent from a parent
   82  or legal guardian before performing or inducing the termination
   83  of a pregnancy of a minor.
   84         1. The consenting parent or legal guardian shall provide to
   85  the physician a copy of a government-issued proof of
   86  identification and written documentation establishing that he or
   87  she is the lawful parent or legal guardian of the minor. The
   88  parent or legal guardian shall certify in a signed, dated, and
   89  notarized document, initialed on each page, that he or she
   90  consents to the termination of the pregnancy of the minor. The
   91  document must include the following statement, which must
   92  precede the signature of the parent or guardian: “I, (insert
   93  name of parent or legal guardian), am the (select “parent” or
   94  “legal guardian,” as appropriate) of (insert name of minor) and
   95  give consent for (insert name of physician) to perform or induce
   96  a termination of pregnancy on her. Under penalties of perjury, I
   97  declare that I have read the foregoing statement and that the
   98  facts stated in it are true.” A copy of the parent’s or legal
   99  guardian’s government-issued proof of identification
  100  establishing that he or she is the minor’s lawful parent or
  101  legal guardian must be attached to the notarized document.
  102         2. The physician shall keep a copy of the proof of
  103  identification of the parent or legal guardian and the certified
  104  statement in the medical file of the minor for 5 years after the
  105  minor reaches the age of 18 years, but in no event less than 7
  106  years.
  107         3. A physician receiving consent from a parent or guardian
  108  under this section shall execute for inclusion in the medical
  109  record of the minor an affidavit stating: “I, (insert name of
  110  physician), certify that, according to my best information and
  111  belief, a reasonable person under similar circumstances would
  112  rely on the information presented by both the minor and her
  113  parent or legal guardian as sufficient evidence of identity.”
  114         (b) The consent of a parent or guardian is not required if:
  115         1. Notification is not required as provided in subparagraph
  116  (4)(b)1., subparagraph (4)(b)3., subparagraph (4)(b)4., or
  117  subparagraph (4)(b)5.;
  118         2. Notification is not required due to the existence of a
  119  waiver as provided in subparagraph (4)(b)2., if that waiver is
  120  signed by the minor’s parent or legal guardian, is notarized, is
  121  dated within 30 days before the termination of the pregnancy,
  122  contains a specific waiver of the right of the parent or legal
  123  guardian to consent to the minor’s termination of pregnancy, and
  124  a copy of a government-issued proof of identification and
  125  written documentation establishing that the person who signed
  126  the waiver is the lawful parent or legal guardian, as
  127  applicable, of the minor is attached to the waiver;
  128         3. Consent is waived under subsection (6); or
  129         4. In the physician’s good faith clinical judgment, a
  130  medical emergency exists and there is insufficient time for the
  131  attending physician to comply with the consent requirement. If a
  132  medical emergency exists, the physician must make reasonable
  133  attempts, whenever possible, and without endangering the minor,
  134  to contact the parent or legal guardian of the minor, and may
  135  proceed, but must document reasons for the medical necessity in
  136  the minor patient’s medical records. The physician shall inform
  137  the parent or legal guardian, in person or by telephone, within
  138  24 hours after the termination of the pregnancy of the minor,
  139  including details of the medical emergency that necessitated the
  140  termination of the pregnancy without the parent’s or legal
  141  guardian’s consent. The physician shall also provide this
  142  information in writing to the parent or legal guardian at his or
  143  her last known address, by first-class mail or by certified
  144  mail, return receipt requested, with delivery restricted to the
  145  parent or legal guardian.
  146         (c)1. A physician who intentionally or recklessly performs
  147  or induces, or attempts to perform or induce, a termination of a
  148  pregnancy of a minor without obtaining the required consent
  149  pursuant to this subsection commits a felony of the third
  150  degree, punishable as provided in s. 775.082, s. 775.083, or s.
  151  775.084. A penalty may not be assessed against the minor upon
  152  whom a termination of pregnancy is performed or induced or upon
  153  whom a termination of pregnancy is attempted to be performed or
  154  induced.
  155         2. It is a defense to prosecution that a minor
  156  misrepresented her age or identity to a physician by displaying
  157  a driver license or identification card issued by the state or
  158  another state which indicated that the minor was 18 years of age
  159  or older and that the appearance of the minor was such that a
  160  reasonably prudent person would believe that the minor was not
  161  under 18 years of age. To use the defense, a physician must
  162  provide a copy of the driver license or identification card used
  163  by the minor. The defense does not apply if the physician is
  164  shown to have had independent knowledge of the minor’s actual
  165  age or identity or to have failed to use due diligence in
  166  determining the minor’s age or identity.
  167         (6)(4) PROCEDURE FOR JUDICIAL WAIVER OF NOTICE.—
  168         (a) A minor may petition any circuit court in which the
  169  minor resides for a waiver of the notice requirements of this
  170  section subsection (3) and may participate in proceedings on her
  171  own behalf. The petition may be filed under a pseudonym or
  172  through the use of initials, as provided by court rule. The
  173  petition must include a statement that the petitioner is
  174  pregnant and that the requirements of this section have notice
  175  has not been waived. The court shall advise the minor that she
  176  has a right to court-appointed counsel and shall provide her
  177  with counsel upon her request at no cost to the minor. The court
  178  shall, upon request, provide counsel for the minor at least 24
  179  hours before the court proceeding.
  180         (b)1. Court proceedings under this section subsection must
  181  be given precedence over other pending matters to the extent
  182  necessary to ensure that the court reaches a decision promptly.
  183  The court shall rule, and issue written findings of fact and
  184  conclusions of law, within 3 business days after the petition is
  185  filed, except that the 3-business-day limitation may be extended
  186  at the request of the minor. If the court fails to rule within
  187  the 3-business-day period and an extension has not been
  188  requested, the minor may immediately petition for a hearing upon
  189  the expiration of the 3-business-day period to the chief judge
  190  of the circuit, who must ensure a hearing is held within 48
  191  hours after receipt of the minor’s petition and an order is
  192  entered within 24 hours after the hearing.
  193         2. If the circuit court does not grant judicial waiver of
  194  the requirements of this section notice, the minor has the right
  195  to appeal. An appellate court must rule within 7 days after
  196  receipt of appeal, but a ruling may be remanded with further
  197  instruction for a ruling within 3 business days after the
  198  remand. The reason for overturning a ruling on appeal must be
  199  based on abuse of discretion by the court and may not be based
  200  on the weight of the evidence presented to the circuit court
  201  since the proceeding is a nonadversarial proceeding.
  202         (c) If the court finds, by clear and convincing evidence,
  203  that the minor is sufficiently mature to decide whether to
  204  terminate her pregnancy, the court shall issue an order
  205  authorizing the minor to consent to the performance or
  206  inducement of a termination of the pregnancy without the
  207  notification of a parent or guardian. If the court does not make
  208  the finding specified in this paragraph or paragraph (d), it
  209  must dismiss the petition. Factors the court shall consider
  210  include:
  211         1. The minor’s:
  212         a. Age.
  213         b. Overall intelligence.
  214         c. Emotional development and stability.
  215         d. Credibility and demeanor as a witness.
  216         e. Ability to accept responsibility.
  217         f. Ability to assess both the immediate and long-range
  218  consequences of the minor’s choices.
  219         g. Ability to understand and explain the medical risks of
  220  terminating her pregnancy and to apply that understanding to her
  221  decision.
  222         2. Whether there may be any undue influence by another on
  223  the minor’s decision to have an abortion.
  224         (d) If the court finds, by a preponderance of the evidence,
  225  that the petitioner is the victim of child abuse or sexual abuse
  226  inflicted by one or both of her parents or her guardian, or by
  227  clear and convincing evidence that the requirements of this
  228  section are notification of a parent or guardian is not in the
  229  best interest of the petitioner, the court shall issue an order
  230  authorizing the minor to consent to the performance or
  231  inducement of a termination of the pregnancy without the
  232  notification of a parent or guardian. The best-interest standard
  233  does not include financial best interest or financial
  234  considerations or the potential financial impact on the minor or
  235  the minor’s family if the minor does not terminate the
  236  pregnancy. If the court finds evidence of child abuse or sexual
  237  abuse of the minor petitioner by any person, the court shall
  238  report the evidence of child abuse or sexual abuse of the
  239  petitioner, as provided in s. 39.201. If the court does not make
  240  the finding specified in this paragraph or paragraph (c), it
  241  must dismiss the petition.
  242         (e) A court that conducts proceedings under this section
  243  shall:
  244         1. Provide for a written transcript of all testimony and
  245  proceedings;
  246         2. Issue a final written order containing factual findings
  247  and legal conclusions supporting its decision, including factual
  248  findings and legal conclusions relating to the maturity of the
  249  minor as provided under paragraph (c); and
  250         3. Order that a confidential record be maintained, as
  251  required under s. 390.01116.
  252         (f) All hearings under this section, including appeals,
  253  shall remain confidential and closed to the public, as provided
  254  by court rule. Subject to a judge’s availability as required
  255  under s. 26.20, hearings held under this section must be held in
  256  chambers or in a similarly private and informal setting within
  257  the courthouse.
  258         (g) An expedited appeal shall be made available, as the
  259  Supreme Court provides by rule, to any minor to whom the circuit
  260  court denies a waiver of the requirements of this section
  261  notice. An order authorizing a termination of pregnancy under
  262  this subsection without notice is not subject to appeal.
  263         (h) Filing fees or court costs may not be required of any
  264  pregnant minor who petitions a court for a waiver of the
  265  requirements of this section parental notification under this
  266  subsection at either the trial or the appellate level.
  267         (i) A county is not obligated to pay the salaries, costs,
  268  or expenses of any counsel appointed by the court under this
  269  subsection.
  270         (7)(5) PROCEEDINGS.—The Supreme Court is requested to adopt
  271  rules and forms for petitions to ensure that proceedings under
  272  subsection (6) (4) are handled expeditiously and in a manner
  273  consistent with this act. The Supreme Court is also requested to
  274  adopt rules to ensure that the hearings protect the minor’s
  275  confidentiality and the confidentiality of the proceedings.
  276         (8)(6) REPORT.—The Supreme Court, through the Office of the
  277  State Courts Administrator, shall report by February 1 of each
  278  year to the Governor, the President of the Senate, and the
  279  Speaker of the House of Representatives on the number of
  280  petitions filed under subsection (6) (4) for the preceding year,
  281  and the timing and manner of disposal of such petitions by each
  282  circuit court. For each petition resulting in a waiver of the
  283  requirements of this section notice, the reason for the waiver
  284  shall be included in the report.
  285         Section 3. Paragraph (a) of subsection (6) of section
  286  27.511, Florida Statutes, is amended to read:
  287         27.511 Offices of criminal conflict and civil regional
  288  counsel; legislative intent; qualifications; appointment;
  289  duties.—
  290         (6)(a) The office of criminal conflict and civil regional
  291  counsel has primary responsibility for representing persons
  292  entitled to court-appointed counsel under the Federal or State
  293  Constitution or as authorized by general law in civil
  294  proceedings, including, but not limited to, proceedings under s.
  295  393.12 and chapters 39, 392, 397, 415, 743, 744, and 984 and
  296  proceedings to terminate parental rights under chapter 63.
  297  Private court-appointed counsel eligible under s. 27.40 have
  298  primary responsibility for representing minors who request
  299  counsel under s. 390.01114, the Parental Notice of and Consent
  300  for Abortion Act; however, the office of criminal conflict and
  301  civil regional counsel may represent a minor under that section
  302  if the court finds that no private court-appointed attorney is
  303  available.
  304         Section 4. If any provision of this act or its application
  305  to any person or circumstance is held invalid, the invalidity
  306  does not affect other provisions or applications of the act
  307  which can be given effect without the invalid provision or its
  308  application, and to this end the provisions of this act are
  309  severable.
  310         Section 5. This act shall take effect July 1, 2020.