Report Title:

Abortion; Parental Consent

 

 

Description:

Prohibits physician from performing an abortion on a minor unless the minor's parents or guardian consent, a family court authorizes the minor to consent, or the physician concludes that a medical emergency exists and there is insufficient time to obtain consent.

 

 


HOUSE OF REPRESENTATIVES

H.B. NO.

788

TWENTY-FOURTH LEGISLATURE, 2007

 

STATE OF HAWAII

 

 

 

 

 

 

A BILL FOR AN ACT


 

 

RELAtinG to PARENTAL CONSENT BEFORE AN ABORTION MAY BE PERFORMED ON A MINOR.

 

 

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 CONSENT TO ABORTION

     §A-1  Definitions.  In this chapter:

     "Abortion" means the use of any means to terminate the pregnancy of a female known by the attending physician to be pregnant, with the intention that the termination of the pregnancy by those means will cause, with reasonable likelihood, the death of the fetus.

     "Director" means the director of health.

     "Fetus" means an individual human organism from fertilization until birth.

     "Guardian" means a court-appointed guardian of the person of the minor.

     "Medical emergency" means a condition that, on the basis of a physician's good faith clinical judgment, complicates the medical condition of a pregnant woman and necessitates the immediate abortion of her pregnancy to avert her death or to avoid a serious risk of substantial and irreversible impairment of a major bodily function.

     "Physician" means an individual licensed to practice medicine in this State.

     §A-2  Parental consent.  (a)  A physician may not perform an abortion on a pregnant minor unless:

          (1)  A parent or guardian of the minor consents to the abortion;

          (2)  The judge of a family court having jurisdiction over the minor or the intermediate appellate court issues an order authorizing the minor to consent to the abortion as provided by section ‑3 or    ‑4;

          (3)  A family court or the intermediate appellate court, by its inaction, constructively authorizes the minor to consent to the abortion as provided by section     ‑3 or    ‑4; or

          (4)  The physician performing the abortion:

                   (A)  Concludes that a medical emergency exists and there is insufficient time to obtain the consent required by subsection (a)(1); and

                   (B)  Certifies in writing to the director and in the patient's medical record the medical indications supporting the physician's judgment that a medical emergency exists and that there is insufficient time to obtain the required consent.

     (b)  The director shall prepare a form to be used for making the certification required by subsection (a)(4).

     (c)  A physician who violates this section shall be guilty of a misdemeanor.

     §A-3  Judicial approval.  (a)     A pregnant minor who wishes to have an abortion without the consent of either of her parents or her guardian may file an application for a court order authorizing the minor to consent to the performance of an abortion without the consent of either of her parents or guardian.

     (b)  The application may be filed in the family court having jurisdiction for:

          (1)  The county in which the minor resides; or

          (2)  The county in which the hospital, clinic, or facility in which the abortion would be performed is located.

     (c)  The application shall be made under oath and include:

          (1)  A statement that the minor is pregnant;

          (2)  A statement that the minor is unmarried and is under eighteen years of age;

          (3)  A statement that the minor wishes to have an abortion without the consent of either of her parents or a guardian; and

          (4)  A statement as to whether the minor has retained an attorney and, if she has retained an attorney, the name, address, and telephone number of her attorney.

     (d)  The court shall appoint a guardian ad litem for the minor.  If the minor has not retained an attorney, the court shall appoint an attorney to represent the minor.  If the guardian ad litem is an attorney admitted to the practice of law in this State, the court may appoint the guardian ad litem to serve as the minor's attorney.

     (e)  The court shall fix a time for a hearing on an application filed under subsection (a) and shall keep a record of all testimony and other oral proceedings in the action.  The court shall enter judgment on the application immediately after the hearing is concluded.

     (f)  The court shall rule on an application submitted under this section and shall issue written findings of fact and conclusions of law not later than 5:00 p.m. on the second business day after the date the application is filed with the court.  The minor may request an extension of that period.  If the court does not rule on the application and issue written findings of fact and conclusions of law within the specified period and an extension was not requested, the application is granted and the physician may perform the abortion as if the court had issued an order authorizing the minor to consent to the performance of the abortion.  The court shall give proceedings under this section precedence over other pending matters to the extent necessary to ensure that the court reaches a decision promptly.

     (g)  The court shall determine by a preponderance of the evidence whether requiring that consent would not be in the best interest of the minor.  If the court finds that the minor is mature and sufficiently well-informed or that requiring consent would not be in the minor's best interest, the court shall enter an order authorizing the minor to consent to the performance of the abortion without the consent of either of her parents or a guardian and execute the required forms.

     (h)  If the court finds that the minor does not meet the requirements of subsection (g), the court may not authorize the minor to consent to an abortion without the consent required by section    ‑2(a)(1).

     (i)  The court may not notify a parent or guardian that the minor is pregnant or that the minor wants to have an abortion.  The court proceedings shall be conducted in a manner that protects the anonymity of the minor.  The application and all other court documents pertaining to the proceedings are confidential and may not be made available to the public.  The minor may file the application using a pseudonym or using only her initials.

     (j)  The clerk of the family court shall prescribe the application form to be used by the minor filing an application under this section.

     (k)  A filing fee is not required of, and court costs may not be assessed against, a minor filing an application under this section.

     §   -4  Appeal to intermediate appellate court.  (a) A minor whose application under section    -3 is denied may appeal to the intermediate appellate court of this State.  On receipt of a notice of appeal, the clerk of the court that denied the application shall deliver a copy of the notice of appeal and record on appeal to the clerk of the intermediate appellate court.  On receipt of the notice and a record, the clerk of the intermediate appellate court shall place the appeal on the docket of the court.

     (b)  The intermediate appellate court shall rule on an appeal under this section not later than 5:00 p.m. on the second business day after the date the notice of appeal is filed.  The minor may request an extension of that period.  If the court does not rule on the appeal within the specified period and an extension was not requested, the appeal is granted and the physician may perform the abortion as if the court had issued an order authorizing the minor to consent to the performance of the abortion.  The intermediate appellate court shall give proceedings under this section precedence over other pending matters to the extent necessary to ensure that the court reaches a decision promptly.

     (c)  The clerk of the intermediate appellate court shall prescribe the notice of appeal form to be used by the minor appealing a judgment under this section.

     (d)  A filing fee is not required of, and court costs may not be assessed against, a minor filing an appeal under this section.

     (e)  A minor filing an appeal under this section may not be required to post an appeal bond."

     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 shall take effect upon its approval.

 

 

INTRODUCED BY:

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