Florida Senate - 2010 SB 2446
By Senator Gardiner
9-01332A-10 20102446__
1 A bill to be entitled
2 An act relating to parental notice of abortion;
3 amending s. 390.01114, F.S.; revising the definition
4 of the term “constructive notice”; revising notice
5 requirements relating to the termination of a
6 pregnancy of a minor; providing exceptions to the
7 notice requirements; revising procedure for judicial
8 waiver of notice; providing for the minor to petition
9 for a hearing within a specified time; providing that
10 in a hearing relating to waiving the requirement for
11 parental notice, the court consider certain additional
12 factors, including whether the minor’s decision to
13 terminate her pregnancy was due to undue influence;
14 providing procedure for appeal if judicial waiver of
15 notice is not granted; requiring Supreme Court reports
16 to the Governor and Legislature to include additional
17 information; requiring mandatory reporting of child
18 abuse; providing for construction of the act and
19 Legislative intent; providing for severability;
20 providing an effective date.
21
22 Be It Enacted by the Legislature of the State of Florida:
23
24 Section 1. Section 390.01114, Florida Statutes, is amended
25 to read:
26 390.01114 Parental Notice of Abortion Act.—
27 (1) SHORT TITLE.—This section may be cited as the “Parental
28 Notice of Abortion Act.”
29 (2) DEFINITIONS.—As used in this section, the term:
30 (a) “Actual notice” means notice that is given directly, in
31 person or by telephone, to a parent or legal guardian of a
32 minor, by a physician, at least 48 hours before the inducement
33 or performance of a termination of pregnancy, and documented in
34 the minor’s files.
35 (b) “Child abuse” has the same meaning as s. 39.0015(3).
36 (c) “Constructive notice” means notice that is given in
37 writing, signed by the physician, and mailed at least 72 hours
38 before the inducement or performance of the termination of
39 pregnancy, to the last known address of the parent or legal
40 guardian of the minor, by first-class mail and by certified
41 mail, return receipt requested, and delivery restricted to the
42 parent or legal guardian. After the 72 hours have passed,
43 delivery is deemed to have occurred.
44 (d) “Medical emergency” means a condition that, on the
45 basis of a physician’s good faith clinical judgment, so
46 complicates the medical condition of a pregnant woman as to
47 necessitate the immediate termination of her pregnancy to avert
48 her death, or for which a delay in the termination of her
49 pregnancy will create serious risk of substantial and
50 irreversible impairment of a major bodily function.
51 (e) “Sexual abuse” has the meaning ascribed in s. 39.01.
52 (f) “Minor” means a person under the age of 18 years.
53 (3) NOTIFICATION REQUIRED.—
54 (a) Actual notice shall be provided by the physician
55 performing or inducing the termination of pregnancy before the
56 performance or inducement of the termination of the pregnancy of
57 a minor. The notice may be given by a referring physician. The
58 physician who performs or induces the termination of pregnancy
59 must receive the written statement of the referring physician
60 certifying that the referring physician has given notice. If
61 actual notice is not possible after a reasonable effort has been
62 made, the physician performing or inducing the termination of
63 pregnancy or the referring physician must give constructive
64 notice. Notice given under this subsection by the physician
65 performing or inducing the termination of pregnancy must include
66 the name and address of the facility providing the termination
67 of pregnancy and the name of the physician providing notice.
68 Notice given under this subsection by a referring physician must
69 include the name and address of the facility where he or she is
70 referring the minor and the name of the physician providing
71 notice. If actual notice is provided by telephone, the physician
72 must actually speak with the parent or guardian, and must record
73 in the minor’s medical file the name of the parent or guardian
74 provided notice, the phone number dialed, and the date and time
75 of the call. If constructive notice is given, the physician must
76 document that notice by placing copies of any document related
77 to the constructive notice, including, but not limited to, a
78 copy of the letter and the return receipt, in the minor’s
79 medical file. Actual notice given by telephone shall be
80 confirmed in writing, signed by the physician, and mailed to the
81 last known address of the parent or legal guardian of the minor,
82 by first-class mail and by certified mail, return receipt
83 requested, with delivery restricted to the parent or legal
84 guardian.
85 (b) Notice is not required if:
86 1. In the physician’s good faith clinical judgment, a
87 medical emergency exists and there is insufficient time for the
88 attending physician to comply with the notification
89 requirements. If a medical emergency exists, the physician
90 should make reasonable attempts, whenever possible without
91 endangering the minor, to contact the parent or legal guardian.
92 The physician may proceed but must document reasons for the
93 medical necessity in the patient’s medical records and must
94 provide notice directly, in person or by telephone, to the
95 parent or legal guardian, including details of the medical
96 emergency and any additional risks to the minor. If the parent
97 or legal guardian has not been notified within 24 hours after
98 the termination of the pregnancy, the physician must provide
99 notice in writing, including details of the medical emergency
100 and any additional risks to the minor, signed by the physician,
101 to the last known address of the parent or legal guardian of the
102 minor, by first-class mail and by certified mail, return receipt
103 requested, with delivery restricted to the parent or legal
104 guardian;
105 2. Notice is waived in writing by the person who is
106 entitled to notice and such waiver is notarized, dated not more
107 than 30 days before the termination of pregnancy, and contains a
108 specific waiver of the right of the parent or legal guardian to
109 notice of the minor’s termination of pregnancy;
110 3. Notice is waived by the minor who is or has been married
111 or has had the disability of nonage removed under s. 743.015 or
112 a similar statute of another state;
113 4. Notice is waived by the patient because the patient has
114 a minor child dependent on her; or
115 5. Notice is waived under subsection (4).
116 (c) Violation of this subsection by a physician constitutes
117 grounds for disciplinary action under s. 458.331 or s. 459.015.
118 (4) PROCEDURE FOR JUDICIAL WAIVER OF NOTICE.—
119 (a) A minor may petition any circuit court in a judicial
120 circuit within the jurisdiction of the District Court of Appeal
121 in which the minor she resides for a waiver of the notice
122 requirements of subsection (3) and may participate in
123 proceedings on her own behalf. The petition may be filed under a
124 pseudonym or through the use of initials, as provided by court
125 rule. The petition must include a statement that the petitioner
126 is pregnant and notice has not been waived. The court shall
127 advise the minor that she has a right to court-appointed counsel
128 and shall provide her with counsel upon her request at no cost
129 to the minor.
130 (b)1. Court proceedings under this section subsection must
131 be given precedence over other pending matters to the extent
132 necessary to ensure that the court reaches a decision promptly.
133 The court shall rule, and issue written findings of fact and
134 conclusions of law, within 3 business days 48 hours after the
135 petition is filed, except that the 3-business-day 48-hour
136 limitation may be extended at the request of the minor. If the
137 court fails to rule within the 3-business-day 48-hour period and
138 an extension has not been requested, the minor may immediately
139 petition for a hearing upon the expiration of the 3-business-day
140 period to the chief judge of the circuit, who must ensure a
141 hearing is held within 48 hours after receipt of the minor’s
142 petition and an order is entered within 24 hours after the
143 hearing the petition is granted, and the notice requirement is
144 waived.
145 2. If the circuit court does not grant judicial waiver of
146 notice, the minor has the right to appeal. An appellate court
147 must rule within 7 days after receipt of appeal, but a ruling
148 may be remanded with further instruction for a ruling within 3
149 business days after the remand. The reason for overturning a
150 ruling on appeal must be based on abuse of discretion by the
151 court and may not be based on the weight of the evidence
152 presented to the circuit court since the proceeding is a
153 nonadversarial proceeding.
154 (c) If the court finds, by clear and convincing evidence,
155 that the minor is sufficiently mature to decide whether to
156 terminate her pregnancy, the court shall issue an order
157 authorizing the minor to consent to the performance or
158 inducement of a termination of pregnancy without the
159 notification of a parent or guardian. If the court does not make
160 the finding specified in this paragraph or paragraph (d), it
161 must dismiss the petition. Factors the court shall consider
162 include:
163 1. The minor’s:
164 a. Age.
165 b. Overall intelligence.
166 c. Emotional development and stability.
167 d. Credibility and demeanor as a witness.
168 e. Ability to accept responsibility.
169 f. Ability to assess both the immediate and long-range
170 consequences of the minor’s choices.
171 g. Ability to understand and explain the medical risks of
172 terminating her pregnancy and to apply that understanding to her
173 decision.
174 2. Whether there may be any undue influence by another on
175 the minor’s decision to have an abortion.
176 (d) If the court finds, by a preponderance of the evidence,
177 that the petitioner is the victim there is evidence of child
178 abuse or sexual abuse inflicted of the petitioner by one or both
179 of her parents or her guardian, or by clear and convincing
180 evidence that the notification of a parent or guardian is not in
181 the best interest of the petitioner, the court shall issue an
182 order authorizing the minor to consent to the performance or
183 inducement of a termination of pregnancy without the
184 notification of a parent or guardian. The best-interest standard
185 may not include financial best interest or financial
186 considerations or the potential financial impact on the minor or
187 the minor’s family if the minor does not terminate the
188 pregnancy. If the court finds evidence of child abuse or sexual
189 abuse of the minor petitioner by any person, the court shall
190 report the evidence of child abuse or sexual abuse of the
191 petitioner, as provided in s. 39.201. If the court does not make
192 the finding specified in this paragraph or paragraph (c), it
193 must dismiss the petition.
194 (e) A court that conducts proceedings under this section
195 shall:
196 1. Provide for a written transcript of all testimony and
197 proceedings; and
198 2. Issue a final written order containing and specific
199 factual findings and legal conclusions supporting its decision,
200 including factual findings and legal conclusions relating to the
201 maturity of the minor as provided under paragraph (c); and shall
202 3. Order that a confidential record be maintained, as
203 required under s. 390.01116. At the hearing, the court shall
204 hear evidence relating to the emotional development, maturity,
205 intellect, and understanding of the minor, and all other
206 relevant evidence.
207 (f) All hearings under this section, including appeals,
208 shall remain confidential and closed to the public, as provided
209 by court rule.
210 (g)(f) An expedited appeal shall be made available, as the
211 Supreme Court provides by rule, to any minor to whom the circuit
212 court denies a waiver of notice. An order authorizing a
213 termination of pregnancy without notice is not subject to
214 appeal.
215 (h)(g) No Filing fees or court costs may not shall be
216 required of any pregnant minor who petitions a court for a
217 waiver of parental notification under this subsection at either
218 the trial or the appellate level.
219 (i)(h) A No county is not shall be obligated to pay the
220 salaries, costs, or expenses of any counsel appointed by the
221 court under this subsection.
222 (5) PROCEEDINGS.—The Supreme Court is requested to adopt
223 rules and forms for petitions to ensure that proceedings under
224 subsection (4) are handled expeditiously and in a manner
225 consistent with this act. The Supreme Court is also requested to
226 adopt rules to ensure that the hearings protect the minor’s
227 confidentiality and the confidentiality of the proceedings.
228 (6) REPORT.—The Supreme Court, through the Office of the
229 State Courts Administrator, shall report by February 1 of each
230 year to the Governor, the President of the Senate, and the
231 Speaker of the House of Representatives on the number of
232 petitions filed under subsection (4) for the preceding year, and
233 the timing and manner of disposal of such petitions by each
234 circuit court. For each petition resulting in a waiver of
235 notice, the reason for the waiver shall be included in the
236 report.
237 Section 2. It is the intent of the Legislature with respect
238 to this act to accord the utmost comity and respect to the
239 constitutional prerogatives of Florida’s judiciary, and nothing
240 in this act should be construed as an effort to impinge upon
241 those prerogatives. To that end, if any court of competent
242 jurisdiction enters a final judgment concluding or declaring
243 that any provision of this act improperly encroaches on the
244 authority of the Florida Supreme Court to determine the rules of
245 practice and procedure in Florida courts, the Legislature
246 intends that such provision be construed as a request for a rule
247 change pursuant to s. 2, Art. V of the State Constitution and
248 not as a mandatory legislative directive.
249 Section 3. If any provision of this act or its application
250 to any individual or circumstance is held invalid, the
251 invalidity does not affect other provisions or applications of
252 this act which can be given effect without the invalid provision
253 or application, and to this end the provisions of this act are
254 severable.
255 Section 4. This act shall take effect upon becoming a law.