2006 Legislation
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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

Bill Text


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 15    repealed.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

Statement of Purpose / Fiscal Impact



                       STATEMENT OF PURPOSE

                            RS 16233C5

To amend Idaho's law requiring a parent's consent for a minor to
obtain an abortion to resolve issues which have been held
unconstitutional by federal courts or otherwise cause concern
regarding constitutionality.  This legislation adopts Arizona's
parental consent statute which has been upheld by the Ninth Circuit
Court of Appeals.



                           FISCAL NOTE

None.




Contact
Name: Senator Russ Fulcher, Representative Bill Sali,
Representative Lawrence Denney 
Phone: 332-1000


STATEMENT OF PURPOSE/FISCAL NOTE                          S 1483