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