House Bill 3999e1

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                                        HB 3999, First Engrossed/C



  1                      A bill to be entitled

  2         An act relating to termination of pregnancies;

  3         providing a short title; amending s. 390.011,

  4         F.S.; defining additional terms; amending s.

  5         390.0111, F.S.; revising provisions relating to

  6         terminations of pregnancies; prohibiting the

  7         performing or inducement of a termination of

  8         pregnancy upon a minor without specified

  9         notice; providing disciplinary action for

10         violation; providing notice requirements;

11         providing exceptions; providing procedure for

12         judicial waiver of notice; providing for notice

13         of right to counsel; prohibiting court from

14         requiring counties to pay for such counsel;

15         providing for confidentiality of proceedings;

16         providing for issuance of a court order

17         authorizing consent to a termination of

18         pregnancy without notification; providing for

19         dismissal of petition; requiring the issuance

20         of written findings of fact and legal

21         conclusions; providing for expedited

22         confidential appeal; providing for waiver of

23         filing fees; requesting the Supreme Court to

24         adopt rules; providing for severability;

25         providing an effective date.

26

27         WHEREAS, the Legislature finds that immature minors

28  often lack the ability to make fully informed choices that

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

30  and

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                                        HB 3999, First Engrossed/C



  1         WHEREAS, the medical, emotional, and psychological

  2  consequences of abortion are sometimes serious and can be

  3  lasting, particularly when the patient is immature, and

  4         WHEREAS, the capacity to become pregnant and the

  5  capacity for mature judgment concerning the wisdom of an

  6  abortion are not necessarily related, and

  7         WHEREAS, parents ordinarily possess information

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

  9  judgment concerning the child, and

10         WHEREAS, parents who are aware that their minor

11  daughter has had an abortion may better ensure that she

12  receives adequate medical attention after her abortion, and

13         WHEREAS, parental consultation is usually desirable and

14  in the best interests of the minor, and

15         WHEREAS, the Legislature's purpose in enacting parental

16  notice legislation is to further the important and compelling

17  state interests of protecting minors against their own

18  immaturity, fostering family unity and preserving the family

19  as a viable social unit, protecting the constitutional rights

20  of parents to rear children who are members of their

21  household, and reducing teenage pregnancy and unnecessary

22  abortion, NOW, THEREFORE,

23

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

25

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

27  "Parental Notice of Abortion Act."

28         Section 2.  Section 390.011, Florida Statutes, is

29  amended to read:

30         390.011  Definitions.--As used in this chapter, the

31  term:


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                                        HB 3999, First Engrossed/C



  1         (1)  "Abortion" means the termination of human

  2  pregnancy with an intention other than to produce a live birth

  3  or to remove a dead fetus.

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

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

  6         (a)  A hospital; or

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

  8  not used primarily for the performance of abortions.

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

10  directly, in person, or by telephone.

11         (4)(3)  "Agency" means the Agency for Health Care

12  Administration.

13         (5)  "Child abuse and neglect" shall have the same

14  meaning as defined in s. 415.503(3) and, as used in this

15  chapter, shall refer to the commission of acts set forth in s.

16  415.503(3) against a minor by a family member as defined in s.

17  741.28(2).

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

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

20  of a minor, with delivery deemed to have occurred 48 hours

21  after the certified notice is mailed.

22         (7)(4)  "Department" means the Department of Health.

23         (8)(5)  "Hospital" means a facility licensed under

24  chapter 395.

25         (9)  "Medical emergency" means a condition that, on the

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

27  complicates the medical condition of a pregnant woman as to

28  necessitate the immediate termination of her pregnancy to

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

30  her pregnancy will create serious risk of substantial and

31  irreversible impairment of a major bodily function.


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                                        HB 3999, First Engrossed/C



  1         (10)(6)  "Physician" means a physician licensed under

  2  chapter 458 or chapter 459 or a physician practicing medicine

  3  or osteopathic medicine in the employment of the United

  4  States.

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

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

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

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

  9         (12)(7)  "Third trimester" means the weeks of pregnancy

10  after the 24th week of pregnancy.

11         Section 3.  Section 390.0111, Florida Statutes, is

12  amended to read:

13         390.0111  Termination of pregnancies.--

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

15  termination of pregnancy shall be performed on any human being

16  in the third trimester of pregnancy unless:

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

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

19  termination of pregnancy is necessary to save the life or

20  preserve the health of the pregnant woman; or

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

22  necessity for legitimate emergency medical procedures for

23  termination of pregnancy in the last trimester, and another

24  physician is not available for consultation.

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

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

27  physician.

28         (3)  CONSENTS REQUIRED.--A termination of pregnancy may

29  not be performed or induced except with the voluntary and

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

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                                        HB 3999, First Engrossed/C



  1  of a mental incompetent person, the voluntary and informed

  2  written consent of her court-appointed guardian.

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

  4  to a termination of pregnancy is voluntary and informed only

  5  if:

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

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

  8  informed the woman of:

  9         a.  The nature and risks of undergoing or not

10  undergoing the proposed procedure that a reasonable patient

11  would consider material to making a knowing and willful

12  decision of whether to terminate a pregnancy.

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

14  time the termination of pregnancy is to be performed.

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

16  carrying the pregnancy to term.

17         2.  Printed materials prepared and provided by the

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

19  chooses to view these materials, including:

20         a.  A description of the fetus.

21         b.  A list of agencies that offer alternatives to

22  terminating the pregnancy.

23         c.  Detailed information on the availability of medical

24  assistance benefits for prenatal care, childbirth, and

25  neonatal care.

26         3.  The woman acknowledges in writing, before the

27  termination of pregnancy, that the information required to be

28  provided under this subsection has been provided.

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30  Nothing in this paragraph is intended to prohibit a physician

31  from providing any additional information which the physician


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                                        HB 3999, First Engrossed/C



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

  2  her pregnancy.

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

  4  physician cannot comply with the requirements for informed

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

  6  has obtained at least one corroborative medical opinion

  7  attesting to the medical necessity for emergency medical

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

  9  medical certainty the continuation of the pregnancy would

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

11  second physician is available for a corroborating opinion, the

12  physician may proceed but shall document reasons for the

13  medical necessity in the patient's medical records.

14         (c)  Violation of this subsection by a physician

15  constitutes grounds for disciplinary action under s. 458.331

16  or s. 459.015. Substantial compliance or reasonable belief

17  that complying with the requirements of informed consent would

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

19  action brought under this paragraph.

20         (4)  NOTIFICATION REQUIRED.--

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

22  induced upon a minor unless the person performing or inducing

23  the termination of pregnancy has given at least 48 hours

24  actual notice to one parent or to the legal guardian of the

25  pregnant minor of his or her intention to perform or induce

26  the termination of pregnancy. The notice may be given by a

27  referring physician. The person who performs the termination

28  of pregnancy must receive the written statement of the

29  referring physician certifying that the referring physician

30  has given notice. If actual notice is not possible after a

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                                        HB 3999, First Engrossed/C



  1  reasonable effort, the person or his or her agent must give 48

  2  hours constructive notice.

  3         (b)  Notice shall not be required if:

  4         1.  A medical emergency exists and there is

  5  insufficient time for the attending physician to comply with

  6  the notification requirements. In the event a medical

  7  emergency exists, the physician may terminate the pregnancy if

  8  he or she has obtained at least one corroborative medical

  9  opinion attesting to the medical necessity for emergency

10  medical procedures.  In the event no second physician is

11  available for a corroborating opinion, the physician may

12  proceed but shall document reasons for the medical necessity

13  in the patient's medical records;

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

15  entitled to notice;

16         3.  Notice is waived if the minor is or has been

17  married or has the disability of nonage removed pursuant to s.

18  743.015, or similar statutes of other states;

19         4.  Notice is waived if the patient has a minor child

20  dependent on her; or

21         5.  Notice is waived under the provisions of subsection

22  (5). 

23         (c)  Violation of this subsection by a physician

24  constitutes grounds for disciplinary action under s. 458.331

25  or s. 459.015.

26         (5)  PROCEDURE FOR JUDICIAL WAIVER OF NOTICE.--

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

28  waiver of the notice requirements of subsection (4) and may

29  participate in proceedings on her own behalf. The petition

30  shall include a statement that the complainant is pregnant and

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


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                                        HB 3999, First Engrossed/C



  1  ad litem for her. Any guardian ad litem appointed under this

  2  subsection shall act to maintain the confidentiality of the

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

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

  5  with counsel upon her request. No county shall be obligated to

  6  pay the fee, salary, costs, or expenses of any counsel

  7  appointed by the court under this section.

  8         (b)  Court proceedings under this section shall be

  9  confidential and shall ensure the anonymity of the minor. All

10  court proceedings under this section shall be sealed. The

11  minor shall have the right to file her petition in the circuit

12  court using a pseudonym or using solely her initials. All

13  documents related to this petition shall be confidential and

14  shall not be available to the public. Court proceedings under

15  this section shall be given precedence over other pending

16  matters to the extent necessary to ensure that the court

17  reaches a decision promptly. The court shall rule, and issue

18  written findings of fact and conclusions of law, within 48

19  hours of the time that the petition was filed, except that the

20  48-hour limitation may be extended at the request of the

21  minor. If the court fails to rule within the 48-hour period

22  and an extension was not requested, then the petition shall be

23  deemed to have been granted, and the notice requirement shall

24  be waived.

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

26  evidence, that the minor is sufficiently mature to decide

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

28  order authorizing the minor to consent to the performance or

29  inducement of a termination of pregnancy without the

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

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                                        HB 3999, First Engrossed/C



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

  2  it shall dismiss the petition.

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

  4  evidence, that there is evidence of child abuse or neglect, or

  5  sexual abuse of the complainant by one or both of her parents,

  6  her guardian, or her custodian, or that the notification of a

  7  parent or guardian is not in the best interest of the

  8  complainant, the court shall issue an order authorizing the

  9  minor to consent to the performance or inducement of a

10  termination of pregnancy without the notification of a parent

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

12  in this paragraph or paragraph (c), it shall dismiss the

13  petition.

14         (e)  A court that conducts proceedings under this

15  section shall issue written and specific factual findings and

16  legal conclusions supporting its decision and shall order that

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

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

19  hear evidence relating to the emotional development, maturity,

20  intellect and understanding of the minor.

21         (f)  An expedited confidential appeal shall be

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

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

24  authorizing a termination of pregnancy without notice shall

25  not be subject to appeal.

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

27  minor who petitions a court for a waiver of parental

28  notification under this subsection at either the trial or the

29  appellate level.

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                                        HB 3999, First Engrossed/C



  1  The requirements and procedures under this subsection are

  2  available to minors whether or not they are residents of this

  3  state.

  4         (6)(4)  STANDARD OF MEDICAL CARE TO BE USED DURING

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

  6  viability, no person who performs or induces the termination

  7  of pregnancy shall fail to use that degree of professional

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

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

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

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

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

13  reasonable degree of medical probability be continued

14  indefinitely outside the womb. Notwithstanding the provisions

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

16  constitute an overriding and superior consideration to the

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

18  concerns are in conflict.

19         (7)(5)  EXPERIMENTATION ON FETUS PROHIBITED;

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

21  premature infant for any type of scientific, research,

22  laboratory, or other kind of experimentation either prior to

23  or subsequent to any termination of pregnancy procedure except

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

25  such fetus or premature infant.

26         (8)(6)  FETAL REMAINS.--Fetal remains shall be disposed

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

28  standard health practices, as provided by rule of the

29  department.  Failure to dispose of fetal remains in accordance

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

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


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                                        HB 3999, First Engrossed/C



  1         (9)(7)  REFUSAL TO PARTICIPATE IN TERMINATION

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

  3  or any person to participate in the termination of a

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

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

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

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

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

  9  objection to such procedure on moral or religious grounds

10  shall be required to participate in the procedure which will

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

12  such person or employee to participate shall not form the

13  basis for any disciplinary or other recriminatory action

14  against such person.

15         (10)(8)  EXCEPTION.--The provisions of this section

16  shall not apply to the performance of a procedure which

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

18         (11)(9)  PENALTIES FOR VIOLATION.--Except as provided

19  in subsections (3), (4), and (8) (6):

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

21  participates in, a termination of a pregnancy procedure in

22  violation of the requirements of this section commits a felony

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

24  775.083, or s. 775.084.

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

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

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

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

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

30         (12)  PROCEEDINGS.--The Supreme Court is requested to

31  adopt rules to ensure that proceedings under this section are


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                                        HB 3999, First Engrossed/C



  1  handled in an expeditious and confidential manner and in a

  2  manner which will satisfy the requirements of state and

  3  federal courts.

  4         Section 4.  If any provision of this act or the

  5  application thereof to any person or circumstance is held

  6  invalid, the invalidity shall not affect other provisions or

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

  8  invalid provision or application, and to this end the

  9  provisions of this act are declared severable.

10         Section 5.  This act shall take effect July 1, 1999.

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