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S1483......................................................by STATE AFFAIRS ABORTION - PARENTAL CONSENT - Adds to, amends and repeals existing law relating to abortion to revise a public records exemption; to provide for criminal act state of mind; to define terms; to provide procedures for obtaining consent for abortions for minors; to provide for reporting by courts; and to provide for statistical records. 03/27 Senate intro - 1st rdg - to printing 03/28 Rpt prt - to St Aff
]]]] LEGISLATURE OF THE STATE OF IDAHO ]]]] Fifty-eighth Legislature Second Regular Session - 2006IN THE SENATE SENATE BILL NO. 1483 BY STATE AFFAIRS COMMITTEE 1 AN ACT 2 RELATING TO ABORTION; REPEALING CHAPTER 393, LAWS OF 2005, RELATING TO ABOR- 3 TION; AMENDING SECTION 9-340G, IDAHO CODE, TO REVISE A PUBLIC RECORDS 4 EXEMPTION AND TO PROVIDE FOR A CORRECT CODE REFERENCE; AMENDING SECTION 5 18-604, IDAHO CODE, TO REVISE DEFINITIONS AND TO DEFINE ADDITIONAL TERMS; 6 AMENDING SECTION 18-605, IDAHO CODE, TO PROVIDE FOR CRIMINAL ACT STATE OF 7 MIND; REPEALING SECTION 18-609A, IDAHO CODE, RELATING TO CONSENT REQUIRED 8 FOR ABORTIONS FOR MINORS; AMENDING CHAPTER 6, TITLE 18, IDAHO CODE, BY THE 9 ADDITION OF NEW SECTIONS 18-609A, 18-609F AND 18-609G, IDAHO CODE, TO PRO- 10 VIDE PROCEDURES FOR OBTAINING CONSENT FOR ABORTIONS FOR MINORS, TO PROVIDE 11 FOR REPORTING BY COURTS AND TO PROVIDE FOR STATISTICAL RECORDS; PROVIDING 12 SEVERABILITY; AND DECLARING AN EMERGENCY. 13 Be It Enacted by the Legislature of the State of Idaho: 14 SECTION 1. That Chapter 393, Laws of 2005, be, and the same is hereby 15 repealed. 16 SECTION 2. That Section 9-340G, Idaho Code, be, and the same is hereby 17 amended to read as follows: 18 9-340G. EXEMPTION FROM DISCLOSURE -- RECORDS OF COURT PROCEEDINGS REGARD- 19 ING JUDICIAL AUTHORIZATION OF ABORTION PROCEDURES FOR MINORS. In accordance 20 with section 18-609A, Idaho Code, the following records are exempt from public 21 disclosure: all records contained in court files of judicial proceedings 22regarding judicial authorization of a minor's consent to an abortion or the23performance of abortion procedures upon a minor who would otherwise have to24obtain consent for the procedure from a parent or guardian, in addition to25records of any judicial proceedings filedarising under section 18-609A(3), 26 Idaho Code, are exempt from disclosure. 27 SECTION 3. That Section 18-604, Idaho Code, be, and the same is hereby 28 amended to read as follows: 29 18-604. DEFINITIONS. As used in this act: 30 (1) "Abortion" means theintentional termination of human pregnancy for31purposes other than delivery of a viable birthuse of any means to intention- 32 ally terminate the clinically diagnosable pregnancy of a woman with knowledge 33 that the termination by those means will, with reasonable likelihood, cause 34 the death of the unborn child except that, for the purposes of this chapter, 35 abortions shall not mean the use of an intrauterine device or birth control 36 pill to inhibit or prevent ovulations, fertilization or the implantation of a 37 fertilized ovum within the uterus. 38 (2) "Department" means the Idaho department of health and welfare. 39 (3) "Emancipated" means any minor who has been married or is in active 40 military service. 2 1 (4) "Fetus" and "unborn child." Each term means an individual organism of 2 the species homo sapiens from fertilization until live birth. 3 (5) "First trimester of pregnancy" means the first thirteen (13) weeks of 4 a pregnancy. 5 (36) "Hospital" means an acute care, general hospital in this state, 6 licensed as provided in chapter 13, title 39, Idaho Code. 7 (47) "Informed consent" means a voluntary and knowing decision to undergo 8 a specific procedure or treatment. To be voluntary, the decision must be made 9 freely after sufficient time for contemplation and without coercion by any 10 person. To be knowing, the decision must be based on the physician's accurate 11 and substantially complete explanation of each fact pertinent to making the 12 decision. Facts pertinent to making the decision shall include, but not be 13 limited to: 14 (a) A description of any proposed treatment or procedure; 15 (b) Any reasonably foreseeable complications and risks to the patient 16 from such procedure, including those related tofuturereproductive 17 health;and18 (c) The manner in which such procedure and its foreseeable complications 19 and risks compare with those of each readily available alternative to such 20 procedure, including childbirth and adoption; and 21 (d) An objective, nonjudgmental and scientifically accurate description 22 of the probable anatomical and physiological characteristics of the unborn 23 child. 24 The physician must provide the information in terms which can be understood by 25 the person making the decision, with consideration of age, level of maturity 26 and intellectual capability. 27 (8) "Medical emergency" means a condition which, on the basis of the 28 physician's good faith clinical judgment, so complicates the medical condition 29 of a pregnant woman as to necessitate the immediate abortion of her pregnancy 30 to avert her death or for which a delay will create serious risk of substan- 31 tial and irreversible impairment of a major bodily function. 32 (9) "Minor" means a woman less than eighteen (18) years of age. 33 (10) "Pregnant" and "pregnancy." Each term shall mean the reproductive 34 condition of having a developing fetus in the body and commences with fertil- 35 ization. 36 (511) "Physician" means a person licensed to practice medicine and surgery 37 or osteopathic medicine and surgery in this state as provided in chapter 18, 38 title 54, Idaho Code. 39 (612) "Second trimester of pregnancy" means that portion of a pregnancy 40 following the thirteenth week and preceding the point in time when the fetus 41 becomes viable, and there is hereby created a legal presumption that the sec- 42 ond trimester does not end before the commencement of the twenty-fifth week of 43 pregnancy, upon which presumption any licensed physician may proceed in law- 44 fully aborting a patient pursuant to section 18-608, Idaho Code, in which case 45 the same shall be conclusive and unrebuttable in all civil or criminal pro- 46 ceedings. 47 (713) "Third trimester of pregnancy" means that portion of a pregnancy 48 from and after the point in time when the fetus becomes viable. 49 (814) Any reference to a viable fetus shall be construed to mean a fetus 50 potentially able to live outside the mother's womb, albeit with artificial 51 aid. 52 SECTION 4. That Section 18-605, Idaho Code, be, and the same is hereby 53 amended to read as follows: 3 1 18-605. UNLAWFUL ABORTIONS -- PROCUREMENT OF -- PENALTY. (1) Every person 2 not licensed or certified to provide health care in Idaho who knowingly, 3 except as permitted by this chapter, provides, supplies or administers any 4 medicine, drug or substance to any woman or uses or employs any instrument or 5 other means whatever upon any then-pregnant woman with intent thereby to cause 6 or perform an abortion shall be guilty of a felony and shall be fined not to 7 exceed five thousand dollars ($5,000) and/or imprisoned in the state prison 8 for not less than two (2) and not more than five (5) years. 9 (2) Any person licensed or certified to provide health care pursuant to 10 title 54, Idaho Code, and who, except as permitted by the provisions of this 11 chapter, provides, supplies or administers any medicine, drug or substance to 12 any woman or uses or employs any instrument or other means whatever upon any 13 then-pregnant woman with intent to cause or perform an abortion shall: 14 (a) For the first violation, be subject to professional discipline and be 15 assessed a civil penalty of not less than one thousand dollars ($1,000), 16 payable to the board granting such person's license or certification; 17 (b) For the second violation, have their license or certification to 18 practice suspended for a period of not less than six (6) months and be 19 assessed a civil penalty of not less than two thousand five hundred dol- 20 lars ($2,500), payable to the board granting such person's license or cer- 21 tification; and 22 (c) For each subsequent violation, have their license or certification to 23 practice revoked and be assessed a civil penalty of not less than five 24 thousand dollars ($5,000), payable to the board granting such person's 25 license or certification. 26 (3) Any person who is licensed or certified to provide health care pursu- 27 ant to title 54, Idaho Code, and who knowingly violates the provisions of this 28 chapter is guilty of a felony punishable as set forth in subsection (1) of 29 this section, separate from and in addition to the administrative penalties 30 set forth in subsection (2) of this section. 31 SECTION 5. That Section 18-609A, Idaho Code, be, and the same is hereby 32 repealed. 33 SECTION 6. That Chapter 6, Title 18, Idaho Code, be, and the same is 34 hereby amended by the addition thereto of NEW SECTIONS, to be known and desig- 35 nated as Sections 18-609A, 18-609F and 18-609G, Idaho Code, and to read as 36 follows: 37 18-609A. CONSENT REQUIRED FOR ABORTIONS FOR MINORS. (1) A person shall 38 not knowingly perform an abortion on a pregnant unemancipated minor unless the 39 attending physician has secured the written consent from one (1) of the 40 minor's parents or the minor's guardian or conservator or unless a judge 41 authorizes the physician to perform the abortion pursuant to subsection (2) of 42 this section. 43 (2) A judge of the district court shall, on petition or motion, and after 44 an appropriate hearing, authorize a physician to perform the abortion if the 45 judge determines, by clear and convincing evidence, that the pregnant minor is 46 mature and capable of giving informed consent to the proposed abortion. If the 47 judge determines that the pregnant minor is not mature or if the pregnant 48 minor does not claim to be mature, the judge shall determine, by clear and 49 convincing evidence, whether the performance of an abortion on her without the 50 consent from one (1) of her parents or her guardian or conservator would be in 51 her best interests and shall authorize a physician to perform the abortion 52 without consent if the judge concludes that the pregnant minor's best inter- 4 1 ests would be served. 2 (3) The pregnant minor may participate in the court proceedings on her 3 own behalf. The court may appoint a guardian ad litem for her. The court shall 4 advise her that she has the right to court appointed counsel and shall, on her 5 request, provide her with counsel unless she appears through private counsel 6 or she knowingly and intelligently waives her right to counsel. 7 (4) Proceedings in the court under this section are confidential and have 8 precedence over other pending matters. Members of the public shall not 9 inspect, obtain copies of or otherwise have access to records of court pro- 10 ceedings under this section unless authorized by law. A judge who conducts 11 proceedings under this section shall make in writing specific factual find- 12 ings and legal conclusions supporting the decision and shall order a confiden- 13 tial record of the evidence to be maintained including the judge's own find- 14 ings and conclusions. The minor may file the petition using a fictitious name. 15 All records contained in court files of judicial proceedings arising under the 16 provisions of this section shall be confidential and exempt from disclosure 17 pursuant to section 9-340G, Idaho Code. Dockets and other court records shall 18 be maintained and court proceedings undertaken so that the names and identi- 19 ties of the parties to actions brought pursuant to this section will not be 20 disclosed to the public. 21 (5) The court shall hold the hearing within forty-eight (48) hours, 22 excluding weekends and holidays, after the petition is filed, and shall issue 23 its ruling at the conclusion of the hearing. If the court fails to issue its 24 ruling at the conclusion of the hearing, the petition is deemed to have been 25 granted and the consent requirement is waived. 26 (6) An expedited confidential appeal is available to a pregnant minor for 27 whom the court denies an order authorizing an abortion without parental con- 28 sent. A minor shall file her notice of appeal within forty-eight (48) hours, 29 excluding weekends and holidays, after her petition was denied by the district 30 court. The appellate court shall hold the hearing within forty-eight (48) 31 hours, excluding weekends and holidays, after the notice of appeal is filed 32 and shall issue its ruling at the conclusion of the hearing. Filing fees are 33 not required of the pregnant minor at either the district court or the appel- 34 late level. 35 (7) Parental consent or judicial authorization is not required under this 36 section if either: 37 (a) The pregnant minor certifies to the attending physician that the 38 pregnancy resulted from rape as defined in section 18-6101, Idaho Code, 39 excepting subsection 1. thereof, or sexual conduct with the minor by the 40 minor's parent, stepparent, uncle, grandparent, sibling, adoptive parent, 41 legal guardian or foster parent. The physician performing the abortion 42 shall report the sexual conduct with a minor to the proper law enforcement 43 officials pursuant to section 16-1605, Idaho Code, and shall preserve and 44 forward a sample of the fetal tissue to these officials for use in a crim- 45 inal investigation. 46 (b) A medical emergency exists for the minor and the attending physician 47 records the symptoms and diagnosis upon which such judgment was made in 48 the minor's medical record. 49 (8) A person is not subject to any liability for a violation of subsec- 50 tion (1) of this section if the person establishes that the person relied on 51 reasonable written evidence that the representations of the pregnant minor 52 regarding information necessary to comply with this section are true. 53 18-609F. REPORTING BY COURTS. The administrative director of the courts 54 shall compile statistics for each calendar year, accessible to the public, 5 1 including: 2 (1) The total number of petitions filed pursuant to section 18-609A, 3 Idaho Code; and 4 (2) The number of such petitions filed where a guardian ad litem was 5 requested and the number where a guardian ad litem or other person acting in 6 such capacity was appointed; and 7 (3) The number of petitions where counsel appeared for the minor without 8 court appointment; and 9 (4) The number of petitions where counsel was requested by the minor and 10 the number where counsel was appointed by the court; and 11 (5) The number of such petitions for which the right to self-consent was 12 granted; and 13 (6) The number of such petitions for which the court granted its 14 informed consent; and 15 (7) The number of such petitions which were denied; and 16 (8) The number of such petitions which were withdrawn by the minor; and 17 (9) For categories described in subsections (3), (4) and (7) of this sec- 18 tion, the number of appeals taken from the court's order in each category; and 19 (10) For each of the categories set out in subsection (9) of this section, 20 the number of cases for which the district court's order was affirmed and the 21 number of cases for which the district court's order was reversed; and 22 (11) The age of the minor for each petition; and 23 (12) The time between the filing of the petition and the hearing of each 24 petition; and 25 (13) The time between the hearing and the decision by the court for each 26 petition; and 27 (14) The time between the decision and filing a notice of appeal for each 28 case, if any; and 29 (15) The time of extension granted by the court in each case, if any. 30 18-609G. STATISTICAL RECORDS. (1) The vital statistics unit of the 31 department of health and welfare shall, in addition to other information 32 required pursuant to section 39-261, Idaho Code, require the complete and 33 accurate reporting of information relevant to each abortion performed upon a 34 minor which shall include, at a minimum, the following: 35 (a) Whether the abortion was performed following the physician's receipt 36 of: 37 (i) The written informed consent of a parent and the minor; or 38 (ii) The written informed consent of an emancipated minor for her- 39 self; or 40 (iii) The written informed consent of a minor for herself pursuant to 41 a court order granting the minor the right to self-consent; or 42 (iv) The written informed consent of a court pursuant to an order 43 which includes a finding that the performance of the abortion, 44 despite the absence of the consent of a parent, is in the best inter- 45 ests of the minor; or 46 (v) The professional judgment of the attending physician that the 47 performance of the abortion was immediately necessary due to a medi- 48 cal emergency and there was insufficient time to obtain consent from 49 a parent or a court order. 50 (b) If the abortion was performed due to a medical emergency and without 51 consent from a parent or court order, the diagnosis upon which the attend- 52 ing physician determined that the abortion was immediately necessary due 53 to a medical emergency. 54 (2) The knowing failure of the attending physician to perform any one (1) 6 1 or more of the acts required under this section is grounds for discipline pur- 2 suant to section 54-1814(6), Idaho Code, and shall subject the physician to 3 assessment of a civil penalty of one hundred dollars ($100) for each month or 4 portion thereof that each such failure continues, payable to the vital statis- 5 tics unit of the department of health and welfare, but such failure shall not 6 constitute a criminal act. 7 SECTION 7. SEVERABILITY. If any one or more provision, section, subsec- 8 tion, sentence, clause, phrase or word of this act or the application thereof 9 to any person or circumstance, or application to any other section of Idaho 10 Code is found to be unconstitutional, the same is hereby declared to be sever- 11 able and the balance of this act shall remain effective notwithstanding such 12 unconstitutionality. The Legislature hereby declares that it would have passed 13 this act, and each provision, section, subsection, sentence, clause, phrase or 14 word thereof, irrespective of the fact that any one or more provision, sec- 15 tion, subsection, sentence, clause, phrase or word be declared unconstitu- 16 tional. 17 SECTION 8. An emergency existing therefor, which emergency is hereby 18 declared to exist, this act shall be in full force and effect on and after its 19 passage and approval.
STATEMENT OF PURPOSE RS 16233C5 To amend Idaho's law requiring a parent's consent for a minor to obtain an abortion to resolve issues which have been held unconstitutional by federal courts or otherwise cause concern regarding constitutionality. This legislation adopts Arizona's parental consent statute which has been upheld by the Ninth Circuit Court of Appeals. FISCAL NOTE None. Contact Name: Senator Russ Fulcher, Representative Bill Sali, Representative Lawrence Denney Phone: 332-1000 STATEMENT OF PURPOSE/FISCAL NOTE S 1483