Florida Senate - 2011 SB 1770
By Senator Hays
20-00407-11 20111770__
1 A bill to be entitled
2 An act relating to parental notice of abortion;
3 amending s. 390.01114, F.S.; revising the definition
4 of the term “constructive notice”; revising notice
5 requirements relating to the termination of a
6 pregnancy of a minor; providing exceptions to the
7 notice requirements; revising procedure for judicial
8 waiver of notice; providing for the minor to petition
9 for a hearing within a specified time; providing that
10 in a hearing relating to waiving the requirement for
11 parental notice, the court consider certain additional
12 factors, including whether the minor’s decision to
13 terminate her pregnancy was due to undue influence;
14 providing a procedure for appeal if judicial waiver of
15 notice is not granted; requiring that the court order
16 contain factual findings and legal conclusions;
17 requiring Supreme Court reports to the Governor and
18 Legislature to include additional information;
19 providing for severability; providing an effective
20 date.
21
22 Be It Enacted by the Legislature of the State of Florida:
23
24 Section 1. Section 390.01114, Florida Statutes, is amended
25 to read:
26 390.01114 Parental Notice of Abortion Act.—
27 (1) SHORT TITLE.—This section may be cited as the “Parental
28 Notice of Abortion Act.”
29 (2) DEFINITIONS.—As used in this section, the term:
30 (a) “Actual notice” means notice that is given directly, in
31 person or by telephone, to a parent or legal guardian of a
32 minor, by a physician, at least 48 hours before the inducement
33 or performance of a termination of pregnancy, and documented in
34 the minor’s files.
35 (b) “Child abuse” has the same meaning as s. 39.0015(3).
36 (c) “Constructive notice” means notice that is given in
37 writing, signed by the physician, and mailed at least 72 hours
38 before the inducement or performance of the termination of
39 pregnancy, to the last known address of the parent or legal
40 guardian of the minor, by first-class mail and by certified
41 mail, return receipt requested, and delivery restricted to the
42 parent or legal guardian. After the 72 hours have passed,
43 delivery is deemed to have occurred.
44 (d) “Medical emergency” means a condition that, on the
45 basis of a physician’s good faith clinical judgment, so
46 complicates the medical condition of a pregnant woman as to
47 necessitate the immediate termination of her pregnancy to avert
48 her death, or for which a delay in the termination of her
49 pregnancy will create serious risk of substantial and
50 irreversible impairment of a major bodily function.
51 (e) “Sexual abuse” has the meaning ascribed in s. 39.01.
52 (f) “Minor” means a person under the age of 18 years.
53 (3) NOTIFICATION REQUIRED.—
54 (a) Actual notice shall be provided by the physician
55 performing or inducing the termination of pregnancy before the
56 performance or inducement of the termination of the pregnancy of
57 a minor. The notice may be given by a referring physician. The
58 physician who performs or induces the termination of pregnancy
59 must receive the written statement of the referring physician
60 certifying that the referring physician has given notice. If
61 actual notice is not possible after a reasonable effort has been
62 made, the physician performing or inducing the termination of
63 pregnancy or the referring physician must give constructive
64 notice. Notice given under this subsection by the physician
65 performing or inducing the termination of pregnancy must include
66 the name and address of the facility providing the termination
67 of pregnancy and the name of the physician providing notice.
68 Notice given under this subsection by a referring physician must
69 include the name and address of the facility where he or she is
70 referring the minor and the name of the physician providing
71 notice. If actual notice is provided by telephone, the physician
72 must actually speak with the parent or guardian, and must record
73 in the minor’s medical file the name of the parent or guardian
74 provided notice, the phone number dialed, and the date and time
75 of the call. If constructive notice is given, the physician must
76 document that notice by placing copies of any document related
77 to the constructive notice, including, but not limited to, a
78 copy of the letter and the return receipt, in the minor’s
79 medical file. Actual notice given by telephone shall be
80 confirmed in writing, signed by the physician, and mailed to the
81 last known address of the parent or legal guardian of the minor,
82 by first-class mail and by certified mail, return receipt
83 requested, with delivery restricted to the parent or legal
84 guardian.
85 (b) Notice is not required if:
86 1. In the physician’s good faith clinical judgment, a
87 medical emergency exists and there is insufficient time for the
88 attending physician to comply with the notification
89 requirements. If a medical emergency exists, the physician shall
90 make reasonable attempts, whenever possible, without endangering
91 the minor, to contact the parent or legal guardian, and may
92 proceed, but must document reasons for the medical necessity in
93 the patient’s medical records. The physician shall provide
94 notice directly, in person or by telephone, to the parent or
95 legal guardian, including details of the medical emergency and
96 any additional risks to the minor. If the parent or legal
97 guardian has not been notified within 24 hours after the
98 termination of the pregnancy, the physician shall provide notice
99 in writing, including details of the medical emergency and any
100 additional risks to the minor, signed by the physician, to the
101 last known address of the parent or legal guardian of the minor,
102 by first-class mail and by certified mail, return receipt
103 requested, with delivery restricted to the parent or legal
104 guardian;
105 2. Notice is waived in writing by the person who is
106 entitled to notice and such waiver is notarized, dated not more
107 than 30 days before the termination of pregnancy, and contains a
108 specific waiver of the right of the parent or legal guardian to
109 notice of the minor’s termination of pregnancy;
110 3. Notice is waived by the minor who is or has been married
111 or has had the disability of nonage removed under s. 743.015 or
112 a similar statute of another state;
113 4. Notice is waived by the patient because the patient has
114 a minor child dependent on her; or
115 5. Notice is waived under subsection (4).
116 (c) Violation of this subsection by a physician constitutes
117 grounds for disciplinary action under s. 458.331 or s. 459.015.
118 (4) PROCEDURE FOR JUDICIAL WAIVER OF NOTICE.—
119 (a) A minor may petition any circuit court in a judicial
120 circuit within the jurisdiction of the District Court of Appeal
121 in which the minor she resides for a waiver of the notice
122 requirements of subsection (3) and may participate in
123 proceedings on her own behalf. The petition may be filed under a
124 pseudonym or through the use of initials, as provided by court
125 rule. The petition must include a statement that the petitioner
126 is pregnant and notice has not been waived. The court shall
127 advise the minor that she has a right to court-appointed counsel
128 and shall provide her with counsel upon her request at no cost
129 to the minor.
130 (b)1. Court proceedings under this subsection must be given
131 precedence over other pending matters to the extent necessary to
132 ensure that the court reaches a decision promptly. The court
133 shall rule, and issue written findings of fact and conclusions
134 of law, within 3 business days 48 hours after the petition is
135 filed, except that the 3-business-day 48-hour limitation may be
136 extended at the request of the minor. If the court fails to rule
137 within the 3-business-day 48-hour period and an extension has
138 not been requested, the minor may immediately petition for a
139 hearing upon the expiration of the 3-business-day period to the
140 chief judge of the circuit, who must ensure a hearing is held
141 within 48 hours after receipt of the minor’s petition and an
142 order is entered within 24 hours after the hearing the petition
143 is granted, and the notice requirement is waived.
144 2. If the circuit court does not grant judicial waiver of
145 notice, the minor has the right to appeal. An appellate court
146 must rule within 7 days after receipt of appeal, but a ruling
147 may be remanded with further instruction for a ruling within 3
148 business days after the remand. The reason for overturning a
149 ruling on appeal must be based on abuse of discretion by the
150 court and may not be based on the weight of the evidence
151 presented to the circuit court since the proceeding is a
152 nonadversarial proceeding.
153 (c) If the court finds, by clear and convincing evidence,
154 that the minor is sufficiently mature to decide whether to
155 terminate her pregnancy, the court shall issue an order
156 authorizing the minor to consent to the performance or
157 inducement of a termination of pregnancy without the
158 notification of a parent or guardian. If the court does not make
159 the finding specified in this paragraph or paragraph (d), it
160 must dismiss the petition. Factors the court shall consider
161 include:
162 1. The minor’s:
163 a. Age.
164 b. Overall intelligence.
165 c. Emotional development and stability.
166 d. Credibility and demeanor as a witness.
167 e. Ability to accept responsibility.
168 f. Ability to assess both the immediate and long-range
169 consequences of the minor’s choices.
170 g. Ability to understand and explain the medical risks of
171 terminating her pregnancy and to apply that understanding to her
172 decision.
173 2. Whether there may be any undue influence by another on
174 the minor’s decision to have an abortion.
175 (d) If the court finds, by a preponderance of the evidence,
176 that the petitioner is the victim there is evidence of child
177 abuse or sexual abuse inflicted of the petitioner by one or both
178 of her parents or her guardian, or by clear and convincing
179 evidence that the notification of a parent or guardian is not in
180 the best interest of the petitioner, the court shall issue an
181 order authorizing the minor to consent to the performance or
182 inducement of a termination of pregnancy without the
183 notification of a parent or guardian. The best-interest standard
184 does not include financial best interest or financial
185 considerations or the potential financial impact on the minor or
186 the minor’s family if the minor does not terminate the
187 pregnancy. If the court finds evidence of child abuse or sexual
188 abuse of the minor petitioner by any person, the court shall
189 report the evidence of child abuse or sexual abuse of the
190 petitioner, as provided in s. 39.201. If the court does not make
191 the finding specified in this paragraph or paragraph (c), it
192 must dismiss the petition.
193 (e) A court that conducts proceedings under this section
194 shall:
195 1. Provide for a written transcript of all testimony and
196 proceedings; and
197 2. Issue a final written order containing and specific
198 factual findings and legal conclusions supporting its decision,
199 including factual findings and legal conclusions relating to the
200 maturity of the minor as provided under paragraph (c); and shall
201 3. Order that a confidential record be maintained, as
202 required under s. 390.01116. At the hearing, the court shall
203 hear evidence relating to the emotional development, maturity,
204 intellect, and understanding of the minor, and all other
205 relevant evidence.
206 (f) All hearings under this section, including appeals,
207 shall remain confidential and closed to the public, as provided
208 by court rule.
209 (g)(f) An expedited appeal shall be made available, as the
210 Supreme Court provides by rule, to any minor to whom the circuit
211 court denies a waiver of notice. An order authorizing a
212 termination of pregnancy without notice is not subject to
213 appeal.
214 (h)(g) No Filing fees or court costs may not shall be
215 required of any pregnant minor who petitions a court for a
216 waiver of parental notification under this subsection at either
217 the trial or the appellate level.
218 (i)(h) A No county is not shall be obligated to pay the
219 salaries, costs, or expenses of any counsel appointed by the
220 court under this subsection.
221 (5) PROCEEDINGS.—The Supreme Court is requested to adopt
222 rules and forms for petitions to ensure that proceedings under
223 subsection (4) are handled expeditiously and in a manner
224 consistent with this act. The Supreme Court is also requested to
225 adopt rules to ensure that the hearings protect the minor’s
226 confidentiality and the confidentiality of the proceedings.
227 (6) REPORT.—The Supreme Court, through the Office of the
228 State Courts Administrator, shall report by February 1 of each
229 year to the Governor, the President of the Senate, and the
230 Speaker of the House of Representatives on the number of
231 petitions filed under subsection (4) for the preceding year, and
232 the timing and manner of disposal of such petitions by each
233 circuit court. For each petition resulting in a waiver of
234 notice, the reason for the waiver shall be included in the
235 report.
236 Section 2. If any provision of this act or its application
237 to any individual or circumstance is held invalid, the
238 invalidity does not affect other provisions or applications of
239 the act which can be given effect without the invalid provision
240 or application, and to this end the provisions of this act are
241 severable.
242 Section 3. This act shall take effect upon becoming a law.