2005 Legislation
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HOUSE BILL NO. 351 – Abortion, minors/parental consent

HOUSE BILL NO. 351

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H0351.....................................................by WAYS AND MEANS
ABORTION - Amends existing law to revise the parental consent law for
abortion for minors if the United States Supreme Court has denied a
petition for certiorari in the case of Wasden v. Planned Parenthood of
Idaho, Supreme Court Docket No. 04-703.
                                                                        
03/16    House intro - 1st rdg - to printing
03/17    Rpt prt - to Health/Wel
03/21    Rpt out - rec d/p - to 2nd rdg
03/22    2nd rdg - to 3rd rdg
    Rls susp - PASSED - 50-18-2
      AYES -- Anderson, Andrus, Barraclough, Barrett, Bastian, Bayer,
      Bedke, Bell, Bilbao, Block, Bolz, Bradford, Cannon, Chadderdon,
      Clark, Collins, Crow, Deal, Denney, Edmunson(Barker), Ellsworth,
      Eskridge, Field(18), Field(23), Garrett, Hart, Harwood, Henderson,
      Lake, Loertscher, Mathews, McGeachin, McKague, Moyle, Nielsen,
      Nonini, Raybould, Ring, Roberts, Rydalch, Sali, Schaefer,
      Shepherd(8), Shirley, Smylie, Snodgrass, Stevenson, Wills, Wood, Mr.
      Speaker
      NAYS -- Boe, Henbest, Jaquet, Jones, Kemp, LeFavour, Martinez,
      Miller, Mitchell, Pasley-Stuart, Pence, Ringo, Rusche, Sayler,
      Shepherd(2), Skippen, Smith(30), Trail
      Absent and excused -- Black, Smith(24)
    Floor Sponsor - Sali
    Title apvd - to Senate
03/22    Senate intro - 1st rdg - to St Aff
03/25    Rpt out - rec d/p - to 2nd rdg
03/29    2nd rdg - to 3rd rdg
    Rls susp - PASSED - 23-12-0
      AYES -- Andreason, Brandt, Bunderson, Burtenshaw, Cameron, Compton,
      Corder, Darrington, Davis, Fulcher, Geddes, Goedde, Hill, Jorgenson,
      Little, Lodge, Marley, McGee, McKenzie, Pearce, Richardson, Sweet,
      Williams
      NAYS -- Broadsword, Burkett, Coiner, Gannon, Kelly, Keough,
      Langhorst, Malepeai, Schroeder, Stegner, Stennett, Werk
      Absent and excused -- None
    Floor Sponsor - McKenzie
    Title apvd - to House
03/30    To enrol
03/31    Rpt enrol - Sp signed - Pres signed
04/04    To Governor
04/14    Governor signed
         Session Law Chapter 393
         Effective: Upon proclamation of AG indicating US
         Supreme Court has denied certiorari in Wasden vs
         Planned Parenthood of Idaho; filing of Proclamation
         of Sec of State; Sec of State notification of
         Proclamation to Idaho Code Commission

Bill Text


                                                                        
                                                                        
  ]]]]              LEGISLATURE OF THE STATE OF IDAHO             ]]]]
 Fifty-eighth Legislature                   First Regular Session - 2005
                                                                        
                                                                        
                              IN THE HOUSE OF REPRESENTATIVES
                                                                        
                                     HOUSE BILL NO. 351
                                                                        
                                BY WAYS AND MEANS COMMITTEE
                                                                        
  1                                        AN ACT
  2    RELATING TO ABORTION;  AMENDING SECTION 18-602, IDAHO CODE, TO PROVIDE FURTHER
  3        STATUTORY LEGISLATIVE INTENT;  AMENDING SECTION  18-604,  IDAHO  CODE,  TO
  4        REVISE DEFINITIONS; AMENDING SECTION 18-605, IDAHO CODE, TO PROVIDE FELONY
  5        CRIMINAL  PENALTIES  TO  EVERY PERSON NOT LICENSED OR CERTIFIED TO PROVIDE
  6        HEALTH CARE IN IDAHO WHO KNOWINGLY, EXCEPT AS PERMITTED BY LAW,  PROVIDES,
  7        SUPPLIES  OR  ADMINISTERS ANY MEDICINE, DRUG OR SUBSTANCES TO ANY WOMAN OR
  8        USES OR EMPLOYS ANY INSTRUMENT OR OTHER  MEANS  WHATEVER  UPON  ANY  THEN-
  9        PREGNANT  WOMAN WITH INTENT TO CAUSE OR PERFORM AN ABORTION; AMENDING SEC-
 10        TION 18-609A, IDAHO CODE, TO REVISE PROCEDURES FOR  REQUIRED  CONSENT  FOR
 11        ABORTIONS  FOR  MINORS;  AMENDING  SECTION  18-614,  IDAHO CODE, TO REVISE
 12        DEFENSES TO PROSECUTION FOR PHYSICIANS FOR CAUSING OR PERFORMING AN  ABOR-
 13        TION  UPON  A  MINOR; PROVIDING LEGISLATIVE FINDINGS AND INTENT; PROVIDING
 14        SEVERABILITY; AND PROVIDING A CONTINGENT EFFECTIVE DATE.
                                                                        
 15    Be It Enacted by the Legislature of the State of Idaho:
                                                                        
 16        SECTION 1.  That Section 18-602, Idaho Code, be, and the  same  is  hereby
 17    amended to read as follows:
                                                                        
 18        18-602.  LEGISLATIVE FINDINGS AND INTENT. (1) The legislature finds:
 19        (a)  That  children  have  a  special place in society that the law should
 20        reflect;
 21        (b)  That minors too often lack maturity and  make  choices  that  do  not
 22        include consideration of both immediate and long-term consequences;
 23        (c)  That  the  medical, emotional and psychological consequences of abor-
 24        tion and childbirth are serious and can be lasting, particularly when  the
 25        patient is immature;
 26        (d)  That  the  capacity  to  become  pregnant and the capacity for mature
 27        judgment concerning the wisdom of bearing a child or of having an abortion
 28        are not necessarily related;
 29        (e)  That parents, when aware that their daughter is pregnant or  has  had
 30        an  abortion are in the best position to ensure that she receives adequate
 31        medical attention during her pregnancy or after her abortion;
 32        (f)  That except in rare cases, parents possess knowledge regarding  their
 33        child  which  is  essential  for  a physician to exercise the best medical
 34        judgment for that child;
 35        (g)  That when a minor is faced with  the  difficulties  of  an  unplanned
 36        pregnancy, the best interests of the minor are always served when there is
 37        careful  consideration of the rights of parents in rearing their child and
 38        the unique counsel and nurturing environment that parents can provide;
 39        (h)  That informed consent is always necessary for  making  mature  health
 40        care decisions.
 41        (2)  It  is  the  intent  of  the legislature in enacting section 18-609A,
 42    Idaho Code, to further the following important and compelling state  interests
 43    recognized by the United States supreme court in:
                                                                        
                                           2
                                                                        
  1        (a)  Protecting minors against their own immaturity;
  2        (b)  Preserving the integrity of the family unit;
  3        (c)  Defending  the authority of parents to direct the rearing of children
  4        who are members of their household;
  5        (d)  Providing a pregnant minor with the advice and support  of  a  parent
  6        during a decisional period;
  7        (e)  Providing for proper medical treatment and aftercare when the life or
  8        physical  health  of  the  pregnant  minor  is at serious risk in the rare
  9        instance of a sudden and unexpected medical emergency.
 10        (3)  It is the intent of the legislature of the state of  Idaho  to  enact
 11    provisions in this chapter, amending chapter 6, title 18, Idaho Code, that are
 12    constitutional.  Since  the pronouncement of Roe v. Wade, the task of crafting
 13    statutes that regulate in a way that is meaningful and yet do not  offend  the
 14    constitution  as interpreted by the courts has become extremely difficult. The
 15    inability for a state like  Idaho  to  obtain  timely  review  of  legislation
 16    through the level of the United States supreme court, increases the difficulty
 17    of  our circumstances. Under those circumstances it is the intent of the Idaho
 18    legislature that all of our statutes be interpreted in a constitutional manner
 19    and in a manner that will protect  the  state's  interest  in  protecting  our
 20    unborn  children and their mothers to the fullest extent permissible under the
 21    United States constitution and the constitution of the state of Idaho.
                                                                        
 22        SECTION 2.  That Section 18-604, Idaho Code, be, and the  same  is  hereby
 23    amended to read as follows:
                                                                        
 24        18-604.  DEFINITIONS. As used in this act:
 25        (1)  "Abortion"  means  the intentional termination of human pregnancy for
 26    purposes other than delivery of a viable birth.
 27        (2)  "Cause or perform an abortion" means  to  interrupt  or  terminate  a
 28    pregnancy  by any surgical or nonsurgical procedure or to induce a miscarriage
 29    upon a woman or minor known to be pregnant.
 30        (3)  "Emancipated" means any minor who has been married or  is  in  active
 31    military service.
 32        (4)  "First trimester of pregnancy" means the first thirteen (13) weeks of
 33    a pregnancy.
 34        (35)  "Hospital"  means  an  acute  care,  general hospital in this state,
 35    licensed as provided in chapter 13, title 39, Idaho Code.
 36        (46)  "Informed consent" means a voluntary and knowing decision to undergo
 37    a specific procedure or treatment. To be voluntary, the decision must be  made
 38    freely  after  sufficient  time  for contemplation and without coercion by any
 39    person. To be knowing, the decision must be based on the physician's  accurate
 40    and  substantially  complete  explanation of each fact pertinent to making the
 41    decision. Facts pertinent to making the decision shall  include,  but  not  be
 42    limited to:
 43        (a)  A description of any proposed treatment or procedure;
 44        (b)  Any  reasonably  foreseeable  complications  and risks to the patient
 45        from such  procedure,  including  those  related  to  future  reproductive
 46        health; and
 47        (c)  The  manner in which such procedure and its foreseeable complications
 48        and risks compare with those of each readily available alternative to such
 49        procedure, including childbirth and adoption.
 50    The physician must provide the information in terms which can be understood by
 51    the person making the decision, with consideration of age, level  of  maturity
 52    and intellectual capability.
 53        (7)  "Medical  emergency"  means  a  condition  which, on the basis of the
                                                                        
                                           3
                                                                        
  1    physician's good faith clinical judgment, so complicates the medical condition
  2    of a pregnant woman as to necessitate the immediate abortion of her  pregnancy
  3    to  avert  her death or for which a delay will create serious risk of substan-
  4    tial and irreversible impairment of a major bodily function.
  5        (8)  "Minor" means a woman less than eighteen (18) years of age.
  6        (9)  "Parent" means one (1) parent of the unemancipated minor, or a guard-
  7    ian appointed pursuant to chapter 5, title 15, Idaho Code, if  the  minor  has
  8    one.
  9        (510) "Physician" means a person licensed to practice medicine and surgery
 10    or  osteopathic  medicine and surgery in this state as provided in chapter 18,
 11    title 54, Idaho Code.
 12        (611) "Second trimester of pregnancy" means that portion  of  a  pregnancy
 13    following  the  thirteenth week and preceding the point in time when the fetus
 14    becomes viable, and there is hereby created a legal presumption that the  sec-
 15    ond trimester does not end before the commencement of the twenty-fifth week of
 16    pregnancy,  upon  which presumption any licensed physician may proceed in law-
 17    fully aborting a patient pursuant to section 18-608, Idaho Code, in which case
 18    the same shall be conclusive and unrebuttable in all civil  or  criminal  pro-
 19    ceedings.
 20        (712) "Third  trimester  of  pregnancy"  means that portion of a pregnancy
 21    from and after the point in time when the fetus becomes viable.
 22        (813) Any reference to a viable fetus shall be construed to mean  a  fetus
 23    potentially  able  to  live  outside the mother's womb, albeit with artificial
 24    aid.
                                                                        
 25        SECTION 3.  That Section 18-605, Idaho Code, be, and the  same  is  hereby
 26    amended to read as follows:
                                                                        
 27        18-605.  UNLAWFUL ABORTIONS -- PROCUREMENT OF -- PENALTY. (1) Every person
 28    not  licensed  or  certified  to  provide  health care in Idaho who knowingly,
 29    except as permitted by this chapter, provides,  supplies  or  administers  any
 30    medicine,  drug or substance to any woman or uses or employs any instrument or
 31    other means whatever upon any then-pregnant woman with intent thereby to cause
 32    or perform an abortion shall be guilty of a felony and shall be fined  not  to
 33    exceed  five  thousand  dollars ($5,000) and/or imprisoned in the state prison
 34    for not less than two (2) and not more than five (5) years.
 35        (2)  Any person licensed or certified to provide health care  pursuant  to
 36    title  54,  Idaho Code, and who, except as permitted by the provisions of this
 37    chapter, provides, supplies or administers any medicine, drug or substance  to
 38    any  woman  or uses or employs any instrument or other means whatever upon any
 39    then-pregnant woman with intent to cause or perform an abortion shall:
 40        (a)  For the first violation, be subject to professional discipline and be
 41        assessed a civil penalty of not less than one thousand  dollars  ($1,000),
 42        payable to the board granting such person's license or certification;
 43        (b)  For  the  second  violation,  have  their license or certification to
 44        practice suspended for a period of not less than six  (6)  months  and  be
 45        assessed  a  civil penalty of not less than two thousand five hundred dol-
 46        lars ($2,500), payable to the board granting such person's license or cer-
 47        tification; and
 48        (c)  For each subsequent violation, have their license or certification to
 49        practice revoked and be assessed a civil penalty of  not  less  than  five
 50        thousand  dollars  ($5,000),  payable  to the board granting such person's
 51        license or certification.
 52        (3)  Any person who is licensed or certified to provide health care pursu-
 53    ant to title 54, Idaho Code, and who knowingly violates the provisions of this
                                                                        
                                           4
                                                                        
  1    chapter is guilty  of a felony punishable as set forth in  subsection  (1)  of
  2    this  section,  separate  from and in addition to the administrative penalties
  3    set forth in subsection (2) of this section.
                                                                        
  4        SECTION 4.  That Section 18-609A, Idaho Code, be, and the same  is  hereby
  5    amended to read as follows:
                                                                        
  6        18-609A.  CONSENT REQUIRED FOR ABORTIONS FOR MINORS.
  7        (1)  (a) No  person  shall  knowingly  cause or perform an abortion upon a
  8        minor unless:
  9             (i)   The attending physician has secured the written  informed  con-
 10             sent  of  the  minor  and the written informed consent of the minor's
 11             parent; or
 12             (ii)  The minor  is  emancipated  and  the  attending  physician  has
 13             received  written  proof  of  emancipation  and  the  minor's written
 14             informed consent; or
 15             (iii) The minor has been granted the right  of  self-consent  to  the
 16             abortion  by court order pursuant to paragraph (b) of this subsection
 17             and the attending physician has received the minor's written informed
 18             consent; or
 19             (iv)  A court has found that the causing or performing of  the  abor-
 20             tion,  despite the absence of informed consent of a parent, is in the
 21             best interests of the minor and the court has issued an order, pursu-
 22             ant to paragraph (b)(iv)2. of this  subsection,  granting  permission
 23             for  the causing or performing of the abortion, and the minor is hav-
 24             ing the abortion willingly, pursuant to paragraph (f) of this subsec-
 25             tion; or
 26             (v)   A medical emergency exists for the minor so urgent  that  there
 27             is insufficient time for the physician to obtain the informed consent
 28             of  a  parent  or a court order and the attending physician certifies
 29             such in the pregnant minor's medical records. In so  certifying,  the
 30             attending physician must include the factual circumstances supporting
 31             his  professional  judgment  that a medical emergency existed and the
 32             grounds for the determination that there  was  insufficient  time  to
 33             obtain the informed consent of a parent or a court order. Immediately
 34             after  an  abortion  pursuant to this paragraph, the physician shall,
 35             with due diligence, attempt to provide a parent of  an  unemancipated
 36             minor  actual  notification  of  the medical emergency. If the parent
 37             cannot be immediately contacted for  such  actual  notification,  the
 38             physician  shall, with due diligence, attempt to provide actual noti-
 39             fication to a parent for an eight (8) hour period following the caus-
 40             ing or performing of the abortion and shall, until a parent  receives
 41             such notification, ensure that the minor's postabortion medical needs
 42             are met. Notwithstanding the above, a physician shall, within twenty-
 43             four (24) hours of causing or performing an abortion pursuant to this
 44             paragraph, provide actual notification of the medical emergency by:
 45                  1.  Conferring  with a parent or agent designated by the parent,
 46                  and providing any additional information needed for the  minor's
 47                  proper  care,  and,  as soon as practicable thereafter, securing
 48                  the parent's written acknowledgement of receipt of such  notifi-
 49                  cation and information; or
 50                  2.  Providing   such   actual   notification  in  written  form,
 51                  addressed to the parent at the usual place of abode of the  par-
 52                  ent  and  delivered personally to the parent by the physician or
 53                  an agent with written acknowledgement of  such  receipt  by  the
                                                                        
                                           5
                                                                        
  1                  parent returned to the physician; or
  2                  3.  Providing such actual notification in written form and mail-
  3                  ing  it  by certified mail, addressed to the parent at the usual
  4                  place of abode of the parent with return  receipt requested  and
  5                  restricted  delivery  to the addressee so that a postal employee
  6                  can only deliver the notice to the authorized addressee.
  7                  For  the  purposes  of  this  section,   "actual   notification"
  8             includes,  but  is  not  limited to, a statement that an abortion was
  9             caused or performed, a description of the factual circumstances  sup-
 10             porting  the  physician's judgment that the medical emergency existed
 11             and a statement of the grounds for the determination that  there  was
 12             insufficient  time  to  obtain  the informed consent of a parent or a
 13             court order.
 14                  If the physician causing or performing such abortion  reasonably
 15             believes  that  the minor is or will be homeless or abandoned so that
 16             the parents cannot be readily found or that the minor has suffered or
 17             will suffer abuse or neglect such that the  minor's  physical  safety
 18             would  be jeopardized if a parent were notified that the abortion was
 19             caused or performed, or reasonably believes that the  best  interests
 20             of  the child require that notification to a parent that the abortion
 21             was caused or performed must be withheld,  the  physician  shall,  in
 22             lieu  of notifying a parent as required above, make a report to a law
 23             enforcement agency pursuant to section 16-1619,  Idaho  Code,  and  a
 24             petition  shall  be  filed  pursuant  to section 16-1605, Idaho Code,
 25             which petition shall include a reference to this code section file  a
 26             petition  pursuant  to section 16-1605, Idaho Code. Upon adjudication
 27             that the minor comes within the purview  of  chapter  16,  title  16,
 28             Idaho  Code,  either on the basis of homelessness or abandonment such
 29             that no parent can be found, or on the basis of abuse or neglect such
 30             that the minor's physical safety would be in  jeopardy  if  a  parent
 31             were  notified that the abortion was performed, the court shall, as a
 32             part of the decree, also or upon a finding that the best interests of
 33             the child require that a parent not be notified, the court shall,  in
 34             a  manner  which will protect the confidentiality of the minor, order
 35             that the physician's duty to so notify a parent is relieved.  In  any
 36             other  event,  unless the court enters a finding that the best inter-
 37             ests of the child require withholding notice to a parent,  the  court
 38             shall  order that a parent receive actual notification of the medical
 39             emergency 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 county where the minor
 45             resides or the county where the abortion is caused  or  performed.  A
 46             minor  shall have the legal capacity to make and prosecute a petition
 47             and appeal as set out herein. A guardian  ad  litem  may  assist  the
 48             minor in preparing her petition and other documents filed pursuant to
 49             this  section and may seek appointment as set forth below. A guardian
 50             ad litem, whether prospective or appointed, must be an attorney prop-
 51             erly licensed in this state. The court shall ensure that the minor is
 52             given assistance in filing the petition if the  minor  so  desires  a
 53             guardian  ad litem but no qualified guardian ad litem is available is
 54             present. For the limited purposes required to  give  effect  to  this
 55             paragraph,  a  minor shall have the legal capacity to make and prose-
                                                                        
                                           6
                                                                        
  1             cute a petition and appeal as set out  herein.  The  minor  shall  be
  2             notified  that if she has no attorney one will be appointed to assist
  3             her in preparing her petition and other documents filed  pursuant  to
  4             this section and represent her interests before the court. A guardian
  5             ad  litem shall be appointed to seek the best interests of the minor,
  6             investigate the circumstances of the minor and make a report  to  the
  7             court at the hearing which may be submitted into evidence. The guard-
  8             ian ad litem shall not take any action that compromises the confiden-
  9             tiality  of the minor regarding her decision to obtain an abortion or
 10             the confidentiality of her decision to seek an order from the court.
 11             (ii)  The petition shall set forth:
 12                  1.  The initials of the minor;
 13                  2.  The age of the minor;
 14                  3.  The name and address of each parent, guardian,  or,  if  the
 15                  minor's  parents  are  deceased or the minor is abandoned and no
 16                  guardian has been appointed, the name and address of  any  other
 17                  person standing in loco parentis of the minor;
 18                  4.  That the minor has been fully informed of the risks and con-
 19                  sequences of the abortion procedure to be performed;
 20                  5.  A claim that the minor is mature, of sound mind and has suf-
 21                  ficient  intellectual  capacity  to  consent to the abortion for
 22                  herself; and
 23                  6.  A claim that, if the court does  not  grant  the  minor  the
 24                  right  to  self-consent  to  the abortion, the court should find
 25                  that causing or performing the abortion, despite the absence  of
 26                  the  consent  of  a parent, is in the best interest of the minor
 27                  and give judicial consent to the abortion; and
 28                  7.  If so desired by the minor, a request that the court appoint
 29                  a guardian ad litem, or, alternatively, if no guardian ad  litem
 30                  is requested, that the court should consider whether appointment
 31                  of a guardian ad litem for the minor is appropriate.
 32                  The  petition  shall  be  signed  by  the  minor and, if she has
 33             received assistance from a prospective guardian ad litem in preparing
 34             the petition, by the guardian ad litem.
 35             (iii) A hearing on the merits of the petition shall be held  as  soon
 36             as practicable but in no event later than five (5) days from the fil-
 37             ing  of the petition. The petition shall be heard by a district judge
 38             on the record in a closed session  of  the  court.  The  court  shall
 39             appoint  a  qualified  guardian  ad  litem  for  the  minor if one is
 40             requested in the petition. If  no  qualified  guardian  ad  litem  is
 41             available,  the  court  may  appoint  some other person to act in the
 42             capacity of a guardian ad litem, who shall act to  fulfill  the  pur-
 43             poses  of  this  section  and  protect  the confidentiality and other
 44             rights of the minor has not  been  appointed  and  shall  appoint  an
 45             attorney for the minor if she has no attorney but desires one.
 46                  At the hearing, the court shall, after establishing the identity
 47             of the minor, hear the report of the guardian ad litem and other evi-
 48             dence  relating to the emotional development, maturity, intellect and
 49             understanding of the minor; the nature of the abortion  procedure  to
 50             be  performed  and the reasonably foreseeable complications and risks
 51             to the minor from such procedure, including those related  to  future
 52             childbearing; the available alternatives to the abortion; whether her
 53             sexual  relations  were forced or otherwise in violation of Idaho law
 54             other than section 18-6101 1., Idaho Code; the  relationship  between
 55             the  minor and her parents; and any other evidence that the court may
                                                                        
                                           7
                                                                        
  1             find relevant in determining whether the minor should be granted  the
  2             right  to self-consent to the abortion or whether the court's consent
  3             to causing or performing of the abortion, despite the absence of con-
  4             sent of a parent, is in the best interests of the minor.
  5             (iv)  The order shall be entered as soon as practicable,  but  in  no
  6             event  later than five (5) three (3) days after the conclusion of the
  7             hearing. The court shall ensure that the order  is  served  upon  the
  8             minor  immediately after its entry.  If, by clear and convincing evi-
  9             dence, the court finds the allegations of the petition to be true and
 10             sufficient to establish good cause, the court shall:
 11                  1.  Find the minor sufficiently mature to decide whether to have
 12                  the abortion and grant the petition and give the minor the right
 13                  of self-consent to the abortion, setting forth the  grounds  for
 14                  so finding; or
 15                  2.  Find the performance of the abortion, despite the absence of
 16                  the  consent  of a parent, is in the best interests of the minor
 17                  and give judicial consent to the  abortion,  setting  forth  the
 18                  grounds for so finding.
 19                  If the court does not find the allegations of the petition to be
 20             true  or  if  good cause does not appear from the evidence heard, the
 21             court shall deny the petition, setting forth the grounds on which the
 22             petition is denied.
 23                  If, in hearing the petition, the court investigating the circum-
 24             stances of the minor, the guardian ad litem becomes aware of  allega-
 25             tions  which, if true, would constitute a violation of any section of
 26             title 18, Idaho Code, by a person other than  the  petitioner  except
 27             section  18-6101  1.,  Idaho  Code,  or would bring a child the minor
 28             within the purview of chapter 16, title 16,  Idaho  Code,  the  court
 29             shall  order,  upon  entry  of final judgment in the proceeding under
 30             this subsection, that an appropriate investigation be initiated or an
 31             appropriate information, complaint or petition be filed. Such allega-
 32             tions shall be forwarded by the court with due consideration for  the
 33             confidentiality  of  the  proceedings  under  this section on grounds
 34             other than a violation of section 18-6101 1., Idaho Code, such  alle-
 35             gations shall be reported by the guardian ad litem to law enforcement
 36             or  to the appropriate prosecuting attorney. If, but for the require-
 37             ments for proof as set forth in this section, the  minor  would  have
 38             been privileged to withhold information given or evidence produced by
 39             her,  the  answers  given  or  evidence  produced and any information
 40             directly or indirectly derived from  her  answers  may  not  be  used
 41             against  the  minor in any manner in a criminal case, except that she
 42             may nevertheless be prosecuted or subjected to penalty or  forfeiture
 43             for any perjury, false swearing or contempt committed in answering or
 44             failing to answer, or in producing or failing to produce, evidence as
 45             required by the court.
 46        (c)  A  notice of appeal from an order issued under the provisions of this
 47        subsection shall be filed within two (2) days from the date of issuance of
 48        the order. The record on appeal shall be completed and the appeal shall be
 49        perfected as soon as practicable, but in no event later than five (5) days
 50        from the filing of notice of appeal. Because time may be  of  the  essence
 51        regarding  the  performance of the abortion, appeals pursuant to this sub-
 52        section shall receive expedited appellate review five (5) days  from  ser-
 53        vice upon the minor and shall be given expedited consideration and decided
 54        as soon as practicable, but in no event more than five (5) days after fil-
 55        ing the notice of appeal.
                                                                        
                                           8
                                                                        
  1        (d)  Except  for  the  time  for  filing  a  notice of appeal, a court may
  2        enlarge the times set forth pursuant to this subsection  upon  request  of
  3        the  minor  or  upon  good cause appearing, with due consideration for the
  4        expedited nature of these proceedings Weekends and holidays shall  not  be
  5        counted in calculating the time limits required by this section.
  6        (e)  No filing, appeal or other fees shall be charged for cases or appeals
  7        brought pursuant to this section.
  8        (f)  If a minor desires an abortion, then she shall be orally informed of,
  9        and,  if  possible,  sign the written consent required by this act, in the
 10        same manner as an adult person. No abortion shall be caused  or  performed
 11        on  any  minor  against her will, except that an abortion may be performed
 12        against the will of a minor pursuant to court order  if  the  abortion  is
 13        necessary to preserve the life of the minor.
 14        (g)  All  records contained in court files of judicial proceedings arising
 15        under the provisions of this subsection, and subsection (3) of  this  sec-
 16        tion, shall be confidential and exempt from disclosure pursuant to section
 17        9-340G,  Idaho  Code.  Dockets and other court records shall be maintained
 18        and court proceedings undertaken so that  the  names  of  the  parties  to
 19        actions brought pursuant to this section will not be disclosed to the pub-
 20        lic.
 21        (2)  The  administrative  director  of the courts shall compile statistics
 22    for each county for each calendar year, accessible to the public, including:
 23        (a)  The total number of petitions filed pursuant to paragraph (b) of sub-
 24        section (1) of this section; and
 25        (b)  The number of such petitions filed where  a  guardian  ad  litem  was
 26        requested  and the number where a guardian ad litem or other person acting
 27        in such capacity was appointed; and
 28        (c)  The number of petitions where counsel appeared for the minor  without
 29        court appointment; and
 30        (d)  The number of petitions  where counsel was requested by the minor and
 31        number where counsel was appointed by the court; and
 32        (e)  The  number of such petitions for which the right to self-consent was
 33        granted; and
 34        (df)  The number of  such  petitions  for  which  the  court  granted  its
 35        informed consent; and
 36        (eg)  The number of such petitions which were denied; and
 37        (h)  The number of such petitions which were withdrawn by the minor; and
 38        (fi)  For  categories  described  in paragraphs (c), (df) and (eg) of this
 39        subsection, the number of appeals taken from the  court's  order  in  each
 40        category; and
 41        (gj)  For each of the categories set out in paragraph (fi) of this subsec-
 42        tion,  the  number  of  cases  for  which  the  district court's order was
 43        affirmed and the number of cases for which the district court's order  was
 44        reversed; and
 45        (k)  The county of residence of the minor for each petition; and
 46        (l)  The time between the filing of the petition and hearing of each peti-
 47        tion; and
 48        (m)  The  time  between the hearing and the decision by the court for each
 49        petition; and
 50        (n)  The time between the decision and filing a notice of appeal for  each
 51        case, if any; and
 52        (o)  The time of extension granted by the court in each case, if any.
 53        (3)  In  addition  to  any  other  cause of action arising from statute or
 54    otherwise, any person injured by the causing or performing of an abortion on a
 55    minor in violation of any of the requirements of paragraph (a)  of  subsection
                                                                        
                                           9
                                                                        
  1    (1) of this  section, shall have a private right of action to recover all dam-
  2    ages  sustained as a result of such violation, including reasonable attorney's
  3    fees if judgment is rendered in favor of the plaintiff.
  4        (4)  Statistical records.
  5        (a)  The vital statistics unit of the department  of  health  and  welfare
  6        shall,  in  addition  to  other  information  required pursuant to section
  7        39-261, Idaho Code, require the complete and accurate reporting of  infor-
  8        mation  relevant  to  each  abortion  performed  upon  a minor which shall
  9        include, at a minimum, the following:
 10             (i)   Whether the abortion was performed  following  the  physician's
 11             receipt of:
 12                  1.  The written informed consent of a parent and the minor; or
 13                  2.  The  written  informed  consent  of an emancipated minor for
 14                  herself; or
 15                  3.  The written informed consent of a minor for herself pursuant
 16                  to a court  order granting the minor the right to  self-consent;
 17                  or
 18                  4.  The written informed consent of a court pursuant to an order
 19                  which  includes  a finding that the performance of the abortion,
 20                  despite the absence of the consent of a parent, is in  the  best
 21                  interests of the minor; or
 22                  5.  The  professional  judgment  of the attending physician that
 23                  the performance of the abortion was immediately necessary due to
 24                  a medical emergency and there was insufficient  time  to  obtain
 25                  consent from a parent or a court order.
 26             (ii)  If  the  abortion  was performed due to a medical emergency and
 27             without consent from a parent or  court  order,  the  diagnosis  upon
 28             which  the attending physician determined that the abortion was imme-
 29             diately necessary due to a medical emergency.
 30        (b)  The knowing failure of the attending physician to perform any one (1)
 31        or more of the acts required under this subsection is grounds  for  disci-
 32        pline  pursuant  to  section 54-1814(6), Idaho Code, and shall subject the
 33        physician to assessment of a civil penalty of one hundred  dollars  ($100)
 34        for  each  month or portion thereof that each such failure continues, pay-
 35        able to the center for vital statistics and health policy, but such  fail-
 36        ure shall not constitute a criminal act.
 37        (5)  As used in this section:
 38        (a)  "Cause  or  perform  an  abortion"  means to interrupt or terminate a
 39        pregnancy by any surgical or nonsurgical procedure or to induce a  miscar-
 40        riage upon a minor known to be pregnant.
 41        (b)  "Emancipated"  means  any  minor who has been married or is in active
 42        military service.
 43        (c)  (i)   "Medical emergency" means a sudden and unexpected physical con-
 44        dition which, in the reasonable medical judgment of any ordinarily prudent
 45        physician acting under the circumstances and conditions then existing,  is
 46        abnormal and so complicates the medical condition of the pregnant minor as
 47        to necessitate the immediate causing or performing of an abortion:
 48                  1.  To prevent her death; or
 49                  2.  Because  a  delay  in causing or performing an abortion will
 50                  create serious risk of immediate, substantial  and  irreversible
 51                  impairment of a major physical bodily function of the patient.
 52             (ii)  The term "medical emergency" does not include:
 53                  1.  Any  physical  condition  that would be expected to occur in
 54                  normal pregnancies of women of similar age,  physical  condition
 55                  and gestation; or
                                                                        
                                           10
                                                                        
  1                  2.  Any condition that is predominantly psychological or psychi-
  2                  atric in nature.
  3        (d)  "Minor" means a woman less than eighteen (18) years of age.
  4        (e)  "Parent" means one (1) parent of the unemancipated minor, or a guard-
  5        ian  appointed  pursuant  to chapter 5, title 15, Idaho Code, if the minor
  6        has one.
                                                                        
  7        SECTION 5.  That Section 18-614, Idaho Code, be, and the  same  is  hereby
  8    amended to read as follows:
                                                                        
  9        18-614.  DEFENSES  TO  PROSECUTION.  (1)  No physician shall be subject to
 10    criminal or administrative liability for causing  or  performing  an  abortion
 11    upon  a  minor  in  violation of any provision of subsection (1)(a) of section
 12    18-609A, Idaho Code, if prior to causing or performing the abortion the physi-
 13    cian obtains either positive identification or other documentary evidence from
 14    which a reasonable person would have concluded that where  the  woman  seeking
 15    the abortion represented that she was not a minor and on that basis the physi-
 16    cian causing or performing the abortion did not secure the consent of a parent
 17    and  where  none of the circumstances in paragraph (ii), (iii), (iv) or (v) of
 18    subsection (1)(a) of section 18-609A, Idaho Code, exist, if prior  to  causing
 19    or  performing  the  abortion and, after reaching a reasonable conclusion that
 20    the woman seeking abortion  was not  then  a  minor,  the  physician   obtains
 21    either  positive identification indicating that the woman seeking the abortion
 22    was not then a minor or other documentary evidence  from  which  a  reasonable
 23    person,   after  observing  the  physical  appearance of the woman seeking the
 24    abortion, would have concluded that the woman seeking the abortion was  either
 25    an emancipated minor or was not then a minor and if the physician retained, at
 26    the  time  of receiving the identification or evidence, a legible photocopy of
 27    such identification or evidence in the physician's office file for the  woman.
 28    This  defense  is an affirmative defense that shall be raised by the defendant
 29    and is not an element of any crime or administrative violation  that  must  be
 30    proved by the state.
 31        (2)  If,  due  to a medical emergency as defined in subsection (5) of sec-
 32    tion 18-609A, Idaho Code, there was insufficient time  for  the  physician  to
 33    confirm  that  the  woman, due to her age, did not then come within the provi-
 34    sions of subsection (1) of section 18-609A, Idaho Code,  the  physician  shall
 35    not  be  subject  to  criminal  or administrative liability for performing the
 36    abortion in violation of subsection (1)(a)(v) of section 18-609A, Idaho  Code,
 37    if,  as  soon  as  possible but in no event longer than twenty-four (24) hours
 38    after performing the abortion, the physician obtained positive  identification
 39    or  other  documentary evidence from which a reasonable person would have con-
 40    cluded that the woman seeking the abortion was either an emancipated minor  or
 41    was  not  then a minor and if the physician retained, at the time of receiving
 42    the evidence, a legible photocopy of such evidence in the  physician's  office
 43    file for the woman No physician shall be subject to criminal or administrative
 44    liability  for  causing or performing an abortion upon a minor in violation of
 45    subsection (1)(a) of section 18-609A, Idaho Code, where the physician  causing
 46    or  performing the abortion did secure the consent of a person whom he reason-
 47    ably believed to be a parent of the minor seeking the abortion, but where  the
 48    person  from  whom  the  consent was secured was not, in fact, a parent of the
 49    minor, and where none of the circumstances in paragraph (ii), (iii),  (iv)  or
 50    (v)  of  subsection  (1)(a) of section 18-609A, Idaho Code, exist, if prior to
 51    causing or performing the abortion and after reaching a reasonable  conclusion
 52    that  the  person  purporting  to be a parent of the minor was a parent of the
 53    minor, the physician obtains either positive identification or other  documen-
                                                                        
                                           11
                                                                        
  1    tary  evidence  from  which  a reasonable person would have concluded that the
  2    person purporting to be the parent, was in fact, a parent of the minor seeking
  3    the abortion and if the physician retained, at the time of receiving the iden-
  4    tification or evidence, a legible photocopy of such identification or evidence
  5    in the physician's office file for the woman upon whom the abortion is  caused
  6    or  performed.  This defense is an affirmative defense that shall be raised by
  7    the defendant and is not an element of any crime or  administrative  violation
  8    that must be proved by the state.
  9        (3)  If  after  performing  an  abortion  under circumstances of a medical
 10    emergency as defined in subsection (5) of section  18-609A,  Idaho  Code,  the
 11    physician, after reasonable inquiry, is unable to determine whether or not the
 12    woman  is  a  minor,  the physician shall not be subject to criminal, civil or
 13    administrative liability for taking any action that would have  been  required
 14    by  subsection (1)(a)(v) of section 18-609A, Idaho Code, if the woman had been
 15    a minor at the time the abortion was caused or performed.
 16        (4)  For purposes of this section, "positive identification" means a  law-
 17    fully issued state, district, territorial, possession, provincial, national or
 18    other  equivalent government driver's license, identification card or military
 19    card, bearing the person's photograph and date of birth,  the  person's  valid
 20    passport or a certified copy of the person's birth certificate.
                                                                        
 21        SECTION  6.  LEGISLATIVE FINDING AND INTENT. In enacting this legislation,
 22    the Legislature intends the following:
 23        (1)  The first  changes  to  Section  18-609A(1)(a)(v),  Idaho  Code,  are
 24    intended  to  address the concerns of the United States District Court for the
 25    District of Idaho that post-medical emergency notice would  be  withheld  from
 26    parents of a minor who had been abused or neglected in the past, but would not
 27    be  withheld  in  cases  where  a  minor  might  be subject to future abuse or
 28    neglect. In enacting a separate generic grounds for a  physician  to  withhold
 29    notice to a parent if the best interests of the child require, the Legislature
 30    intends  to  give  the  courts  a vehicle to order that post-medical emergency
 31    notice be withheld in those circumstances where the  United  States  or  state
 32    constitutions  would so dictate. This, in effect, implements a judicial bypass
 33    proceeding  specifically  for  post-medical  emergency  notice.  Removing  the
 34    requirement that the Child Protective Act petition include a reference to Sec-
 35    tion 18-609A, Idaho Code, reference in the decree which might give notice that
 36    a minor is seeking an abortion requiring  the  court's  Child  Protective  Act
 37    "protect  the  confidentiality of the minor" is designed to protect the confi-
 38    dentiality of the minor in a manner consistent  with  the  United  States  and
 39    Idaho Constitutions and alleviate concerns expressed by the District Court.
 40        (2)  The  Legislature finds that every abortion is a serious surgical pro-
 41    cedure. Gwendolyn Drummer of Richmond, California  (1972),  Rita  McDowell  of
 42    Washington,  D.C.  (1975),  Dawn  Ravnell of New York (1990), Teresa Causey of
 43    Georgia (1988), Erica Richardson of Maryland (1989), Deborah Lozinski  of  New
 44    Jersey (1985), Jane Roe of Manhattan (1988), Jane Roe #1 of Newark, New Jersey
 45    (1985),  Patricia  Chacon  of California (1984), Beverly A. Moore of Tennessee
 46    (1975), Denise Mentoya of Texas (1988), Latachie Veal of Texas (1991), Laniece
 47    Dorsey of California (1986), Glenda Jean Fox of New York (1989), Sophie  McCoy
 48    of New York (1990), Natalie Meyers of California (1972), Kathy Murphy of Cali-
 49    fornia  (1973), Deana K. Bell of Illinois (1992), Christella Forte of Michigan
 50    (1986) and Jennifer Suddeth of California (1982), are all minors who died from
 51    complications from abortions performed in abortion clinics. When  an  abortion
 52    is  required due  to medical emergency the circumstances are much more serious
 53    making it imperative that a minor receive adequate postabortion medical care.
 54    The Legislature further finds that proper medical  care  under  those  circum-
                                                                        
                                           12
                                                                        
  1    stances  will  rarely,  if  ever, occur if a parent is not informed that their
  2    daughter has not only undergone a serious surgical  procedure,  but  has  also
  3    suffered  a  medical emergency so serious that it required the immediate abor-
  4    tion.
  5        Indiana teenager Becky Bell, who died September 16, 1988, was pregnant  at
  6    seventeen  years  of  age. There is dispute about whether she had undergone an
  7    induced abortion or whether she had a miscarriage and whether  she  died  from
  8    pneumonia  unrelated to the abortion or from infection resulting from an ille-
  9    gal abortion. She was under the care of her parents at her home and was rushed
 10    to the hospital when her symptoms became acute. Irrespective  of  the  circum-
 11    stances  and  cause  of her death, the Legislature finds that her parents were
 12    unable to provide care and timely  transport  to  the  hospital  because  they
 13    lacked knowledge about her pregnancy and the onset of her infection.
 14        Kathy  Denise  Murphy was a high school student in Los Angeles who went to
 15    Inglewood Hospital for an abortion on August 29, 1973. The abortion  was  com-
 16    pleted  but  she  subsequently  developed  an  infection  that  made her go to
 17    Centinela Valley Community Hospital to receive emergency care.  Unfortunately,
 18    by  that  time  the  infection had ravaged her body. On September 8, 1973, the
 19    hospital contacted her mother to let her know that her  daughter  was  gravely
 20    ill, but by the time her mother got to the hospital, Kathy was dead. Kathy had
 21    not told her mother about the abortion or her subsequent illness. (Los Angeles
 22    County  Superior  Court File #SWC 26793. State of California Death Certificate
 23    73-148112). If for any reason the parents of a minor are not notified  of  the
 24    performance  of  an  abortion upon their minor daughter due to a medical emer-
 25    gency, the presumption must be that the best interests of  the  minor  require
 26    that  the  abortionist  must provide medical care until a parent or some other
 27    person can care for the minor, and when required due to a  medical  emergency,
 28    it is imperative that a minor receive adequate postabortion medical care.
 29        (3)  The  changes  to  Section  18-609A(1)(b)(i), Idaho Code, that require
 30    that a guardian ad litem be appointed in every case  except  where  the  minor
 31    refuses  one,  are intended to maintain the confidentiality of bypass proceed-
 32    ings while assisting the court with its determination. The guardian  ad  litem
 33    would  be  required to investigate the circumstances and history of the minor,
 34    albeit on an expedited time frame, and would at least have an  opportunity  to
 35    obtain  important  information about the minor, provide it to the court and do
 36    so in a manner that would protect the confidentiality of the minor.
 37        (4)  Existing code requires that when the court discovers information dur-
 38    ing the hearing which would indicate a  violation  of  criminal  law,  that  a
 39    report  must  be  made to law enforcement or a prosecutor. It has been removed
 40    and the responsibility has now been shifted to the guardian ad  litem.  Statu-
 41    tory  rape  pursuant  to  section 18-6101 1., Idaho Code, has been exempted to
 42    remove the concern of the United States District Court that a chilling  effect
 43    would  be  caused  because every pregnant minor has been a victim of statutory
 44    rape. The Legislature intends to cover at least three  circumstances:  incest,
 45    forcible  rape  and  sexual  predators.  In each of those circumstances a male
 46    would have great motivation to obtain an abortion for  a  minor  to  make  the
 47    problem  pregnancy go away and cover up his crime. Because the bypass proceed-
 48    ings are closed and totally confidential,  there  is  no  other  mechanism  to
 49    uncover these bad actors. In finding the reporting requirement by judges to be
 50    unconstitutional,  the District Court brought about a cruel result that minors
 51    seeking abortion would somehow be stripped of protection under  the  law  when
 52    they  are  the  victims of incest, forcible rape or sexual predators when such
 53    protection would be available for all other minors in all other circumstances.
 54        (5)  The requirement in Section 18-609A(1)(c), Idaho Code,  that a  notice
 55    of  appeal  be  filed  within  two  days of the issuance of the order has been
                                                                        
                                           13
                                                                        
  1    extended to five days from service of the court's order to  address  the  con-
  2    cerns  expressed by the District Court. The Legislature intends that this will
  3    give minors an adequate time to consider and make their appeal, but that  they
  4    will  likely  do  so  with  great haste in light of their desire to obtain the
  5    abortion they seek. Between the effective date of the original statute in 2000
  6    and the end of 2004, there were no appeals and only one denied petition,  fif-
  7    teen petitions granted and six petitions withdrawn.
  8        (6)  The  provisions  of  existing Section 18-609A(1)(d), Idaho Code, that
  9    allow a court to extend time limits set out in the section has  been  removed.
 10    All time frames require action "as soon as practicable." The time between fil-
 11    ing  of  the petition and its hearing can be no more than three days. The time
 12    between hearing of the petition and decision by the court can be no more  than
 13    three days. The time between issuance of the court's order and the filing of a
 14    notice  of  appeal  by  the minor is totally the decision of the minor and her
 15    counsel, the Legislature intends that such will happen quickly and, when  com-
 16    bined  with  the other provisions of this Section, will occur within constitu-
 17    tionally acceptable time frames. The total time from filing of the petition to
 18    decision on appeal should be no more than eighteen days, not counting the time
 19    the minor takes to file a notice of appeal. In unusual circumstances  where  a
 20    court  would  find  good cause to grant an extension, the total for all exten-
 21    sions cannot exceed three days so the total time from the filing of the  peti-
 22    tion  to  the  decision on appeal cannot exceed twenty-one days, not including
 23    the time the minor takes to file a notice of appeal.
 24        (7)  In 2002, 2003 and 2004, all minors  filing  petitions  appeared  with
 25    their  own counsel. In the event a minor does not have counsel, the court will
 26    now appoint one with the changes to Section  18-609A(1)(b)(iii),  Idaho  Code.
 27    The  Legislature  intends  this  will  ensure that the minor has a guardian ad
 28    litem seeking her best interests and an attorney advocating for her before the
 29    court.
 30        (8)  It is legislative intent that the  definition  of  medical  emergency
 31    includes circumstances where acute symptoms requiring medical treatment appear
 32    suddenly  and unexpectedly in a pregnant woman who has concurrently been diag-
 33    nosed with:
 34        (a)  Chronic medical conditions of  leukemia,  Marfan's  syndrome,  Mitral
 35        Stenosis or pulmonary hypertension;
 36        (b)  Severe preeclampsia or HELLP syndrome;
 37        (c)  Ectopic or cornual pregnancy;
 38        (d)  Inevitable abortion;
 39        (e)  Premature  rupture  of "bag of waters" membrane which has resulted in
 40        an acute infection; or
 41        (f)  Pregnancy in spite of presence of IUD contraceptive device.
                                                                        
 42        SECTION 7.  SEVERABILITY. The provisions of this act are  hereby  declared
 43    to  be  severable  and if any provision of this act or the application of such
 44    provision to any person or circumstance is declared invalid  for  any  reason,
 45    such  declaration  shall  not affect the validity of the remaining portions of
 46    this act.
                                                                        
 47        SECTION 8.  This act shall be in full force and effect when  the  Attorney
 48    General of the State of Idaho drafts a proclamation indicating that the United
 49    States  Supreme  Court  has  denied  a  petition for certiorari in the case of
 50    Wasden v. Planned Parenthood of Idaho, Supreme Court  Docket  No.  04-703  and
 51    files  the proclamation with the Secretary of State and the Secretary of State
 52    notifies the Idaho Code Commission of such action.

Statement of Purpose / Fiscal Impact



                       STATEMENT OF PURPOSE

                             RS 15151

In the three years following the enactment of Idaho's law requiring a
parent's consent when minor seek an abortion, the number of abortions
for minors fell by an average of thirty percent (30%).  Planned
Parenthood, the American Civil Liberties Union, and Dr. Glen Weyhrich
challenged the law in Federal Court.  In District Court the law was
largely upheld, however, on appeal the Ninth (9th) Circuit Court of
Appeals disagreed with the District Court and opined that Idaho's
definition of "medical emergency" was constitutionally flawed and,
therefore, none of the statute can be enforced.  This bill addresses
the concerns expressed by the Ninth (9th) Circuit Court of Appeals and
the U.S. District Court for the state of Idaho.

With the amendments, a lawyer and guardian ad litem will be required
for each minor who seeks to bypass a parent's consent by seeking a
court order.  About five such cases occur each year.



                           FISCAL NOTE

There is no impact to the general fund.  There could be a possible
property tax impact.



Contact
Name:  Rep. Bill Sali 
       Rep. Lawerence Denney
Phone: (208) 332-1000


STATEMENT OF PURPOSE/FISCAL NOTE                             H 351