ENROLLED
       2020 Legislature             CS for CS for SB 404, 1st Engrossed
       
       
       
       
       
       
                                                              2020404er
    1  
    2         An act relating to abortion; amending s. 390.0111,
    3         F.S.; reclassifying the criminal offense for a
    4         specified violation; amending s. 390.01114, F.S.;
    5         revising the short title; prohibiting physicians from
    6         performing or inducing the termination of the
    7         pregnancy of a minor unless specified requirements are
    8         satisfied; requiring a physician to obtain written
    9         consent from a minor’s parent or legal guardian before
   10         performing or inducing a termination of the pregnancy
   11         of a minor; requiring the consenting parent or legal
   12         guardian to provide specified proof of identification
   13         and a specified document to the physician; providing
   14         requirements for the document; providing exceptions to
   15         such consent requirement; providing criminal penalties
   16         for physicians; revising provisions relating to the
   17         procedures for judicial waiver to conform to changes
   18         made by the act; amending s. 27.511, F.S.; conforming
   19         a provision to changes made by the act; amending s.
   20         743.065, F.S.; conforming a provision to changes made
   21         by the act; providing severability; providing an
   22         effective date.
   23          
   24  Be It Enacted by the Legislature of the State of Florida:
   25  
   26         Section 1. Paragraph (e) of subsection (12) of section
   27  390.0111, Florida Statutes, is amended to read:
   28         390.0111 Termination of pregnancies.—
   29         (12) INFANTS BORN ALIVE.—
   30         (e) A person who violates this subsection commits a felony
   31  of the third misdemeanor of the first degree, punishable as
   32  provided in s. 775.082, or s. 775.083, or s. 775.084. This
   33  subsection shall not be construed as a specific provision of law
   34  relating to a particular subject matter that would preclude
   35  prosecution of a more general offense, regardless of the
   36  penalty.
   37         Section 2. Present subsections (3), (4), (5), and (6) of
   38  section 390.01114, Florida Statutes, are redesignated as
   39  subsections (4), (6), (7), and (8), respectively, new
   40  subsections (3) and (5) are added to that section, and
   41  subsection (1), paragraph (b) of present subsection (3), and
   42  present subsections (4), (5), and (6) are amended, to read:
   43         390.01114 Parental Notice of and Consent for Abortion Act.—
   44         (1) SHORT TITLE.—This section may be cited as the “Parental
   45  Notice of and Consent for Abortion Act.”
   46         (3)TERMINATION OF THE PREGNANCY OF A MINOR.—A physician
   47  may not perform or induce the termination of a pregnancy of a
   48  minor unless the physician has complied with the notice and
   49  consent requirements of this section.
   50         (4)(3) NOTIFICATION REQUIRED.—
   51         (b) Notice is not required if:
   52         1. In the physician’s good faith clinical judgment, a
   53  medical emergency exists and there is insufficient time for the
   54  attending physician to comply with the notification
   55  requirements. If a medical emergency exists, the physician shall
   56  make reasonable attempts, whenever possible, without endangering
   57  the minor, to contact the parent or legal guardian, and may
   58  proceed, but must document reasons for the medical necessity in
   59  the patient’s medical records. The physician shall provide
   60  notice directly, in person or by telephone, to the parent or
   61  legal guardian, including details of the medical emergency and
   62  any additional risks to the minor. If the parent or legal
   63  guardian has not been notified within 24 hours after the
   64  termination of the pregnancy, the physician shall provide notice
   65  in writing, including details of the medical emergency and any
   66  additional risks to the minor, signed by the physician, to the
   67  last known address of the parent or legal guardian of the minor,
   68  by first-class mail and by certified mail, return receipt
   69  requested, with delivery restricted to the parent or legal
   70  guardian;
   71         2. Notice is waived in writing by the person who is
   72  entitled to notice and such waiver is notarized, dated not more
   73  than 30 days before the termination of pregnancy, and contains a
   74  specific waiver of the right of the parent or legal guardian to
   75  notice of the minor’s termination of pregnancy;
   76         3. Notice is waived by the minor who is or has been married
   77  or has had the disability of nonage removed under s. 743.015 or
   78  a similar statute of another state;
   79         4. Notice is waived by the patient because the patient has
   80  a minor child dependent on her; or
   81         5. Notice is waived under subsection (6) (4).
   82         (5)PARENTAL CONSENT REQUIRED.—
   83         (a)A physician must obtain written consent from a parent
   84  or legal guardian before performing or inducing the termination
   85  of a pregnancy of a minor.
   86         1.The consenting parent or legal guardian shall provide to
   87  the physician a copy of a government-issued proof of
   88  identification. The parent or legal guardian shall certify in a
   89  signed, dated, and notarized document, initialed on each page,
   90  that he or she consents to the termination of the pregnancy of
   91  the minor. The document must include the following statement,
   92  which must precede the signature of the parent or guardian: “I,
   93  (insert name of parent or legal guardian), am the (select
   94  “parent” or “legal guardian,” as appropriate) of (insert name of
   95  minor) and give consent for (insert name of physician) to
   96  perform or induce a termination of pregnancy on her. Under
   97  penalties of perjury, I declare that I have read the foregoing
   98  statement and that the facts stated in it are true.” A copy of
   99  the parent’s or legal guardian’s government-issued proof of
  100  identification must be attached to the notarized document.
  101         2. The physician shall keep a copy of the proof of
  102  identification of the parent or legal guardian and the certified
  103  statement in the medical file of the minor for 5 years after the
  104  minor reaches the age of 18 years, but in no event less than 7
  105  years.
  106         3. A physician receiving consent from a parent or guardian
  107  under this section shall execute for inclusion in the medical
  108  record of the minor an affidavit stating: “I, (insert name of
  109  physician), certify that, according to my best information and
  110  belief, a reasonable person under similar circumstances would
  111  rely on the information presented by both the minor and her
  112  parent or legal guardian as sufficient evidence of identity.”
  113         (b) The consent of a parent or guardian is not required if:
  114         1. Notification is not required as provided in subparagraph
  115  (4)(b)1., subparagraph (4)(b)3., subparagraph (4)(b)4., or
  116  subparagraph (4)(b)5.;
  117         2. Notification is not required due to the existence of a
  118  waiver as provided in subparagraph (4)(b)2., if that waiver is
  119  signed by the minor’s parent or legal guardian, is notarized, is
  120  dated within 30 days before the termination of the pregnancy,
  121  contains a specific waiver of the right of the parent or legal
  122  guardian to consent to the minor’s termination of pregnancy, and
  123  a copy of the parent’s or legal guardian’s government-issued
  124  proof of identification is attached to the waiver;
  125         3.Consent is waived under subsection (6); or
  126         4.In the physician’s good faith clinical judgment, a
  127  medical emergency exists and there is insufficient time for the
  128  attending physician to comply with the consent requirement. If a
  129  medical emergency exists, the physician must make reasonable
  130  attempts, whenever possible, and without endangering the minor,
  131  to contact the parent or legal guardian of the minor, and may
  132  proceed, but must document reasons for the medical necessity in
  133  the minor patient’s medical records. The physician shall inform
  134  the parent or legal guardian, in person or by telephone, within
  135  24 hours after the termination of the pregnancy of the minor,
  136  including details of the medical emergency that necessitated the
  137  termination of the pregnancy without the parent’s or legal
  138  guardian’s consent. The physician shall also provide this
  139  information in writing to the parent or legal guardian at his or
  140  her last known address, by first-class mail or by certified
  141  mail, return receipt requested, with delivery restricted to the
  142  parent or legal guardian.
  143         (c)1.A physician who intentionally or recklessly performs
  144  or induces, or attempts to perform or induce, a termination of a
  145  pregnancy of a minor without obtaining the required consent
  146  pursuant to this subsection commits a felony of the third
  147  degree, punishable as provided in s. 775.082, s. 775.083, or s.
  148  775.084. A penalty may not be assessed against the minor upon
  149  whom a termination of pregnancy is performed or induced or upon
  150  whom a termination of pregnancy is attempted to be performed or
  151  induced.
  152         2.It is a defense to prosecution that a minor
  153  misrepresented her age or identity to a physician by displaying
  154  a driver license or identification card issued by the state or
  155  another state which indicated that the minor was 18 years of age
  156  or older and that the appearance of the minor was such that a
  157  reasonably prudent person would believe that the minor was not
  158  under 18 years of age. To use the defense, a physician must
  159  provide a copy of the driver license or identification card used
  160  by the minor. The defense does not apply if the physician is
  161  shown to have had independent knowledge of the minor’s actual
  162  age or identity or to have failed to use due diligence in
  163  determining the minor’s age or identity.
  164         (6)(4) PROCEDURE FOR JUDICIAL WAIVER OF NOTICE.—
  165         (a) A minor may petition any circuit court in which the
  166  minor resides for a waiver of the notice requirements of this
  167  section subsection (3) and may participate in proceedings on her
  168  own behalf. The petition may be filed under a pseudonym or
  169  through the use of initials, as provided by court rule. The
  170  petition must include a statement that the petitioner is
  171  pregnant and that the requirements of this section have notice
  172  has not been waived. The court shall advise the minor that she
  173  has a right to court-appointed counsel and shall provide her
  174  with counsel upon her request at no cost to the minor. The court
  175  shall, upon request, provide counsel for the minor at least 24
  176  hours before the court proceeding.
  177         (b)1. Court proceedings under this section subsection must
  178  be given precedence over other pending matters to the extent
  179  necessary to ensure that the court reaches a decision promptly.
  180  The court shall rule, and issue written findings of fact and
  181  conclusions of law, within 3 business days after the petition is
  182  filed, except that the 3-business-day limitation may be extended
  183  at the request of the minor. If the court fails to rule within
  184  the 3-business-day period and an extension has not been
  185  requested, the minor may immediately petition for a hearing upon
  186  the expiration of the 3-business-day period to the chief judge
  187  of the circuit, who must ensure a hearing is held within 48
  188  hours after receipt of the minor’s petition and an order is
  189  entered within 24 hours after the hearing.
  190         2. If the circuit court does not grant judicial waiver of
  191  the requirements of this section notice, the minor has the right
  192  to appeal. An appellate court must rule within 7 days after
  193  receipt of appeal, but a ruling may be remanded with further
  194  instruction for a ruling within 3 business days after the
  195  remand. The reason for overturning a ruling on appeal must be
  196  based on abuse of discretion by the court and may not be based
  197  on the weight of the evidence presented to the circuit court
  198  since the proceeding is a nonadversarial proceeding.
  199         (c) If the court finds, by clear and convincing evidence,
  200  that the minor is sufficiently mature to decide whether to
  201  terminate her pregnancy, the court shall issue an order
  202  authorizing the minor to consent to the performance or
  203  inducement of a termination of the pregnancy without the
  204  notification of a parent or guardian. If the court does not make
  205  the finding specified in this paragraph or paragraph (d), it
  206  must dismiss the petition. Factors the court shall consider
  207  include:
  208         1. The minor’s:
  209         a. Age.
  210         b. Overall intelligence.
  211         c. Emotional development and stability.
  212         d. Credibility and demeanor as a witness.
  213         e. Ability to accept responsibility.
  214         f. Ability to assess both the immediate and long-range
  215  consequences of the minor’s choices.
  216         g. Ability to understand and explain the medical risks of
  217  terminating her pregnancy and to apply that understanding to her
  218  decision.
  219         2. Whether there may be any undue influence by another on
  220  the minor’s decision to have an abortion.
  221         (d) If the court finds, by a preponderance of the evidence,
  222  that the petitioner is the victim of child abuse or sexual abuse
  223  inflicted by one or both of her parents or her guardian, or by
  224  clear and convincing evidence that the requirements of this
  225  section are notification of a parent or guardian is not in the
  226  best interest of the petitioner, the court shall issue an order
  227  authorizing the minor to consent to the performance or
  228  inducement of a termination of the pregnancy without the
  229  notification of a parent or guardian. The best-interest standard
  230  does not include financial best interest or financial
  231  considerations or the potential financial impact on the minor or
  232  the minor’s family if the minor does not terminate the
  233  pregnancy. If the court finds evidence of child abuse or sexual
  234  abuse of the minor petitioner by any person, the court shall
  235  report the evidence of child abuse or sexual abuse of the
  236  petitioner, as provided in s. 39.201. If the court does not make
  237  the finding specified in this paragraph or paragraph (c), it
  238  must dismiss the petition.
  239         (e) A court that conducts proceedings under this section
  240  shall:
  241         1. Provide for a written transcript of all testimony and
  242  proceedings;
  243         2. Issue a final written order containing factual findings
  244  and legal conclusions supporting its decision, including factual
  245  findings and legal conclusions relating to the maturity of the
  246  minor as provided under paragraph (c); and
  247         3. Order that a confidential record be maintained, as
  248  required under s. 390.01116.
  249         (f) All hearings under this section, including appeals,
  250  shall remain confidential and closed to the public, as provided
  251  by court rule. Subject to a judge’s availability as required
  252  under s. 26.20, hearings held under this section must be held in
  253  chambers or in a similarly private and informal setting within
  254  the courthouse.
  255         (g) An expedited appeal shall be made available, as the
  256  Supreme Court provides by rule, to any minor to whom the circuit
  257  court denies a waiver of the requirements of this section
  258  notice. An order authorizing a termination of pregnancy under
  259  this subsection without notice is not subject to appeal.
  260         (h) Filing fees or court costs may not be required of any
  261  pregnant minor who petitions a court for a waiver of the
  262  requirements of this section parental notification under this
  263  subsection at either the trial or the appellate level.
  264         (i) A county is not obligated to pay the salaries, costs,
  265  or expenses of any counsel appointed by the court under this
  266  subsection.
  267         (7)(5) PROCEEDINGS.—The Supreme Court is requested to adopt
  268  rules and forms for petitions to ensure that proceedings under
  269  subsection (6) (4) are handled expeditiously and in a manner
  270  consistent with this act. The Supreme Court is also requested to
  271  adopt rules to ensure that the hearings protect the minor’s
  272  confidentiality and the confidentiality of the proceedings.
  273         (8)(6) REPORT.—The Supreme Court, through the Office of the
  274  State Courts Administrator, shall report by February 1 of each
  275  year to the Governor, the President of the Senate, and the
  276  Speaker of the House of Representatives on the number of
  277  petitions filed under subsection (6) (4) for the preceding year,
  278  and the timing and manner of disposal of such petitions by each
  279  circuit court. For each petition resulting in a waiver of the
  280  requirements of this section notice, the reason for the waiver
  281  shall be included in the report.
  282         Section 3. Paragraph (a) of subsection (6) of section
  283  27.511, Florida Statutes, is amended to read:
  284         27.511 Offices of criminal conflict and civil regional
  285  counsel; legislative intent; qualifications; appointment;
  286  duties.—
  287         (6)(a) The office of criminal conflict and civil regional
  288  counsel has primary responsibility for representing persons
  289  entitled to court-appointed counsel under the Federal or State
  290  Constitution or as authorized by general law in civil
  291  proceedings, including, but not limited to, proceedings under s.
  292  393.12 and chapters 39, 392, 397, 415, 743, 744, and 984 and
  293  proceedings to terminate parental rights under chapter 63.
  294  Private court-appointed counsel eligible under s. 27.40 have
  295  primary responsibility for representing minors who request
  296  counsel under s. 390.01114, the Parental Notice of and Consent
  297  for Abortion Act; however, the office of criminal conflict and
  298  civil regional counsel may represent a minor under that section
  299  if the court finds that no private court-appointed attorney is
  300  available.
  301         Section 4. Subsection (3) of section 743.065, Florida
  302  Statutes, is amended to read:
  303         743.065 Unwed pregnant minor or minor mother; consent to
  304  medical services for minor or minor’s child valid.—
  305         (3) Nothing in this section act shall affect the provisions
  306  of chapter 390 s. 390.0111.
  307         Section 5. If any provision of this act or its application
  308  to any person or circumstance is held invalid, the invalidity
  309  does not affect other provisions or applications of the act
  310  which can be given effect without the invalid provision or its
  311  application, and to this end the provisions of this act are
  312  severable.
  313         Section 6. This act shall take effect July 1, 2020.