Florida Senate - 2020 SB 404 By Senator Stargel 22-00286-20 2020404__ 1 A bill to be entitled 2 An act relating to parental consent for abortion; 3 creating s. 390.01117, F.S.; providing a short title; 4 defining terms; prohibiting a physician from 5 performing an abortion on a minor unless the physician 6 has been presented with consent from the minor’s 7 parent or guardian, as appropriate; providing an 8 exception for a medical emergency; requiring a monthly 9 report to be filed by certain physicians with the 10 Department of Health on a form adopted by department 11 rule; requiring the department to compile data 12 collected from such forms and make it available on its 13 website; authorizing a minor to petition any circuit 14 court in which the minor resides for a waiver of 15 consent required to obtain an abortion; requiring a 16 specified statement to be included in the petition; 17 providing for court-appointed counsel and 18 confidentiality; requiring the court to give 19 preference to waiver of consent proceedings and 20 requiring a court to rule within a specified 21 timeframe; providing for an extension of time at the 22 request of the minor; authorizing a minor to petition 23 for a hearing upon the expiration of the time allowed 24 and requiring the chief judge of the circuit to ensure 25 that a hearing is held and that an order is entered 26 within specified timeframes; providing for appeals 27 within a specified timeframe; requiring the court to 28 dismiss the petition if it does not make specified 29 findings; requiring the court to consider undue 30 influence on the minor’s decision and specified 31 factors; requiring the court to report any findings of 32 evidence of child abuse or sexual abuse of the 33 petitioner; requiring a court to provide for a written 34 transcript of waiver of consent proceedings and 35 include certain findings and conclusions in its order; 36 prohibiting filing fees or costs for a minor who 37 petitions the court for a waiver of consent; 38 specifying that a county is not required to pay the 39 salaries, costs, or expenses of certain court 40 appointed counsel; requesting the Supreme Court to 41 adopt certain rules and forms relating to waiver of 42 consent proceedings; providing criminal penalties and 43 disciplinary action; providing construction and 44 severability; providing an effective date. 45 46 WHEREAS, the United States Supreme Court has consistently 47 recognized that a state statute requiring parental consent to a 48 minor’s abortion is constitutional if it provides a judicial 49 alternative in which the consent is waived if the minor is 50 mature enough to make the decision to obtain an abortion or if 51 the abortion is in the minor’s best interest, and 52 WHEREAS, the medical, emotional, and psychological 53 consequences associated with having an abortion are serious and 54 can be long lasting, particularly when a patient is immature, 55 and 56 WHEREAS, the status of minors under the law is unique 57 because of their need for parental guidance and decisionmaking, 58 and 59 WHEREAS, minors’ disability of nonage defaults to a legal 60 disability to contract which only the Legislature can remove, 61 and such legislative removals of disability of nonage are 62 codified in chapter 743, Florida Statutes, and 63 WHEREAS, while the laws of this state allow minors who are 64 mothers to make life and death decisions for their children, 65 there is a distinction between making day-to-day decisions for a 66 child and deciding to abort a child, and 67 WHEREAS, the only circumstance in which medical decisions 68 for a minor are not made by the minor’s parents is when the 69 minor is pregnant, and 70 WHEREAS, s. 743.065, Florida Statutes, allows unwed 71 pregnant minors to make medical decisions relating to their 72 pregnancies and allows them to consent to the performance of 73 medical or surgical care of services for their children, except 74 for decisions to terminate pregnancies, and 75 WHEREAS, the United States Supreme Court has determined 76 that the constitutional rights of minors are not equal to the 77 rights of adults because children are vulnerable and unable to 78 make informed critical decisions and because of the unique role 79 of parents in childrearing, and 80 WHEREAS, requiring parental consent for a minor to obtain 81 an abortion will serve the interests of this state by protecting 82 immature minors, preserving the family unit, and guarding the 83 fundamental right of parents to raise their children, and 84 WHEREAS, the inclusion of provisions for a medical 85 emergency exception to the consent requirement; the judicial 86 waiver of consent process; the appointment of counsel for 87 indigent minors; and procedural safeguards, including guidelines 88 relating to admissible evidence and a required hearing within an 89 extendable 3-day period after the filing of a petition for a 90 judicial waiver of consent, are necessary to further the 91 interests of this state, but accomplish this purpose by imposing 92 the least restrictive means, NOW, THEREFORE, 93 94 Be It Enacted by the Legislature of the State of Florida: 95 96 Section 1. Section 390.01117, Florida Statutes, is created 97 to read: 98 390.01117 Parental consent for abortion.— 99 (1) SHORT TITLE.—This section may be cited as the “Parental 100 Consent for Abortion Act.” 101 (2) DEFINITIONS.—As used in this section, the term: 102 (a) “Consent” means a notarized written statement signed by 103 a minor and either her mother, her father, or her legal guardian 104 declaring that the minor is pregnant, that she intends to seek 105 an abortion, and that her mother, father, or legal guardian, as 106 applicable, consents to the abortion because the abortion is in 107 the best interest of the minor. 108 (b) “Minor” means a person under the age of 18 years. 109 (3) CONSENT OF ONE PARENT OR GUARDIAN REQUIRED.—A physician 110 may not perform an abortion on a minor unless the physician has 111 been presented with consent as defined in this section. 112 (4) EXCEPTIONS.—Consent is not required under subsection 113 (3) if the attending physician certifies in the minor’s medical 114 record that a medical emergency, as defined in s. 115 390.01114(2)(d), exists and there is insufficient time to obtain 116 consent or if consent is waived under subsection (6). 117 (5) REPORTS.— 118 (a) A physician who has performed an abortion on a minor in 119 the past calendar month shall submit a monthly report to the 120 department which must include the following information for each 121 minor upon whom an abortion was performed: 122 1. If the abortion was performed with consent; 123 2. If the abortion was performed during a medical emergency 124 that excepted the minor from the consent requirement, and the 125 nature of the medical emergency; 126 3. If the abortion was performed with a judicial waiver of 127 consent; 128 4. Her age; and 129 5. The number of times she has been pregnant and the number 130 of abortions that have been performed on her. 131 (b) The department shall adopt by rule a form to be used 132 for such monthly reports. Patient names may not be included on 133 the forms. The department shall prepare an annual compilation of 134 the data reported and make it available to the public on the 135 department website. 136 (6) PROCEDURE FOR JUDICIAL WAIVER OF CONSENT.— 137 (a) A minor may petition any circuit court in which the 138 minor resides for a waiver of the consent required to obtain an 139 abortion and may participate in proceedings on her own behalf. 140 The petition must include a statement that the minor is pregnant 141 and is unemancipated, that consent from a parent or a legal 142 guardian of the minor has not been obtained, and that the minor 143 wishes to obtain an abortion without first obtaining consent. 144 The circuit court shall advise the minor that she has a right to 145 court-appointed counsel and shall provide her with counsel upon 146 her request. The court also may appoint a guardian ad litem for 147 the minor. A guardian ad litem appointed under this subsection 148 must maintain the confidentiality of the minor’s identity. 149 (b) Court proceedings under this subsection shall be 150 confidential and must ensure the anonymity of the minor. All 151 court proceedings under this section shall be sealed. The minor 152 may file her petition in the court using a pseudonym or using 153 solely her initials. All documents related to this petition 154 shall be confidential and may not be made available to the 155 public. These proceedings shall be given precedence over other 156 pending matters to the extent necessary to ensure that the court 157 reaches a decision promptly. The court shall rule, and issue 158 written findings of fact and conclusions of law, within 3 159 business days after the petition is filed, except that the 3 160 business-day limitation may be extended at the request of the 161 minor. 162 1. If the court fails to rule within the 3-business-day 163 period and an extension has not been requested, the minor may 164 immediately petition for a hearing upon the expiration of the 3 165 business-day period to the chief judge of the circuit, who must 166 ensure that a hearing is held within 48 hours after receipt of 167 the minor’s petition and that an order is entered within 24 168 hours after the hearing. 169 2. If the circuit court does not grant a judicial waiver of 170 consent, the minor has the right to an appeal. An appellate 171 court must rule within 7 days after receipt of the appeal, but a 172 ruling may be remanded with further instruction, in which case a 173 ruling must be made within 3 business days after the remand. The 174 reason for overturning a ruling on appeal must be based on abuse 175 of discretion by the court and may not be based on the weight of 176 the evidence presented to the circuit court, since the 177 proceeding is a nonadversarial proceeding. 178 (c) If the court finds, by clear and convincing evidence, 179 that the minor is sufficiently mature to decide whether to 180 terminate her pregnancy, the court shall issue an order 181 authorizing the minor to obtain an abortion without the consent 182 of a parent or guardian. If the court does not make the finding 183 specified in this paragraph or paragraph (d), it must dismiss 184 the petition. The court shall consider whether there may be any 185 undue influence by another on the minor’s decision to have an 186 abortion and all of the following factors concerning the minor: 187 1. Age. 188 2. Overall intelligence. 189 3. Emotional development and stability. 190 4. Credibility and demeanor as a witness. 191 5. Ability to accept responsibility. 192 6. Ability to assess both the immediate and long-range 193 consequences of her choices. 194 7. Ability to understand and explain the medical risks of 195 terminating her pregnancy and to apply that understanding to her 196 decision. 197 (d) If the court finds, by a preponderance of the evidence, 198 that the petitioner is the victim of child abuse or sexual 199 abuse, as those terms are defined in s. 390.01114(2), inflicted 200 by one or both of her parents or her guardian, or finds, by 201 clear and convincing evidence, that requiring the consent of a 202 parent or guardian is not in the best interest of the 203 petitioner, the court shall issue an order authorizing the minor 204 to obtain an abortion without the consent of a parent or 205 guardian. The best-interest standard does not include financial 206 best interest or financial considerations or the potential 207 financial impact on the minor or her family if she does not 208 terminate the pregnancy. If the court finds evidence of child 209 abuse or sexual abuse of the petitioner by any person, the court 210 shall report the evidence of child abuse or sexual abuse of the 211 petitioner, as provided in s. 39.201. If the court does not make 212 the finding specified in this paragraph or paragraph (c), it 213 must dismiss the petition. 214 (e) A court that conducts proceedings under this section 215 shall: 216 1. Provide for a written transcript of all testimony and 217 proceedings; 218 2. Issue a final written order containing factual findings 219 and legal conclusions supporting its decision, including factual 220 findings and legal conclusions relating to the maturity of the 221 minor as provided under paragraph (c); and 222 3. Order that a confidential record be maintained. 223 (f) All hearings under this section, including appeals, 224 shall remain confidential and closed to the public, as provided 225 by court rule. 226 (g) An expedited appeal shall be made available, as the 227 Supreme Court provides by rule, to any minor to whom the circuit 228 court denies a waiver of consent. An order authorizing an 229 abortion without consent is not subject to appeal. 230 (h) Filing fees or court costs may not be required of any 231 minor who petitions a court for a waiver of consent under this 232 subsection at either the trial or the appellate level. 233 (i) A county is not required to pay the salaries, costs, or 234 expenses of any counsel appointed by the court under this 235 subsection. 236 (7) RULEMAKING.—The Supreme Court is requested to adopt 237 rules and forms for petitions to ensure that proceedings under 238 subsection (6) are handled expeditiously and in a manner 239 consistent with this section. The Supreme Court is also 240 requested to adopt rules to ensure that the hearings protect the 241 confidentiality of the minor’s identity and the confidentiality 242 of the proceedings. 243 (8) CRIMINAL PENALTIES AND CIVIL REMEDIES.— 244 (a) Any person who willfully and intentionally performs an 245 abortion with knowledge that, or with reckless disregard as to 246 whether, the minor upon whom the abortion is to be performed is 247 unemancipated without obtaining the required consent commits a 248 misdemeanor of the first degree, punishable as provided in s. 249 775.082 or s. 775.083. It is a defense to prosecution under this 250 section that the minor falsely represented her age or identity 251 to the physician to be at least 18 years of age by displaying an 252 apparently valid governmental record of identification such that 253 a careful and prudent person under similar circumstances would 254 have relied on the representation. The defense does not apply if 255 the physician is shown to have had independent knowledge of the 256 minor’s actual age or identity or failed to use due diligence in 257 determining her age or identity. 258 (b) Any person not authorized to provide consent under this 259 section who provides consent commits a misdemeanor of the first 260 degree, punishable as provided in s. 775.082 or s. 775.083. 261 (c) Failure to obtain consent from a person from whom 262 consent is required under this section is prima facie evidence 263 of failure to obtain consent and of interference with family 264 relations in appropriate civil actions. Such prima facie 265 evidence does not apply to any issue other than failure to 266 obtain consent from the parent or legal guardian and 267 interference with family relations in appropriate civil actions. 268 The civil action may be based on a claim that the act was a 269 result of negligence, gross negligence, wantonness, willfulness, 270 intention, or other legal standard of care. Exemplary damages 271 may be awarded in appropriate civil actions relevant to 272 violations of this section. 273 (d) Failure to comply with the requirements of this section 274 constitutes grounds for disciplinary action under each 275 respective practice act and under s. 456.072. 276 (9) CONSTRUCTION.— 277 (a) This section may not be construed to create or 278 recognize a right to abortion. 279 (b) This section may not be construed to limit the common 280 law rights of parents or legal guardians. 281 (c) By enacting this section, the Legislature does not 282 intend to make lawful an abortion that is currently unlawful. 283 (10) SEVERABILITY.—Any provision of this section held to be 284 invalid or unenforceable by its terms, or as applied to any 285 person or circumstance, shall be construed so as to give it the 286 maximum effect permitted by law, unless such holding is one of 287 utter invalidity or unenforceability, in which event such 288 provision shall be deemed severable and may not affect the 289 remainder hereof or the application of such provision to other 290 persons not similarly situated or to other, dissimilar 291 circumstances. 292 Section 2. This act shall take effect July 1, 2020.