1 | A bill to be entitled |
2 | An act relating to parental notification of termination of |
3 | a minor's pregnancy; amending s. 390.01114, F.S.; amending |
4 | a definition; providing procedural requirements for actual |
5 | notice given by telephone; providing procedural |
6 | requirements for certain waivers of notice; revising the |
7 | procedures for judicial waiver of notice; revising |
8 | evidentiary standards for a court determining judicial |
9 | waiver of notice; providing factors with which a court |
10 | determines whether a minor is sufficiently mature; |
11 | revising the best interest standard; requiring the Supreme |
12 | Court to include in reports reasons for judicial waiver of |
13 | notice; providing for the application of mandatory child |
14 | abuse reporting provisions; providing an effective date. |
15 |
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16 | Be It Enacted by the Legislature of the State of Florida: |
17 |
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18 | Section 1. Section 390.01114, Florida Statutes, is amended |
19 | to read: |
20 | 390.01114 Parental Notice of Abortion Act.-- |
21 | (1) SHORT TITLE.--This section may be cited as the |
22 | "Parental Notice of Abortion Act." |
23 | (2) DEFINITIONS.--As used in this section, the term: |
24 | (a) "Actual notice" means notice that is given directly, |
25 | in person or by telephone, to a parent or legal guardian of a |
26 | minor, by a physician, at least 48 hours before the inducement |
27 | or performance of a termination of pregnancy, and documented in |
28 | the minor's files. |
29 | (b) "Child abuse" has the same meaning as s. 39.0015(3). |
30 | (c) "Constructive notice" means notice that is given in |
31 | writing, signed by the physician, and mailed at least 72 hours |
32 | before the inducement or performance of the termination of |
33 | pregnancy, to the last known address of the parent or legal |
34 | guardian of the minor, by regular mail and by certified mail, |
35 | return receipt requested, and delivery restricted to the parent |
36 | or legal guardian. After the 72 hours have passed, delivery is |
37 | deemed to have occurred. |
38 | (d) "Medical emergency" means a condition that, on the |
39 | basis of a physician's good faith clinical judgment, so |
40 | complicates the medical condition of a pregnant woman as to |
41 | necessitate the immediate termination of her pregnancy to avert |
42 | her death, or for which a delay in the termination of her |
43 | pregnancy will create serious risk of substantial and |
44 | irreversible impairment of a major bodily function. |
45 | (e) "Sexual abuse" has the meaning ascribed in s. 39.01. |
46 | (f) "Minor" means a person under the age of 18 years. |
47 | (3) NOTIFICATION REQUIRED.-- |
48 | (a) Actual notice shall be provided by the physician |
49 | performing or inducing the termination of pregnancy before the |
50 | performance or inducement of the termination of the pregnancy of |
51 | a minor. The notice may be given by a referring physician. The |
52 | physician who performs or induces the termination of pregnancy |
53 | must receive the written statement of the referring physician |
54 | certifying that the referring physician has given notice. If |
55 | actual notice is not possible after a reasonable effort has been |
56 | made, the physician performing or inducing the termination of |
57 | pregnancy or the referring physician must give constructive |
58 | notice. Notice given under this subsection by the physician |
59 | performing or inducing the termination of pregnancy must include |
60 | the name and address of the facility providing the termination |
61 | of pregnancy, the name of the physician providing notice. Notice |
62 | given under this subsection by a referring physician must |
63 | include the name and address of the facility where he or she is |
64 | referring the minor and the name of the physician providing |
65 | notice. If actual notice is provided by telephone, the physician |
66 | must actually speak with the parent or guardian, and must record |
67 | in the minor's medical file the name of the parent or guardian |
68 | provided notice, the phone number dialed, and the date and time |
69 | of the call. If constructive notice is given, the physician must |
70 | document that notice by placing copies of any document related |
71 | to the constructive notice, including, but not limited to, a |
72 | copy of the letter and the return receipt, in the minor's |
73 | medical file. Actual notice given by telephone shall be |
74 | confirmed in writing, signed by the physician, and mailed to the |
75 | last known address of the parent or legal guardian of the minor, |
76 | by regular mail and by certified mail, return receipt requested, |
77 | and delivery restricted to the parent or legal guardian. |
78 | (b) Notice is not required if: |
79 | 1. In the physician's good faith clinical judgment, a |
80 | medical emergency exists and there is insufficient time for the |
81 | attending physician to comply with the notification |
82 | requirements. If a medical emergency exists, the physician |
83 | should make reasonable attempts, whenever possible without |
84 | endangering the minor, to contact the parent or legal guardian. |
85 | The physician may proceed without prior notice but must document |
86 | reasons for the medical necessity in the patient's medical |
87 | records and must provide notice directly, in person, or by |
88 | telephone to the parent or legal guardian, with details of the |
89 | medical emergency and any additional risks to the minor. If the |
90 | parent or legal guardian has not been notified within 24 hours |
91 | of the termination of the pregnancy, the physician must provide |
92 | notice in writing including details of the medical emergency and |
93 | any additional risks to the minor, signed by the physician, to |
94 | the last known address of the parent or legal guardian of the |
95 | minor, by regular mail and by certified mail, return receipt |
96 | requested, and delivery restricted to the parent or legal |
97 | guardian; |
98 | 2. Notice is waived in writing by the person who is |
99 | entitled to notice and such waiver is notarized, dated not more |
100 | than 30 days before the termination of pregnancy, and contains a |
101 | specific waiver of the right of the parent or legal guardian to |
102 | notice of the minor's termination of pregnancy; |
103 | 3. Notice is waived by the minor who is or has been |
104 | married or has had the disability of nonage removed under s. |
105 | 743.015 or a similar statute of another state; |
106 | 4. Notice is waived by the patient because the patient has |
107 | a minor child dependent on her; or |
108 | 5. Notice is waived under subsection (4). |
109 | (c) Violation of this subsection by a physician |
110 | constitutes grounds for disciplinary action under s. 458.331 or |
111 | s. 459.015. |
112 | (4) PROCEDURE FOR JUDICIAL WAIVER OF NOTICE.-- |
113 | (a) A minor may petition any circuit court in the a |
114 | judicial circuit within the jurisdiction of the District Court |
115 | of Appeal in which she resides for a waiver of the notice |
116 | requirements of subsection (3) and may participate in |
117 | proceedings on her own behalf. The petition may be filed under a |
118 | pseudonym or through the use of initials, as provided by court |
119 | rule. The petition must include a statement that the petitioner |
120 | is pregnant and notice has not been waived. The court shall |
121 | advise the minor that she has a right to court-appointed counsel |
122 | and shall provide her with counsel upon her request at no cost |
123 | to the minor. |
124 | (b)1. Court proceedings under this subsection must be |
125 | given precedence over other pending matters to the extent |
126 | necessary to ensure that the court reaches a decision promptly. |
127 | The court shall rule, and issue written findings of fact and |
128 | conclusions of law, within 5 days 48 hours after the petition is |
129 | filed, except that the 5-day 48-hour limitation may be extended |
130 | at the request of the minor. If the court fails to rule within |
131 | the 5-day 48-hour period and an extension has not been |
132 | requested, the petition is not granted, and the notice |
133 | requirement is not waived. The minor may then immediately |
134 | petition for a hearing upon the expiration of the 5-day period |
135 | to the chief judge of the circuit, who must ensure a hearing is |
136 | held within 48 hours after receipt of the minor's petition and |
137 | an order entered within 24 hours after the hearing. |
138 | 2. A court's ruling need not be a final order if the court |
139 | deems it needs more information, but a final order must be |
140 | entered within 14 days after the petition is filed. If the |
141 | circuit court does not grant judicial waiver of notice, the |
142 | minor has the right to appeal. An appellate court must rule |
143 | within 7 days after receipt of appeal, but a ruling may be |
144 | remanded with further instruction for a ruling within 7 days |
145 | after the remand. The reason for overturning a ruling on appeal |
146 | must be based on abuse of discretion by the circuit court and |
147 | may not be based on the weight of the evidence presented to the |
148 | circuit court since the proceeding is a nonadversarial |
149 | proceeding. |
150 | (c) If the court finds, by clear and convincing evidence, |
151 | that the minor is sufficiently mature to decide whether to |
152 | terminate her pregnancy, the court shall issue an order |
153 | authorizing the minor to consent to the performance or |
154 | inducement of a termination of pregnancy without the |
155 | notification of a parent or guardian. If the court does not make |
156 | the finding specified in this paragraph or paragraph (d), it |
157 | must dismiss the petition. Factors a court shall consider when |
158 | determining whether a minor is sufficiently mature include, but |
159 | are not limited to: |
160 | 1. The minor's: |
161 | a. Age. |
162 | b. Overall intelligence. |
163 | c. Emotional stability. |
164 | d. Credibility and demeanor as a witness. |
165 | e. Ability to accept responsibility. |
166 | f. Ability to assess the future impact of her present |
167 | choices. |
168 | g. Ability to understand and explain the medical |
169 | consequences of abortion and apply that understanding to her |
170 | decision. |
171 | 2. Whether there has been any undue influence by another |
172 | on the minor's decision to have an abortion. |
173 | (d) If the court finds, by a preponderance of the |
174 | evidence, that there is evidence of child abuse or sexual abuse |
175 | of the petitioner by one or both of her parents or her guardian, |
176 | or by clear and convincing evidence that the notification of a |
177 | parent or guardian is not in the best interest of the |
178 | petitioner, the court shall issue an order authorizing the minor |
179 | to consent to the performance or inducement of a termination of |
180 | pregnancy without the notification of a parent or guardian. The |
181 | best interest standard must not include financial best interest |
182 | or considerations, or the potential financial impact on the |
183 | minor or her family if she does not terminate her pregnancy. If |
184 | the court finds evidence of child abuse or sexual abuse of the |
185 | minor petitioner by any person, the court shall report the |
186 | evidence of child abuse or sexual abuse of the petitioner, as |
187 | provided in s. 39.201. If the court does not make the finding |
188 | specified in this paragraph or paragraph (c), it must dismiss |
189 | the petition. |
190 | (e) A court that conducts proceedings under this section |
191 | shall provide for a written transcript of all testimony and |
192 | proceedings and issue written and specific factual findings and |
193 | legal conclusions supporting its decision and shall order that a |
194 | confidential record be maintained, as required under s. |
195 | 390.01116. At the hearing, the court shall hear evidence |
196 | relating to the emotional development, maturity, intellect, and |
197 | understanding of the minor, and all other relevant evidence. All |
198 | hearings under this section, including appeals, shall remain |
199 | confidential and closed to the public, as provided by court |
200 | rule. |
201 | (f) An expedited appeal shall be available, as the Supreme |
202 | Court provides by rule, to any minor to whom the circuit court |
203 | denies a waiver of notice. An order authorizing a termination of |
204 | pregnancy without notice is not subject to appeal. |
205 | (g) No filing fees or court costs shall be required of any |
206 | pregnant minor who petitions a court for a waiver of parental |
207 | notification under this subsection at either the trial or the |
208 | appellate level. |
209 | (h) No county shall be obligated to pay the salaries, |
210 | costs, or expenses of any counsel appointed by the court under |
211 | this subsection. |
212 | (5) PROCEEDINGS.--The Supreme Court is requested to adopt |
213 | rules and forms for petitions to ensure that proceedings under |
214 | subsection (4) are handled expeditiously and in a manner |
215 | consistent with this act. The Supreme Court is also requested to |
216 | adopt rules to ensure that the hearings protect the minor's |
217 | confidentiality and the confidentiality of the proceedings. |
218 | (6) REPORT.--The Supreme Court, through the Office of the |
219 | State Courts Administrator, shall report by February 1 of each |
220 | year to the Governor, the President of the Senate, and the |
221 | Speaker of the House of Representatives on the number of |
222 | petitions filed under subsection (4) for the preceding year, and |
223 | the timing and manner of disposal of such petitions by each |
224 | circuit court. For each petition resulting in a waiver of |
225 | notice, the reason for the waiver shall be reported. |
226 | (7) MANDATORY CHILD ABUSE REPORTING.--The requirements of |
227 | s. 39.201 relating to mandatory reports of child abuse apply to |
228 | this section. |
229 | Section 2. This act shall take effect July 1, 2006. |