Florida Senate - 2019                                    SB 1774
       By Senator Stargel
       22-01293B-19                                          20191774__
    1                        A bill to be entitled                      
    2         An act relating to parental consent for abortion;
    3         creating s. 390.01117, F.S.; providing a short title;
    4         defining terms; prohibiting a physician from
    5         performing an abortion on a minor unless the physician
    6         has been presented with consent from the minor’s
    7         parent or guardian, as appropriate; providing an
    8         exception for a medical emergency; requiring a monthly
    9         report to be filed by certain physicians with the
   10         Department of Health on a form adopted by department
   11         rule; requiring the department to compile data
   12         collected from such forms and make it available on its
   13         website; authorizing a minor to petition any circuit
   14         court in which the minor resides for a waiver of
   15         consent required to obtain an abortion; requiring a
   16         specified statement to be included in the petition;
   17         providing for court-appointed counsel and
   18         confidentiality; requiring the court to give
   19         preference to waiver of consent proceedings and
   20         requiring a court to rule within a specified
   21         timeframe; providing for an extension of time at the
   22         request of the minor; authorizing a minor to petition
   23         for a hearing upon the expiration of the time allowed
   24         and requiring the chief judge of the circuit to ensure
   25         that a hearing is held and that an order is entered
   26         within specified timeframes; providing for appeals
   27         within a specified timeframe; requiring the court to
   28         dismiss the petition if it does not make specified
   29         findings; requiring the court to consider undue
   30         influence on the minor’s decision and specified
   31         factors; requiring the court to report any findings of
   32         evidence of child abuse or sexual abuse of the
   33         petitioner; requiring a court to provide for a written
   34         transcript of waiver of consent proceedings and
   35         include certain findings and conclusions in its order;
   36         prohibiting filing fees or costs for a minor who
   37         petitions the court for a waiver of consent;
   38         specifying that a county is not required to pay the
   39         salaries, costs, or expenses of certain court
   40         appointed counsel; requesting the Supreme Court to
   41         adopt certain rules and forms relating to waiver of
   42         consent proceedings; providing criminal penalties and
   43         disciplinary action; providing construction and
   44         severability; providing an effective date.
   46         WHEREAS, the United States Supreme Court has consistently
   47  recognized that a state statute requiring parental consent to a
   48  minor’s abortion is constitutional if it provides a judicial
   49  alternative in which the consent is waived if the minor is
   50  mature enough to make the decision to obtain an abortion or if
   51  the abortion is in the minor’s best interest, and
   52         WHEREAS, the medical, emotional, and psychological
   53  consequences associated with having an abortion are serious and
   54  can be long-lasting, particularly when a patient is immature,
   55  and
   56         WHEREAS, the status of minors under the law is unique
   57  because of their need for parental guidance and decisionmaking,
   58  and
   59         WHEREAS, minors’ disability of nonage defaults to a legal
   60  disability to contract which only the Legislature can remove,
   61  and such legislative removals of disability of nonage are
   62  codified in chapter 743, Florida Statutes, and
   63         WHEREAS, while the laws of this state allow minors who are
   64  mothers to make life and death decisions for their children,
   65  there is a distinction between making day-to-day decisions for a
   66  child and deciding to abort a child, and
   67         WHEREAS, the only circumstance in which medical decisions
   68  for a minor are not made by the minor’s parents is when the
   69  minor is pregnant, and
   70         WHEREAS, section 743.065, Florida Statutes, allows unwed
   71  pregnant minors to make medical decisions relating to their
   72  pregnancies and allows them to consent to the performance of
   73  medical or surgical care of services for their children, except
   74  for decisions to terminate pregnancies, and
   75         WHEREAS, the United States Supreme Court has determined
   76  that the constitutional rights of minors are not equal to the
   77  rights of adults because children are vulnerable and unable to
   78  make informed critical decisions and because of the unique role
   79  of parents in childrearing, and
   80         WHEREAS, requiring parental consent for a minor to obtain
   81  an abortion will serve the interests of this state by protecting
   82  immature minors, preserving the family unit, and guarding the
   83  fundamental right of parents to raise their children, and
   84         WHEREAS, the inclusion of provisions for a medical
   85  emergency exception to the consent requirement; the judicial
   86  waiver of consent process; the appointment of counsel for
   87  indigent minors; and procedural safeguards, including guidelines
   88  relating to admissible evidence and a required hearing within an
   89  extendable 3-day period after the filing of a petition for a
   90  judicial waiver of consent, are necessary to further the
   91  interests of this state, but accomplish this purpose by imposing
   92  the least restrictive means, NOW, THEREFORE,
   94  Be It Enacted by the Legislature of the State of Florida:
   96         Section 1. Section 390.01117, Florida Statutes, is created
   97  to read:
   98         390.01117Parental consent for abortion.—
   99         (1) SHORT TITLE.—This section may be cited as the “Parental
  100  Consent for Abortion Act.”
  101         (2) DEFINITIONS.—As used in this section, the term:
  102         (a) “Consent” means a notarized written statement signed by
  103  a minor and either her mother, her father, or her legal guardian
  104  declaring that the minor is pregnant, intends to seek an
  105  abortion, and that her mother, father, or legal guardian, as
  106  applicable, consents to the abortion because the abortion is in
  107  the best interest of the minor.
  108         (b) “Minor” means a person under the age of 18 years.
  110  may not perform an abortion on a minor unless the physician has
  111  been presented with consent as defined in this section.
  112         (4) EXCEPTIONS.—Consent is not required under subsection
  113  (3) if the attending physician certifies in the minor’s medical
  114  record that a medical emergency, as defined in s.
  115  390.01114(2)(d), exists and there is insufficient time to obtain
  116  consent or if consent is waived under subsection (6).
  117         (5) REPORTS.—
  118         (a) A physician who has performed an abortion on a minor in
  119  the past calendar month shall submit a monthly report to the
  120  department which must include the following information for each
  121  minor upon whom an abortion was performed:
  122         1.If the abortion was performed with consent;
  123         2. If the abortion was performed during a medical emergency
  124  that excepted the minor from the consent requirement, and the
  125  nature of the medical emergency;
  126         3.If the abortion was performed with a judicial waiver of
  127  consent;
  128         4.Her age; and
  129         5. The number of times she has been pregnant and the number
  130  of abortions that have been performed on her.
  131         (b) The department shall adopt by rule a form to be used
  132  for such monthly reports. Patient names may not be included on
  133  the forms. The department shall prepare an annual compilation of
  134  the data reported and make it available to the public on the
  135  department website.
  137         (a) A minor may petition any circuit court in which the
  138  minor resides for a waiver of the consent required to obtain an
  139  abortion and may participate in proceedings on her own behalf.
  140  The petition must include a statement that the minor is pregnant
  141  and is unemancipated, that consent from a parent or the legal
  142  guardian of the minor has not been obtained, and that the minor
  143  wishes to obtain an abortion without first obtaining consent.
  144  The circuit court shall advise the minor that she has a right to
  145  court-appointed counsel and shall provide her with counsel upon
  146  her request. The court also may appoint a guardian ad litem for
  147  the minor. A guardian ad litem appointed under this subsection
  148  must maintain the confidentiality of the minor’s identity.
  149         (b) Court proceedings under this subsection shall be
  150  confidential and must ensure the anonymity of the minor. All
  151  court proceedings under this section shall be sealed. The minor
  152  may file her petition in the court using a pseudonym or using
  153  solely her initials. All documents related to this petition
  154  shall be confidential and may not be made available to the
  155  public. These proceedings shall be given precedence over other
  156  pending matters to the extent necessary to ensure that the court
  157  reaches a decision promptly. The court shall rule, and issue
  158  written findings of fact and conclusions of law, within 3
  159  business days after the petition is filed, except that the 3
  160  business-day limitation may be extended at the request of the
  161  minor.
  162         1. If the court fails to rule within the 3-business-day
  163  period and an extension has not been requested, the minor may
  164  immediately petition for a hearing upon the expiration of the 3
  165  business-day period to the chief judge of the circuit, who must
  166  ensure that a hearing is held within 48 hours after receipt of
  167  the minor’s petition and that an order is entered within 24
  168  hours after the hearing.
  169         2. If the circuit court does not grant a judicial waiver of
  170  consent, the minor has the right to an appeal. An appellate
  171  court must rule within 7 days after receipt of the appeal, but a
  172  ruling may be remanded with further instruction, in which case a
  173  ruling must be made within 3 business days after the remand. The
  174  reason for overturning a ruling on appeal must be based on abuse
  175  of discretion by the court and may not be based on the weight of
  176  the evidence presented to the circuit court, since the
  177  proceeding is a nonadversarial proceeding.
  178         (c) If the court finds, by clear and convincing evidence,
  179  that the minor is sufficiently mature to decide whether to
  180  terminate her pregnancy, the court shall issue an order
  181  authorizing the minor to obtain an abortion without the consent
  182  of a parent or guardian. If the court does not make the finding
  183  specified in this paragraph or paragraph (d), it must dismiss
  184  the petition. The court shall consider whether there may be any
  185  undue influence by another on the minor’s decision to have an
  186  abortion and all of the following factors concerning the minor:
  187         1. Age.
  188         2. Overall intelligence.
  189         3. Emotional development and stability.
  190         4. Credibility and demeanor as a witness.
  191         5. Ability to accept responsibility.
  192         6. Ability to assess both the immediate and long-range
  193  consequences of her choices.
  194         7. Ability to understand and explain the medical risks of
  195  terminating her pregnancy and to apply that understanding to her
  196  decision.
  197         (d) If the court finds, by a preponderance of the evidence,
  198  that the petitioner is the victim of child abuse or sexual
  199  abuse, as those terms are defined in s. 390.01114(2), inflicted
  200  by one or both of her parents or her guardian, or finds, by
  201  clear and convincing evidence, that requiring the consent of a
  202  parent or guardian is not in the best interest of the
  203  petitioner, the court shall issue an order authorizing the minor
  204  to obtain an abortion without the consent of a parent or
  205  guardian. The best-interest standard does not include financial
  206  best interest or financial considerations or the potential
  207  financial impact on the minor or her family if she does not
  208  terminate the pregnancy. If the court finds evidence of child
  209  abuse or sexual abuse of the petitioner by any person, the court
  210  shall report the evidence of child abuse or sexual abuse of the
  211  petitioner, as provided in s. 39.201. If the court does not make
  212  the finding specified in this paragraph or paragraph (c), it
  213  must dismiss the petition.
  214         (e) A court that conducts proceedings under this section
  215  shall:
  216         1. Provide for a written transcript of all testimony and
  217  proceedings;
  218         2. Issue a final written order containing factual findings
  219  and legal conclusions supporting its decision, including factual
  220  findings and legal conclusions relating to the maturity of the
  221  minor as provided under paragraph (c); and
  222         3. Order that a confidential record be maintained.
  223         (f) All hearings under this section, including appeals,
  224  shall remain confidential and closed to the public, as provided
  225  by court rule.
  226         (g) An expedited appeal shall be made available, as the
  227  Supreme Court provides by rule, to any minor to whom the circuit
  228  court denies a waiver of consent. An order authorizing an
  229  abortion without consent is not subject to appeal.
  230         (h) Filing fees or court costs may not be required of any
  231  minor who petitions a court for a waiver of consent under this
  232  subsection at either the trial or the appellate level.
  233         (i) A county is not required to pay the salaries, costs, or
  234  expenses of any counsel appointed by the court under this
  235  subsection.
  236         (7) RULEMAKING.—The Supreme Court is requested to adopt
  237  rules and forms for petitions to ensure that proceedings under
  238  subsection (6) are handled expeditiously and in a manner
  239  consistent with this section. The Supreme Court is also
  240  requested to adopt rules to ensure that the hearings protect the
  241  confidentiality of the minor’s identity and the confidentiality
  242  of the proceedings.
  244         (a) Any person who willfully and intentionally performs an
  245  abortion with knowledge that or with reckless disregard as to
  246  whether the minor upon whom the abortion is to be performed is
  247  unemancipated without obtaining the required consent commits a
  248  misdemeanor of the first degree, punishable as provided in s.
  249  775.082 or s. 775.083. It is a defense to prosecution under this
  250  section that the minor falsely represented her age or identity
  251  to the physician to be at least 18 years of age by displaying an
  252  apparently valid governmental record of identification such that
  253  a careful and prudent person under similar circumstances would
  254  have relied on the representation. The defense does not apply if
  255  the physician is shown to have had independent knowledge of the
  256  minor’s actual age or identity or failed to use due diligence in
  257  determining her age or identity.
  258         (b) Any person not authorized to provide consent under this
  259  section who provides consent commits a misdemeanor of the first
  260  degree, punishable as provided in s. 775.082 or s. 775.083.
  261         (c) Failure to obtain consent from a person from whom
  262  consent is required under this section is prima facie evidence
  263  of failure to obtain consent and of interference with family
  264  relations in appropriate civil actions. Such prima facie
  265  evidence does not apply to any issue other than failure to
  266  obtain consent from the parent or legal guardian and
  267  interference with family relations in appropriate civil actions.
  268  The civil action may be based on a claim that the act was a
  269  result of negligence, gross negligence, wantonness, willfulness,
  270  intention, or other legal standard of care. Exemplary damages
  271  may be awarded in appropriate civil actions relevant to
  272  violations of this section.
  273         (d)Failure to comply with the requirements of this section
  274  constitutes grounds for disciplinary action under each
  275  respective practice act and under s. 456.072.
  276         (9) CONSTRUCTION.—
  277         (a) This section may not be construed to create or
  278  recognize a right to abortion.
  279         (b) This section may not be construed to limit the common
  280  law rights of parents or legal guardians.
  281         (c) By enacting this section, the Legislature does not
  282  intend to make lawful an abortion that is currently unlawful.
  283         (10) SEVERABILITY.—Any provision of this section held to be
  284  invalid or unenforceable by its terms, or as applied to any
  285  person or circumstance, shall be construed so as to give it the
  286  maximum effect permitted by law, unless such holding is one of
  287  utter invalidity or unenforceability, in which event such
  288  provision shall be deemed severable and may not affect the
  289  remainder hereof or the application of such provision to other
  290  persons not similarly situated or to other, dissimilar
  291  circumstances.
  292         Section 2. This act shall take effect July 1, 2019.