Bill Text: HI SB859 | 2011 | Regular Session | Introduced

Hawaii Senate Bill 859 (Prior Session Legislation)

Introduced

Bill Title: Abortion; Parental Notice

Spectrum: Partisan Bill (Republican 1-0)

Status: (Introduced - Dead) 2011-01-24 - (S) Referred to HTH, JDL. [SB859 Detail]

Download: Hawaii-2011-SB859-Introduced.html

THE SENATE	S.B. NO.	859
TWENTY-SIXTH LEGISLATURE, 2011
STATE OF HAWAII

A BILL FOR AN ACT

relating to parental notification before an abortion may be performed on certain minors.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:

SECTION 1. The Hawaii Revised Statutes is amended by adding a new chapter to be appropriately designated and to read as follows:

�Chapter

PARENTAL NOTICE OF ABORTION

§ -1 Definitions. In this chapter:

"Abortion" means the use of any means to terminate the pregnancy of a female known by the attending physician to be pregnant, with the intention that the termination of the pregnancy by those means will cause with reasonable likelihood the death of the fetus. This definition applies only to an unemancipated minor known by the attending physician to be pregnant and may not be construed to limit a minor's access to contraceptives.

"Department" means the department of health.

"Director" means the director of health.

"Fetus" means an individual human organism from fertilization until birth.

"Guardian" means a court-appointed guardian of the person of the minor.

"Physician" means an individual licensed to practice medicine in this State.

§ -2 Parental notice. (a) A physician may not perform an abortion on a pregnant unemancipated minor unless:

(1) The physician performing the abortion gives at least seventy-two hours actual notice, in person or by telephone, of the physician's intent to perform the abortion to:

(A) A parent of the minor, if the minor has no guardian; or

(B) A court-appointed guardian;

(2) The judge of a family district court or the intermediate appellate court issues an order authorizing the minor to consent to the abortion as provided by section ‑3 or ‑4;

(3) A family court or the intermediate appellate court, by its inaction, constructively authorizes the minor to consent to the abortion as provided by section ‑3 or ‑4; or

(4) The physician performing the abortion:

(A) Concludes that, on the basis of the physician's good faith clinical judgment, a condition exists that complicates the medical condition of the pregnant minor and necessitates the immediate abortion of pregnancy to avert the minor's death or to avoid a serious risk of substantial and irreversible impairment of a major bodily function; and

(B) Certifies in writing to the director and in the patient's medical record the medical indications supporting the physician's judgment that the circumstances described by paragraph (A) exist. The director shall prepare a form to be used for making the certification required by this subsection.

For purposes of this chapter, the term "unemancipated minor" shall not include a minor who is married.

(b) If a person to whom notice may be given under subsection (a)(1) cannot be given actual notice after a reasonable effort which shall be documented in the minor's medical record, a physician may perform an abortion if the physician sends constructive notice, at least seventy-two hours prior to the procedure, by United States Postal Service certified mail, restricted delivery, to the last known address of the person to whom notice may be given under subsection (a)(1). If constructive notice is properly mailed the abortion may proceed.

(c) The requirement that seventy-two hours actual notice be provided under this section may be waived by an affidavit of:

(1) A parent of the minor, if the minor has no guardian; or

(2) A court-appointed guardian.

(d) A physician may execute, for inclusion in the minor's medical record, an affidavit stating that, according to the best information and belief of the physician, actual or constructive notice has been provided as required by this section. Execution of an affidavit under this subsection creates a presumption that the requirements of this section have been satisfied.

(e) A certification required by subsection (a)(4) is confidential and privileged and is not subject to disclosure under chapter 92F, or to discovery, subpoena, or other legal process. Personal or identifying information about the minor, including name, address, or social security number, may not be included in a certification under subsection (a)(4). The physician shall keep the medical records on the minor in compliance with the rules adopted by the board of medical examiners.

(f) A physician who intentionally performs an abortion on a pregnant unemancipated minor in violation of this section shall be fined not more than $10,000 for each separate offense. Any action taken to impose or collect the penalty provided for in this section shall be considered a civil action. "Intentionally" as used herein has the same meaning as in section 702-206.

(g) It is a defense to civil action under this section that the minor falsely represented age or identity to the physician by displaying an apparently valid governmental record of identification such that a reasonable person under similar circumstances would have relied on the representation. The defense does not apply if the physician is shown to have had independent knowledge of the minor's actual age or identity or failed to use due diligence in determining the minor's age or identity. In this subsection, "defense" has the same meaning as in section 701-115.

(h) In relation to the trial of an offense under this section in which the conduct charged involves a conclusion made by the physician under subsection (a)(4), the defendant may seek a hearing before the board of medical examiners on whether the physician's conduct was necessary to avert the death of the minor or to avoid a serious risk of substantial and irreversible impairment of a major bodily function. The findings of the board of medical examiners under this subsection are admissible on that issue at trial. Notwithstanding any other reason for a continuance provided by law, on motion of the defendant, the court shall delay the beginning of the trial for not more than thirty days to permit a hearing under this subsection to take place.

§ -3 Judicial approval. (a) A pregnant minor who wishes to have an abortion without notification to one of the minor's parents or the minor's guardian may file an application for a court order authorizing the minor to consent to the performance of an abortion without notification to either parent or a guardian.

(b) The application may be filed with any family court in this State.

(1) A statement that the minor is pregnant;

(2) A statement that the minor is unmarried and is under eighteen years of age;

(3) A statement that the minor wishes to have an abortion without the notification of either parent or a guardian; and

(4) A statement as to whether the minor has retained an attorney and, if the minor has retained an attorney, the name, address, and telephone number of the attorney.

(d) The court shall appoint a guardian ad litem for the minor. If the minor has not retained an attorney, the court shall appoint an attorney to represent the minor. If the guardian ad litem is an attorney admitted to the practice of law in this State, the court may appoint the guardian ad litem to also serve as the minor's attorney.

(e) The court may appoint to serve as guardian ad litem:

(1) A person who may consent to treatment for the minor as provided by law;

(2) A psychiatrist or an individual licensed or certified as a psychologist in this State;

(3) An appropriate employee of the department of human services;

(4) A member of the clergy; or

(5) Another appropriate person selected by the court.

(f) The court shall fix a time for a hearing on an application filed under subsection (a) and shall keep a record of all testimony and other oral proceedings in the action. The court shall enter judgment on the application immediately after the hearing is concluded.

(g) The court shall rule on an application submitted under this section and shall issue written findings of fact and conclusions of law not later than 5:00 p.m. on the second business day after the date the application is filed with the court. On request by the minor, the court shall grant an extension of the period specified by this subsection. If a request for an extension is made, the court shall rule on an application and shall issue written findings of fact and conclusions of law not later than 5:00 p.m. on the second business day after the date the minor states that the minor is ready to proceed to hearing. If the court fails to rule on the application and issue written findings of fact and conclusions of law within the period specified by this subsection, the application is deemed to be granted and the physician may perform the abortion as if the court had issued an order authorizing the minor to consent to the performance of the abortion without notification under section ‑2. Proceedings under this section shall be given precedence over other pending matters to the extent necessary to ensure that the court reaches a decision promptly.

(h) The court shall determine by a preponderance of the evidence whether notification would not be in the best interest of the minor or whether notification may lead to physical or sexual abuse of the minor. If the court finds that notification would not be in the minor's best interest, or that notification may lead to physical or sexual abuse of the minor, the court shall enter an order authorizing the minor to consent to the performance of the abortion without notification to either parent or a guardian and shall execute the required forms.

(i) If the court finds that the minor does not meet the requirements of subsection (h), the court may not authorize the minor to consent to an abortion without the notification authorized under section ‑2.

(j) The court may not notify a parent or guardian that the minor is pregnant or that the minor wants to have an abortion. The court proceedings shall be conducted in a manner that protects the anonymity of the minor. The application and all other court documents pertaining to the proceedings are confidential and privileged and are not subject to disclosure under chapter 92F, or to discovery, subpoena, or other legal process. The minor may file the application using a pseudonym or using only initials.

(k) An order of the court issued under this section is confidential and privileged and is not subject to disclosure under chapter 92F, or discovery, subpoena, or other legal process. The order may not be released by the court to any person but the pregnant minor, and, as appropriate, the pregnant minor's guardian ad litem, the pregnant minor's attorney, another person designated to receive the order by the minor, or a governmental agency or attorney in a judicial or administrative action seeking to assert or protect the interest of the minor. The supreme court may adopt rules to permit confidential docketing of an application under this section.

(l) The clerk of the family court shall prescribe the application form to be used by the minor filing an application under this section.

(m) A filing fee is not required of and court costs may not be assessed against a minor filing an application under this section.

§ -4 Appeal. (a) A minor whose application under section ‑3 is denied may appeal to the intermediate appellate court. On receipt of a notice of appeal, the clerk of the court that denied the application shall, within an expeditious time frame to be set by the supreme court, provide a copy of the notice of appeal and record on appeal to the clerk of the intermediate appellate court. On receipt of the notice and record, the clerk of the intermediate appellate court shall place the appeal on the docket of the court.

(b) The intermediate appellate court shall rule on an appeal under this section not later than 5:00 p.m. on the second business day after the date the notice of appeal is filed with the court that denied the application. On request by the minor, the court shall grant an extension of the period specified by this subsection. If a request for an extension is made, the court shall rule on the appeal not later than 5:00 p.m. on the second business day after the date the minor states that the minor is ready to proceed. If the intermediate appellate court fails to rule on the appeal within the period specified by this subsection, the appeal is deemed to be granted and the physician may perform the abortion as if the court had issued an order authorizing the minor to consent to the performance of the abortion without notification under section ‑2. Proceedings under this section shall be given precedence over other pending matters to the extent necessary to ensure that the court reaches a decision promptly.

(c) A ruling of the intermediate appellate court under this section is confidential and privileged and is not subject to disclosure under chapter 92F, or discovery, subpoena, or other legal process. The ruling may not be released by the court to any person but the pregnant minor, and, as appropriate, the pregnant minor's guardian ad litem, the pregnant minor's attorney, another person designated to receive the ruling by the minor, or a governmental agency or attorney in a judicial or administrative action seeking to assert or protect the interest of the minor.

(d) The clerk of the intermediate appellate court shall prescribe the notice of appeal form to be used by the minor appealing a judgment under this section.

(e) A filing fee is not required of and court costs may not be assessed against a minor filing an appeal under this section.

§ -5 Rules. The supreme court may adopt rules to permit confidential docketing of a judicial and appellate procedures and time limits under this chapter.

§ -6 Affidavit of physician. (a) A physician may execute for inclusion in the minor's medical record an affidavit stating that, after reasonable inquiry, it is the belief of the physician that:

(1) The minor has made an application or filed a notice of an appeal with a court under this chapter;

(2) The deadline for court action imposed by this chapter has passed; and

(3) The physician has been notified that the court has not denied the application or appeal.

(b) A physician who in good faith has executed an affidavit under subsection (a) may rely on the affidavit and may perform the abortion as if the court had issued an order granting the application or appeal.

§ -7 Guardian ad litem immunity. A guardian ad litem appointed under this chapter and acting in the course and scope of the appointment is not liable for damages arising from an act or omission of the guardian ad litem committed in good faith.

§ -8 Costs paid by State. (a) A court acting under section ‑3 or -4 may issue an order requiring the State to pay:

(1) The cost of any attorney and any guardian ad litem appointed for the minor;

(2) Notwithstanding sections -3(m) and -4(e), the costs of court associated with the application or appeal; and

(3) Any court reporter's fees incurred.

(b) An order issued under subsection (a) must be directed to the director of finance, who shall pay the amount ordered from funds appropriated to the department.

§ -9 Physician's duty to report abuse of a minor; investigation and assistance. (a) A physician who, as a result of services provided under this chapter, has reason to believe that a minor has been or may be physically or sexually abused by a person responsible for the minor's care, custody, or welfare, shall immediately report the suspected abuse to the department of human services and shall refer the minor to the department of human services for services or intervention that may be in the best interest of the minor.

(b) The department of human services shall investigate suspected abuse reported under this section and, if appropriate, shall assist the minor in making an application with a court under section ‑3.

§ -10 Other reports of sexual abuse of a minor. Notwithstanding any other law or professional standards of conduct to the contrary, a court or the guardian ad litem or attorney for the minor shall report conduct reasonably believed to constitute an offense under part V of chapter 707, based on information obtained during a confidential court proceeding held under this chapter to:

(1) Any county or state law enforcement agency;

(2) The department of human services, if the alleged conduct involves a person responsible for the care, custody, or welfare of the child;

(3) The state agency that operates, licenses, certifies, or registers the facility in which the alleged conduct occurred, if the alleged conduct occurred in a facility operated, licensed, certified, or registered by a state agency; or

(4) An appropriate agency designated by the court.

§ -11 Confidentiality. Notwithstanding any other law, information obtained by the department of human services or another entity under section -9 or ‑10 is confidential except to the extent necessary to prove an offense under part V of chapter 707.

§ -12 Information relating to judicial bypass. The department shall produce and distribute informational materials that explain the rights of a minor under this chapter. The materials shall explain the procedures established by sections -3 and -4 and provide information relating to alternatives to abortion and health risks associated with abortion."

SECTION 2. If any provision of this Act, or the application thereof to any person or circumstance is held invalid, the invalidity does not affect other provisions or applications of the Act, which can be given effect without the invalid provision or application, and to this end the provisions of this Act are severable.

SECTION 3. This Act shall take effect upon its approval.

INTRODUCED BY:	_____________________________

Report Title:

Abortion; Parental Notice

Description:

Prohibits a physician from performing an abortion on a minor unless the physician has given proper notice to the minor's parent or guardian, a family court or appellate court authorizes the minor to consent, or the physician concludes that an abortion is necessary to avoid death or a serious risk of substantial and irreversible impairment of a major bodily function. Prescribes procedures for obtaining judicial approval.

The summary description of legislation appearing on this page is for informational purposes only and is not legislation or evidence of legislative intent.