Consent; Abortion

Requires parental or guardian consent for abortions for minors
and pregnant females who are incompetent.  Allows for judicial
bypass of consent requirement under certain circumstances.

HOUSE OF REPRESENTATIVES                H.B. NO.           
TWENTIETH LEGISLATURE, 1999                                
STATE OF HAWAII                                            

                   A  BILL  FOR  AN  ACT



 1      SECTION 1.  The purpose of this Act is to encourage
 2 unmarried pregnant minors to seek the advice and counsel of their
 3 parents when faced with the difficult decision of whether or not
 4 to bear a child, and to foster parental involvement in the making
 5 of that decision.  This Act also provides protections for
 6 pregnant women for whom a guardian has been appointed based on a
 7 finding of incompetency.
 8      SECTION 2.  Chapter 577A, Hawaii Revised Statutes, is
 9 amended by adding four new sections to be appropriately
10 designated and to read as follows:
11      "577A-A  Consent concerning abortion.  Except as provided
12 in section 577A-B, no person shall knowingly perform an abortion
13 upon an unemancipated minor or upon a female for whom a guardian
14 has been appointed pursuant to section 551-2 based on a finding
15 of incompetency, unless the attending physician has secured the
16 written consent of one parent or the guardian if the pregnant
17 female has one.
18      577A-B  Limitations.  (a)  No consent shall be required
19 pursuant to section 577A-A if the attending physician certifies
20 in the pregnant female's medical record that the abortion is

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 1 necessary to prevent the minor's death or the death of an
 2 incompetent female and there is insufficient time to obtain the
 3 required consent.
 4      (b)  Notwithstanding section 577A-A, a judge of a court of
 5 competent jurisdiction shall, upon petition, or motion, and after
 6 an appropriate hearing, authorize a physician to perform an
 7 abortion if:
 8      (1)  The judge determines that the female is mature and
 9           capable of giving informed consent to the proposed
10           abortion; or
11      (2)  The judge determines that the female is not mature or
12           does not claim to be mature but that performance of an
13           abortion upon her without the consent of her parent or
14           guardian would be in her best interest.
15      A judge who conducts proceedings under this section shall
16 make a written record of specific factual findings and legal
17 conclusions supporting the decision which shall be maintained
18 along with a record of the evidence.
19      (c)  A pregnant female may participate in proceedings in the
20 court on her own behalf, and the court may appoint a guardian ad
21 litem for her.  In addition, the court shall advise her that she
22 has a right to court-appointed counsel, and shall, upon her
23 request, provide her with counsel.

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 1      (d)  Proceedings in the court under this section shall be
 2 confidential and shall be given precedence over other pending
 3 matters so that the court may reach a decision promptly and
 4 without delay to serve the best interests of the pregnant female.
 5      (e)  An expedited confidential appeal shall be available to
 6 any such pregnant female for whom the court denies an order
 7 authorizing an abortion without parental consent.  An order
 8 authorizing an abortion without consent shall not be subject to
 9 appeal.
10      (f)  Access to the trial court for the purposes of the
11 petition or motion, and access to the appellate courts for
12 purposes of making an appeal from denial, shall be afforded the
13 pregnant female twenty-four hours a day, seven days a week.  No
14 filing fees shall be required of any pregnant female at either
15 the trial or the appellate level.
16      577A-C  Penalty.  Performance of an abortion in knowing or
17 reckless violation of section 577A-A shall be a misdemeanor and
18 shall be grounds for a civil action by a person wrongfully denied
19 the right to consent.  A person shall not be held liable under
20 section 577A-A if the person establishes by written evidence that
21 the person relied upon evidence sufficient to convince a careful
22 and prudent person that the representations of the pregnant
23 female regarding information necessary to comply with section

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 1 577A-A are bona fide and true, or if the person has attempted
 2 with reasonable diligence to obtain consent, but has been unable
 3 to do so.
 4      577A-D  Reporting requirements.  (a)  Within ninety days
 5 after the effective date of this Act, the department of health
 6 shall prepare a reporting form for physicians to list:
 7      (1)  The number of females for whom the physician or an
 8           agent of the physician received written consent from
 9           one parent pursuant to section 577A-A;
10      (2)  The number of females upon whom the physician performed
11           an abortion without obtaining the written consent of a
12           parent as described in section 577A-A, and of that
13           number:
14           (A)  The number who were emancipated minors;
15           (B)  The number for whom the abortion was considered a
16                life saving procedure that could not be delayed to
17                obtain consent;
18           (C)  The number who were determined by a judge to be
19                mature and capable of giving informed consent; and
20           (D)  The number who were determined to be too immature
21                to give consent or who did not claim to be mature
22                enough to give consent but for whom an abortion

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 1                was found by a judge to be in the best interest of
 2                the female;
 3           and
 4      (3)  The same information described in paragraphs (1) and
 5           (2) with respect to females for whom a guardian has
 6           been appointed pursuant to section 551-2 because of a
 7           finding of incompetency.
 8      (b)  The department of health shall ensure that copies of
 9 the form described and sections 577A-A to 577A-D are provided:
10      (1)  Within one hundred twenty days after the effective date
11           of this Act to all physicians licensed to practice in
12           this State;
13      (2)  To each physician who subsequently becomes newly
14           licensed to practice in this State, at the same time as
15           official notification to that physician that the
16           physician is so licensed; and
17      (3)  By December 1 of every year, other than the calendar
18           year in which forms are distributed in accordance with
19           paragraph (1), to all physicians licensed to practice
20           in this State.
21      (c)  By February 28 of each year, each physician who
22 obtained, or whose agent obtained, the consent described in
23 section 577A-A and any physician who knowingly performed an

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 1 abortion upon a female or upon a minor female for whom a guardian
 2 had been appointed pursuant to section 551-2 because of a finding
 3 of incompetency during the previous calendar year shall submit to
 4 the department of health a copy of the form described in
 5 subsection (a) with the requested data entered accurately and
 6 completely.
 7      (d)  Reports that are not submitted more than a grace period
 8 of thirty days following the due date shall be subject to a late
 9 fee of $500 for each additional thirty-day period or portion of a
10 thirty-day period they are overdue.  Any physician required to
11 report in accordance with this section who has not submitted a
12 report, or has submitted only an incomplete report, more than one
13 year following the due date, may, in an action brought by the
14 department of health, be directed by a court of competent
15 jurisdiction to submit a complete report within a period stated
16 by court order or be subject to sanctions for civil contempt.
17      (e)  By June 30 of each year the department of health shall
18 issue a public report providing statistics for the previous
19 calendar year compiled from all of the reports covering that year
20 submitted in accordance with this section for each of the items
21 listed in subsection (a).  The report shall also include
22 statistics that shall be obtained by the administrative director

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 1 of the courts giving the total number of petitions or motions
 2 filed under section 577A-B and of that number:
 3      (1)  The number in which the court appointed a guardian ad
 4           litem;
 5      (2)  The number in which the court appointed counsel;
 6      (3)  The number in which the judge issued an order
 7           authorizing an abortion without parental consent;
 8      (4)  The number in which the judge denied such an order, and
 9           of these:
10           (A)  The number of denials from which an appeal was
11                filed;
12           (B)  The number of such appeals that resulted in the
13                denials being affirmed; and
14           (C)  The number of such appeals that resulted in
15                reversals of such denials.
16 Each report shall also provide the statistics for all previous
17 calendar years for which a public statistical report was required
18 to be issued, adjusted to reflect any additional information from
19 late or corrected reports.  The department of health shall ensure
20 that none of the information included in the public reports could
21 reasonably lead to the identification of any individual female,
22 or any female for whom a guardian has been appointed.

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 1      (f)  The department of health may adopt rules pursuant to
 2 chapter 91 to alter the dates established by subsections (b)(3),
 3 (c), or (e) or consolidate the forms or reports to achieve
 4 administrative convenience or fiscal savings or to reduce the
 5 burden of reporting requirements, so long as reporting forms are
 6 sent to all licensed physicians in the State at least once year
 7 year and the report described in subsection (c) is issued at
 8 least once every year.
 9      (g)  If the department of health fails to issue the public
10 report required by subsection (e), any group of ten or more
11 citizens of this State may seek an injunction in a court of
12 competent jurisdiction against the director of health requiring
13 that a complete report be issued within a period stated by court
14 order.  Failure to abide by such an injunction shall subject the
15 director of health to sanctions for civil contempt.
16      (h)  If a judgment is rendered in favor of a plaintiff in
17 any action described in sections 577A-A through 577A-D, the court
18 shall also render judgment for a reasonable attorney's fee in
19 favor of the plaintiff against the defendant.  If judgment is
20 rendered in favor of the defendant and the court finds that the
21 plaintiff's suit was frivolous and brought in bad faith, the
22 court shall also render judgment for a reasonable attorney's fee
23 in favor of the defendant against the plaintiff."

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 1      SECTION 3.  Chapter 577A, Hawaii Revised Statutes, is
 2 amended as follows:
 3      1.  By amending the title to read:
 4                         "[[]CHAPTER 577A
 6                     REGARDING MEDICAL CARE[]]
 7      2.  By amending section 577A-1 by adding a new definition to
 8 be appropriately inserted and to read as follows:
 9      ""Abortion" means the use of any means to terminate the
10 pregnancy of a female known to be pregnant with knowledge that
11 the termination with those means will, with reasonable
12 likelihood, cause and does cause the death of the embryo or
13 fetus."
14      3.  By amending section 577A-2 to read:
15      "577A-2 Consent valid.  The consent to the provision of
16 medical care and services by public and private hospitals or
17 public and private clinics, or the performance of medical care
18 and services by a physician licensed to practice medicine, when
19 executed [by a female minor who is or professes to be pregnant,
20 or] by a minor who is or professes to be afflicted with a
21 venereal disease, or a minor seeking family planning services
22 shall be valid and binding as if the minor had achieved his or
23 her majority as the case may be; that is, [a female minor who is,

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 1 or professes to be pregnant, or] a minor who is, or professes to
 2 be afflicted with a venereal disease, or a minor seeking family
 3 planning services shall be deemed to have, and shall have the
 4 same legal capacity to act, and the same legal obligations with
 5 regard to the giving of such consent to such hospitals and such
 6 clinics or medical care and services to be provided by a
 7 physician licensed to practice medicine, as a person of full
 8 legal age and capacity, the infancy of the minor and any contrary
 9 provisions of law notwithstanding, and such consent shall not be
10 subject to later disaffirmance by reason of such minority; and
11 the consent of no other person or persons (including, but not
12 limited to a spouse, parent, custodian, or guardian) shall be
13 necessary in order to authorize such hospitals or such clinics or
14 medical care and services provided by a physician licensed to
15 practice medicine, to such a minor."
16      SECTION 3.  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 4.  In codifying the new sections added to chapter
23 577A, Hawaii Revised Statutes, by section 2 of this Act, the

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 1 revisor of statutes shall substitute appropriate section numbers
 2 for the letters used in designating the new sections in this Act.
 3      SECTION 5.  Statutory material to be repealed is bracketed.
 4 New statutory material is underscored.
 5      SECTION 6.  This Act shall take effect upon its approval.
 7                           INTRODUCED BY:_________________________