REPORT TITLE:
Omnibus Abortion Bill


DESCRIPTION:
Bans partial birth abortions.  Forbids abortion for unmarried
minor unless minor's parent is notified.  Makes performance of
abortion a misdemeanor.  Prohibits school health service centers
from providing referrals to students for abortion.  Requires
notification and consent of parents.

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                        
HOUSE OF REPRESENTATIVES                H.B. NO.1422       
TWENTIETH LEGISLATURE, 1999                                
STATE OF HAWAII                                            
                                                             
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                   A  BILL  FOR  AN  ACT

RELATING TO ABORTION.



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

 1                              Part I
 
 2      SECTION 1.  Chapter 453, Hawaii Revised Statutes, is amended
 
 3 by adding two new sections to be appropriately designated and to
 
 4 read as follows:
 
 5      "453-     Partial-birth abortions prohibited.  (a)  Any
 
 6 physician who knowingly performs a partial-birth abortion and
 
 7 thereby kills a human fetus, commits a felony and shall be fined
 
 8 not more than $25,000, or imprisoned not more than two years, or
 
 9 both.  This subsection shall not apply to a partial-birth
 
10 abortion that is necessary to save the life of a mother whose
 
11 life is endangered by a physical disorder, physical illness, or
 
12 physical injury; provided that no other medical procedure would
 
13 suffice for that purpose.
 
14      (b)  As used in this section:
 
15      (1)  "Fetus" or "infant" are used interchangeably to refer
 
16           to the biological offspring of human parents;
 
17      (2)  "Partial-birth abortion" means an abortion in which the
 
18           person performing the abortion partially vaginally
 
19           delivers a living fetus before killing the fetus and
 

 
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 1           completing the delivery;
 
 2      (3)  "Physician" means a doctor of medicine or osteopathy
 
 3           legally authorized to practice medicine and surgery by
 
 4           the State, or any other individual legally authorized
 
 5           by the State to perform abortions;
 
 6 provided that any individual who is not a physician or not
 
 7 otherwise legally authorized by the State to perform abortions,
 
 8 but who nevertheless directly performs a partial-birth abortion,
 
 9 shall be subject to this section.
 
10      (c)  The father, if married to the mother at the time of the
 
11 partial-birth abortion and if the mother has not attained the age
 
12 of eighteen years at the time of the abortion, and the maternal
 
13 grandparents of the fetus, may obtain appropriate relief in a
 
14 civil action, unless the pregnancy resulted from the plaintiff's
 
15 criminal conduct or the plaintiff consented to the abortion.
 
16      This relief shall include:
 
17      (1)  Money damages for all injuries, psychological, and
 
18           physical, occasioned by the violation of this section;
 
19           and
 
20      (2)  Statutory damages equal to three times the cost of the
 
21           partial-birth abortion.
 
22      (d)  A woman upon whom a partial-birth abortion is performed
 
23 may not be prosecuted under this section.
 

 
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 1      453-     Abortion for a minor; parental consent.  (a)  As
 
 2 used in this section:
 
 3      "Abortion" means the use of any means to terminate the
 
 4 pregnancy of a female known to be pregnant with knowledge that
 
 5 the termination with those means will, with reasonable
 
 6 likelihood, cause the death of the fetus.
 
 7      "Fetus" means any individual human organism from
 
 8 fertilization until birth.
 
 9      "Parent" means one parent of the pregnant female, or
 
10 guardian or conservator if the pregnant female has one.
 
11      (b)  No person shall knowingly perform an abortion upon an
 
12 unemancipated minor or upon a female from whom a guardian or
 
13 conservator has been appointed pursuant to law because of a
 
14 finding of incompetency, unless the attending physician has
 
15 secured the written consent of one parent, the guardian, or
 
16 conservator if the pregnant female has one.
 
17      (c)  No consent shall be required under this section if:
 
18      (1)  The attending physician certifies in the pregnant
 
19           female's medical record that the abortion is necessary
 
20           to prevent the minor's death and there is insufficient
 
21           time to obtain the required consent; or
 
22      (2)  The pregnant female elects not to obtain consent of her
 
23           parent or guardian or conservator, and applies to any
 

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

 
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 1 female.  A judge of the court who conducts proceedings under this
 
 2 section shall make in writing specific factual findings and legal
 
 3 conclusions supporting the decision and shall order a record of
 
 4 the evidence to be maintained, including the judge's own findings
 
 5 and conclusions.
 
 6      An expedited confidential appeal shall be available to any
 
 7 pregnant female for whom the court denies an order authorizing an
 
 8 abortion without parental consent.  An order authorizing an
 
 9 abortion without consent shall not be subject to appeal.  No
 
10 filing fees shall be required of any pregnant female at either
 
11 the trial or the appellate level.  Access to the trial court for
 
12 the purposes of a petition or motion, and access to the appellate
 
13 courts for purposes of making an appeal from denial of the same,
 
14 shall be afforded such a pregnant female twenty-four hours a day,
 
15 seven days a week.
 
16      (d)  Performance of an abortion in knowing or reckless
 
17 violation of this section shall be a misdemeanor and shall be
 
18 grounds for a civil action by a person wrongfully denied the
 
19 right to consent.  A person shall not be held liable under this
 
20 section if the person establishes by written evidence that the
 
21 person relied upon evidence sufficient to convince a careful and
 
22 prudent person that the representations of the pregnant female
 
23 regarding information necessary to comply with this section are
 

 
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 1 bona fide and true, or if the person has attempted with
 
 2 reasonable diligence to obtain consent, but has been unable to do
 
 3 so."
 
 4                              Part II
 
 5      SECTION 2.  The purpose of this part is to encourage
 
 6 unmarried pregnant minors to seek the advice and counsel of their
 
 7 parents when faced with the difficult decision of whether or not
 
 8 to bear a child, and to foster parental involvement in the making
 
 9 of that decision.
 
10      SECTION 3.  The Hawaii Revised Statutes is amended by adding
 
11 a new chapter to be appropriately designated and to read as
 
12 follows:
 
13                             "CHAPTER
 
14                             ABORTION
 
15         -1  Definitions.  As used in this chapter:
 
16      "Abortion" means the use of any means to terminate the
 
17 pregnancy of a woman known to be pregnant with knowledge that the
 
18 termination with those means, with reasonable likelihood, will
 
19 cause the death of the fetus.
 
20      "Fetus" means any individual human organism from
 
21 fertilization until birth.
 
22      "Parent" means one parent of the pregnant woman, or the
 
23 guardian or conservator if the pregnant woman has one.
 

 
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 1         -2  Notification concerning abortion.  No abortion shall
 
 2 be performed upon an unemancipated minor or upon a woman for whom
 
 3 a guardian or conservator has been appointed pursuant to chapter
 
 4 560 because of a finding of incompetency, until at least forty-
 
 5 eight hours after written notice of the pending operation has
 
 6 been delivered in the manner specified in this chapter.
 
 7      The notice shall be addressed to the parent at the usual
 
 8 place of abode of the parent and delivered personally to the
 
 9 parent by the physician or an agent.  In lieu of personal
 
10 delivery, notice shall be made by certified mail addressed to the
 
11 parent at the usual place of abode of the parent with return
 
12 receipt requested and restricted delivery to the addressee so
 
13 that postal employees can deliver the mail only to the authorized
 
14 addressee.  Time of delivery shall be deemed to occur at noon on
 
15 the next day on which regular mail delivery takes place
 
16 subsequent to mailing.
 
17         -3  Limitations.  No notice shall be required under this
 
18 section if:
 
19      (1)  The attending physician certifies in the pregnant
 
20           woman's medical record that the abortion is necessary
 
21           to prevent the woman's death and there is insufficient
 
22           time to provide the required notice; or
 
23      (2)  The person or persons who are entitled to notice
 

 
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 1           certify in writing that they have been notified; or
 
 2      (3)  The pregnant minor woman declares that she is a victim
 
 3           of sexual abuse, neglect, harm, or child abuse as
 
 4           defined in sections 350-1 and 587-2, and chapter 707,
 
 5           parts V and VI, and the attending physician has
 
 6           notified the department of human services or the police
 
 7           department about the alleged sexual abuse, neglect, or
 
 8           child abuse.
 
 9         -4  Penalty.  Performance of an abortion in violation of
 
10 this chapter shall be a misdemeanor and shall be grounds for a
 
11 civil action by the person wrongfully denied notification.  The
 
12 person shall not be held liable under this section if the person
 
13 establishes by written evidence that the person relied upon
 
14 evidence sufficient to convince a careful and prudent person that
 
15 the representations of the pregnant woman regarding information
 
16 necessary to comply with this chapter are bona fide and true, or
 
17 if the person has attempted with reasonable diligence to deliver
 
18 notice, but has been unable to do so.
 
19         -5  Substitute notification provisions.(a)  If
 
20 section    -2 is temporarily or permanently restrained or
 
21 enjoined by judicial order, subsection (b) of this section shall
 
22 become operative; provided, however, that if the temporary or
 
23 permanent restraining order or injunction is stayed or dissolved,
 

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

 
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 1 confidential and shall be given precedence over other pending
 
 2 matters so that the court may reach a decision promptly and
 
 3 without delay so as to serve the best interests of the pregnant
 
 4 woman.  A judge of the court who conducts proceedings under this
 
 5 section shall make in writing specific factual findings and legal
 
 6 conclusions supporting the decision and shall order a record of
 
 7 the evidence to be maintained including the judge's own findings
 
 8 and conclusions.
 
 9      An expedited confidential appeal shall be available to any
 
10 pregnant woman for whom the court denies an order authorizing an
 
11 abortion without notification.  An order authorizing an abortion
 
12 without notification shall not be subject to appeal.  No filing
 
13 fees shall be required of any pregnant woman at either the trial
 
14 or the appellate level.  Access to the trial court for the
 
15 purposes of such a petition or motion, and access to the
 
16 appellate courts for purposes of making an appeal from denial of
 
17 the same, shall be afforded a pregnant woman twenty-four hours a
 
18 day, seven days a week."
 
19                             Part III
 
20      SECTION 4.  Chapter 321, Hawaii Revised Statutes, is amended
 
21 by adding a new section to part XIX to be appropriately
 
22 designated and to read as follows:
 
23      "321-    Abortion counseling and referrals prohibited.  (a)
 

 
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 1 Notwithstanding any law to the contrary, no school-based health
 
 2 service center may provide counseling, recommendations, or
 
 3 referrals to any student regarding abortion.  The center shall
 
 4 encourage the involvement of the student's parent or legal
 
 5 guardian, and shall:
 
 6      (1)  Refer any student who may be or is pregnant to that
 
 7           person's primary care physician for follow-up services;
 
 8           or
 
 9      (2)  If the student does not have a primary care physician,
 
10           provide a list of primary care physicians for the
 
11           student to choose from.
 
12      (b)  As used in this section, "school-based health service
 
13 center" or "center" includes any health facility that is
 
14 affiliated with a public school, whether or not located on the
 
15 grounds of a school campus."
 
16      SECTION 5.  If any provision of this Act, or the application
 
17 thereof to any person or circumstance is held invalid, the
 
18 invalidity does not affect other provisions or applications of
 
19 the Act which can be given effect without the invalid provision
 
20 or application, and to this end the provisions of this Act are
 
21 severable.
 
22      SECTION 6.  Statutory material to be repealed is bracketed.
 
23 New statutory material is underscored.
 

 
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 1      SECTION 7.  This Act shall take effect upon its approval.
 
 2 
 
 3                              INTRODUCED BY:______________________