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.
   22  Be It Enacted by the Legislature of the State of Florida:
   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.
  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.