Florida Senate - 2020                        COMMITTEE AMENDMENT
       Bill No. CS for SB 404
       
       
       
       
       
       
                                Ì355614&Î355614                         
       
                              LEGISLATIVE ACTION                        
                    Senate             .             House              
                   Comm: WD            .                                
                  01/16/2020           .                                
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       The Committee on Judiciary (Stargel) recommended the following:
       
    1         Senate Amendment (with title amendment)
    2  
    3         Delete everything after the enacting clause
    4  and insert:
    5         Section 1. Paragraph (e) of subsection (12) of section
    6  390.0111, Florida Statutes, is amended to read:
    7         390.0111 Termination of pregnancies.—
    8         (12) INFANTS BORN ALIVE.—
    9         (e) A person who violates this subsection commits a felony
   10  of the third misdemeanor of the first degree, punishable as
   11  provided in s. 775.082, or s. 775.083, or s. 775.084. This
   12  subsection shall not be construed as a specific provision of law
   13  relating to a particular subject matter that would preclude
   14  prosecution of a more general offense, regardless of the
   15  penalty.
   16         Section 2. Subsections (3), (4), (5), and (6) of section
   17  390.01114, Florida Statutes, are renumbered as subsections (4),
   18  (6), (7), and (8), respectively, subsection (1), paragraph (b)
   19  of present subsection (3), and present subsections (4), (5), and
   20  (6) are amended, and new subsections (3) and (5) are added to
   21  that section, to read:
   22         390.01114 Parental Notice of and Consent for Abortion Act.—
   23         (1) SHORT TITLE.—This section may be cited as the “Parental
   24  Notice of and Consent for Abortion Act.”
   25         (3)TERMINATION OF THE PREGNANCY OF A MINOR.—A physician
   26  may not perform or induce the termination of a pregnancy of a
   27  minor unless the physician has complied with the notice and
   28  consent requirements of this section.
   29         (4)(3) NOTIFICATION REQUIRED.—
   30         (b) Notice is not required if:
   31         1. In the physician’s good faith clinical judgment, a
   32  medical emergency exists and there is insufficient time for the
   33  attending physician to comply with the notification
   34  requirements. If a medical emergency exists, the physician shall
   35  make reasonable attempts, whenever possible, without endangering
   36  the minor, to contact the parent or legal guardian, and may
   37  proceed, but must document reasons for the medical necessity in
   38  the patient’s medical records. The physician shall provide
   39  notice directly, in person or by telephone, to the parent or
   40  legal guardian, including details of the medical emergency and
   41  any additional risks to the minor. If the parent or legal
   42  guardian has not been notified within 24 hours after the
   43  termination of the pregnancy, the physician shall provide notice
   44  in writing, including details of the medical emergency and any
   45  additional risks to the minor, signed by the physician, to the
   46  last known address of the parent or legal guardian of the minor,
   47  by first-class mail and by certified mail, return receipt
   48  requested, with delivery restricted to the parent or legal
   49  guardian;
   50         2. Notice is waived in writing by the person who is
   51  entitled to notice and such waiver is notarized, dated not more
   52  than 30 days before the termination of pregnancy, and contains a
   53  specific waiver of the right of the parent or legal guardian to
   54  notice of the minor’s termination of pregnancy;
   55         3. Notice is waived by the minor who is or has been married
   56  or has had the disability of nonage removed under s. 743.015 or
   57  a similar statute of another state;
   58         4. Notice is waived by the patient because the patient has
   59  a minor child dependent on her; or
   60         5. Notice is waived under subsection (6) (4).
   61         (5)PARENTAL CONSENT REQUIRED.—
   62         (a)A physician must obtain written consent from a parent
   63  or legal guardian before performing or inducing the termination
   64  of a pregnancy of a minor.
   65         1.The consenting parent or legal guardian shall provide to
   66  the physician a copy of a government-issued proof of
   67  identification and written documentation establishing that he or
   68  she is the lawful parent or legal guardian of the minor. The
   69  parent or legal guardian shall certify in a signed, dated,
   70  notarized statement, initialed on each page, that he or she
   71  consents to the termination of a pregnancy of the minor, and
   72  must include the following statement which must precede the
   73  signature of the parent or guardian: “I, (insert name of parent
   74  or legal guardian), am the parent or legal guardian of (insert
   75  name of minor) and give consent for (insert name of physician)
   76  to perform or induce a termination of pregnancy. Under penalties
   77  of perjury, I declare that I have read the foregoing statement
   78  and that the facts stated in it are true.”
   79         2.The physician shall keep a copy of the proof of
   80  identification of the parent or legal guardian and the certified
   81  statement in the medical file of the minor for 5 years after the
   82  minor reaches the age of 18 years, but in no event less than 7
   83  years.
   84         3.A physician receiving consent from a parent or guardian
   85  under this section shall execute for inclusion in the medical
   86  record of the minor an affidavit stating: “I, (insert name of
   87  physician), certify that according to my best information and
   88  belief, a reasonable person under similar circumstances would
   89  rely on the information presented by both the minor and her
   90  parent or legal guardian as sufficient evidence of identity.”
   91         (b)The consent of a parent or guardian is not required if:
   92         1.Notification is not required under subparagraphs
   93  (4)(b)1. and 3.-5.;
   94         2.Notification is not required under subparagraph
   95  (4)(b)2., and the waiver contains a specific waiver of a parent
   96  or legal guardian to consent to the minor’s termination of
   97  pregnancy and the parent or legal guardian provides a copy of a
   98  government-issued proof of identification and written
   99  documentation establishing that he or she is the lawful parent
  100  or legal guardian of the minor;
  101         3.Consent is waived under subsection (6); or
  102         4.In the physician’s good faith clinical judgment, a
  103  medical emergency exists and there is insufficient time for the
  104  attending physician to comply with the consent requirement. If a
  105  medical emergency exists, the physician shall make reasonable
  106  attempts, whenever possible, without endangering the minor, to
  107  contact the parent or legal guardian of the minor, and may
  108  proceed, but must document reasons for the medical necessity in
  109  the patient’s medical records. The physician shall inform the
  110  parent or legal guardian, in person or by telephone, within 24
  111  hours after the termination of the pregnancy of the minor,
  112  including details of the medical emergency that necessitated the
  113  termination of the pregnancy without the parent’s or legal
  114  guardian’s consent. The physician shall also provide this
  115  information in writing to the parent or legal guardian at his or
  116  her last known address, by first-class mail or by certified
  117  mail, return receipt requested, with delivery restricted to the
  118  parent or legal guardian.
  119         (c)1.A physician who intentionally or recklessly performs
  120  or induces, or attempts to perform or induce, a termination of a
  121  pregnancy of a minor without obtaining the required consent
  122  pursuant to this subsection commits a felony of the third
  123  degree, punishable as provided in s. 775.082, s. 775.083, or s.
  124  775.084. A penalty may not be assessed against the minor upon
  125  whom a termination of pregnancy is performed or induced or upon
  126  whom a termination of pregnancy is attempted to be performed or
  127  induced.
  128         2.It is a defense to prosecution that a minor
  129  misrepresented her age or identity to a physician by displaying
  130  a driver license or identification card issued by the state or
  131  another state that indicated that the minor was over 18 years of
  132  age and that the appearance of the minor was such that a
  133  reasonably prudent person would believe that the minor was not
  134  under the age of 18 years. The defense does not apply if the
  135  physician is shown to have had independent knowledge of the
  136  minor’s actual age or identity or failed to use due diligence in
  137  determining the minor’s age or identity.
  138         (6)(4) PROCEDURE FOR JUDICIAL WAIVER OF NOTICE.—
  139         (a) A minor may petition any circuit court in which the
  140  minor resides for a waiver of the notice requirements of this
  141  section subsection (3) and may participate in proceedings on her
  142  own behalf. The petition may be filed under a pseudonym or
  143  through the use of initials, as provided by court rule. The
  144  petition must include a statement that the petitioner is
  145  pregnant and the requirements of this section have notice has
  146  not been waived. The court shall advise the minor that she has a
  147  right to court-appointed counsel and shall provide her with
  148  counsel upon her request at no cost to the minor. The court
  149  shall, upon request, provide counsel for the minor at least 24
  150  hours before the court proceeding.
  151         (b)1. Court proceedings under this section subsection must
  152  be given precedence over other pending matters to the extent
  153  necessary to ensure that the court reaches a decision promptly.
  154  The court shall rule, and issue written findings of fact and
  155  conclusions of law, within 3 business days after the petition is
  156  filed, except that the 3-business-day limitation may be extended
  157  at the request of the minor. If the court fails to rule within
  158  the 3-business-day period and an extension has not been
  159  requested, the minor may immediately petition for a hearing upon
  160  the expiration of the 3-business-day period to the chief judge
  161  of the circuit, who must ensure a hearing is held within 48
  162  hours after receipt of the minor’s petition and an order is
  163  entered within 24 hours after the hearing.
  164         2. If the circuit court does not grant judicial waiver of
  165  the requirements of this section notice, the minor has the right
  166  to appeal. An appellate court must rule within 7 days after
  167  receipt of appeal, but a ruling may be remanded with further
  168  instruction for a ruling within 3 business days after the
  169  remand. The reason for overturning a ruling on appeal must be
  170  based on abuse of discretion by the court and may not be based
  171  on the weight of the evidence presented to the circuit court
  172  since the proceeding is a nonadversarial proceeding.
  173         (c) If the court finds, by clear and convincing evidence,
  174  that the minor is sufficiently mature to decide whether to
  175  terminate her pregnancy, the court shall issue an order
  176  authorizing the minor to consent to the performance or
  177  inducement of a termination of the pregnancy without the
  178  notification of a parent or guardian. If the court does not make
  179  the finding specified in this paragraph or paragraph (d), it
  180  must dismiss the petition. Factors the court shall consider
  181  include:
  182         1. The minor’s:
  183         a. Age.
  184         b. Overall intelligence.
  185         c. Emotional development and stability.
  186         d. Credibility and demeanor as a witness.
  187         e. Ability to accept responsibility.
  188         f. Ability to assess both the immediate and long-range
  189  consequences of the minor’s choices.
  190         g. Ability to understand and explain the medical risks of
  191  terminating her pregnancy and to apply that understanding to her
  192  decision.
  193         2. Whether there may be any undue influence by another on
  194  the minor’s decision to have an abortion.
  195         (d) If the court finds, by a preponderance of the evidence,
  196  that the petitioner is the victim of child abuse or sexual abuse
  197  inflicted by one or both of her parents or her guardian, or by
  198  clear and convincing evidence that the requirements of this
  199  section are notification of a parent or guardian is not in the
  200  best interest of the petitioner, the court shall issue an order
  201  authorizing the minor to consent to the performance or
  202  inducement of a termination of the pregnancy without the
  203  notification of a parent or guardian. The best-interest standard
  204  does not include financial best interest or financial
  205  considerations or the potential financial impact on the minor or
  206  the minor’s family if the minor does not terminate the
  207  pregnancy. If the court finds evidence of child abuse or sexual
  208  abuse of the minor petitioner by any person, the court shall
  209  report the evidence of child abuse or sexual abuse of the
  210  petitioner, as provided in s. 39.201. If the court does not make
  211  the finding specified in this paragraph or paragraph (c), it
  212  must dismiss the petition.
  213         (e) A court that conducts proceedings under this section
  214  shall:
  215         1. Provide for a written transcript of all testimony and
  216  proceedings;
  217         2. Issue a final written order containing factual findings
  218  and legal conclusions supporting its decision, including factual
  219  findings and legal conclusions relating to the maturity of the
  220  minor as provided under paragraph (c); and
  221         3. Order that a confidential record be maintained, as
  222  required under s. 390.01116.
  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 the requirements of this section
  229  notice. An order authorizing a termination of pregnancy under
  230  this subsection without notice is not subject to appeal.
  231         (h) Filing fees or court costs may not be required of any
  232  pregnant minor who petitions a court for a waiver of the
  233  requirements of this section parental notification under this
  234  subsection at either the trial or the appellate level.
  235         (i) A county is not obligated to pay the salaries, costs,
  236  or expenses of any counsel appointed by the court under this
  237  subsection.
  238         (7)(5) PROCEEDINGS.—The Supreme Court is requested to adopt
  239  rules and forms for petitions to ensure that proceedings under
  240  subsection (6) (4) are handled expeditiously and in a manner
  241  consistent with this act. The Supreme Court is also requested to
  242  adopt rules to ensure that the hearings protect the minor’s
  243  confidentiality and the confidentiality of the proceedings.
  244         (8)(6) REPORT.—The Supreme Court, through the Office of the
  245  State Courts Administrator, shall report by February 1 of each
  246  year to the Governor, the President of the Senate, and the
  247  Speaker of the House of Representatives on the number of
  248  petitions filed under subsection (6) (4) for the preceding year,
  249  and the timing and manner of disposal of such petitions by each
  250  circuit court. For each petition resulting in a waiver of the
  251  requirements of this section notice, the reason for the waiver
  252  shall be included in the report.
  253         Section 3. Paragraph (a) of subsection (6) of section
  254  27.511, Florida Statutes, is amended to read:
  255         27.511 Offices of criminal conflict and civil regional
  256  counsel; legislative intent; qualifications; appointment;
  257  duties.—
  258         (6)(a) The office of criminal conflict and civil regional
  259  counsel has primary responsibility for representing persons
  260  entitled to court-appointed counsel under the Federal or State
  261  Constitution or as authorized by general law in civil
  262  proceedings, including, but not limited to, proceedings under s.
  263  393.12 and chapters 39, 392, 397, 415, 743, 744, and 984 and
  264  proceedings to terminate parental rights under chapter 63.
  265  Private court-appointed counsel eligible under s. 27.40 have
  266  primary responsibility for representing minors who request
  267  counsel under s. 390.01114, the Parental Notice of and Consent
  268  for Abortion Act; however, the office of criminal conflict and
  269  civil regional counsel may represent a minor under that section
  270  if the court finds that no private court-appointed attorney is
  271  available.
  272         Section 4. If any provision of this act or its application
  273  to any person or circumstance is held invalid, the invalidity
  274  does not affect other provisions or applications of the act
  275  which can be given effect without the invalid provision or its
  276  application, and to this end the provisions of this act are
  277  severable.
  278         Section 5. This act shall take effect July 1, 2020.
  279  
  280  ================= T I T L E  A M E N D M E N T ================
  281  And the title is amended as follows:
  282         Delete everything before the enacting clause
  283  and insert:
  284                        A bill to be entitled                      
  285         An act relating to abortion; amending s. 390.0111,
  286         F.S.; reclassifying a criminal offense for a specified
  287         violation; amending s. 390.01114, F.S.; requiring a
  288         physician to obtain notarized written consent of a
  289         minor’s parent or legal guardian before inducing or
  290         performing a termination of a pregnancy on the minor;
  291         providing exceptions to such consent requirement;
  292         providing criminal penalties; revising provisions
  293         relating to the procedures for judicial waiver to
  294         conform to changes made by the act; amending s.
  295         27.511, F.S.; conforming a provision to changes made
  296         by the act; providing severability; providing an
  297         effective date.