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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
]]]] 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 knowinglycause 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 physicalsafety 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 law23 enforcement agency pursuant to section 16-1619, Idaho Code, and a24 petition shall be filed pursuant to section 16-1605, Idaho Code,25 which petition shall include a reference to this code sectionfile 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 such29 that no parent can be found, or on the basis of abuse or neglect such30 that the minor's physical safety would be in jeopardy if a parent31 were notified that the abortion was performed, the court shall, as a32 part of the decree, alsoor 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. A46 minor shall have the legal capacity to make and prosecute a petition47 and appeal as set out herein. A guardian ad litem may assist the48 minor in preparing her petition and other documents filed pursuant to49 this section and may seek appointment as set forth below. A guardian50 ad litem, whether prospective or appointed, must be an attorney prop-51 erly licensed in this state. The court shall ensure that the minor is52 given assistance in filing the petition if the minor so desires a53 guardian ad litem but no qualified guardian ad litem is availableis 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 ; and28 7. If so desired by the minor, a request that the court appoint29 a guardian ad litem, or, alternatively, if no guardian ad litem30 is requested, that the court should consider whether appointment31 of a guardian ad litem for the minor is appropriate.32 The petition shall be signed by the minor and, if she has33 received assistance from a prospective guardian ad litem in preparing34 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 is40 requested in the petition. If no qualified guardian ad litem is41 available, the court may appoint some other person to act in the42 capacity of a guardian ad litem, who shall act to fulfill the pur-43 poses of this section and protect the confidentiality and other44 rights of the minorhas 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 courtinvestigating 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 petitionerexcept 27 section 18-6101 1., Idaho Code, or would bring a childthe minor 28 within the purview of chapter 16, title 16, Idaho Code, the court29 shall order, upon entry of final judgment in the proceeding under30 this subsection, that an appropriate investigation be initiated or an31 appropriate information, complaint or petition be filed. Such allega-32 tions shall be forwarded by the court with due consideration for the33 confidentiality of the proceedings under this sectionon 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 of48 the order. The record on appeal shall be completed and the appeal shall be49 perfected as soon as practicable, but in no event later than five (5) days50 from the filing of notice of appeal. Because time may be of the essence51 regarding the performance of the abortion, appeals pursuant to this sub-52 section shall receive expedited appellate reviewfive (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 may2 enlarge the times set forth pursuant to this subsection upon request of3 the minor or upon good cause appearing, with due consideration for the4 expedited nature of these proceedingsWeekends 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 a39 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 active42 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 prudent45 physician acting under the circumstances and conditions then existing, is46 abnormal and so complicates the medical condition of the pregnant minor as47 to necessitate the immediate causing or performing of an abortion:48 1. To prevent her death; or49 2. Because a delay in causing or performing an abortion will50 create serious risk of immediate, substantial and irreversible51 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 in54 normal pregnancies of women of similar age, physical condition55 and gestation; or10 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 minor6 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 from14 which a reasonable person would have concluded thatwhere 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 to33 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 shall35 not be subject to criminal or administrative liability for performing the36 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) hours38 after performing the abortion, the physician obtained positive identification39 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 or41 was not then a minor and if the physician retained, at the time of receiving42 the evidence, a legible photocopy of such evidence in the physician's office43 file for the womanNo 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 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