REPORT TITLE: 
Abortion; omnibus bill
DESCRIPTION:
Bans partial birth abortions unless the mother's life is in
jeopardy.  Forbids an abortion to be performed for an unmarried
pregnant minor unless the minor's parent, guardian, or
conservator has been notified.  Provides an alternative to notice
requirements through the judicial process.  Also provides that
the performance of an abortion in violation of the Act shall be a
misdemeanor and grounds for civil action.  Prohibits school-based
health service centers from providing counseling,
recommendations, or referrals to students regarding abortion.
Prohibits partial-birth abortions.  Defines partial-birth
abortion.  Provides penalties.  Requires minors to obtain written
consent of at least one parent before having an abortion.  Minors
defined as anyone under age of 17 for purposes of this section.
Provides definition of informed consent for abortions and
certification requirements.

 
HB HMIA 99-346
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                        
HOUSE OF REPRESENTATIVES                H.B. NO.1245       
TWENTIETH LEGISLATURE, 1999                                
STATE OF HAWAII                                            
                                                             
________________________________________________________________
________________________________________________________________


                     A BILL FOR AN ACT

RELATING TO ABORTION.



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


 1      SECTION 1.  The Hawaii Revised Statutes is amended by adding
 
 2 a new chapter to be appropriately designated and to read as
 
 3 follows:
 
 4                             "CHAPTER
 
 5                             ABORTION
 
 6         -1  Definitions.  As used in this chapter:
 
 7      "Abortion" means the use of any means to terminate the
 
 8 pregnancy of a woman known to be pregnant with knowledge that the
 
 9 termination with those means will, with reasonable likelihood,
 
10 cause the death of the fetus.
 
11      "Fetus" means any individual human organism from
 
12 fertilization until birth.
 
13      "Minor" means any unmarried person below the age of
 
14 eighteen.
 
15      "Parent" means a biological, foster or adoptive parent or
 
16 legal guardian.
 
17      "Partial-birth abortion" means an abortion in which the
 
18 person performing the abortion partially vaginally delivers a
 
19 living fetus before killing the fetus and completing the
 

 
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 1 delivery.
 
 2      "Physician" means a doctor of medicine or osteopathy legally
 
 3 authorized to practice medicine and surgery by the State, or any
 
 4 other individual legally authorized by the State to perform
 
 5 abortions; provided that any individual who is not a physician or
 
 6 not otherwise legally authorized by the State to perform
 
 7 abortions, but who nevertheless directly performs a partial-birth
 
 8 abortion, shall be subject to the provisions of this section.
 
 9         -2  Notification concerning abortion.  No abortion shall
 
10 be performed upon an unemancipated minor or upon a woman for whom
 
11 a guardian or conservator has been appointed pursuant to chapter
 
12 560 because of a finding of incompetency, until at least forty-
 
13 eight hours after written notice of the pending operation has
 
14 been delivered in the manner specified in this chapter.
 
15      The notice shall be addressed to the parent at the usual
 
16 place of abode of the parent and delivered personally to the
 
17 parent by the physician or an agent.  In lieu of personal
 
18 delivery, notice shall be made by certified mail addressed to the
 
19 parent at the usual place of abode of the parent with return
 
20 receipt requested and restricted delivery to the addressee so
 
21 that postal employees can deliver the mail only to the authorized
 
22 addressee.  Time of delivery shall be deemed to occur at noon on
 
23 the next day on which regular mail delivery takes place
 

 
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 1 subsequent to mailing.
 
 2         -3  Limitations.  No notice shall be required under this
 
 3 section if:
 
 4      (1)  The attending physician certifies in the pregnant
 
 5           woman's medical record that the abortion is necessary
 
 6           to prevent the woman's death and there is insufficient
 
 7           time to provide the required notice; or
 
 8      (2)  The person or persons who are entitled to notice
 
 9           certify in writing that they have been notified; or
 
10      (3)  The pregnant minor woman declares that she is a victim
 
11           of sexual abuse, neglect, harm, or child abuse as
 
12           defined in sections 350-1 and 587-2, and chapter 707,
 
13           parts V and VI, and the attending physician has
 
14           notified the department of human services or the police
 
15           department about the alleged sexual abuse, neglect, or
 
16           child abuse.
 
17         -4  Substitute notification provisions.(a)  If
 
18 section    -2 is temporarily or permanently restrained or
 
19 enjoined by judicial order, subsection (b) of this section shall
 
20 become effective; provided, however, that if the temporary or
 
21 permanent restraining order or injunction is stayed or dissolved,
 
22 or otherwise ceases to have effect, section    -2 shall regain
 
23 full force and effect and this section shall cease to be
 

 
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 1 operative.
 
 2      (b)  If a pregnant woman elects not to allow the
 
 3 notification of her parent, guardian, or conservator, any judge
 
 4 of a court of competent jurisdiction shall, upon petition, or
 
 5 motion, and after an appropriate hearing, may authorize a
 
 6 physician to perform the abortion if the judge determines that
 
 7 the pregnant woman is mature and capable of giving informed
 
 8 consent to the proposed abortion.  If the judge determines that
 
 9 the pregnant woman is not mature, or if the pregnant woman does
 
10 not claim to be mature, the judge shall determine whether the
 
11 performance of an abortion upon her without notification to her
 
12 parent, guardian, or conservator would be in her best interests
 
13 and shall authorize a physician to perform the abortion without
 
14 the notification if the judge concludes that the pregnant woman's
 
15 best interests would be served thereby.
 
16      The pregnant woman may participate in proceedings in the
 
17 court on her own behalf, and the court may appoint a guardian ad
 
18 litem for her.  The court, however, shall advise her that she has
 
19 a right to court-appointed counsel, and upon her request, shall
 
20 provide her with counsel.
 
21      Proceedings in the court under this section shall be
 
22 confidential and shall be given precedence over other pending
 
23 matters so that the court may reach a decision promptly and
 

 
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 1 without delay so as to serve the best interests of the pregnant
 
 2 woman.  A judge of the court who conducts proceedings under this
 
 3 section shall make in writing specific factual findings and legal
 
 4 conclusions supporting the decision and shall order a record of
 
 5 the evidence to be maintained including the judge's own findings
 
 6 and conclusions.
 
 7      An expedited confidential appeal shall be available to any
 
 8 pregnant woman for whom the court denies an order authorizing an
 
 9 abortion without notification.  An order authorizing an abortion
 
10 without notification shall not be subject to appeal.  No filing
 
11 fees shall be required of any pregnant woman at either the trial
 
12 or the appellate level.  Access to the trial court for the
 
13 purposes of such a petition or motion, and access to the
 
14 appellate courts for purposes of making an appeal from denial of
 
15 the same, shall be afforded a pregnant woman twenty-four hours a
 
16 day, seven days a week."
 
17      " -5 Partial-birth abortions prohibited.(a)  Any
 
18 physician who knowingly performs a partial-birth abortion and
 
19 thereby kills a human fetus, commits a felony and shall be fined
 
20 not more than $25,000 or imprisoned not more than two years, or
 
21 both.  This paragraph shall not apply to a partial-birth abortion
 
22 that is necessary to save the life of a mother whose life is
 
23 endangered by a physical disorder, physical illness, or physical
 

 
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 1 injury; provided that no other medical procedure would suffice
 
 2 for that purpose.
 
 3      (b)  The father, if married to the mother at the time she
 
 4 receives a partial-birth abortion procedure, and if the mother
 
 5 has not attained the age of eighteen years at the time of the
 
 6 abortion, the maternal grandparents of the fetus, may in a civil
 
 7 action obtain appropriate relief, unless the pregnancy resulted
 
 8 from the plaintiff's criminal conduct or the plaintiff consented
 
 9 to the abortion.
 
10      This relief shall include:
 
11      (1)  Money damages for all injuries, psychological, and
 
12           physical, occasioned by the violation of this section;
 
13           and
 
14      (2)  Statutory damages equal to three times the cost of the
 
15           partial-birth abortion.
 
16      (c)  A woman upon whom a partial-birth abortion is performed
 
17 may not be prosecuted under this section."
 
18      (d)  A defendant accused of an offense under this chapter
 
19           may seek a hearing before the board of medical
 
20           examiners on whether the physician's conduct was
 
21           necessary to save the life of the mother whose life was
 
22           endangered by a physical disorder, illness, or injury.
 
23           The findings on that issue are admissible on that issue
 

 
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 1           at the trial of the defendant.  Upon a motion of the
 
 2           defendant, the court shall delay the beginning of the
 
 3           trial for not more than thirty days to permit such a
 
 4           hearing to take place.
 
 5      (e)  A woman upon whom a partial-birth abortion is performed
 
 6           may not be prosecuted under this chapter or for a
 
 7           conspiracy to violate this chapter."
 
 8      "  -6      Parental Consent Required; Minor Abortions.
 
 9 (a)  No abortion shall be performed upon a minor without first
 
10 obtaining the written consent of not less than one of the minor's
 
11 parents.  This consent shall be provided on a form prescribed by
 
12 the Medical Advisory Board and at a minimum shall contain the
 
13 name of the minor, notification that the minor is pregnant and
 
14 wishes to obtain an abortion, the signature of the parent
 
15 authorizing this abortion and a witness signature from the
 
16 attending physician or their authorized representative.
 
17      (b)  If a parent is not available or refuses to give consent
 
18 for an abortion, or if the minor elects not to seek consent of a
 
19 parent or legal guardian, the minor may petition the Family Court
 
20 for a waiver of the parental consent requirement of this section.
 
21      (c)  No consent shall be required under this section if:
 
22      (1)  The attending physician certifies in the minor's
 
23 medical record that the abortion is necessary to prevent the
 

 
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 1 woman's death and there is insufficient time to obtain the
 
 2 required consent; or
 
 3      (2)  The pregnant minor declares that she is a victim of
 
 4 sexual abuse, neglect, harm or child abuse as defined in Sections
 
 5 350-1, 587-2, and Chapter 707, parts V and VI, and the attending
 
 6 physician has notified the department of human services or the
 
 7 police department about the alleged sexual abuse, neglect or
 
 8 child abuse.
 
 9      (g)  Any individual who knowingly, intentionally or
 
10 recklessly performs an abortion in violation of this section
 
11 shall be guilty of a misdemeanor.  A person who is convicted of a
 
12 misdemeanor under this section shall be subject to the penalties
 
13 set forth in Section 701-107, Penal Code.
 
14         -7  Penalty.  Performance of an abortion in violation of
 
15 this chapter shall be a misdemeanor and shall be grounds for a
 
16 civil action by the person wrongfully denied notification.  The
 
17 person shall not be held liable under this section if the person
 
18 establishes by written evidence that the person relied upon
 
19 evidence sufficient to convince a careful and prudent person that
 
20 the representations of the pregnant woman regarding information
 
21 necessary to comply with this chapter are bona fide and true, or
 
22 if the person has attempted with reasonable diligence to deliver
 
23 notice, but has been unable to do so.
 

 
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 1      SECTION 2.  Chapter 321, Hawaii Revised Statutes, is amended
 
 2 by adding a new section to part XIX to be appropriately
 
 3 designated and to read as follows:
 
 4      "321-    Abortion counseling and referrals prohibited.  (a)
 
 5 Notwithstanding any law to the contrary, no school-based health
 
 6 service center may provide counseling, recommendations, or
 
 7 referrals to any student regarding abortion.  The center shall
 
 8 encourage the involvement of the student's parent or legal
 
 9 guardian, and shall:
 
10      (1)  Refer any student who may be or is pregnant to that
 
11           person's primary care physician for follow-up services;
 
12           or
 
13      (2)  If the student does not have a primary care physician,
 
14           provide a list of primary care physicians for the
 
15           student to choose from.
 
16      (b)  As used in this section, "school-based health service
 
17 center" or "center" includes any health facility that is
 
18 affiliated with a public school, whether or not located on the
 
19 grounds of a school campus."
 
20      SECTION 3.  Section 453-16, Hawaii Revised Statutes, is
 
21 amended to read as follows:
 
22      "[453-16]  Intentional termination of pregnancy; penalties;
 
23 refusal to perform.(a)  No abortion shall be performed in this
 

 
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 1 State unless: 
 
 2      (1)  Such abortion is performed by a licensed physician or
 
 3           surgeon, or by a licensed osteopathic physician and
 
 4           surgeon; and 
 
 5      (2)  Such abortion is performed in a hospital licensed by
 
 6           the department of health or operated by the federal
 
 7           government or an agency thereof; [and] 
 
 8      (3)  The woman upon whom such abortion is to be performed is
 
 9           domiciled in this State or has been physically present
 
10           in this State for at least ninety days immediately
 
11           preceding such abortion.  The affidavit of such a woman
 
12           shall be prima facie evidence of compliance with this
 
13           requirement[.];and
 
14      (4)  The woman upon whom such abortion is to be performed   
 
15      shall provide voluntary and informed consent except in the 
 
16      case of medical emergency.  
 
17      (b)  Informed consent is voluntary and informed only if:
 
18           (1)  The woman is told the following, by telephone or
 
19           in person, by the physician who is to perform the
 
20           abortion or by a referring physician, at least 24 hours
 
21           prior to the abortion:
 
22                (A)  The name of the physician who will perform
 
23                the abortion;
 

 
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 1                (B)  The particular medical risks associated with
 
 2                the particular abortion procedure to be employed
 
 3                including, when medically accurate, the risks of
 
 4                infection, hemorrhage, breast cancer, danger to
 
 5                subsequent pregnancies, and infertility;
 
 6                (C) The probable gestational age of the unborn
 
 7                child at the time the abortion is to be performed;
 
 8                and
 
 9                (D)  The medical risks associated with carrying
 
10                her child to term.
 
11 The information required by this subsection may be provided by
 
12 telephone without conducting a physical examination or tests of
 
13 the patient, in which case the information required to be
 
14 provided may be based on facts supplied the physician by the
 
15 female and whatever other relevant information is reasonably
 
16 available to the physician.  This information must be provided
 
17 during a consultation with the physician.
 
18           (2)  The following information may be provided by an
 
19           agent of the physician, by telephone or in person:
 
20                (A)  That medical assistance benefits may be
 
21                available for prenatal care, childbirth, and
 
22                neonatal care; and
 
23                (B)  That the father is liable to assist in the
 
24                support of her child, even in instances in which
 

 
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 1                the father has offered to pay for the abortion.
 
 2      The information required by this subsection may be provided
 
 3 in a manner other than a personal consultation with the
 
 4 physician. 
 
 5      [(b)](c)  Abortion shall mean a[n operation] procedure to
 
 6 intentionally terminate the pregnancy of a nonviable fetus.  The
 
 7 termination of a pregnancy of a viable fetus is not included in
 
 8 this section. 
 
 9      (d)  Certification requirement.  
 
10           (1)  The woman must certify in writing, prior to the
 
11           abortion, that the information described in subsections
 
12           (b)(1) and (b)(2) of this section has been furnished
 
13           her in accordance with the time requirement in
 
14           subsection (b)(1); and
 
15           (2)  Prior to the performance of the abortion, the
 
16           physician who is to perform the abortion or the
 
17           physician's agent receives a copy of the written
 
18           certification required by subsection (1).
 
19      (e)  "Medical emergency" means any condition which, on the
 
20           basis of the physician's good faith clinical judgment,
 
21           so complicates the medical condition of the pregnant
 
22           female as to necessitatethe immediate abortion of her
 
23           pregnancy to avert her death or for which a delay will
 

 
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 1           create serious risk of substantial and irreversible
 
 2           impairment of a major bodily function.  
 
 3      [(c)](f)  Any person who knowingly violates this section
 
 4 shall be fined not more than $1,000 or imprisoned not more than
 
 5 five years, or both. 
 
 6      [(d)](g)  Nothing in this section shall require any hospital
 
 7 or any person to participate in such abortion nor shall any
 
 8 hospital or any person be liable for such refusal."
 
 9      SECTION 4.  If any provision of this Act, or the application
 
10 thereof to any person or circumstance is held invalid, the
 
11 invalidity does not affect other provisions or applications of
 
12 the Act which can be given effect without the invalid provision
 
13 or application, and to this end the provisions of this Act are
 
14 severable.
 
15      SECTION 5.  Statutory material to be repealed is bracketed.
 
16 New statutory material is underscored.
 
17      SECTION 6.  This Act shall take effect on July 1, 1999.
 
18 
 
19 
 
20                         INTRODUCED BY:___________________________
 

 
HB HMIA 99-346