Report Title:

Abortion; Parental Notification

Description:

Requires physicians to provide notice to an unemancipated minor's parent or an incompetent person's guardian or conservator before an abortion may be performed; establishes procedure for a judicial order for abortion without notification; provides criminal penalties and civil remedies for failure to provide notice; requires yearly physician reporting and DOH reports of notifications, abortions, and court proceedings.

HOUSE OF REPRESENTATIVES

H.B. NO.

1418

TWENTY-SECOND LEGISLATURE, 2003

 

STATE OF HAWAII

 


 

A BILL FOR AN ACT

 

relating to abortion.

 

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:

SECTION 1. The Hawaii Revised Statutes is amended by adding a new chapter to be appropriately designated and to read as follows:

"Chapter

PARENTAL NOTIFICATION OF ABORTION

§     -1 Definitions. As used in this chapter:

"Abortion" means the use of any means to terminate the pregnancy of a person, with knowledge that the use of those means will with reasonable likelihood cause the death of the fetus.

"Department" means the department of health.

"Parent" means one parent of a pregnant person who is an unemancipated minor, or the guardian or conservator of a incompetent pregnant person.

§     -2 Notification of abortion. (a) No abortion shall be performed upon a person who is an unemancipated minor, or a person for whom a guardian or conservator has been appointed because of a finding of incompetency, until at least forty-eight hours after written notice of the pending operation has been delivered in the manner specified in subsection (b).

(b) The notice required under this section shall be:

(1) Addressed to the parent at the parent's usual place of abode and delivered personally to the parent by the physician or physician's agent; or

(2) In lieu of delivery under paragraph (1), delivered by certified mail addressed to the parent at the parent's usual place of abode with delivery only to the addressee and return receipt requested. Delivery shall be deemed to occur at 12:00 p.m. on the first day on which regular mail delivery takes place that is subsequent to the day of mailing.

§     -3 Limitations. No notice shall be required under this chapter if:

(1) The attending physician certifies in the person's medical record that:

(A) The abortion is necessary to prevent the person's death; and

(B) There is insufficient time to provide the required notice.

(2) The parent, guardian, or conservator entitled to notice certifies in a notarized writing that notice has been provided; or

(3) A judge determines under section -4 that it is in the person's best interest to perform an abortion without notification of the person's parent, guardian, or conservator.

§     -4 Order authorizing an abortion without notification; procedure. (a) If a person elects not to allow the notification of the person's parent, guardian, or conservator, any judge of a court of competent jurisdiction shall, upon the person's petition or motion making application for an order authorizing an abortion without notification, conduct an appropriate hearing, and determine whether the person:

(1) Is mature and capable of giving informed consent to the proposed abortion, in which case the judge shall authorize a physician to perform the abortion.

(2) Is not mature, or does not claim to be mature, in which case the judge shall determine whether the performance of an abortion without notifying the person's parent, guardian, or conservator, would be in the person's best interest. If the person's best interests would be served thereby, the judge shall authorize a physician to perform the abortion without notification.

(b) A person applying for an order authorizing an abortion without notification under this section shall have the right to participate on her own behalf in proceedings held under this section, and shall also have the right to court-appointed counsel. The court shall advise the applicant of her right to court-appointed counsel, and upon request, appoint counsel. The court may appoint a guardian ad litem for the applicant.

(c) Hearings pursuant to this section shall be confidential and given precedence over other pending matters so that the court may reach a decision promptly and without delay so as to serve the best interests of the applicant. A judge of the court who conducts a hearing under this section shall make in writing specific factual findings and legal conclusions supporting the decision and shall order a record of the evidence to be maintained, including the judge's own findings and conclusions.

(d) The court shall rule on an application submitted under this section not later than 5:00 p.m. on the second business day after the application is filed with the court. Upon request by the applicant, the court shall grant an extension of the period specified by this subsection. If a request for an extension is made, the court shall rule on the application not later than 5:00 p.m. on the second business day after the applicant states she is ready to proceed. If the court fails to rule on the application within the period specified by this subsection, the application shall be deemed to be granted. The clerk of the court shall issue a written statement to the applicant indicating that the time has run, and that the application is deemed granted.

(e) An order authorizing an abortion without notification shall not be subject to appeal. An expedited confidential appeal shall be available in the event that the court denies an application for an order authorizing an abortion without notification. No filing fees shall be required of any applicant under this section at either the trial or the appellate level. An applicant shall be afforded access twenty-four hours a day, seven days a week:

(1) To the trial court for the purposes of an application under this section; and

(2) To the appellate courts for purposes of making an appeal from denial of the same.

§     -5 Penalty. (a) Performance of an abortion in knowing or reckless violation of this section shall be a misdemeanor and shall be grounds for a civil action by a person wrongfully denied notification.

(b) It shall be a defense to liability under this section if a person:

(1) Establishes by written evidence that the person relied upon evidence sufficient to convince a careful and prudent person that the pregnant female complied with this section; or

(2) Attempted with reasonable diligence to deliver notice, but has been unable to do so.

§     -6 Notifications and abortions reporting form; reporting schedule; public report. (a) Beginning October 1, 2003, the department shall prepare a notifications and abortions reporting form for physicians, listing:

(1) The number of persons for whom the physician or physician's agent provided notice under section -2; of that number, the number delivered personally and the number provided by certified mail; and of each of those numbers, the number of persons who, to the best of the reporting physician's information and belief, went on to obtain an abortion;

(2) The number of persons upon whom the physician performed an abortion without providing to the parent of the minor the notice described in section -2; and of that number, the number who were emancipated minors and the numbers of persons to whom each of the subsections of section -3 were applicable;

(3) The number of abortions performed by the physician after receiving judicial authorization for an abortion without notification under section -4; and

(4) The same information described in paragraphs (1) through (3) of this subsection with respect to females for whom a guardian or conservator has been appointed because of a finding of incompetency.

(b) The department shall ensure that copies of the notifications and abortions reporting form, together with a reprint of this Act, are provided:

(1) Beginning November 1, 2003:

(A) To all physicians licensed to practice in this state; and

(B) To each physician who subsequently becomes newly licensed to practice in this state, at the same time as the physician is officially notified that a license has been granted;

and

(2) By December 1 of each year, other than the calendar year 2003, to all physicians licensed to practice in this State.

(c) By February 28 of each year, each physician who during the previous calendar year provided the notice described in section -3 or performed an abortion upon an unemancipated minor or a person for whom a guardian or conservator has been appointed because of a finding of incompetency, shall submit to the department a completed copy of the notifications and abortions reporting form described in subsection (a).

(d) Persons failing to submit the completed notifications and abortions reporting form within thirty days following the due date in subsection (c) shall be subject to a late fee of $500 for each additional thirty-day period or portion thereof the form is overdue. Any person required to report in accordance with this section who has failed to submit a completed form or has submitted only an incomplete form more than one year following its due date, may, in an action brought by the department, be directed by a court of competent jurisdiction to submit a complete report within a period stated by court order or be subject to sanctions for civil contempt.

(e) By June 30 of each year, the department shall issue a public report providing statistics compiled from all reports submitted during the prior year in accordance with this section, for each of the items listed in subsection (a) of this section. The report shall include statistics compiled by the office of the administrative director of the courts, giving the total number of petitions or motions filed under section -4, and of that number, the number in which the court:

(1) Appointed a guardian ad litem;

(2) Appointed counsel;

(3) Granted an application for an order authorizing an abortion without notification;

(4) Denied an application for an order authorizing an abortion without notification, and the number of:

(A) Denials from which an appeal was filed;

(B) Appeals that resulted in denials being affirmed; and

(C) Appeals that resulted in reversals of denials.

Each report shall also provide statistics for all previous calendar years for which a public report was required under this section, adjusted to reflect any additional information from late or corrected reports. The department shall make reasonable efforts to ensure that information included in the public report does not lead to the identification of any person that is the subject of the report.

(f) The department may by rule adopted pursuant to chapter 91, alter the dates established by subsections (b)(2), (c) or (e) of this section, or consolidate forms or reports for administrative convenience, fiscal savings, or to reduce the burden of reporting requirements; provided that:

(1) Reporting forms shall be sent to all physicians licensed in this State at least once every year; and

(2) The public report in subsection (e) shall be issued at least once every year.

(g) If the department fails to issue the public report required by subsection (e), any group of ten or more residents of this State may seek an injunction in a court of competent jurisdiction against the department requiring that a complete report be issued within a period stated by court order. Failure to abide by such an injunction shall subject the director of health to sanctions for civil contempt.

(h) If judgment is rendered in favor of the plaintiff in any action brought under this section, the court shall also render judgment for a reasonable attorney's fee in favor of the plaintiff against the defendant. If judgment is rendered in favor of the defendant and the court finds that the plaintiff's suit was frivolous and brought in bad faith, the court shall render judgment for a reasonable attorney's fee in favor of the defendant against the plaintiff."

SECTION 2. If any provision of this Act, or the application thereof to any person or circumstance is held invalid, the invalidity does not affect other provisions or applications of the Act, which can be given effect without the invalid provision or application, and to this end the provisions of this Act are severable.

SECTION 3. This Act does not affect rights and duties that matured, penalties that were incurred, and proceedings that were begun, before its effective date.

SECTION 4. This Act shall take effect upon its approval.

INTRODUCED BY:

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