HB 1659

CS

CHAMBER ACTION

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

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