HB 1659

1	A bill to be entitled
2	An act relating to parental notification of termination of
3	a minor's pregnancy; amending s. 390.01115, F.S.;
4	providing a popular name; providing definitions; providing
5	that actual notice shall be given by the physician who
6	will perform the termination of pregnancy procedure;
7	providing for written notice in certain circumstances;
8	specifying information required to be included in notices;
9	providing circumstances in which prior notice is not
10	required; providing that violation of the notice
11	requirements by physicians shall be considered medical
12	malpractice; providing procedures for judicial waiver of
13	notice; providing circumstances under which certain
14	circuit courts may grant a petition for a judicial waiver
15	of notice; providing for the appointment of a guardian ad
16	litem and counsel; providing time requirements for court
17	proceedings; requiring written transcripts of certain
18	proceedings; providing for confidentiality; providing for
19	the availability of an appeal under certain circumstances;
20	waiving filing fees and court costs for certain minors;
21	relieving counties of certain counsel costs; requiring the
22	Supreme Court to ensure certain proceedings are conducted
23	expeditiously and lawfully; providing an effective date.
24
25	WHEREAS, the Legislature finds that parents of children in
26	the State of Florida have a fundamental right to raise their
27	children free from unnecessary government interference, and
28	WHEREAS, the United States Supreme Court has confirmed in
29	H.L. v. Matheson, 450 U.S. 398 (1981), that states further a
30	constitutionally permissible end by encouraging unmarried
31	pregnant minors to seek the help and advice of their parents in
32	making the important decision whether or not to bear a child,
33	and
34	WHEREAS, the Florida Supreme Court's rationale in In re
35	T.W., 551 So. 2d 1186 (Fla. 1989) and North Florida Women's
36	Health and Counseling Services v. State, 886 So. 2d 612 (Fla.
37	2003), is contrary to the rationale of the United States Supreme
38	Court in H.L. v. Matheson, and
39	WHEREAS, the Legislature took testimony from citizens from
40	all over the State of Florida who overwhelmingly believe that a
41	parent's right to know when their child is undergoing a serious
42	medical procedure supersedes any implied right of privacy in the
43	State Constitution, including the right to be notified before
44	the termination of a minor child's pregnancy notwithstanding a
45	minor's right to privacy provided in Article I, Section 23 of
46	the Florida Constitution, and
47	WHEREAS, the citizens of Florida amended the State
48	Constitution in 2004 and authorized the Legislature to require
49	notice to parents or guardians of minors before termination of
50	their minor child's pregnancy, and
51	WHEREAS, the Parental Notice of the Termination of a
52	Minor's Pregnancy Act of 2005 is necessary to protect the
53	fundamental right of parents to raise their children free from
54	unnecessary government interference and to comply with the
55	mandate of the citizens of Florida, NOW, THEREFORE,
56
57	Be It Enacted by the Legislature of the State of Florida:
58
59	Section 1.  Section 390.01115, Florida Statutes, is amended
60	to read:
61	(Substantial rewording of section. See
62	s. 390.01115, F.S., for present text.)
63	390.01115  Parental Notice of the Termination of a Minor's
64	Pregnancy Act of 2005.--
65	(1)  POPULAR NAME.--This section may be cited as the
66	"Parental Notice of the Termination of a Minor's Pregnancy Act
67	of 2005."
68	(2)  DEFINITIONS.--As used in this section, the term:
69	(a)  "Actual notice" means notice that is a direct
70	in-person communication.
71	(b)  "Child abuse" has the same meaning ascribed in s.
72	827.03.
73	(c)  "Medical emergency" means a condition that, on the
74	good faith clinical judgment of a physician treating a minor, so
75	complicates the medical condition of a pregnant minor as to
76	necessitate the immediate termination of the minor's pregnancy
77	to avert her death, or for which a delay in the termination of
78	her pregnancy will create certain risk of substantial and
79	irreversible impairment of a major bodily function.
80	(d)  "Sexual abuse" has the same meaning ascribed in s.
81	39.01.
82	(3)  NOTIFICATION REQUIRED.--
83	(a)1.  A termination of the pregnancy of a minor may not be
84	performed or induced upon a minor unless the physician
85	performing or inducing the termination of pregnancy has provided
86	actual notice of the physician's intention to perform or induce
87	the termination of pregnancy to one parent or the legal guardian
88	of the pregnant minor at least 48 hours prior to the
89	commencement of the performance or inducement of the termination
90	of pregnancy. If the physician was not able to provide actual
91	notice after exhausting all reasonable efforts, written notice
92	shall be provided by mail overnight delivery guaranteed, return
93	receipt requested, with delivery restricted to a parent or legal
94	guardian with signature confirmation of receipt, which is
95	deposited at least 48 hours prior to the commencement of the
96	performance or inducement of the termination of pregnancy. The
97	physician shall document the reasonable efforts made to provide
98	actual notice, and such records shall be kept with the minor's
99	medical records. In instances where written notice is provided
100	by mail pursuant to this subparagraph and the physician does not
101	receive the return receipt within 30 days of mailing, the
102	physician shall document the minor's name and date of birth, the
103	date the termination of pregnancy was performed or induced, the
104	name and address of the minor's parent or legal guardian, and
105	that termination of pregnancy services were performed. The
106	physician must maintain such records until the minor reaches 21
107	years of age or for 10 years, whichever occurs first.
108	2.  Notice required under this subsection must include the
109	name and address of the facility performing the termination of
110	pregnancy, the name of the physician providing notice, the days
111	and hours of the facility's operation, and when the performance
112	or inducement of the termination of pregnancy is scheduled to be
113	commenced.
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 described in subsection (3) as soon as possible but, in any
122	event, not to exceed 24 hours after the procedure is performed;
123	2.  Notice is waived by the minor who is or has been
124	married or has had the disability of nonage removed under s.
125	743.015 or a similar statute of another state; or
126	3.  Notice is waived under subsection (4).
127	(c)  Violation of this subsection by a physician
128	constitutes grounds for disciplinary action under s. 458.331 or
129	s. 459.015 and shall be considered an act of medical
130	malpractice.
131	(4)  PROCEDURE FOR JUDICIAL WAIVER OF NOTICE.--
132	(a)  The circuit court of the county in which a pregnant
133	minor resides may grant a petition for a judicial waiver of the
134	notice requirements provided in subsection (3) under the
135	following circumstances:
136	1.  If the pregnant minor is 16 years of age or older and
137	the court finds, by clear and convincing evidence, that the
138	minor is sufficiently mature to decide whether to terminate her
139	pregnancy without the advice, counsel, and knowledge of her
140	parent or guardian of the decision to terminate the pregnancy.
141	In determining whether a minor who is 16 years of age or older
142	is sufficiently mature to decide whether to terminate her
143	pregnancy without the advice, counsel, and knowledge of her
144	parent or guardian of the decision to terminate her pregnancy,
145	the court shall consider all relevant evidence relating to the
146	minor's emotional development, maturity, intellect, and
147	understanding of the long-term and short-term consequences of
148	her actions.
149	2.  If, regardless of the minor's age, the court finds by a
150	preponderance of the evidence that the minor has been the victim
151	of child abuse or sexual abuse by a family or household member
152	as defined in s. 741.28. A court granting a petition and making
153	a finding pursuant to this subparagraph shall report the
154	evidence of child abuse or sexual abuse of the minor petitioner
155	to the Department of Children and Family Services or the
156	appropriate jurisdictional law enforcement agency.
157	(b)  A minor seeking a judicial waiver may participate in
158	proceedings on her own behalf. The petition must include a
159	statement that the petitioner is pregnant and notice has not
160	been waived. The court shall appoint a guardian ad litem for the
161	minor. A guardian ad litem appointed under this subsection shall
162	act to maintain the confidentiality of the proceedings. The
163	court may appoint counsel to represent the minor in proceedings
164	under this subsection when the services of an attorney have been
165	recommended by the guardian ad litem based on the circumstances
166	of the case. The court shall advise the minor of the
167	availability of counsel authorized in this subsection and shall
168	appoint counsel upon recommendation of the guardian ad litem.
169	(c)  Court proceedings under this subsection must be given
170	precedence over other pending matters to the extent necessary to
171	ensure that the circuit court reaches a prompt decision. The
172	circuit court shall rule, and issue written findings of fact and
173	conclusions of law, no later than 7 days from the date the
174	minor's petition is filed.
175	(d)  A court that conducts proceedings under this
176	subsection shall provide for a written transcript of all
177	testimony and proceedings and issue written and specific factual
178	findings and legal conclusions supporting its decision and shall
179	order that the record of the proceedings remain confidential to
180	the extent provided by s. 390.01116.
181	(e)  An expedited appeal, confidential to the extent
182	provided by s. 390.01116, shall be available, as the Supreme
183	Court provides by rule consistent with this section, to any
184	minor to whom the circuit court denies a waiver of notice to her
185	parent or guardian. An order authorizing the minor's termination
186	of pregnancy without notice to a parent or guardian is not
187	subject to appeal.
188	(f)  No filing fees or court costs shall be required of any
189	pregnant minor who petitions the court for a waiver of parental
190	notification under this subsection at either the trial or the
191	appellate level.
192	(g)  No county shall be obligated to pay the salaries,
193	costs, or expenses of any counsel appointed by the court under
194	this subsection.
195	(5)  PROCEEDINGS.--The Supreme Court is requested to ensure
196	that proceedings under subsection (4) are conducted
197	expeditiously and in a manner consistent with the requirements
198	of this section.
199	Section 2.  This act shall take effect July 1, 2005.

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