Report Title:

Notice of Abortion

Description:

Requires a physician to give notice to a parent or guardian of a minor before performing an abortion.

 

HOUSE OF REPRESENTATIVES

H.B. NO.

627

TWENTY-SECOND LEGISLATURE, 2003

 

STATE OF HAWAII

 


 

A BILL FOR AN ACT

 

RELATING TO RIGHTS OF PARENTS AND GUARDIANS.

 

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

SECTION 1. (a) The legislature finds that:

(1) Immature minors often lack the ability to make fully informed choices that take into account immediate and long-range consequences;

(2) The medical, emotional, and psychological consequences of abortion are sometimes serious and can be lasting, particularly when the patient is immature;

(3) The capacity to become pregnant and the capacity for mature judgment concerning the wisdom of an abortion are not necessarily related;

(4) Parents ordinarily possess information essential to a physician's exercise of the physician's best medical judgment concerning the child;

(5) Parents who are aware their minor daughter has had an abortion may better ensure that she receives adequate medical attention after her abortion; and

(6) Parental consultation is usually desirable and in the best interests of the minor.

(b) The purpose of this Act is to further the important and compelling state interests of:

(1) Protecting minors against their own immaturity;

(2) Fostering family unity and preserving the family as a viable social unit;

(3) Protecting the constitutional rights of parents to rear children who are members of their household; and

(4) Reducing teenage pregnancy and unnecessary abortion.

SECTION 2. The Hawaii Revised Statutes is amended by adding a new chapter to be appropriately designated and to read as follows:

"CHAPTER

NOTIFICATION OF ABORTION PERFORMED ON A MINOR

§   -1 Definitions. As used in this chapter:

"Abortion" means the use or prescription of any instrument, medicine, drug, or any other substance or device to terminate the pregnancy of a woman known by the person performing the abortion to be pregnant.

"Actual notice" means the giving of notice directly, in person or by telephone.

"Coercion" means restraining or dominating of a minor female by force, threat of force, or deprivation of food and shelter.

"Constructive notice" means notice by certified mail to the last known address of the parent or guardian with delivery deemed to have occurred forty-eight hours after mailing.

"Emancipated minor" means a person under eighteen years of age who is or has been married or who has been emancipated under the law of any state.

"Medical emergency" means a condition that, on the basis of the physician's good faith clinical judgment, so complicates the medical condition of a pregnant woman as to necessitate the immediate abortion of the pregnancy to avert the woman's death or for which a delay will create serious risk of substantial and irreversible impairment of a major bodily function.

"Minor" means a person who is under eighteen years of age, not including an emancipated minor.

"Neglect" means the failure of a parent or legal guardian to supply a child with necessary food, clothing, shelter, or medical care when reasonably able to do so or the failure to protect a child from conditions or actions that imminently and seriously endanger the child's physical or mental health when reasonably able to do so.

"Physical abuse" means any physical injury intentionally inflicted by a parent or legal guardian on a minor.

"Physician" means a person licensed under chapter 453 or 460.

"Sexual abuse" means sexual contact or sexual penetration as defined in section 707-700.

§   -2 Applicability. (a) This chapter applies to minors.

(b) This chapter shall not apply to an abortion performed on an emancipated minor.

(c) This chapter shall not apply to an abortion performed on a minor, as applicable, with the intent to:

(1) Save the life or preserve the health of an unborn child;

(2) Remove a dead unborn child; or

(3) Deliver an unborn child prematurely for the purpose of preserving the health of the pregnant minor and her unborn child.

(d) This chapter is in addition to section 453-16.

(e) This chapter shall not be construed to limit the common law rights of parents.

§   -3 Notice required; reports of notices. (a) No physician shall perform an abortion on a minor unless the physician has given at least forty-eight hours actual notice to one parent or to the legal guardian of the pregnant minor of the intent to perform an abortion. The physician performing the abortion, if different from the physician giving the notice, must receive a written statement from the referring physician that actual notice was given. If actual notice is not possible after reasonable effort, the physician shall give forty-eight hours constructive notice.

(b) A physician shall make monthly reports to the department of health, on forms prescribed by the department, indicating the:

(1) Number of notices issued under this part;

(2) Number and types of exceptions;

(3) Minor's age; and

(4) Minor's number of prior pregnancies and prior abortions;

provided that no patient names shall be used on the form. The department of health shall compile data annually and make the data available to the public.

§   -4 Alternative notice. (a) If a minor patient declares in a signed written statement that the minor is a victim of sexual abuse, neglect, or physical abuse by either of the minor's parents or legal guardian, the physician shall give actual notice required under section    -3 to a brother or sister of the minor who is over twenty-one years of age, or to a stepparent or grandparent specified by the minor. The physician who performs the abortion shall certify in the patient's medical record that the physician has received written declaration from the minor of abuse or neglect.

(b) A physician who relies in good faith on a written statement under subsection (a) shall not be subject to civil or criminal liability for failure to give notice under this chapter.

§   -5 Exceptions to notice. Notice under section   -3 or    -4, as applicable, shall not be required if:

(1) The physician certifies in the patient's medical record that a medical emergency exists and there is insufficient time to provide the required notice;

(2) Notice is waived in writing by the person entitled to receive the notice; or

(3) Notice is waived by the court under section    -6.

§   -6 Judicial waiver of notice. (a) Notice under section    -3 or    -4, as applicable, shall not be required if the court issues an order to waive the notice.

(b) A minor, whether or not a resident of the State, may petition the circuit court for a waiver of notice and may participate in proceedings in person. The petition shall include a statement that the complainant is pregnant and is unemancipated. The court shall appoint a guardian ad litem for the petitioner. The guardian ad litem shall maintain the confidentiality of the proceedings.

(c) The court shall advise the petitioner of a right to court-appointed counsel and shall provide a counsel upon request of the petitioner for purposes of the proceedings under this part.

(d) Judicial proceedings shall be confidential to ensure the anonymity of the minor. All court proceedings and records shall be sealed and remain unavailable to the public.

(e) The petition shall be filed with a pseudonym name for the petitioner or using only the initials of the petitioner.

(f) The court shall give precedence to processing and hearing a petition under this section. The court shall issue a written order no later than forty-eight hours after the petition is filed; provided that the time may be extended at the request of the petitioner. The order shall contain findings of fact and conclusions of law. If the forty-eight hours pass without an extension requested, the petition shall be deemed to have been granted and the notice requirement waived.

(g) The court shall waive the notice if it finds, by clear and convincing evidence, that:

(1) The minor is sufficiently mature to decide whether to have an abortion;

(2) There is a pattern of physical, sexual, or emotional abuse of the petitioner by one or both parents, guardian, or custodian, as applicable; or

(3) Notification is not in the best interest of the petitioner.

Waiver of notice shall be in the form of an order authorizing the minor to consent to the performance of the abortion without the required notification. If the court makes contrary findings to paragraph (1), (2), or (3), the court shall dismiss the petition.

(h) For purposes of subsection (g), the court may conduct a hearing in chambers to determine the emotional development, maturity, intellect, and understanding of the minor.

(i) There shall be an expedited appeal from an order of the circuit court to the supreme court from a dismissal of the petition. There shall be no appeal from an order waiving the notice.

(j) No court fees shall be required for a court proceeding under this section in the circuit court or supreme court, or both.

§   -7 Penalties. (a) A physician who performs an abortion without complying with the notice requirements under this chapter shall be subject to punishment under section 453-16(c) and shall be subject to a civil action for interference with family relations, including punitive damages.

(b) A person who coerces a minor into having an abortion shall be guilty of a class C felony."

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

INTRODUCED BY:

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