2001 Legislation
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HOUSE BILL NO. 340 – Abortion, penalties, minors/court

HOUSE BILL NO. 340

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H0340......................................................by STATE AFFAIRS
ABORTION - Amends, repeals and adds to existing law to revise penalties
relating to unlawful abortions; to provide that a petition may be filed in
the county where a minor resides or in the county where the abortion is
caused or performed; to provide for initiation of an investigation or
filing of an information, complaint or petition against a person other than
the petitioner, based upon certain allegations of which the court is made
aware during a petition hearing; to provide that if a minor would have been
privileged to withhold information or evidence that was required as proof
under Section 18-609A, Idaho Code, then her answers given, evidence
produced and information directly or indirectly derived from her answers
may not be used against her in a criminal case except that she may be
prosecuted or subjected to penalty or forfeiture for any perjury, false
swearing or contempt committed in answering, failing to answer or producing
or failing to produce evidence as required by the court; and to provide
defenses to prosecution.
                                                                        
02/28    House intro - 1st rdg - to printing
03/01    Rpt prt - to St Aff
03/05    Rpt out - rec d/p - to 2nd rdg
03/06    2nd rdg - to 3rd rdg
03/08    3rd rdg - PASSED - 66-2-2
      AYES -- Barraclough, Barrett, Bedke, Bell, Bieter, Black, Boe, Bolz,
      Bradford, Bruneel, Callister, Campbell, Chase, Clark, Collins, Crow,
      Cuddy, Deal, Denney, Ellis, Ellsworth, Eskridge, Field(13),
      Field(20), Gagner, Gould, Hadley, Hammond, Harwood, Henbest, Higgins,
      Hornbeck, Jones, Kellogg, Kendell, Kunz, Lake, Langford, Loertscher,
      Mader, Marley, McKague, Meyer, Montgomery, Mortensen, Moss, Moyle,
      Pearce, Pischner, Pomeroy, Raybould, Ridinger, Roberts, Robison,
      Sali, Schaefer, Shepherd, Smylie, Stevenson, Swan, Tilman, Trail,
      Wheeler, Wood, Young, Mr. Speaker
      NAYS -- Jaquet, Stone
      Absent and excused -- Sellman, Smith
    Floor Sponsor -- Kunz
    Title apvd - to Senate
03/09    Senate intro - 1st rdg - to St Aff
03/19    Rpt out - rec d/p - to 2nd rdg
03/20    2nd rdg - to 3rd rdg
03/21    3rd rdg - PASSED - 23-10-2
      AYES -- Andreason, Boatright, Branch, Brandt, Bunderson, Burtenshaw,
      Cameron, Darrington, Davis, Frasure, Geddes, Goedde, Hawkins, Ipsen,
      King-Barrutia, Lee, Lodge, Richardson, Risch, Sandy, Thorne, Wheeler,
      Williams,
      NAYS -- Deide, Dunklin, Ingram, Keough, Noh, Schroeder, Sims,
      Stegner, Stennett, Whitworth
      Absent and excused -- Danielson, Sorensen
    Floor Sponsor -- King-Barrutia
    Title apvd - to House
03/22    To enrol - rpt enrol - Sp signed
03/23    Pres signed
03/26    To Governor
03/31    Governor signed
         Session Law Chapter 277
         Effective: 07/01/01

Bill Text


                                                                        
                                                                        
  ||||              LEGISLATURE OF THE STATE OF IDAHO             ||||
 Fifty-sixth Legislature                  First Regular Session - 2001
                                                                        
                                                                        
                              IN THE HOUSE OF REPRESENTATIVES
                                                                        
                                     HOUSE BILL NO. 340
                                                                        
                                 BY STATE AFFAIRS COMMITTEE
                                                                        
  1                                        AN ACT
  2    RELATING TO ABORTIONS; AMENDING SECTION 18-605, IDAHO CODE, TO  REVISE  PENAL-
  3        TIES  RELATING  TO  UNLAWFUL  ABORTIONS AND TO MAKE TECHNICAL CORRECTIONS;
  4        AMENDING SECTION 18-609A, IDAHO CODE, TO PROVIDE THAT A  PETITION  MAY  BE
  5        FILED  IN THE COUNTY WHERE THE MINOR RESIDES OR THE COUNTY WHERE THE ABOR-
  6        TION IS CAUSED OR PERFORMED, TO PROVIDE FOR INITIATION OF AN INVESTIGATION
  7        OR FILING OF AN INFORMATION, COMPLAINT OR PETITION AGAINST A PERSON  OTHER
  8        THAN  THE  PETITIONER BASED UPON CERTAIN ALLEGATIONS OF WHICH THE COURT IS
  9        MADE AWARE DURING A PETITION HEARING AND TO PROVIDE THAT IF A MINOR  WOULD
 10        HAVE BEEN PRIVILEGED TO WITHHOLD INFORMATION OR EVIDENCE THAT WAS REQUIRED
 11        AS  PROOF  UNDER SECTION 18-609A, IDAHO CODE, THEN HER ANSWERS GIVEN, EVI-
 12        DENCE PRODUCED AND INFORMATION DIRECTLY OR  INDIRECTLY  DERIVED  FROM  HER
 13        ANSWERS MAY NOT BE USED AGAINST HER IN A CRIMINAL CASE EXCEPT THAT SHE MAY
 14        BE PROSECUTED OR SUBJECTED TO PENALTY OR FORFEITURE FOR ANY PERJURY, FALSE
 15        SWEARING  OR CONTEMPT COMMITTED IN ANSWERING, FAILING TO ANSWER OR PRODUC-
 16        ING OR FAILING TO PRODUCE EVIDENCE AS REQUIRED  BY  THE  COURT;  REPEALING
 17        SECTION  18-614, IDAHO CODE; AND AMENDING CHAPTER 6, TITLE 18, IDAHO CODE,
 18        BY THE ADDITION OF A NEW  SECTION  18-614,  IDAHO  CODE,  TO  PROVIDE  FOR
 19        DEFENSES TO PROSECUTION.
                                                                        
 20    Be It Enacted by the Legislature of the State of Idaho:
                                                                        
 21        SECTION  1.  That  Section  18-605, Idaho Code, be, and the same is hereby
 22    amended to read as follows:
                                                                        
 23        18-605.  UNLAWFUL ABORTIONS -- PROCUREMENT OF -- PENALTY. (1) Every person
 24    not licensed or certified to provide health care in Idaho who, except as  per-
 25    mitted  by  this  act chapter, provides, supplies or administers any medicine,
 26    drug or substance to any woman or uses or  employs  any  instrument  or  other
 27    means  whatever  upon  any  then-pregnant woman with intent thereby to produce
 28    cause or perform an abortion shall be guilty of a felony and  shall  be  fined
 29    not  to  exceed  five thousand dollars ($5,000) and/or imprisoned in the state
 30    prison for not less than two (2) and not more than five (5) years.
 31        (2)  Any person licensed or certified to provide health care  pursuant  to
 32    title  54,  Idaho Code, and who, except as permitted by the provisions of this
 33    chapter, provides, supplies or administers any medicine, drug or substance  to
 34    any  woman  or uses or employs any instrument or other means whatever upon any
 35    then-pregnant woman with intent to cause or perform an abortion shall:
 36        (a)  For the first violation, be subject to professional discipline and be
 37        assessed a civil penalty of not less than one thousand  dollars  ($1,000),
 38        payable to the board granting such person's license or certification;
 39        (b)  For  the  second  violation,  have  their license or certification to
 40        practice suspended for a period of not less than six  (6)  months  and  be
 41        assessed  a  civil penalty of not less than two thousand five hundred dol-
 42        lars ($2,500), payable to the board granting such person's license or cer-
 43        tification; and
                                                                        
                                           2
                                                                        
  1        (c)  For each subsequent violation, have their license or certification to
  2        practice revoked and be assessed a civil penalty of  not  less  than  five
  3        thousand  dollars  ($5,000),  payable  to the board granting such person's
  4        license or certification.
  5        (3)  Any person who is licensed or certified to provide health care pursu-
  6    ant to title 54, Idaho Code, and who knowingly violates the provisions of this
  7    chapter is guilty of a felony punishable as set forth  in  subsection  (1)  of
  8    this  section,  separate  from and in addition to the administrative penalties
  9    set forth in subsection (2) of this section.
                                                                        
 10        SECTION 2.  That Section 18-609A, Idaho Code, be, and the same  is  hereby
 11    amended to read as follows:
                                                                        
 12        18-609A.  CONSENT REQUIRED FOR ABORTIONS FOR MINORS.
 13        (1)  (a)  No  person  shall  knowingly cause or perform an abortion upon a
 14        minor unless:
 15             (i)   The attending physician has secured the written  informed  con-
 16             sent  of  the  minor  and the written informed consent of the minor's
 17             parent; or
 18             (ii)  The minor  is  emancipated  and  the  attending  physician  has
 19             received  written  proof  of  emancipation  and  the  minor's written
 20             informed consent; or
 21             (iii) The minor has been granted the right  of  self-consent  to  the
 22             abortion  by court order pursuant to paragraph (b) of this subsection
 23             and the attending physician has received the minor's written informed
 24             consent; or
 25             (iv)  A court has found that the causing or performing of  the  abor-
 26             tion,  despite the absence of informed consent of a parent, is in the
 27             best interests of the minor and the court has issued an order, pursu-
 28             ant to paragraph (b)(iv)2. of this  subsection,  granting  permission
 29             for  the causing or performing of the abortion, and the minor is hav-
 30             ing the abortion willingly, pursuant to paragraph (f) of this subsec-
 31             tion; or
 32             (v)   A medical emergency exists for the minor so urgent  that  there
 33             is insufficient time for the physician to obtain the informed consent
 34             of  a  parent  or a court order and the attending physician certifies
 35             such in the pregnant minor's medical records. In so  certifying,  the
 36             attending physician must include the factual circumstances supporting
 37             his  professional  judgment  that a medical emergency existed and the
 38             grounds for the determination that there  was  insufficient  time  to
 39             obtain the informed consent of a parent or a court order. Immediately
 40             after  an  abortion  pursuant to this paragraph, the physician shall,
 41             with due diligence, attempt to provide a parent of  an  unemancipated
 42             minor  actual  notification  of  the medical emergency. If the parent
 43             cannot be immediately contacted for  such  actual  notification,  the
 44             physician  shall, with due diligence, attempt to provide actual noti-
 45             fication to a parent for an eight (8) hour period following the caus-
 46             ing or performing of the abortion and shall, until a parent  receives
 47             such notification, ensure that the minor's postabortion medical needs
 48             are met. Notwithstanding the above, a physician shall, within twenty-
 49             four (24) hours of causing or performing an abortion pursuant to this
 50             paragraph, provide actual notification of the medical emergency by:
 51                  1.  Conferring  with a parent or agent designated by the parent,
 52                  and providing any additional information needed for the  minor's
 53                  proper  care,  and,  as soon as practicable thereafter, securing
                                                                        
                                           3
                                                                        
  1                  the parent's written acknowledgement of receipt of such  notifi-
  2                  cation and information; or
  3                  2.  Providing   such   actual   notification  in  written  form,
  4                  addressed to the parent at the usual place of abode of the  par-
  5                  ent  and  delivered personally to the parent by the physician or
  6                  an agent with written acknowledgement of  such  receipt  by  the
  7                  parent returned to the physician; or
  8                  3.  Providing such actual notification in written form and mail-
  9                  ing  it  by certified mail, addressed to the parent at the usual
 10                  place of abode of the parent with return  receipt requested  and
 11                  restricted  delivery  to the addressee so that a postal employee
 12                  can only deliver the notice to the authorized addressee.
 13                  For  the  purposes  of  this  section,   "actual   notification"
 14             includes,  but  is  not  limited to, a statement that an abortion was
 15             caused or performed, a description of the factual circumstances  sup-
 16             porting  the  physician's judgment that the medical emergency existed
 17             and a statement of the grounds for the determination that  there  was
 18             insufficient  time  to  obtain  the informed consent of a parent or a
 19             court order.
 20                  If the physician causing or performing such abortion  reasonably
 21             believes  that the minor is homeless or abandoned so that the parents
 22             cannot be readily found or that  the  minor  has  suffered  abuse  or
 23             neglect such that the minor's physical safety would be jeopardized if
 24             a parent were notified that the abortion was caused or performed, the
 25             physician  shall,  in  lieu  of notifying a parent as required above,
 26             make a report  to  a  law  enforcement  agency  pursuant  to  section
 27             16-1619,  Idaho  Code, and a petition shall be filed pursuant to sec-
 28             tion 16-1605, Idaho Code, which petition shall include a reference to
 29             this code section. Upon adjudication that the minor comes within  the
 30             purview  of  chapter 16, title 16, Idaho Code, either on the basis of
 31             homelessness or abandonment such that no parent can be found,  or  on
 32             the  basis  of abuse or neglect such that the minor's physical safety
 33             would be in jeopardy if a parent were notified that the abortion  was
 34             performed,  the court shall, as a part of the decree, also order that
 35             the physician's duty to so notify a parent is relieved. In any  other
 36             event,  unless  the court enters a finding that the best interests of
 37             the child require withholding notice to a  parent,  the  court  shall
 38             order  that a parent receive actual notification of the medical emer-
 39             gency and the causing or performing of the abortion.
 40        (b)  A proceeding for the right of a minor to self-consent to an  abortion
 41        pursuant  to  paragraph  (a)(iii)  of this subsection or for a court order
 42        pursuant to paragraph (a)(iv) of this subsection, may be adjudicated by  a
 43        court as follows:
 44             (i)   The  petition  shall  be  filed in the judicial district county
 45             where the minor resides or the county where the abortion is caused or
 46             performed. A minor shall have the legal capacity to make  and  prose-
 47             cute a petition and appeal as set out herein. A guardian ad litem may
 48             assist  the minor in preparing her petition and other documents filed
 49             pursuant to this section and may seek appointment as set forth below.
 50             A guardian ad litem, whether prospective or  appointed,  must  be  an
 51             attorney properly licensed in this state. The court shall ensure that
 52             the  minor is given assistance in filing the petition if the minor so
 53             desires a guardian ad litem but no qualified  guardian  ad  litem  is
 54             available.
 55             (ii)  The petition shall set forth:
                                                                        
                                           4
                                                                        
  1                  1.  The initials of the minor;
  2                  2.  The age of the minor;
  3                  3.  The  name  and  address of each parent, guardian, or, if the
  4                  minor's parents are deceased or the minor is  abandoned  and  no
  5                  guardian  has  been appointed, the name and address of any other
  6                  person standing in loco parentis of the minor;
  7                  4.  That the minor has been fully informed of the risks and con-
  8                  sequences of the abortion procedure to be performed;
  9                  5.  A claim that the minor is mature, of sound mind and has suf-
 10                  ficient intellectual capacity to consent  to  the  abortion  for
 11                  herself;
 12                  6.  A  claim  that,  if  the  court does not grant the minor the
 13                  right to self-consent  to the abortion, the  court  should  find
 14                  that  causing or performing the abortion, despite the absence of
 15                  the consent of a parent, is in the best interest  of  the  minor
 16                  and give judicial consent to the abortion; and
 17                  7.  If so desired by the minor, a request that the court appoint
 18                  a  guardian ad litem, or, alternatively, if no guardian ad litem
 19                  is requested, that the court should consider whether appointment
 20                  of a guardian ad litem for the minor is appropriate.
 21                  The petition shall be signed  by  the  minor  and,  if  she  has
 22             received assistance from a prospective guardian ad litem in preparing
 23             the petition, by the guardian ad litem.
 24             (iii) A  hearing  on the merits of the petition shall be held as soon
 25             as practicable but in no event later than five (5) days from the fil-
 26             ing of the petition. The petition shall be heard by a district  judge
 27             on  the  record  in  a  closed  session of the court. The court shall
 28             appoint a qualified guardian  ad  litem  for  the  minor  if  one  is
 29             requested  in  the  petition.  If  no  qualified guardian ad litem is
 30             available, the court may appoint some other  person  to  act  in  the
 31             capacity  of  a  guardian ad litem, who shall act to fulfill the pur-
 32             poses of this section  and  protect  the  confidentiality  and  other
 33             rights of the minor.
 34                  At the hearing, the court shall, after establishing the identity
 35             of  the  minor,  hear evidence relating to the emotional development,
 36             maturity, intellect and understanding of the minor; the nature of the
 37             abortion procedure to be performed  and  the  reasonably  foreseeable
 38             complications  and  risks to the minor from such procedure, including
 39             those related to future childbearing; the available  alternatives  to
 40             the abortion; the relationship between the minor and her parents; and
 41             any  other  evidence  that the court may find relevant in determining
 42             whether the minor should be granted the right to self-consent to  the
 43             abortion  or  whether the court's consent to causing or performing of
 44             the abortion, despite the absence of consent of a parent, is  in  the
 45             best interests of the minor.
 46             (iv)  The  order  shall  be entered as soon as practicable, but in no
 47             event later than five (5) days after the conclusion of  the  hearing.
 48             If, by clear and convincing evidence, the court finds the allegations
 49             of  the  petition  to be true and sufficient to establish good cause,
 50             the court shall:
 51                  1.  Find the minor sufficiently mature to decide whether to have
 52                  the abortion and grant the petition and give the minor the right
 53                  of self-consent to the abortion, setting forth the  grounds  for
 54                  so finding; or
 55                  2.  Find the performance of the abortion, despite the absence of
                                                                        
                                           5
                                                                        
  1                  the  consent  of a parent, is in the best interests of the minor
  2                  and give judicial consent to the  abortion,  setting  forth  the
  3                  grounds for so finding.
  4                  If the court does not find the allegations of the petition to be
  5             true  or  if  good cause does not appear from the evidence heard, the
  6             court shall deny the petition, setting forth the grounds on which the
  7             petition is denied.
  8                  If, in hearing the petition, the court becomes aware of  allega-
  9             tions  which, if true, would constitute a violation of any section of
 10             title 18, Idaho Code, by a person other than the petitioner, or would
 11             bring a child within the purview of chapter 16, title 16, Idaho Code,
 12             the court shall order, upon entry of final judgment in the proceeding
 13             under this subsection, that an appropriate investigation be initiated
 14             or an appropriate information, complaint or petition be  filed.  Such
 15             allegations  shall  be  forwarded by the court with due consideration
 16             for the confidentiality of the proceedings under  this  section.  If,
 17             but  for the requirements for proof as set forth in this section, the
 18             minor would have been  privileged to withhold  information  given  or
 19             evidence  produced by her, the answers given or evidence produced and
 20             any information directly or indirectly derived from her  answers  may
 21             not  be  used  against  the  minor  in any manner in a criminal case,
 22             except that she may nevertheless be prosecuted or subjected  to  pen-
 23             alty  or  forfeiture for any perjury, false swearing or contempt com-
 24             mitted in answering or failing to answer, or in producing or  failing
 25             to produce, evidence as required by the court.
 26        (c)  A  notice of appeal from an order issued under the provisions of this
 27        subsection shall be filed within two (2) days from the date of issuance of
 28        the order. The record on appeal shall be completed and the appeal shall be
 29        perfected as soon as practicable, but in no event later than five (5) days
 30        from the filing of notice of appeal. Because time may be  of  the  essence
 31        regarding  the  performance of the abortion, appeals pursuant to this sub-
 32        section shall receive expedited appellate review.
 33        (d)  Except for the time for filing  a  notice  of  appeal,  a  court  may
 34        enlarge  the  times  set forth pursuant to this subsection upon request of
 35        the minor or upon other good cause appearing, with due  consideration  for
 36        the expedited nature of these proceedings.
 37        (e)  No filing, appeal or other fees shall be charged for cases or appeals
 38        brought pursuant to this section.
 39        (f)  If a minor desires an abortion, then she shall be orally informed of,
 40        and,  if  possible,  sign the written consent required by this act, in the
 41        same manner as an adult person. No abortion shall be caused  or  performed
 42        on  any  minor  against her will, except that an abortion may be performed
 43        against the will of a minor pursuant to court order  if  the  abortion  is
 44        necessary to preserve the life of the minor.
 45        (g)  All  records contained in court files of judicial proceedings arising
 46        under the provisions of this subsection, and subsection (3) of  this  sec-
 47        tion, shall be confidential and exempt from disclosure pursuant to section
 48        9-340G,  Idaho  Code.  Dockets and other court records shall be maintained
 49        and court proceedings undertaken so that  the  names  of  the  parties  to
 50        actions brought pursuant to this section will not be disclosed to the pub-
 51        lic.
 52        (2)  The  administrative  director  of the courts shall compile statistics
 53    for each county for each calendar year, accessible to the public, including:
 54        (a)  The total number of petitions filed pursuant to paragraph (b) of sub-
 55        section (1) of this section; and
                                                                        
                                           6
                                                                        
  1        (b)  The number of such petitions filed where  a  guardian  ad  litem  was
  2        requested  and the number where a guardian ad litem or other person acting
  3        in such capacity was appointed; and
  4        (c)  The number of such petitions for which the right to self-consent  was
  5        granted; and
  6        (d)  The number of such petitions for which the court granted its informed
  7        consent; and
  8        (e)  The number of such petitions which were denied; and
  9        (f)  For  categories described in paragraphs (c), (d) and (e) of this sub-
 10        section, the number of appeals taken from the court's order in each  cate-
 11        gory; and
 12        (g)  For  each  of the categories set out in paragraph (f) of this subsec-
 13        tion, the number of  cases  for  which  the  district  court's  order  was
 14        affirmed  and the number of cases for which the district court's order was
 15        reversed.
 16        (3)  In addition to any other cause of  action  arising  from  statute  or
 17    otherwise, any person injured by the causing or performing of an abortion on a
 18    minor  in  violation of any of the requirements of paragraph (a) of subsection
 19    (1) of this section, shall have  a private right of action to recover all dam-
 20    ages sustained as a result of such violation, including reasonable  attorney's
 21    fees if judgment is rendered in favor of the plaintiff.
 22        (4)  Statistical records.
 23        (a)  The  vital  statistics  unit  of the department of health and welfare
 24        shall, in addition to  other  information  required  pursuant  to  section
 25        39-261,  Idaho Code, require the complete and accurate reporting of infor-
 26        mation relevant to each  abortion  performed  upon  a  minor  which  shall
 27        include, at a minimum, the following:
 28             (i)   Whether  the  abortion  was performed following the physician's
 29             receipt of:
 30                  1.  The written informed consent of a parent and the minor; or
 31                  2.  The written informed consent of  an  emancipated  minor  for
 32                  herself; or
 33                  3.  The written informed consent of a minor for herself pursuant
 34                  to  a  court order granting the minor the right to self-consent;
 35                  or
 36                  4.  The written informed consent of a court pursuant to an order
 37                  which includes a finding that the performance of  the  abortion,
 38                  despite  the  absence of the consent of a parent, is in the best
 39                  interests of the minor; or
 40                  5.  The professional judgment of the  attending  physician  that
 41                  the performance of the abortion was immediately necessary due to
 42                  a  medical  emergency  and there was insufficient time to obtain
 43                  consent from a parent or a court order.
 44             (ii)  If the abortion was performed due to a  medical  emergency  and
 45             without  consent  from  a  parent  or court order, the diagnosis upon
 46             which the attending physician determined that the abortion was  imme-
 47             diately necessary due to a medical emergency.
 48        (b)  The knowing failure of the attending physician to perform any one (1)
 49        or  more  of the acts required under this subsection is grounds for disci-
 50        pline pursuant to section 54-1814(6), Idaho Code, and  shall  subject  the
 51        physician  to  assessment of a civil penalty of one hundred dollars ($100)
 52        for each month or portion thereof that each such failure  continues,  pay-
 53        able  to the center for vital statistics and health policy, but such fail-
 54        ure shall not constitute a criminal act.
 55        (5)  As used in this section:
                                                                        
                                           7
                                                                        
  1        (a)  "Cause or perform an abortion" means  to  interrupt  or  terminate  a
  2        pregnancy  by any surgical or nonsurgical procedure or to induce a miscar-
  3        riage upon a minor known to be pregnant.
  4        (b)  "Emancipated" means any minor who has been married or  is  in  active
  5        military service.
  6        (c)  (i)  "Medical  emergency" means a sudden and unexpected physical con-
  7        dition which, in the reasonable medical judgment of any ordinarily prudent
  8        physician acting under the circumstances and conditions then existing,  is
  9        abnormal and so complicates the medical condition of the pregnant minor as
 10        to necessitate the immediate causing or performing of an abortion:
 11                  1.  To prevent her death; or
 12                  2.  Because  a  delay  in causing or performing an abortion will
 13                  create serious risk of immediate, substantial  and  irreversible
 14                  impairment of a major physical bodily function of the patient.
 15             (ii) The term "medical emergency" does not include:
 16                  1.  Any  physical  condition  that would be expected to occur in
 17                  normal pregnancies of women of similar age,  physical  condition
 18                  and gestation; or
 19                  2.  Any condition that is predominantly psychological or psychi-
 20                  atric in nature.
 21        (d)  "Minor" means a woman less than eighteen (18) years of age.
 22        (e)  "Parent" means one (1) parent of the unemancipated minor, or a guard-
 23        ian  appointed  pursuant  to chapter 5, title 15, Idaho Code, if the minor
 24        has one.
                                                                        
 25        SECTION 3.  That Section 18-614, Idaho Code, be, and the  same  is  hereby
 26    repealed.
                                                                        
 27        SECTION  4.  That  Chapter  6,  Title  18, Idaho Code, be, and the same is
 28    hereby amended by the addition thereto of a NEW SECTION, to be known and  des-
 29    ignated as Section 18-614, Idaho Code, and to read as follows:
                                                                        
 30        18-614.  DEFENSES  TO  PROSECUTION.  (1)  No physician shall be subject to
 31    criminal or administrative liability for causing  or  performing  an  abortion
 32    upon  a  minor  in  violation  of  any  provision of subsection (1) of section
 33    18-609A, Idaho Code, if prior to causing or performing the abortion the physi-
 34    cian obtains either positive identification or other documentary evidence from
 35    which a reasonable person would have concluded  that  the  woman  seeking  the
 36    abortion  was  either  an emancipated minor or was not then a minor and if the
 37    physician retained, at the time of receiving the evidence, a legible photocopy
 38    of such evidence in the physician's office file for the woman. This defense is
 39    an affirmative defense that shall be raised by the defendant  and  is  not  an
 40    element  of  any  crime or administrative violation that must be proved by the
 41    state.
 42        (2)  If, due to a medical emergency as defined in subsection (5)  of  sec-
 43    tion  18-609A,  Idaho  Code,  there was insufficient time for the physician to
 44    confirm that the woman, due to her age, did not then come  within  the  provi-
 45    sions  of  subsection  (1) of section 18-609A, Idaho Code, the physician shall
 46    not be subject to criminal or  administrative  liability  for  performing  the
 47    abortion  in violation of subsection (1)(a)(v) of section 18-609A, Idaho Code,
 48    if, as soon as possible but in no event longer  than  twenty-four  (24)  hours
 49    after  performing the abortion, the physician obtained positive identification
 50    or other documentary evidence from which a reasonable person would  have  con-
 51    cluded  that the woman seeking the abortion was either an emancipated minor or
 52    was not then a minor and if the physician retained, at the time  of  receiving
                                                                        
                                           8
                                                                        
  1    the  evidence,  a legible photocopy of such evidence in the physician's office
  2    file for the woman. This defense is  an  affirmative  defense  that  shall  be
  3    raised  by  the defendant and is not an element of any crime or administrative
  4    violation that must be proved by the state.
  5        (3)  If after performing an abortion  under  circumstances  of  a  medical
  6    emergency  as  defined  in  subsection (5) of section 18-609A, Idaho Code, the
  7    physician, after reasonable inquiry, is unable to determine whether or not the
  8    woman is a minor, the physician shall not be subject  to  criminal,  civil  or
  9    administrative  liability  for taking any action that would have been required
 10    by subsection (1)(a)(v) of section 18-609A, Idaho Code, if the woman had  been
 11    a minor at the time the abortion was caused or performed.
 12        (4)  For  purposes of this section, "positive identification" means a law-
 13    fully issued state, district, territorial, possession, provincial, national or
 14    other equivalent government driver's license, identification card or  military
 15    card,  bearing  the  person's photograph and date of birth, the person's valid
 16    passport or a certified copy of the person's birth certificate.

Statement of Purpose / Fiscal Impact


                         STATEMENT OF PURPOSE
        
                              RS 11155C1
        
   This legislation makes technical correction to Idaho's

Parental Consent statutes which will help to resolve peripheral

issues raised in litigation. The original intention of the

parental consent statutes remains in tact and its underlying

provisions are not weakened. This legislation addresses factual

issues raised in the litigation which were not originally

intended to be targeted by SB 1299 from the 2000 legislative

session.
        
                
        
                             FISCAL IMPACT
        
        
        
No net fiscal impact.
        

        
        
Contact
Name:  Clinton Miner, Office of the Attorney General
Phone: 334-2400
        









STATEMENT OF PURPOSE/FISCAL NOTE                 H 340