Florida Senate - 2020 CS for SB 404
By the Committee on Health Policy; and Senators Stargel, Hutson,
Harrell, Gruters, Mayfield, Baxley, Diaz, and Albritton
588-02031-20 2020404c1
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.
45
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, s. 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,
93
94 Be It Enacted by the Legislature of the State of Florida:
95
96 Section 1. Section 390.01117, Florida Statutes, is created
97 to read:
98 390.01117 Parental 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, that she intends to seek
105 an 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 an unemancipated person younger than 18
109 years of age.
110 (3) CONSENT OF ONE PARENT OR GUARDIAN REQUIRED.—A physician
111 may not perform an abortion on a minor unless the physician has
112 been presented with consent as defined in this section.
113 (4) EXCEPTIONS.—Consent is not required under subsection
114 (3) if the attending physician certifies in the minor’s medical
115 record that a medical emergency, as defined in s.
116 390.01114(2)(d), exists and there is insufficient time to obtain
117 consent or if consent is waived under subsection (6).
118 (5) REPORTS.—
119 (a) A physician who has performed an abortion on a minor in
120 the past calendar month shall submit a monthly report to the
121 department which must include the following information for each
122 minor upon whom an abortion was performed:
123 1. If the abortion was performed with consent;
124 2. If the abortion was performed during a medical emergency
125 that excepted the minor from the consent requirement, and the
126 nature of the medical emergency;
127 3. If the abortion was performed with a judicial waiver of
128 consent;
129 4. Her age; and
130 5. The number of times she has been pregnant and the number
131 of abortions that have been performed on her.
132 (b) The department shall adopt by rule a form to be used
133 for such monthly reports. Patient names may not be included on
134 the forms. The department shall prepare an annual compilation of
135 the data reported and make it available to the public on the
136 department website.
137 (6) PROCEDURE FOR JUDICIAL WAIVER OF CONSENT.—
138 (a) A minor may petition any circuit court in which the
139 minor resides for a waiver of the consent required to obtain an
140 abortion and may participate in proceedings on her own behalf.
141 The petition must include a statement that the minor is pregnant
142 and is unemancipated, that consent from a parent or a legal
143 guardian of the minor has not been obtained, and that the minor
144 wishes to obtain an abortion without first obtaining consent.
145 The circuit court shall advise the minor that she has a right to
146 court-appointed counsel and shall provide her with counsel upon
147 her request. The court also may appoint a guardian ad litem for
148 the minor. A guardian ad litem appointed under this subsection
149 must maintain the confidentiality of the minor’s identity.
150 (b) Court proceedings under this subsection shall be
151 confidential and must ensure the anonymity of the minor. All
152 court proceedings under this section shall be sealed. The minor
153 may file her petition in the court using a pseudonym or using
154 solely her initials. All documents related to this petition
155 shall be confidential and may not be made available to the
156 public. These proceedings shall be given precedence over other
157 pending matters to the extent necessary to ensure that the court
158 reaches a decision promptly. The court shall rule, and issue
159 written findings of fact and conclusions of law, within 3
160 business days after the petition is filed, except that the 3
161 business-day limitation may be extended at the request of the
162 minor.
163 1. If the court fails to rule within the 3-business-day
164 period and an extension has not been requested, the minor may
165 immediately petition for a hearing upon the expiration of the 3
166 business-day period to the chief judge of the circuit, who must
167 ensure that a hearing is held within 48 hours after receipt of
168 the minor’s petition and that an order is entered within 24
169 hours after the hearing.
170 2. If the circuit court does not grant a judicial waiver of
171 consent, the minor has the right to an appeal. An appellate
172 court must rule within 7 days after receipt of the appeal, but a
173 ruling may be remanded with further instruction, in which case a
174 ruling must be made within 3 business days after the remand. The
175 reason for overturning a ruling on appeal must be based on abuse
176 of discretion by the court and may not be based on the weight of
177 the evidence presented to the circuit court, since the
178 proceeding is a nonadversarial proceeding.
179 (c) If the court finds, by clear and convincing evidence,
180 that the minor is sufficiently mature to decide whether to
181 terminate her pregnancy, the court shall issue an order
182 authorizing the minor to obtain an abortion without the consent
183 of a parent or guardian. If the court does not make the finding
184 specified in this paragraph or paragraph (d), it must dismiss
185 the petition. The court shall consider whether there may be any
186 undue influence by another on the minor’s decision to have an
187 abortion and all of the following factors concerning the minor:
188 1. Age.
189 2. Overall intelligence.
190 3. Emotional development and stability.
191 4. Credibility and demeanor as a witness.
192 5. Ability to accept responsibility.
193 6. Ability to assess both the immediate and long-range
194 consequences of her choices.
195 7. Ability to understand and explain the medical risks of
196 terminating her pregnancy and to apply that understanding to her
197 decision.
198 (d) If the court finds, by a preponderance of the evidence,
199 that the petitioner is the victim of child abuse or sexual
200 abuse, as those terms are defined in s. 390.01114(2), inflicted
201 by one or both of her parents or her guardian, or finds, by
202 clear and convincing evidence, that requiring the consent of a
203 parent or guardian is not in the best interest of the
204 petitioner, the court shall issue an order authorizing the minor
205 to obtain an abortion without the consent of a parent or
206 guardian. The best-interest standard does not include financial
207 best interest or financial considerations or the potential
208 financial impact on the minor or her family if she does not
209 terminate the pregnancy. If the court finds evidence of child
210 abuse or sexual abuse of the petitioner by any person, the court
211 shall report the evidence of child abuse or sexual abuse of the
212 petitioner, as provided in s. 39.201. If the court does not make
213 the finding specified in this paragraph or paragraph (c), it
214 must dismiss the petition.
215 (e) A court that conducts proceedings under this section
216 shall:
217 1. Provide for a written transcript of all testimony and
218 proceedings;
219 2. Issue a final written order containing factual findings
220 and legal conclusions supporting its decision, including factual
221 findings and legal conclusions relating to the maturity of the
222 minor as provided under paragraph (c); and
223 3. Order that a confidential record be maintained.
224 (f) All hearings under this section, including appeals,
225 shall remain confidential and closed to the public, as provided
226 by court rule.
227 (g) An expedited appeal shall be made available, as the
228 Supreme Court provides by rule, to any minor to whom the circuit
229 court denies a waiver of consent. An order authorizing an
230 abortion without consent is not subject to appeal.
231 (h) Filing fees or court costs may not be required of any
232 minor who petitions a court for a waiver of consent under this
233 subsection at either the trial or the appellate level.
234 (i) A county is not required to pay the salaries, costs, or
235 expenses of any counsel appointed by the court under this
236 subsection.
237 (7) RULEMAKING.—The Supreme Court is requested to adopt
238 rules and forms for petitions to ensure that proceedings under
239 subsection (6) are handled expeditiously and in a manner
240 consistent with this section. The Supreme Court is also
241 requested to adopt rules to ensure that the hearings protect the
242 confidentiality of the minor’s identity and the confidentiality
243 of the proceedings.
244 (8) CRIMINAL PENALTIES AND CIVIL REMEDIES.—
245 (a) Any person who willfully and intentionally performs an
246 abortion with knowledge that, or with reckless disregard as to
247 whether, the minor upon whom the abortion is to be performed is
248 unemancipated without obtaining the required consent commits a
249 misdemeanor of the first degree, punishable as provided in s.
250 775.082 or s. 775.083. It is a defense to prosecution under this
251 section that the minor falsely represented her age or identity
252 to the physician to be at least 18 years of age by displaying an
253 apparently valid governmental record of identification such that
254 a careful and prudent person under similar circumstances would
255 have relied on the representation. The defense does not apply if
256 the physician is shown to have had independent knowledge of the
257 minor’s actual age or identity or failed to use due diligence in
258 determining her age or identity.
259 (b) Any person not authorized to provide consent under this
260 section who provides consent commits a misdemeanor of the first
261 degree, punishable as provided in s. 775.082 or s. 775.083.
262 (c) Failure to obtain consent from a person from whom
263 consent is required under this section is prima facie evidence
264 of failure to obtain consent and of interference with family
265 relations in appropriate civil actions. Such prima facie
266 evidence does not apply to any issue other than failure to
267 obtain consent from the parent or legal guardian and
268 interference with family relations in appropriate civil actions.
269 The civil action may be based on a claim that the act was a
270 result of negligence, gross negligence, wantonness, willfulness,
271 intention, or other legal standard of care. Exemplary damages
272 may be awarded in appropriate civil actions relevant to
273 violations of this section.
274 (d) Failure to comply with the requirements of this section
275 constitutes grounds for disciplinary action under each
276 respective practice act and under s. 456.072.
277 (9) CONSTRUCTION.—
278 (a) This section may not be construed to create or
279 recognize a right to abortion.
280 (b) This section may not be construed to limit the common
281 law rights of parents or legal guardians.
282 (c) By enacting this section, the Legislature does not
283 intend to make lawful an abortion that is currently unlawful.
284 (10) SEVERABILITY.—Any provision of this section held to be
285 invalid or unenforceable by its terms, or as applied to any
286 person or circumstance, shall be construed so as to give it the
287 maximum effect permitted by law, unless such holding is one of
288 utter invalidity or unenforceability, in which event such
289 provision shall be deemed severable and may not affect the
290 remainder hereof or the application of such provision to other
291 persons not similarly situated or to other, dissimilar
292 circumstances.
293 Section 2. This act shall take effect July 1, 2020.