HB 1659

CS

CHAMBER ACTION

1	The Civil Justice Committee recommends the following:
2
3	Council/Committee Substitute
4	Remove the entire bill and insert:
5	A bill to be entitled
6	An act relating to parental notification of termination of
7	a minor's pregnancy; amending s. 390.01115, F.S.; revising
8	the popular name; revising and providing definitions;
9	removing the distinction between actual notice and
10	constructive notice; providing that notice shall be given
11	by the physician who will perform the termination of
12	pregnancy procedure; deleting provisions allowing waiver
13	of notice under certain circumstances; providing that
14	violation of the notice requirements by physicians shall
15	be considered medical malpractice; providing a minimum age
16	requirement for minors who petition for a waiver of
17	notice; providing for a petition for a waiver of notice to
18	be filed in the circuit court in the county where the
19	minor resides; revising the deadline by when the circuit
20	court shall issue rulings on notice proceedings; removing
21	a provision allowing a minor to request to extend the
22	deadline; removing a provision for the notice requirement
23	to be waived should the court fail to meet the deadline;
24	revising evidentiary standards for certain notice
25	proceedings; revising evidentiary findings needed by the
26	court relating to abuse of a minor; requiring the court to
27	report evidence of child abuse; revising provisions
28	relating to Supreme Court rules on petitions and appeals;
29	deleting a requirement of the Supreme Court to report on
30	petitions to waive notice; providing an effective date.
31
32	WHEREAS, the Legislature finds that parents of children in
33	the State of Florida have a fundamental right to raise their
34	children free from unnecessary government interference, and
35	WHEREAS, the United States Supreme Court has confirmed in
36	H.L. v. Matheson, 450 U.S. 398 (1981), that states further a
37	constitutionally permissible end by encouraging unmarried
38	pregnant minors to seek the help and advice of their parents in
39	making the important decision whether or not to bear a child,
40	and
41	WHEREAS, the Florida Supreme Court's rationale in In re
42	T.W., 551 So. 2d 1186 (Fla. 1989) and North Florida Women's
43	Health and Counseling Services v. State, 886 So. 2d 612 (Fla.
44	2003), is contrary to the rationale of the United States Supreme
45	Court in H.L. v. Matheson, and
46	WHEREAS, the Legislature took testimony from citizens from
47	all over the State of Florida who overwhelmingly believe that a
48	parent's right to know when their child is undergoing a serious
49	medical procedure supersedes any implied right of privacy in the
50	State Constitution, including the right to be notified before
51	the termination of a minor child's pregnancy notwithstanding a
52	minor's right to privacy provided in Article I, Section 23 of
53	the Florida Constitution, and
54	WHEREAS, the citizens of Florida amended the State
55	Constitution in 2004 and authorized the Legislature to require
56	notice to parents or guardians of minors before termination of
57	their minor child's pregnancy, and
58	WHEREAS, the Parental Notice of the Termination of a
59	Minor's Pregnancy Act of 2005 is necessary to protect the
60	fundamental right of parents to raise their children free from
61	unnecessary government interference and to comply with the
62	mandate of the citizens of Florida, NOW, THEREFORE,
63
64	Be It Enacted by the Legislature of the State of Florida:
65
66	Section 1.  Section 390.01115, Florida Statutes, is amended
67	to read:
68	390.01115  Parental Notice of the Termination of a Minor's
69	Pregnancy Abortion Act of 2005.--
70	(1)  POPULAR NAME SHORT TITLE.--This section may be cited
71	as the "Parental Notice of the Termination of a Minor's
72	Pregnancy Abortion Act of 2005."
73	(2)  DEFINITIONS.--As used in this section, the term:
74	(a)  "Actual notice" means notice that is given directly,
75	in person, or by telephone.
76	(a)(b)  "Child abuse" has the meaning ascribed in s.
77	39.0015(3) and refers to the acts of child abuse against a minor
78	by a family member as defined in s. 741.28.
79	(c)  "Constructive notice" means notice that is given by
80	certified mail to the last known address of the parent or legal
81	guardian of a minor, with delivery deemed to have occurred 48
82	hours after the certified notice is mailed.
83	(b)(d)  "Medical emergency" means a condition that, on the
84	basis of a physician's good faith clinical judgment of a
85	physician treating a minor, so complicates the medical condition
86	of a pregnant minor woman as to necessitate the immediate
87	termination of the minor's her pregnancy to avert her death, or
88	for which a delay in the termination of her pregnancy will
89	create certain serious risk of substantial and irreversible
90	impairment of a major bodily function.
91	(c)  "Notice" means direct in-person communication with a
92	parent or legal guardian or, if direct in-person communication
93	is not possible, by certified mail, return-receipt requested, to
94	a parent or legal guardian.
95	(d)(e)  "Sexual abuse" has the meaning ascribed in s. 39.01
96	and refers to the acts of sexual abuse against a minor by a
97	family member as defined in s. 741.28.
98	(3)  NOTIFICATION REQUIRED.--
99	(a)  A termination of the pregnancy of a minor may not be
100	performed or induced upon a minor unless the physician
101	performing or inducing the termination of the pregnancy has
102	given, and, if notice was mailed, received return-receipt
103	confirmation, at least 48 hours' actual notice to one parent or
104	to the legal guardian of the pregnant minor of the physician's
105	his or her intention to perform or induce the termination of the
106	pregnancy to one parent or the legal guardian of the pregnant
107	minor. The notice shall may be given by a referring physician.
108	the physician who will perform performs the termination of
109	pregnancy procedure must receive the written statement of the
110	referring physician certifying that the referring physician has
111	given notice. If actual notice is not possible after a
112	reasonable effort has been made, the physician or his or her
113	agent must give 48 hours' constructive notice.
114	(b)  Prior notice is not required if:
115	1.  A medical emergency exists and there is insufficient
116	time for the attending physician to comply with the notification
117	requirements of this subsection. If a medical emergency exists,
118	the physician may proceed with the termination of pregnancy
119	procedure but must document reasons for the medical necessity in
120	the patient's medical records and must thereafter provide notice
121	as defined in paragraph (2)(c) within 24 hours after the
122	procedure is performed; or
123	2.  Notice is waived in writing by the person who is
124	entitled to notice;
125	2.3.  Notice is waived by the minor who is or has been
126	married or has had the disability of nonage removed under s.
127	743.015 or a similar valid and in force statute of another
128	state;
129	4.  Notice is waived by the patient because the patient has
130	a minor child dependent on her; or
131	5.  Notice is waived under subsection (4).
132	(c)  Violation of this subsection by a physician
133	constitutes grounds for disciplinary action under s. 458.331 or
134	s. 459.015 and shall be considered an act of medical
135	malpractice.
136	(4)  PROCEDURE FOR JUDICIAL WAIVER OF NOTICE.--
137	(a)  A pregnant minor who is 16 years of age or older may
138	petition the any circuit court in the county where she resides
139	for a waiver of the notice requirements of subsection (3) and
140	may participate in proceedings on her own behalf. The petition
141	must include a statement that the petitioner is pregnant and
142	notice has not been waived. The court may appoint a guardian ad
143	litem for the minor her. A guardian ad litem appointed under
144	this subsection shall act to maintain the confidentiality of the
145	proceedings. The circuit court shall advise the minor that she
146	has a right to court-appointed counsel and shall provide the
147	minor her with counsel upon the minor's her request.
148	(b)  Court proceedings under this subsection must be given
149	precedence over other pending matters to the extent necessary to
150	ensure that the circuit court reaches a prompt decision
151	promptly. The circuit court shall rule, and issue written
152	findings of fact and conclusions of law, no later than 7 days
153	from the date the minor's within 48 hours after the petition is
154	filed, except that the 48-hour limitation may be extended at the
155	request of the minor. If the court fails to rule within the 48-
156	hour period and an extension has not been requested, the
157	petition is granted, and the notice requirement is waived.
158	(c)  If a pregnant minor is 16 years of age or older and if
159	the court finds, by clear and convincing evidence, that the
160	minor is sufficiently mature to decide whether to terminate her
161	pregnancy without the knowledge of her parent or guardian of the
162	decision to terminate the pregnancy, the court shall issue an
163	order authorizing the minor to consent to the performance or
164	inducement of a termination of pregnancy without providing the
165	notification to the minor's of a parent or guardian. If the
166	court does not make the finding specified in this paragraph or
167	paragraph (d), it must dismiss the petition.
168	(d)  If the court finds, by the greater weight of the clear
169	evidence, that the minor has been the victim there is evidence
170	of child abuse or sexual abuse, including, but not limited to,
171	rape or incest that resulted in the minor becoming pregnant of
172	the petitioner by one or both of her parents or her guardian, or
173	that the notification of a parent or guardian is not in the best
174	interest of the petitioner, the court shall issue an order
175	authorizing the minor to consent to the performance or
176	inducement of a termination of pregnancy without the
177	notification of a parent or guardian. If the court does not make
178	the finding specified in this paragraph or paragraph (c), it
179	must dismiss the petition. If the court does make the finding
180	specified in this paragraph, in addition to an order authorizing
181	termination the court shall report evidence of child abuse or
182	sexual abuse of the minor petitioner to the appropriate agency
183	or law enforcement agency.
184	(e)  A court that conducts proceedings under this section
185	shall provide for a written transcript of all testimony and
186	proceedings and issue written and specific factual findings and
187	legal conclusions supporting its decision and shall order that
188	the a confidential record of the proceedings remain confidential
189	to the extent provided by s. 390.01116 evidence and the judge's
190	findings and conclusions be maintained. In determining whether a
191	minor who is 16 years of age or older is sufficiently mature to
192	decide whether to terminate her pregnancy without the knowledge
193	of her parent or guardian of the decision to terminate her
194	pregnancy At the hearing, the court shall consider all relevant
195	evidence, including hear evidence relating to the minor's
196	emotional development, maturity, intellect, and understanding of
197	the consequences of her actions minor.
198	(f)  An expedited confidential appeal, confidential to the
199	extent provided by s. 390.01116, shall be available, as the
200	Supreme Court provides by rule consistent with this act, to any
201	minor to whom the circuit court denies a waiver of notice to her
202	parent or guardian. An order authorizing the minor's a
203	termination of pregnancy without notice to a parent or guardian
204	is not subject to appeal.
205	(g)  No filing fees or court costs shall be required of any
206	pregnant minor who petitions the a court for a waiver of
207	parental notification under this subsection at either the trial
208	or the appellate level.
209	(h)  No county shall be obligated to pay the salaries,
210	costs, or expenses of any counsel appointed by the court under
211	this subsection.
212	(5)  PROCEEDINGS.--The Supreme Court is requested to adopt
213	rules and forms for petitions to ensure that proceedings under
214	subsection (4) are handled expeditiously and in a manner
215	consistent with that will satisfy the requirements of state and
216	federal law courts.
217	(6)  REPORT.--The Supreme Court, through the Office of the
218	State Courts Administrator, shall report by February 1 of each
219	year to the Governor, the President of the Senate, and the
220	Speaker of the House of Representatives on the number of
221	petitions filed under subsection (4) for the preceding year, and
222	the timing and manner of disposal of such petitions by each
223	circuit court.
224	Section 2.  This act shall take effect July 1, 2005.

CODING: Words stricken are deletions; words underlined are additions.