Senate Bill 1598e1

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  1                      A bill to be entitled

  2         An act relating to termination of pregnancies;

  3         creating s. 390.01115, F.S.; providing a short

  4         title; defining terms; prohibiting the

  5         performing or inducement of a termination of

  6         pregnancy upon a minor without specified

  7         notice; providing disciplinary action for

  8         violation; prescribing notice requirements;

  9         providing exceptions; prescribing procedure for

10         judicial waiver of notice; providing for notice

11         of right to counsel; providing for issuance of

12         a court order authorizing consent to a

13         termination of pregnancy without notification;

14         providing for dismissal of petitions; requiring

15         the issuance of written findings of fact and

16         legal conclusions; providing for expedited

17         appeal; providing for waiver of filing fees and

18         court costs; precluding assumption of certain

19         expenses by counties; requesting the Supreme

20         Court to adopt rules; requiring the Supreme

21         Court to report annually to the Governor and

22         the Legislature; providing for severability;

23         providing an effective date.

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25         WHEREAS, the Legislature finds that immature minors

26  often lack the ability to make fully informed choices that

27  take into account both immediate and long-range consequences,

28  and

29         WHEREAS, the unique medical, emotional, and

30  psychological consequences of abortion are sometimes serious

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  1  and can be lasting, particularly when the patient is immature,

  2  and

  3         WHEREAS, the capacity to become pregnant and the

  4  capacity for mature judgment concerning the wisdom of an

  5  abortion are not necessarily related, and

  6         WHEREAS, parents ordinarily possess information

  7  essential to a physician's exercise of his or her best medical

  8  judgment concerning the child, and

  9         WHEREAS, parents who are aware that their minor

10  daughter has had an abortion may better ensure that she

11  receives adequate medical attention after her abortion, and

12         WHEREAS, parental consultation is usually desirable and

13  in the best interests of the minor, and

14         WHEREAS, the Legislature's purpose in enacting parental

15  notice legislation is to further the important and compelling

16  state interests of protecting minors against their own

17  immaturity, fostering family unity and preserving the family

18  as a viable social unit, protecting the constitutional rights

19  of parents to rear children who are members of their

20  household, and reducing teenage pregnancy and unnecessary

21  abortion, and

22         WHEREAS, further legislative purposes are to ensure

23  that parents are able to meet their high duty to seek out and

24  follow medical advice pertaining to their children, stay

25  apprised of the medical needs and physical condition of their

26  children, and recognize complications that might arise

27  following medical procedures or services, to preserve the

28  right of parents to pursue a civil action on behalf of their

29  child before expiration of the statute of limitations period,

30  if a facility or physician commits medical malpractice that

31  results in injury to a child, and to prevent, detect, and


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    CS for SB 1598                                 First Engrossed



  1  prosecute batteries, rapes, and other crimes committed upon

  2  minors, and

  3         WHEREAS, previous legislation requiring the consent of

  4  parents before a physician performed an abortion on their

  5  daughter was struck down by the Florida Supreme Court on the

  6  basis of the constitutional right of privacy, in the case of

  7  In Re: T.W., and this legislation is designed to extend the

  8  protection of the law to minor girls and their parents in

  9  accordance with the State Constitution, NOW, THEREFORE,

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11  Be It Enacted by the Legislature of the State of Florida:

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13         Section 1.  Section 390.01115, Florida Statutes, is

14  created to read:

15         390.01115  Parental Notice of Abortion Act.--

16         (1)  SHORT TITLE.--This section may be cited as the

17  "Parental Notice of Abortion Act."

18         (2)  DEFINITIONS.--As used in this section, the term:

19         (a) "Actual notice" means notice that is given

20  directly, in person, or by telephone.

21         (b)  "Child abuse" has the meaning ascribed in s.

22  39.0015(3) and refers to the acts of child abuse against a

23  minor by a family member as defined in s. 741.28(2).

24         (c)  "Constructive notice" means notice that is given

25  by certified mail to the last known address of the parent or

26  legal guardian of a minor, with delivery deemed to have

27  occurred 48 hours after the certified notice is mailed.

28         (d)  "Medical emergency" means a condition that, on the

29  basis of a physician's good-faith clinical judgment, so

30  complicates the medical condition of a pregnant woman as to

31  necessitate the immediate termination of her pregnancy to


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  1  avert her death, or for which a delay in the termination of

  2  her pregnancy will create serious risk of substantial and

  3  irreversible impairment of a major bodily function.

  4         (e)  "Sexual abuse" has the meaning ascribed in s.

  5  39.01 and refers to the acts of sexual abuse against a minor

  6  by a family member as defined in s. 741.28(2).

  7         (3)  NOTIFICATION REQUIRED.--

  8         (a)  A termination of pregnancy may not be performed or

  9  induced upon a minor unless the physician performing or

10  inducing the termination of pregnancy has given at least 48

11  hours' actual notice to one parent or to the legal guardian of

12  the pregnant minor of his or her intention to perform or

13  induce the termination of pregnancy. The notice may be given

14  by a referring physician. The physician who performs the

15  termination of pregnancy must receive the written statement of

16  the referring physician certifying that the referring

17  physician has given notice. If actual notice is not possible

18  after a reasonable effort has been made, the physician or his

19  or her agent must give 48 hours' constructive notice.

20         (b)  Notice is not required if:

21         1.  A medical emergency exists and there is

22  insufficient time for the attending physician to comply with

23  the notification requirements. If a medical emergency exists,

24  the physician may proceed but must document reasons for the

25  medical necessity in the patient's medical records;

26         2.  Notice is waived in writing by the person who is

27  entitled to notice;

28         3.  Notice is waived by the minor who is or has been

29  married or has had the disability of nonage removed under s.

30  743.015 or a similar statute of another state;

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  1         4.  Notice is waived by the patient because the patient

  2  has a minor child dependent on her; or

  3         5.  Notice is waived under subsection (4).

  4         (c)  Violation of this subsection by a physician

  5  constitutes grounds for disciplinary action under s. 458.331

  6  or s. 459.015.

  7         (4)  PROCEDURE FOR JUDICIAL WAIVER OF NOTICE.--

  8         (a)  A minor may petition any circuit court for a

  9  waiver of the notice requirements of subsection (3) and may

10  participate in proceedings on her own behalf. The petition

11  must include a statement that the petitioner is pregnant and

12  notice has not been waived. The court may appoint a guardian

13  ad litem for her. A guardian ad litem appointed under this

14  subsection shall act to maintain the confidentiality of the

15  proceedings. The circuit court shall advise the minor that she

16  has a right to court-appointed counsel and shall provide her

17  with counsel upon her request.

18         (b)  Court proceedings under this subsection must be

19  given precedence over other pending matters to the extent

20  necessary to ensure that the court reaches a decision

21  promptly. The court shall rule, and issue written findings of

22  fact and conclusions of law, within 48 hours after the

23  petition is filed, except that the 48-hour limitation may be

24  extended at the request of the minor. If the court fails to

25  rule within the 48-hour period and an extension has not been

26  requested, the petition is granted, and the notice requirement

27  is waived.

28         (c)  If the court finds, by clear evidence, that the

29  minor is sufficiently mature to decide whether to terminate

30  her pregnancy, the court shall issue an order authorizing the

31  minor to consent to the performance or inducement of a


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    CS for SB 1598                                 First Engrossed



  1  termination of pregnancy without the notification of a parent

  2  or guardian. If the court does not make the finding specified

  3  in this paragraph or paragraph (d), it must dismiss the

  4  petition.

  5         (d)  If the court finds, by clear evidence, that there

  6  is evidence of child abuse or sexual abuse of the petitioner

  7  by one or both of her parents or her guardian, or that the

  8  notification of a parent or guardian is not in the best

  9  interest of the petitioner, the court shall issue an order

10  authorizing the minor to consent to the performance or

11  inducement of a termination of pregnancy without the

12  notification of a parent or guardian. If the court does not

13  make the finding specified in this paragraph or paragraph (c),

14  it must dismiss the petition.

15         (e)  A court that conducts proceedings under this

16  section shall provide for a written transcript of all

17  testimony and proceedings and issue written and specific

18  factual findings and legal conclusions supporting its decision

19  and shall order that a confidential record of the evidence and

20  the judge's findings and conclusions be maintained. At the

21  hearing, the court shall hear evidence relating to the

22  emotional development, maturity, intellect, and understanding

23  of the minor.

24         (f)  An expedited confidential appeal shall be

25  available, as the Supreme Court provides by rule, to any minor

26  to whom the circuit court denies a waiver of notice. An order

27  authorizing a termination of pregnancy without notice is not

28  subject to appeal.

29         (g)  No filing fees or court costs shall be required of

30  any pregnant minor who petitions a court for a waiver of

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    CS for SB 1598                                 First Engrossed



  1  parental notification under this subsection at either the

  2  trial or the appellate level.

  3         (h)  No county shall be obligated to pay the salaries,

  4  costs, or expenses of any counsel appointed by the court under

  5  this subsection.

  6         (5)  PROCEEDINGS.--The Supreme Court is requested to

  7  adopt rules and forms for petitions to ensure that proceedings

  8  under subsection (4) are handled expeditiously and in a manner

  9  that will satisfy the requirements of state and federal

10  courts.

11         (6)  REPORT.--The Supreme Court, through the Office of

12  the State Courts Administrator, shall report by February 1 of

13  each year to the Governor, the President of the Senate, and

14  the Speaker of the House of Representatives on the number of

15  petitions filed under subsection (4) for the preceding year,

16  and the timing and manner of disposal of such petitions by

17  each circuit court.

18         Section 2.  If any provision of this act or the

19  application thereof to any person or circumstance is held

20  invalid, the invalidity shall not affect other provisions or

21  applications of the act which can be given effect without the

22  invalid provision or application, and to this end the

23  provisions of this act are declared severable.

24         Section 3.  This act shall take effect July 1, 1999.

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