House Bill 3999

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    Florida House of Representatives - 1998                HB 3999

        By Representatives Sindler, Murman, Casey, Arnold, Brooks,
    Healey and Wise





  1                      A bill to be entitled

  2         An act relating to termination of pregnancies;

  3         providing a short title; providing legislative

  4         findings and intent; amending s. 390.011, F.S.;

  5         revising definitions; defining additional

  6         terms; amending s. 390.0111, F.S.; revising

  7         provisions relating to terminations of

  8         pregnancies; prohibiting the coercion of a

  9         minor to have a termination of pregnancy

10         performed; providing a penalty for violation;

11         prohibiting the performing or inducement of a

12         termination of pregnancy upon an unemancipated

13         minor or an incompetent person without

14         specified notice; providing a penalty for

15         violation; providing notice requirements;

16         providing exceptions; providing procedure for

17         judicial waiver of notice; providing for

18         confidentiality of proceedings; providing for

19         issuance of a court order authorizing consent

20         to a termination of pregnancy without

21         notification; providing for dismissal of

22         petition; requiring the issuance of written

23         findings of fact and legal conclusions;

24         providing for expedited confidential appeal;

25         providing for waiver of filing fees; providing

26         a penalty for unauthorized receipt and

27         signature of notice; providing for prima facie

28         evidence in civil actions; providing for

29         construction; amending s. 390.0112, F.S.;

30         providing reporting requirements with respect

31         to terminations of pregnancies for which notice

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  1         must be given under s. 390.0111, F.S.;

  2         providing for confidentiality of such reports;

  3         providing a fine for failure to meet reporting

  4         requirements; providing severability; providing

  5         an effective date.

  6

  7         WHEREAS, the Legislature finds that immature minors

  8  often lack the ability to make fully informed choices that

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

10  and

11         WHEREAS, the medical, emotional, and psychological

12  consequences of abortion are sometimes serious and can be

13  lasting, particularly when the patient is immature, and

14         WHEREAS, the capacity to become pregnant and the

15  capacity for mature judgment concerning the wisdom of an

16  abortion are not necessarily related, and

17         WHEREAS, parents ordinarily possess information

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

19  judgment concerning the child, and

20         WHEREAS, parents who are aware that their minor

21  daughter has had an abortion may better ensure that she

22  receives adequate medical attention after her abortion, and

23         WHEREAS, parental consultation is usually desirable and

24  in the best interests of the minor, and

25         WHEREAS, the Legislature's purpose in enacting parental

26  notice legislation is to further the important and compelling

27  state interests of protecting minors against their own

28  immaturity, fostering family unity and preserving the family

29  as a viable social unit, protecting the constitutional rights

30  of parents to rear children who are members of their

31

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  1  household, and reducing teenage pregnancy and unnecessary

  2  abortion, NOW, THEREFORE,

  3

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

  5

  6         Section 1.  SHORT TITLE.--This act may be cited as the

  7  "Parental Notice of Abortion Act."

  8         Section 2.  Section 390.011, Florida Statutes, is

  9  amended to read:

10         390.011  Definitions.--As used in this chapter, the

11  term:

12         (1)  "Abortion" means the use or prescription of any

13  instrument, medicine, drug, or any other substance or device

14  to terminate the pregnancy of a woman known by the person

15  performing or inducing the termination of pregnancy to be

16  pregnant. Such use or prescription is not an abortion if done

17  with the intent to: termination of human pregnancy with an

18  intention other than to produce a live birth or to remove a

19  dead fetus.

20         (a)  Save the life or preserve the health of an unborn

21  child;

22         (b)  Remove a dead unborn child; or

23         (c)  Deliver an unborn child prematurely in order to

24  preserve the health of both the pregnant woman and her unborn

25  child.

26         (2)  "Abortion clinic" or "clinic" means any facility

27  in which abortions are performed.  The term does not include:

28         (a)  A hospital; or

29         (b)  A physician's office, provided that the office is

30  not used primarily for the performance of abortions.

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  1         (3) "Actual notice" means the giving of notice

  2  directly, in person, or by telephone.

  3         (4)(3)  "Agency" means the Agency for Health Care

  4  Administration.

  5         (5)  "Coercion" means restraining or dominating the

  6  choice of a minor female by force, threat of force, or

  7  deprivation of food and shelter.

  8         (6)  "Constructive notice" means notice by certified

  9  mail to the last known address of the parent or legal guardian

10  of a minor or, in the case of an incompetent person, the

11  court-appointed guardian, with delivery deemed to have

12  occurred 48 hours after the certified notice is mailed.

13         (7)(4)  "Department" means the Department of Health.

14         (8)  "Emancipated minor" means any person under 18

15  years of age who is or has been married or who has been

16  emancipated.

17         (9)(5)  "Hospital" means a facility licensed under

18  chapter 395.

19         (10)  "Incompetent person" means any person who has

20  been adjudicated an incapacitated person according to the

21  provisions of s. 744.331, or similar laws of any other state.

22         (11)  "Medical emergency" means a condition that, on

23  the basis of a physician's good faith clinical judgment, so

24  complicates the medical condition of a pregnant woman as to

25  necessitate the immediate termination of her pregnancy to

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

27  her pregnancy will create serious risk of substantial and

28  irreversible impairment of a major bodily function.

29         (12)  "Neglect" means the failure of a parent to supply

30  a child with necessary food, clothing, shelter, or medical

31  care when reasonably able to do so, or the failure to protect

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  1  a child from conditions or actions that imminently and

  2  seriously endanger the child's physical or mental health when

  3  reasonably able to do so.

  4         (13)  "Physical abuse" means the intentional infliction

  5  of any physical injury upon a child by a parent or legal

  6  guardian of the child.

  7         (14)(6)  "Physician" means a physician licensed under

  8  chapter 458 or chapter 459 or a physician practicing medicine

  9  or osteopathic medicine in the employment of the United

10  States.

11         (15)  "Sexual abuse" shall have the same meaning as

12  defined in s. 415.503(15) and, as used in this chapter, shall

13  refer to the commission of acts set forth in s. 415.503(15)

14  against a minor by a family member as defined in s.

15  440.13(1)(b).

16         (16)(7)  "Third trimester" means the weeks of pregnancy

17  after the 24th week of pregnancy.

18         Section 3.  Section 390.0111, Florida Statutes, is

19  amended to read:

20         390.0111  Termination of pregnancies.--

21         (1)  TERMINATION IN THIRD TRIMESTER; WHEN ALLOWED.--No

22  termination of pregnancy shall be performed on any human being

23  in the third trimester of pregnancy unless:

24         (a)  Two physicians certify in writing to the fact

25  that, to a reasonable degree of medical probability, the

26  termination of pregnancy is necessary to save the life or

27  preserve the health of the pregnant woman; or

28         (b)  The physician certifies in writing to the medical

29  necessity for legitimate emergency medical procedures for

30  termination of pregnancy in the last trimester, and another

31  physician is not available for consultation.

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  1         (2)  PERFORMANCE BY PHYSICIAN REQUIRED.--No termination

  2  of pregnancy shall be performed at any time except by a

  3  physician.

  4         (3)  COERCION PROHIBITED.--No parent, guardian, or any

  5  other person shall coerce a minor to have a termination of

  6  pregnancy performed or induced. If a minor is denied financial

  7  support by the minor's parents, guardian, or custodian due to

  8  the minor's refusal to have a termination of pregnancy

  9  performed or induced, the minor shall be deemed emancipated

10  for the purposes of eligibility for public-assistance

11  benefits, except that such benefits may not be used to obtain

12  a termination of pregnancy.

13         (4)(3)  CONSENTS REQUIRED.--A termination of pregnancy

14  may not be performed or induced except with the voluntary and

15  informed written consent of the pregnant woman or, in the case

16  of an a mental incompetent person, fulfillment of the

17  notification requirements in subsection (5) and the voluntary

18  and informed written consent of her court-appointed guardian.

19         (a)  Except in the case of a medical emergency, consent

20  to a termination of pregnancy is voluntary and informed only

21  if:

22         1.  The physician who is to perform the procedure, or

23  the referring physician, has, at a minimum, orally, in person,

24  informed the woman of:

25         a.  The nature and risks of undergoing or not

26  undergoing the proposed procedure that a reasonable patient

27  would consider material to making a knowing and willful

28  decision of whether to terminate a pregnancy.

29         b.  The probable gestational age of the fetus at the

30  time the termination of pregnancy is to be performed.

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  1         c.  The medical risks to the woman and fetus of

  2  carrying the pregnancy to term.

  3         2.  Printed materials prepared and provided by the

  4  department have been provided to the pregnant woman, if she

  5  chooses to view these materials, including:

  6         a.  A description of the fetus.

  7         b.  A list of agencies that offer alternatives to

  8  terminating the pregnancy.

  9         c.  Detailed information on the availability of medical

10  assistance benefits for prenatal care, childbirth, and

11  neonatal care.

12         3.  The woman acknowledges in writing, before the

13  termination of pregnancy, that the information required to be

14  provided under this subsection has been provided.

15

16  Nothing in this paragraph is intended to prohibit a physician

17  from providing any additional information which the physician

18  deems material to the woman's informed decision to terminate

19  her pregnancy.

20         (b)  In the event a medical emergency exists and a

21  physician cannot comply with the requirements for informed

22  consent, a physician may terminate a pregnancy if he or she

23  has obtained at least one corroborative medical opinion

24  attesting to the medical necessity for emergency medical

25  procedures and to the fact that to a reasonable degree of

26  medical certainty the continuation of the pregnancy would

27  threaten the life of the pregnant woman. In the event no

28  second physician is available for a corroborating opinion, the

29  physician may proceed but shall document reasons for the

30  medical necessity in the patient's medical records.

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  1         (c)  Violation of this subsection by a physician

  2  constitutes grounds for disciplinary action under s. 458.331

  3  or s. 459.015. Substantial compliance or reasonable belief

  4  that complying with the requirements of informed consent would

  5  threaten the life or health of the patient is a defense to any

  6  action brought under this paragraph.

  7         (5)  NOTIFICATION REQUIRED.--

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

  9  induced upon an unemancipated minor or upon an incompetent

10  person unless the person performing or inducing the

11  termination of pregnancy has given at least 48 hours actual

12  notice, in the case of an emancipated minor, to one parent or

13  to the legal guardian of the pregnant minor or, in the case of

14  an incompetent person, to the court-appointed guardian of the

15  incompetent person, of his or her intention to perform or

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

17  by a referring physician. The person who performs the

18  termination of pregnancy must receive the written statement of

19  the referring physician certifying that the referring

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

21  after a reasonable effort, the person or his or her agent must

22  give 48 hours constructive notice.

23         (b)  If a minor patient declares in a signed written

24  statement that she is a victim of sexual abuse, neglect, or

25  physical abuse by either of her parents or her legal guardian,

26  then the attending physician shall give the notice required by

27  paragraph (a) to a brother or sister of the minor who is over

28  21 years of age, or to a stepparent or grandparent specified

29  by the minor. The doctor who intends to perform the

30  termination of pregnancy must certify in the patient's medical

31  record that he or she has received the written declaration of

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  1  abuse or neglect. Any physician relying in good faith on a

  2  written statement under this paragraph shall not be civilly or

  3  criminally liable under any provisions of this section for

  4  failure to give notice.

  5         (c)  Notice shall not be required under paragraphs (a)

  6  or (b) if:

  7         1.  A medical emergency exists and there is

  8  insufficient time for the attending physician to comply with

  9  the notification requirements. In the event a medical

10  emergency exists, the physician may terminate the pregnancy if

11  he or she has obtained at least one corroborative medical

12  opinion attesting to the medical necessity for emergency

13  medical procedures and to the fact that to a reasonable degree

14  of medical certainty the continuation of the pregnancy would

15  threaten the life of the pregnant woman. In the event no

16  second physician is available for a corroborating opinion, the

17  physician may proceed but shall document reasons for the

18  medical necessity in the patient's medical records;

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

20  entitled to notice; or

21         3.  Notice is waived under the provisions of subsection

22  (6).

23         (6)  PROCEDURE FOR JUDICIAL WAIVER OF NOTICE.--

24         (a)  A minor or an incompetent person may petition any

25  circuit court for a waiver of the notice requirements of

26  subsection (5) and may participate in proceedings on her own

27  behalf. The petition shall include a statement that the

28  complainant is pregnant and is unemancipated. The court may

29  appoint a guardian ad litem for her. Any guardian ad litem

30  appointed under this subsection shall act to maintain the

31  confidentiality of the proceedings. The circuit court shall

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  1  advise the minor or incompetent person that she has a right to

  2  court-appointed counsel and shall provide her with counsel

  3  upon her request.

  4         (b)  Court proceedings under this section shall be

  5  confidential and shall ensure the anonymity of the minor or

  6  incompetent person. All court proceedings under this section

  7  shall be sealed. The minor or incompetent person shall have

  8  the right to file her petition in the circuit court using a

  9  pseudonym or using solely her initials. All documents related

10  to this petition shall be confidential and shall not be

11  available to the public. Court proceedings under this section

12  shall be given precedence over other pending matters to the

13  extent necessary to ensure that the court reaches a decision

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

15  fact and conclusions of law, within 48 hours of the time that

16  the petition was filed, except that the 48-hour limitation may

17  be extended at the request of the minor or incompetent person.

18  If the court fails to rule within the 48-hour period and an

19  extension was not requested, then the petition shall be deemed

20  to have been granted, and the notice requirement shall be

21  waived.

22         (c)  If the court finds, by clear and convincing

23  evidence, that the minor is sufficiently mature to decide

24  whether to terminate her pregnancy, the court shall issue an

25  order authorizing the minor to consent to the performance or

26  inducement of a termination of pregnancy without the

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

28  make the finding specified in this paragraph or paragraph (d),

29  it shall dismiss the petition.

30         (d)  If the court finds, by clear and convincing

31  evidence, that there is a pattern of physical, sexual, or

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  1  emotional abuse of the complainant by one or both of her

  2  parents, her guardian, or her custodian, or that the

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

  4  interest of the complainant, the court shall issue an order

  5  authorizing the minor to consent to the performance or

  6  inducement of a termination of pregnancy without the

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

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

  9  it shall dismiss the petition.

10         (e)  A court that conducts proceedings under this

11  section shall issue written and specific factual findings and

12  legal conclusions supporting its decision and shall order that

13  a confidential record of the evidence and the judge's findings

14  and conclusions be maintained. At the hearing, the court shall

15  hear evidence relating to the emotional development, maturity,

16  intellect and understanding of the minor.

17         (f)  An expedited confidential appeal shall be

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

19  or incompetent person to whom the circuit court denies a

20  waiver of notice. An order authorizing a termination of

21  pregnancy without notice shall not be subject to appeal.

22         (g)  No filing fees shall be required of any pregnant

23  minor who petitions a court for a waiver of parental

24  notification under this subsection at either the trial or the

25  appellate level.

26

27  The requirements and procedures under this subsection are

28  available to minors and incompetent persons whether or not

29  they are residents of this state.

30         (7)(4)  STANDARD OF MEDICAL CARE TO BE USED DURING

31  VIABILITY.--If a termination of pregnancy is performed during

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  1  viability, no person who performs or induces the termination

  2  of pregnancy shall fail to use that degree of professional

  3  skill, care, and diligence to preserve the life and health of

  4  the fetus which such person would be required to exercise in

  5  order to preserve the life and health of any fetus intended to

  6  be born and not aborted. "Viability" means that stage of fetal

  7  development when the life of the unborn child may with a

  8  reasonable degree of medical probability be continued

  9  indefinitely outside the womb. Notwithstanding the provisions

10  of this subsection, the woman's life and health shall

11  constitute an overriding and superior consideration to the

12  concern for the life and health of the fetus when such

13  concerns are in conflict.

14         (8)(5)  EXPERIMENTATION ON FETUS PROHIBITED;

15  EXCEPTION.--No person shall use any live fetus or live,

16  premature infant for any type of scientific, research,

17  laboratory, or other kind of experimentation either prior to

18  or subsequent to any termination of pregnancy procedure except

19  as necessary to protect or preserve the life and health of

20  such fetus or premature infant.

21         (9)(6)  FETAL REMAINS.--Fetal remains shall be disposed

22  of in a sanitary and appropriate manner and in accordance with

23  standard health practices, as provided by rule of the

24  department.  Failure to dispose of fetal remains in accordance

25  with department rules is a misdemeanor of the second degree,

26  punishable as provided in s. 775.082 or s. 775.083.

27         (10)(7)  REFUSAL TO PARTICIPATE IN TERMINATION

28  PROCEDURE.--Nothing in this section shall require any hospital

29  or any person to participate in the termination of a

30  pregnancy, nor shall any hospital or any person be liable for

31  such refusal.  No person who is a member of, or associated

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  1  with, the staff of a hospital, nor any employee of a hospital

  2  or physician in which or by whom the termination of a

  3  pregnancy has been authorized or performed, who shall state an

  4  objection to such procedure on moral or religious grounds

  5  shall be required to participate in the procedure which will

  6  result in the termination of pregnancy.  The refusal of any

  7  such person or employee to participate shall not form the

  8  basis for any disciplinary or other recriminatory action

  9  against such person.

10         (11)(8)  EXCEPTION.--The provisions of this section

11  shall not apply to the performance of a procedure which

12  terminates a pregnancy in order to deliver a live child.

13         (12)(9)  PENALTIES FOR VIOLATION.--Except as provided

14  in subsections (4) (3) and (9) (6):

15         (a)  Any person who willfully performs, or actively

16  participates in, a termination of a pregnancy procedure in

17  violation of the requirements of this section commits a felony

18  of the third degree, punishable as provided in s. 775.082, s.

19  775.083, or s. 775.084.

20         (b)  Any person who performs, or actively participates

21  in, a termination of a pregnancy procedure in violation of the

22  provisions of this section which results in the death of the

23  woman commits a felony of the second degree, punishable as

24  provided in s. 775.082, s. 775.083, or s. 775.084.

25         (c)  Any person who intentionally performs or induces a

26  termination of pregnancy with knowledge that, or with reckless

27  disregard as to whether, the person upon whom the termination

28  of pregnancy is to be performed or induced is an unemancipated

29  minor or an incompetent person without providing the required

30  notice commits a felony of the third degree, punishable as

31  provided in s. 775.082, s. 775.083, or s. 775.084.

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  1         (d)  Any person not authorized to receive notice under

  2  this subsection who signs a waiver of notice under subsection

  3  (5)(c) commits a felony of the third degree, punishable as

  4  provided in s. 775.082, s. 775.083, or s. 775.084.

  5         (e)  Any person who coerces a minor to undergo a

  6  termination of pregnancy commits a felony of the third degree,

  7  punishable as provided in s. 775.082, s. 775.083, or s.

  8  775.084.

  9         (13)  PRIMA FACIE EVIDENCE; CIVIL ACTIONS;

10  CONSTRUCTION.--Failure to provide persons with the notice

11  required under this section is prima facie evidence of failure

12  to provide notice and of interference with family relations in

13  appropriate civil actions. Such prima facie evidence shall not

14  apply to any issue other than failure to inform the parents or

15  guardian and interference with family relations in appropriate

16  civil actions. The civil action may be based on a claim that

17  the act was a result of simple negligence, gross negligence,

18  wantonness, willfulness, intention, or other legal standard of

19  care. The law of this state shall not be construed to preclude

20  the award of exemplary damages in any appropriate civil action

21  relevant to violations of this section. Nothing in this

22  section shall be construed to limit the common law rights of

23  parents.

24         (14)  PROCEEDINGS.--The Supreme Court is requested to

25  adopt rules to ensure that proceedings under this section are

26  handled in an expeditious and confidential manner and in a

27  manner which will satisfy the requirements of federal courts.

28         Section 4.  Section 390.0112, Florida Statutes, is

29  amended to read:

30         390.0112  Termination of pregnancies; reporting.--

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  1         (1)  The director of any medical facility in which any

  2  pregnancy is terminated shall submit a monthly report which

  3  contains the number of procedures performed, the reason for

  4  same, and the period of gestation at the time such procedures

  5  were performed to the department. The department shall be

  6  responsible for keeping such reports in a central place from

  7  which statistical data and analysis can be made.

  8         (2)  If the termination of pregnancy is not performed

  9  in a medical facility, the physician performing the procedure

10  shall be responsible for reporting such information as

11  required in subsection (1).

12         (3)  A monthly report indicating the number of notices

13  issued under s. 390.0111, the number of times in which

14  exceptions were made to the notice requirement under s.

15  390.0111, the type of exception, the minor's age, and the

16  number of prior pregnancies and prior terminations of

17  pregnancies of the minor shall be filed with the Department of

18  Health on forms prescribed by the department. No patient names

19  shall be used on the forms.

20         (4)(3)  Reports submitted pursuant to this section

21  shall be confidential and exempt from the provisions of s.

22  119.07(1) and shall not be revealed except upon the order of a

23  court of competent jurisdiction in a civil or criminal

24  proceeding. This exemption is subject to the Open Government

25  Sunset Review Act in accordance with s. 119.14.

26         (5)(4)  Any person required under this section to file

27  a report or keep any records who willfully fails to file such

28  report or keep such records may be subject to a $200 fine for

29  each violation.  The department shall be required to impose

30  such fines when reports or records required under this section

31  have not been timely received. For purposes of this section,

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  1  timely received is defined as 30 days following the preceding

  2  month.

  3         Section 5.  If any provision of this act or the

  4  application thereof to any person or circumstance is held

  5  invalid, the invalidity shall not affect other provisions or

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

  7  invalid provision or application, and to this end the

  8  provisions of this act are declared severable.

  9         Section 6.  This act shall take effect upon becoming a

10  law.

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  1            *****************************************

  2                          HOUSE SUMMARY

  3
      Revises various provisions of chapter 390, Florida
  4    Statutes, relating to termination of pregnancies, to
      create the "Parental Notice of Abortion Act."
  5

  6    Revises definitions and provides additional definitions
      for purposes of the act. Prohibits the coercion of a
  7    minor to have a termination of pregnancy performed.
      Provides a third degree felony penalty for violation.
  8

  9    Prohibits the performing or inducement of a termination
      of pregnancy upon an unemancipated minor or an
10    incompetent person without 48 hours notice to one parent
      or to the legal guardian of a pregnant minor, or to the
11    court-appointed guardian of an incompetent person, of the
      intention to perform the termination of pregnancy.
12    Provides a third degree felony penalty for violation.
      Provides notice requirements and exceptions.
13

14    Provides procedure for judicial waiver of notice.
      Provides for confidentiality of proceedings. Provides for
15    issuance of a court order authorizing consent to a
      termination of pregnancy without notification if the
16    court finds, by clear and convincing evidence, that the
      minor is sufficiently mature to decide to have her
17    pregnancy terminated or if there is a pattern of
      physical, sexual, or emotional abuse of the complainant
18    by one or both parents, her guardian, or her custodian,
      and that notification is not in her best interests.
19

20    Provides a third degree felony penalty for unauthorized
      receipt and signature of notice of a termination of
21    pregnancy.

22
      Provides reporting requirements with respect to
23    terminations of pregnancies for which notice must be
      given. Provides for confidentiality of such reports.
24    Provides a $200 fine for failure to meet reporting
      requirements.
25

26

27

28

29

30

31

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