Florida Senate - 2020                        COMMITTEE AMENDMENT
       Bill No. CS for SB 404
       
       
       
       
       
       
                                Ì715312qÎ715312                         
       
                              LEGISLATIVE ACTION                        
                    Senate             .             House              
                  Comm: RCS            .                                
                  01/22/2020           .                                
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       The Committee on Rules (Stargel) recommended the following:
       
    1         Senate Amendment (with title amendment)
    2  
    3         Delete everything after the enacting clause
    4  and insert:
    5         Section 1. Present subsections (3), (4), (5), and (6) of
    6  section 390.01114, Florida Statutes, are redesignated as
    7  subsections (4), (6), (7), and (8), respectively, new
    8  subsections (3) and (5) are added to that section, and
    9  subsection (1), paragraph (b) of present subsection (3), and
   10  present subsections (4), (5), and (6) are amended, to read:
   11         390.01114 Parental Notice of and Consent for Abortion Act.—
   12         (1) SHORT TITLE.—This section may be cited as the “Parental
   13  Notice of and Consent for Abortion Act.”
   14         (3)TERMINATION OF THE PREGNANCY OF A MINOR.—A physician
   15  may not perform or induce the termination of a pregnancy of a
   16  minor unless the physician has complied with the notice and
   17  consent requirements of this section.
   18         (4)(3) NOTIFICATION REQUIRED.—
   19         (b) Notice is not required if:
   20         1. In the physician’s good faith clinical judgment, a
   21  medical emergency exists and there is insufficient time for the
   22  attending physician to comply with the notification
   23  requirements. If a medical emergency exists, the physician shall
   24  make reasonable attempts, whenever possible, without endangering
   25  the minor, to contact the parent or legal guardian, and may
   26  proceed, but must document reasons for the medical necessity in
   27  the patient’s medical records. The physician shall provide
   28  notice directly, in person or by telephone, to the parent or
   29  legal guardian, including details of the medical emergency and
   30  any additional risks to the minor. If the parent or legal
   31  guardian has not been notified within 24 hours after the
   32  termination of the pregnancy, the physician shall provide notice
   33  in writing, including details of the medical emergency and any
   34  additional risks to the minor, signed by the physician, to the
   35  last known address of the parent or legal guardian of the minor,
   36  by first-class mail and by certified mail, return receipt
   37  requested, with delivery restricted to the parent or legal
   38  guardian;
   39         2. Notice is waived in writing by the person who is
   40  entitled to notice and such waiver is notarized, dated not more
   41  than 30 days before the termination of pregnancy, and contains a
   42  specific waiver of the right of the parent or legal guardian to
   43  notice of the minor’s termination of pregnancy;
   44         3. Notice is waived by the minor who is or has been married
   45  or has had the disability of nonage removed under s. 743.015 or
   46  a similar statute of another state;
   47         4. Notice is waived by the patient because the patient has
   48  a minor child dependent on her; or
   49         5. Notice is waived under subsection (6) (4).
   50         (5)PARENTAL CONSENT REQUIRED.—
   51         (a)A physician must obtain written consent from a parent
   52  or legal guardian before performing or inducing the termination
   53  of a pregnancy of a minor.
   54         1.The consenting parent or legal guardian shall provide to
   55  the physician a copy of a government-issued proof of
   56  identification and written documentation establishing that he or
   57  she is the lawful parent or legal guardian of the minor. The
   58  parent or legal guardian shall certify in a signed, dated, and
   59  notarized document, initialed on each page, that he or she
   60  consents to the termination of the pregnancy of the minor. The
   61  document must include the following statement, which must
   62  precede the signature of the parent or guardian: “I, (insert
   63  name of parent or legal guardian), am the (select “parent or
   64  legal guardian,” as appropriate) of (insert name of minor) and
   65  give consent for (insert name of physician) to perform or induce
   66  a termination of pregnancy on her. Under penalties of perjury, I
   67  declare that I have read the foregoing statement and that the
   68  facts stated in it are true.” A copy of the parent’s or legal
   69  guardian’s government-issued proof of identification
   70  establishing that he or she is the minor’s lawful parent or
   71  legal guardian must be attached to the notarized document.
   72         2.The physician shall keep a copy of the proof of
   73  identification of the parent or legal guardian and the certified
   74  statement in the medical file of the minor for 5 years after the
   75  minor reaches the age of 18 years, but in no event less than 7
   76  years.
   77         3.A physician receiving consent from a parent or guardian
   78  under this section shall execute for inclusion in the medical
   79  record of the minor an affidavit stating: “I, (insert name of
   80  physician), certify that, according to my best information and
   81  belief, a reasonable person under similar circumstances would
   82  rely on the information presented by both the minor and her
   83  parent or legal guardian as sufficient evidence of identity.”
   84         (b)The consent of a parent or guardian is not required if:
   85         1.Notification is not required as provided in subparagraph
   86  (4)(b)1., subparagraph (4)(b)3., subparagraph (4)(b)4., or
   87  subparagraph (4)(b)5.;
   88         2.Notification is not required due to the existence of a
   89  waiver as provided in subparagraph (4)(b)2., if that waiver is
   90  signed by the minor’s parent or legal guardian, is notarized, is
   91  dated within 30 days before the termination of the pregnancy,
   92  contains a specific waiver of the right of the parent or legal
   93  guardian to consent to the minor’s termination of pregnancy, and
   94  a copy of a government-issued proof of identification and
   95  written documentation establishing that the person who signed
   96  the waiver is the lawful parent or legal guardian, as
   97  applicable, of the minor, is attached to the waiver;
   98         3.Consent is waived under subsection (6); or
   99         4.In the physician’s good faith clinical judgment, a
  100  medical emergency exists and there is insufficient time for the
  101  attending physician to comply with the consent requirement. If a
  102  medical emergency exists, the physician must make reasonable
  103  attempts, whenever possible, and without endangering the minor,
  104  to contact the parent or legal guardian of the minor, and may
  105  proceed, but must document reasons for the medical necessity in
  106  the minor patient’s medical records. The physician shall inform
  107  the parent or legal guardian, in person or by telephone, within
  108  24 hours after the termination of the pregnancy of the minor,
  109  including details of the medical emergency that necessitated the
  110  termination of the pregnancy without the parent’s or legal
  111  guardian’s consent. The physician shall also provide this
  112  information in writing to the parent or legal guardian at his or
  113  her last known address, by first-class mail or by certified
  114  mail, return receipt requested, with delivery restricted to the
  115  parent or legal guardian.
  116         (c)1.A physician who intentionally or recklessly performs
  117  or induces, or attempts to perform or induce, a termination of a
  118  pregnancy of a minor without obtaining the required consent
  119  pursuant to this subsection commits a felony of the third
  120  degree, punishable as provided in s. 775.082, s. 775.083, or s.
  121  775.084. A penalty may not be assessed against the minor upon
  122  whom a termination of pregnancy is performed or induced or upon
  123  whom a termination of pregnancy is attempted to be performed or
  124  induced.
  125         2.It is a defense to prosecution that a minor
  126  misrepresented her age or identity to a physician by displaying
  127  a driver license or identification card issued by the state or
  128  another state which indicated that the minor was 18 years of age
  129  or older and that the appearance of the minor was such that a
  130  reasonably prudent person would believe that the minor was not
  131  under 18 years of age. To use the defense, a physician must
  132  provide a copy of the driver license or identification card used
  133  by the minor. The defense does not apply if the physician is
  134  shown to have had independent knowledge of the minor’s actual
  135  age or identity or to have failed to use due diligence in
  136  determining the minor’s age or identity.
  137         (6)(4) PROCEDURE FOR JUDICIAL WAIVER OF NOTICE.—
  138         (a) A minor may petition any circuit court in which the
  139  minor resides for a waiver of the notice requirements of this
  140  section subsection (3) and may participate in proceedings on her
  141  own behalf. The petition may be filed under a pseudonym or
  142  through the use of initials, as provided by court rule. The
  143  petition must include a statement that the petitioner is
  144  pregnant and that the requirements of this section have notice
  145  has not been waived. The court shall advise the minor that she
  146  has a right to court-appointed counsel and shall provide her
  147  with counsel upon her request at no cost to the minor. The court
  148  shall, upon request, provide counsel for the minor at least 24
  149  hours before the court proceeding.
  150         (b)1. Court proceedings under this section subsection must
  151  be given precedence over other pending matters to the extent
  152  necessary to ensure that the court reaches a decision promptly.
  153  The court shall rule, and issue written findings of fact and
  154  conclusions of law, within 3 business days after the petition is
  155  filed, except that the 3-business-day limitation may be extended
  156  at the request of the minor. If the court fails to rule within
  157  the 3-business-day period and an extension has not been
  158  requested, the minor may immediately petition for a hearing upon
  159  the expiration of the 3-business-day period to the chief judge
  160  of the circuit, who must ensure a hearing is held within 48
  161  hours after receipt of the minor’s petition and an order is
  162  entered within 24 hours after the hearing.
  163         2. If the circuit court does not grant judicial waiver of
  164  the requirements of this section notice, the minor has the right
  165  to appeal. An appellate court must rule within 7 days after
  166  receipt of appeal, but a ruling may be remanded with further
  167  instruction for a ruling within 3 business days after the
  168  remand. The reason for overturning a ruling on appeal must be
  169  based on abuse of discretion by the court and may not be based
  170  on the weight of the evidence presented to the circuit court
  171  since the proceeding is a nonadversarial proceeding.
  172         (c) If the court finds, by clear and convincing evidence,
  173  that the minor is sufficiently mature to decide whether to
  174  terminate her pregnancy, the court shall issue an order
  175  authorizing the minor to consent to the performance or
  176  inducement of a termination of the pregnancy without the
  177  notification of a parent or guardian. If the court does not make
  178  the finding specified in this paragraph or paragraph (d), it
  179  must dismiss the petition. Factors the court shall consider
  180  include:
  181         1. The minor’s:
  182         a. Age.
  183         b. Overall intelligence.
  184         c. Emotional development and stability.
  185         d. Credibility and demeanor as a witness.
  186         e. Ability to accept responsibility.
  187         f. Ability to assess both the immediate and long-range
  188  consequences of the minor’s choices.
  189         g. Ability to understand and explain the medical risks of
  190  terminating her pregnancy and to apply that understanding to her
  191  decision.
  192         2. Whether there may be any undue influence by another on
  193  the minor’s decision to have an abortion.
  194         (d) If the court finds, by a preponderance of the evidence,
  195  that the petitioner is the victim of child abuse or sexual abuse
  196  inflicted by one or both of her parents or her guardian, or by
  197  clear and convincing evidence that the requirements of this
  198  section are notification of a parent or guardian is not in the
  199  best interest of the petitioner, the court shall issue an order
  200  authorizing the minor to consent to the performance or
  201  inducement of a termination of the pregnancy without the
  202  notification of a parent or guardian. The best-interest standard
  203  does not include financial best interest or financial
  204  considerations or the potential financial impact on the minor or
  205  the minor’s family if the minor does not terminate the
  206  pregnancy. If the court finds evidence of child abuse or sexual
  207  abuse of the minor petitioner by any person, the court shall
  208  report the evidence of child abuse or sexual abuse of the
  209  petitioner, as provided in s. 39.201. If the court does not make
  210  the finding specified in this paragraph or paragraph (c), it
  211  must dismiss the petition.
  212         (e) A court that conducts proceedings under this section
  213  shall:
  214         1. Provide for a written transcript of all testimony and
  215  proceedings;
  216         2. Issue a final written order containing factual findings
  217  and legal conclusions supporting its decision, including factual
  218  findings and legal conclusions relating to the maturity of the
  219  minor as provided under paragraph (c); and
  220         3. Order that a confidential record be maintained, as
  221  required under s. 390.01116.
  222         (f) All hearings under this section, including appeals,
  223  shall remain confidential and closed to the public, as provided
  224  by court rule.
  225         (g) An expedited appeal shall be made available, as the
  226  Supreme Court provides by rule, to any minor to whom the circuit
  227  court denies a waiver of the requirements of this section
  228  notice. An order authorizing a termination of pregnancy under
  229  this subsection without notice is not subject to appeal.
  230         (h) Filing fees or court costs may not be required of any
  231  pregnant minor who petitions a court for a waiver of the
  232  requirements of this section parental notification under this
  233  subsection at either the trial or the appellate level.
  234         (i) A county is not obligated to pay the salaries, costs,
  235  or expenses of any counsel appointed by the court under this
  236  subsection.
  237         (7)(5) PROCEEDINGS.—The Supreme Court is requested to adopt
  238  rules and forms for petitions to ensure that proceedings under
  239  subsection (6) (4) are handled expeditiously and in a manner
  240  consistent with this act. The Supreme Court is also requested to
  241  adopt rules to ensure that the hearings protect the minor’s
  242  confidentiality and the confidentiality of the proceedings.
  243         (8)(6) REPORT.—The Supreme Court, through the Office of the
  244  State Courts Administrator, shall report by February 1 of each
  245  year to the Governor, the President of the Senate, and the
  246  Speaker of the House of Representatives on the number of
  247  petitions filed under subsection (6) (4) for the preceding year,
  248  and the timing and manner of disposal of such petitions by each
  249  circuit court. For each petition resulting in a waiver of the
  250  requirements of this section notice, the reason for the waiver
  251  shall be included in the report.
  252         Section 2. Paragraph (a) of subsection (6) of section
  253  27.511, Florida Statutes, is amended to read:
  254         27.511 Offices of criminal conflict and civil regional
  255  counsel; legislative intent; qualifications; appointment;
  256  duties.—
  257         (6)(a) The office of criminal conflict and civil regional
  258  counsel has primary responsibility for representing persons
  259  entitled to court-appointed counsel under the Federal or State
  260  Constitution or as authorized by general law in civil
  261  proceedings, including, but not limited to, proceedings under s.
  262  393.12 and chapters 39, 392, 397, 415, 743, 744, and 984 and
  263  proceedings to terminate parental rights under chapter 63.
  264  Private court-appointed counsel eligible under s. 27.40 have
  265  primary responsibility for representing minors who request
  266  counsel under s. 390.01114, the Parental Notice of and Consent
  267  for Abortion Act; however, the office of criminal conflict and
  268  civil regional counsel may represent a minor under that section
  269  if the court finds that no private court-appointed attorney is
  270  available.
  271         Section 3. If any provision of this act or its application
  272  to any person or circumstance is held invalid, the invalidity
  273  does not affect other provisions or applications of the act
  274  which can be given effect without the invalid provision or its
  275  application, and to this end the provisions of this act are
  276  severable.
  277         Section 4. This act shall take effect July 1, 2020.
  278  
  279  ================= T I T L E  A M E N D M E N T ================
  280  And the title is amended as follows:
  281         Delete everything before the enacting clause
  282  and insert:
  283                        A bill to be entitled                      
  284         An act relating to abortion; amending s. 390.01114,
  285         F.S.; revising the short title; prohibiting physicians
  286         from performing or inducing the termination of the
  287         pregnancy of a minor unless specified requirements are
  288         satisfied; requiring a physician to obtain written
  289         consent from a minor’s parent or legal guardian before
  290         performing or inducing a termination of the pregnancy
  291         of a minor; requiring the consenting parent or legal
  292         guardian to provide specified proof of identification
  293         and a specified document to the physician; providing
  294         requirements for the document; providing exceptions to
  295         such consent requirement; providing criminal penalties
  296         for physicians; revising provisions relating to the
  297         procedures for judicial waiver to conform to changes
  298         made by the act; amending s. 27.511, F.S.; conforming
  299         a provision to changes made by the act; providing
  300         severability; providing an effective date.