2007 Legislation
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SENATE BILL NO. 1082 – Abortion, parental consent

SENATE BILL NO. 1082

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Bill Status



S1082aa....................................................by STATE AFFAIRS
ABORTION - PARENTAL CONSENT - Amends, repeals and adds to existing law
relating to abortion to revise a public records exemption; to provide for
criminal act state of mind; to provide procedures for obtaining consent for
abortions for minors; to provide for reporting by courts; and to provide
statistical records.
                                                                        
02/02    Senate intro - 1st rdg - to printing
02/05    Rpt prt - to St Aff
02/12    Rpt out - to 14th Ord
02/16    Rpt out amen - to engros
02/19    Rpt engros - 1st rdg - to 2nd rdg as amen
02/20    2nd rdg - to 3rd rdg as amen
02/26    3rd rdg as amen - PASSED - 23-12-0
      AYES -- Bair, Bastian, Bilyeu, Cameron, Corder, Darrington, Davis,
      Fulcher, Gannon, Geddes, Goedde, Hammond, Heinrich, Hill, Jorgenson,
      Little, Lodge, McGee, McKague, McKenzie, Pearce, Richardson, Siddoway
      NAYS -- Andreason, Broadsword, Burkett, Coiner, Kelly, Keough,
      Langhorst, Malepeai, Schroeder, Stegner, Stennett, Werk
      Absent and excused -- None
    Floor Sponsor - Fulcher
    Title apvd - to House
02/27    House intro - 1st rdg - to Health/Wel
03/09    Rpt out - rec d/p - to 2nd rdg
03/12    2nd rdg - to 3rd rdg
03/16    3rd rdg - PASSED - 53-14-3
      AYES -- Anderson, Andrus, Barrett, Bayer, Bedke, Bell, Bilbao, Block,
      Boe, Bolz, Brackett, Bradford, Chadderdon, Clark, Collins, Crane,
      Durst, Edmunson, Eskridge, Hagedorn, Hart, Harwood, Henbest,
      Henderson, Kren, Labrador, Lake, Loertscher, Luker, Marriott,
      Mathews, Mortimer, Moyle, Nielsen, Nonini, Patrick, Raybould, Ring,
      Roberts, Ruchti, Schaefer, Shepherd(2), Shepherd(8), Shirley,
      Shively, Snodgrass, Stevenson, Thayn, Vander Woude, Wills, Wood(27),
      Wood(35), Mr. Speaker
      NAYS -- Bock, Chavez, Chew, Jaquet, Killen, King, LeFavour,
      Pasley-Stuart, Pence, Ringo, Rusche, Sayler, Smith(30), Trail
      Absent and excused -- Black, McGeachin, Smith(24)
    Floor Sponsor - Loertscher
    Title apvd - to Senate
03/19    To enrol
03/20    Rpt enrol - Pres signed - Sp signed
03/21    To Governor
03/27    Governor signed
         Session Law Chapter 193
         Effective: 03/27/07

Bill Text


                                                                        
                                                                        
  ]]]]              LEGISLATURE OF THE STATE OF IDAHO             ]]]]
 Fifty-ninth Legislature                   First Regular Session - 2007
                                                                        
                                                                        
                                       IN THE SENATE
                                                                        
                                    SENATE BILL NO. 1082
                                                                        
                                 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        18-605,  IDAHO  CODE, TO PROVIDE FOR CRIMINAL ACT STATE OF MIND; REPEALING
  6        SECTION 18-609A, IDAHO CODE, RELATING TO CONSENT  REQUIRED  FOR  ABORTIONS
  7        FOR  MINORS;  AMENDING CHAPTER 6, TITLE 18, IDAHO CODE, BY THE ADDITION OF
  8        NEW SECTIONS 18-609A, 18-609F AND 18-609G, IDAHO CODE, TO  PROVIDE  PROCE-
  9        DURES  FOR  OBTAINING  CONSENT  FOR  ABORTIONS  FOR MINORS, TO PROVIDE FOR
 10        REPORTING BY COURTS AND TO PROVIDE FOR STATISTICAL RECORDS; AMENDING  SEC-
 11        TION  18-614,  IDAHO  CODE,  TO  DELETE PROVISIONS RELATING TO AFFIRMATIVE
 12        DEFENSE AND A MEDICAL EMERGENCY AND TO MAKE TECHNICAL CORRECTIONS; PROVID-
 13        ING SEVERABILITY; AND DECLARING AN EMERGENCY.
                                                                        
 14    Be It Enacted by the Legislature of the State of Idaho:
                                                                        
 15        SECTION 1.  That Chapter 393, Laws of 2005, be, and  the  same  is  hereby
 16    repealed.
                                                                        
 17        SECTION  2.  That  Section  9-340G, Idaho Code, be, and the same is hereby
 18    amended to read as follows:
                                                                        
 19        9-340G.  EXEMPTION FROM DISCLOSURE -- RECORDS OF COURT PROCEEDINGS REGARD-
 20    ING JUDICIAL AUTHORIZATION OF ABORTION PROCEDURES FOR  MINORS.  In  accordance
 21    with section 18-609A, Idaho Code, the following records are exempt from public
 22    disclosure:  all  records  contained  in  court  files of judicial proceedings
 23    regarding judicial authorization of a minor's consent to an  abortion  or  the
 24    performance  of  abortion  procedures upon a minor who would otherwise have to
 25    obtain consent for the procedure from a parent or  guardian,  in  addition  to
 26    records  of  any  judicial proceedings filed arising under section 18-609A(3),
 27    Idaho Code, are exempt from disclosure.
                                                                        
 28        SECTION 3.  That Section 18-605, Idaho Code, be, and the  same  is  hereby
 29    amended to read as follows:
                                                                        
 30        18-605.  UNLAWFUL ABORTIONS -- PROCUREMENT OF -- PENALTY. (1) Every person
 31    not  licensed  or  certified  to  provide  health care in Idaho who knowingly,
 32    except as permitted by this chapter, provides,  supplies  or  administers  any
 33    medicine,  drug or substance to any woman or uses or employs any instrument or
 34    other means whatever upon any then-pregnant woman with intent thereby to cause
 35    or perform an abortion shall be guilty of a felony and shall be fined  not  to
 36    exceed  five  thousand  dollars ($5,000) and/or imprisoned in the state prison
 37    for not less than two (2) and not more than five (5) years.
 38        (2)  Any person licensed or certified to provide health care  pursuant  to
 39    title  54,  Idaho Code, and who, except as permitted by the provisions of this
 40    chapter, provides, supplies or administers any medicine, drug or substance  to
                                                                        
                                       2
                                                                        
  1    any  woman  or uses or employs any instrument or other means whatever upon any
  2    then-pregnant woman with intent to cause or perform an abortion shall:
  3        (a)  For the first violation, be subject to professional discipline and be
  4        assessed a civil penalty of not less than one thousand  dollars  ($1,000),
  5        payable to the board granting such person's license or certification;
  6        (b)  For  the  second  violation,  have  their license or certification to
  7        practice  suspended for a period of not less than six (6)  months  and  be
  8        assessed  a  civil penalty of not less than two thousand five hundred dol-
  9        lars ($2,500), payable to the board granting such person's license or cer-
 10        tification; and
 11        (c)  For each subsequent violation, have their license or certification to
 12        practice revoked and be assessed a civil penalty of  not  less  than  five
 13        thousand  dollars  ($5,000),  payable  to the board granting such person's
 14        license or certification.
 15        (3)  Any person who is licensed or certified to provide health care pursu-
 16    ant to title 54, Idaho Code, and who knowingly violates the provisions of this
 17    chapter is guilty of a felony punishable as set forth  in  subsection  (1)  of
 18    this  section,  separate  from and in addition to the administrative penalties
 19    set forth in subsection (2) of this section.
                                                                        
 20        SECTION 4.  That Section 18-609A, Idaho Code, be, and the same  is  hereby
 21    repealed.
                                                                        
 22        SECTION  5.  That  Chapter  6,  Title  18, Idaho Code, be, and the same is
 23    hereby amended by the addition thereto of NEW SECTIONS, to be known and desig-
 24    nated as Sections 18-609A, 18-609F and 18-609G, Idaho Code,  and  to  read  as
 25    follows:
                                                                        
 26        18-609A.  CONSENT  REQUIRED FOR ABORTIONS FOR MINORS. (1) Except as other-
 27    wise provided in this section, a person shall not knowingly perform  an  abor-
 28    tion  on  a  pregnant  unemancipated  minor unless the attending physician has
 29    secured the written consent from one (1) of the minor's parents or the minor's
 30    guardian or conservator.
 31        (2)  A judge of the district court shall, on petition or motion, and after
 32    an appropriate hearing, authorize a physician to perform the abortion  if  the
 33    judge determines, by clear and convincing evidence, that:
 34        (a)  The  pregnant  minor is mature and capable of giving informed consent
 35        to the proposed abortion; or
 36        (b)  The performance of an abortion would be in her best interests.
 37        (3)  The pregnant minor may participate in the court  proceedings  on  her
 38    own behalf. The court may appoint a guardian ad litem for her. The court shall
 39    provide her with counsel unless she appears through private counsel.
 40        (4)  Proceedings in the court under this section are confidential and have
 41    precedence  over other pending matters. A judge who conducts proceedings under
 42    this section shall  make in writing specific factual findings and  legal  con-
 43    clusions  supporting the decision and shall order a confidential record of the
 44    evidence to be maintained including the judge's own findings and  conclusions.
 45    The minor may file the petition using a fictitious name. All records contained
 46    in  court  files  of judicial proceedings arising under the provisions of this
 47    section shall be confidential and exempt from disclosure pursuant  to  section
 48    9-340G,  Idaho  Code.  Dockets and other court records shall be maintained and
 49    court proceedings undertaken so that the names and identities of  the  parties
 50    to  actions brought pursuant to this section will not be disclosed to the pub-
 51    lic.
 52        (5)  The court shall hold  the  hearing  within  forty-eight  (48)  hours,
                                                                        
                                       3
                                                                        
  1    excluding  weekends and holidays, after the petition is filed, and shall issue
  2    its ruling at the conclusion of the hearing. If the court fails to  issue  its
  3    ruling  at  the conclusion of the hearing, the petition is deemed to have been
  4    granted and the consent requirement is waived.
  5        (6)  An expedited confidential appeal is available to a pregnant minor for
  6    whom the court denies an order authorizing an abortion without  parental  con-
  7    sent. A minor shall  file her notice of appeal within five (5) days, excluding
  8    weekends  and  holidays,  after her petition was denied by the district court.
  9    The appellate court shall hold the  hearing  within  forty-eight  (48)  hours,
 10    excluding weekends and holidays, after the notice of appeal is filed and shall
 11    issue  its  ruling  at  the  conclusion of the hearing. If the appellate court
 12    fails to issue its ruling at the conclusion of the hearing,  the  petition  is
 13    deemed to have been granted and the consent requirement is waived. Filing fees
 14    are  not  required  of  the pregnant minor at either the district court or the
 15    appellate level.
 16        (7)  Parental consent or judicial authorization is not required under this
 17    section if either:
 18        (a)  The pregnant minor certifies to  the  attending  physician  that  the
 19        pregnancy  resulted  from  rape as defined in section 18-6101, Idaho Code,
 20        excepting subsection 1. thereof, or sexual conduct with the minor  by  the
 21        minor's  parent, stepparent, uncle, grandparent, sibling, adoptive parent,
 22        legal guardian or foster parent.
 23        (b)  A medical emergency exists for the minor and the attending  physician
 24        records  the  symptoms  and diagnosis upon which such judgment was made in
 25        the minor's medical record.
                                                                        
 26        18-609F.  REPORTING BY COURTS. The administrative director of  the  courts
 27    shall  compile  statistics  for  each calendar year, accessible to the public,
 28    including:
 29        (1)  The total number of petitions  filed  pursuant  to  section  18-609A,
 30    Idaho Code; and
 31        (2)  The  number  of  such  petitions  filed where a guardian ad litem was
 32    requested and the number where a guardian ad litem or other person  acting  in
 33    such capacity was appointed; and
 34        (3)  The  number of petitions where counsel appeared for the minor without
 35    court appointment; and
 36        (4)  The number of petitions where counsel was requested by the minor  and
 37    the number where counsel was appointed by the court; and
 38        (5)  The  number of such petitions for which the right to self-consent was
 39    granted; and
 40        (6)  The number of  such   petitions  for  which  the  court  granted  its
 41    informed consent; and
 42        (7)  The number of such petitions which were denied; and
 43        (8)  The number of such petitions which were withdrawn by the minor; and
 44        (9)  For categories described in subsections (3), (4) and (7) of this sec-
 45    tion, the number of appeals taken from the court's order in each category; and
 46        (10) For each of the categories set out in subsection (9) of this section,
 47    the  number of cases for which the district court's order was affirmed and the
 48    number of cases for which the district court's order was reversed; and
 49        (11) The age of the minor for each petition; and
 50        (12) The time between the filing of the petition and the hearing  of  each
 51    petition; and
 52        (13) The  time  between the hearing and the decision by the court for each
 53    petition; and
 54        (14) The time between the decision and filing a notice of appeal for  each
                                                                        
                                       4
                                                                        
  1    case, if any; and
  2        (15) The time of extension granted by the court in each case, if any.
                                                                        
  3        18-609G.  STATISTICAL  RECORDS.  (1) The bureau of vital statistics of the
  4    department of health and welfare  shall,  in  addition  to  other  information
  5    required  pursuant  to  section  39-261,  Idaho Code, require the complete and
  6    accurate reporting of information relevant to each abortion performed  upon  a
  7    minor which shall include, at a minimum, the following:
  8        (a)  Whether  the abortion was performed following the physician's receipt
  9        of:
 10             (i)   The written informed consent of a parent, guardian or conserva-
 11             tor and the minor; or
 12             (ii)  The written informed consent of an emancipated minor  for  her-
 13             self; or
 14             (iii) The written informed consent of a minor for herself pursuant to
 15             a court order granting the minor the right to self-consent; or
 16             (iv)  The  written  informed  consent of a court pursuant to an order
 17             which includes a  finding  that  the  performance  of  the  abortion,
 18             despite the absence of the consent of a parent, is in the best inter-
 19             ests of the minor; or
 20             (v)   Certification  from  the pregnant minor to the attending physi-
 21             cian pursuant to section 18-609A, Idaho Code, that  parental  consent
 22             is  not  required because the pregnancy resulted from rape as defined
 23             in section 18-6101, Idaho Code, excepting subsection 1.  thereof,  or
 24             sexual  conduct  with  the  minor  by the minor's parent, stepparent,
 25             uncle, grandparent, sibling, adoptive parent, legal guardian or  fos-
 26             ter parent.
 27        (b)  If  the abortion was performed due to a medical emergency and without
 28        consent from a parent, guardian or conservator or court order, the diagno-
 29        sis upon which the attending physician determined that  the  abortion  was
 30        immediately necessary due to a medical emergency.
 31        (2)  The knowing failure of the attending physician to perform any one (1)
 32    or more of the acts required under this section is grounds for discipline pur-
 33    suant  to  section  54-1814(6), Idaho Code, and shall subject the physician to
 34    assessment of a civil penalty of one hundred dollars ($100) for each month  or
 35    portion  thereof  that  each  such failure continues, payable to the bureau of
 36    vital statistics of the department of health and  welfare,  but  such  failure
 37    shall not constitute a criminal act.
                                                                        
 38        SECTION  6.  That  Section  18-614, Idaho Code, be, and the same is hereby
 39    amended to read as follows:
                                                                        
 40        18-614.  DEFENSES TO PROSECUTION. (1) No physician  shall  be  subject  to
 41    criminal  or  administrative  liability  for causing or performing an abortion
 42    upon a minor in violation of  any  provision  of  subsection  (1)  of  section
 43    18-609A, Idaho Code, if prior to causing or performing the abortion the physi-
 44    cian obtains either positive identification or other documentary evidence from
 45    which  a  reasonable  person  would  have concluded that the woman seeking the
 46    abortion was either an emancipated minor or was not then a minor  and  if  the
 47    physician retained, at the time of receiving the evidence, a legible photocopy
 48    of such evidence in the physician's office file for the woman. This defense is
 49    an  affirmative  defense  that  shall be raised by the defendant and is not an
 50    element of any crime or administrative violation that must be  proved  by  the
 51    state.
 52        (2)  If,  due  to a medical emergency as defined in subsection (5) of sec-
                                                                        
                                       5
                                                                        
  1    tion 18-609A, Idaho Code, there was insufficient time  for  the  physician  to
  2    confirm  that  the  woman, due to her age, did not then come within the provi-
  3    sions of subsection (1) of section 18-609A, Idaho Code,  the  physician  shall
  4    not  be  subject  to  criminal  or administrative liability for performing the
  5    abortion in violation of subsection (1)(a)(v) of section 18-609A, Idaho  Code,
  6    if,  as  soon  as  possible but in no event longer than twenty-four (24) hours
  7    after performing the abortion, the physician obtained positive  identification
  8    or  other  documentary evidence from which a reasonable person would have con-
  9    cluded that the woman seeking the abortion was either an emancipated minor  or
 10    was  not  then a minor and if the physician retained, at the time of receiving
 11    the evidence, a legible photocopy of such evidence in the  physician's  office
 12    file  for  the  woman.  This  defense  is an affirmative defense that shall be
 13    raised by the defendant and is not an element of any crime  or  administrative
 14    violation that must be proved by the state.
 15        (3)  If  after  performing  an  abortion  under circumstances of a medical
 16    emergency as defined in subsection (5) of section  18-609A,  Idaho  Code,  the
 17    physician, after reasonable inquiry, is unable to determine whether or not the
 18    woman  is  a  minor,  the physician shall not be subject to criminal, civil or
 19    administrative liability for taking any action that would have  been  required
 20    by  subsection (1)(a)(v) of section 18-609A, Idaho Code, if the woman had been
 21    a minor at the time the abortion was caused or performed.
 22        (42)  For purposes of this section, "positive identification" means a law-
 23    fully issued state, district, territorial, possession, provincial, national or
 24    other equivalent government driver's license, identification card or  military
 25    card,  bearing  the  person's photograph and date of birth, the person's valid
 26    passport or a certified copy of the person's birth certificate.
                                                                        
 27        SECTION 7.  SEVERABILITY. If any one or more provision,  section,  subsec-
 28    tion,  sentence, clause, phrase or word of this act or the application thereof
 29    to any person or circumstance, or application to any other  section  of  Idaho
 30    Code is found to be unconstitutional, the same is hereby declared to be sever-
 31    able  and  the balance of this act shall remain effective notwithstanding such
 32    unconstitutionality. The Legislature hereby declares that it would have passed
 33    this act, and each provision, section, subsection, sentence, clause, phrase or
 34    word thereof, irrespective of the fact that any one or  more  provision,  sec-
 35    tion,  subsection,  sentence,  clause,  phrase or word be declared unconstitu-
 36    tional.
                                                                        
 37        SECTION 8.  An emergency existing  therefor,  which  emergency  is  hereby
 38    declared to exist, this act shall be in full force and effect on and after its
 39    passage and approval.

Amendment


                                                                        
                                                                        
  ]]]]              LEGISLATURE OF THE STATE OF IDAHO             ]]]]
 Fifty-ninth Legislature                   First Regular Session - 2007
                                                                        
                                                                        
                                                     Moved by    Fulcher             
                                                                        
                                                     Seconded by McKenzie            
                                                                        
                                                                        
                                       IN THE SENATE
                             SENATE AMENDMENT TO S.B. NO. 1082
                                                                        
  1                                AMENDMENT TO SECTION 3
  2        On page 1 of the printed bill, in line 39, following "who"  insert: "know-
  3    ingly".
                                                                        
  4                               AMENDMENTS TO SECTION 5
  5        On page 2, in line 40, delete "are confidential"  and  insert:  "shall  be
  6    closed"; and on page 4, delete line 16 and insert:
  7             "(iv)  The court order".

Engrossed Bill (Original Bill with Amendment(s) Incorporated)


                                                                        
                                                                        
  ]]]]              LEGISLATURE OF THE STATE OF IDAHO             ]]]]
 Fifty-ninth Legislature                   First Regular Session - 2007
                                                                        
                                                                        
                                       IN THE SENATE
                                                                        
                              SENATE BILL NO. 1082, As Amended
                                                                        
                                 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        18-605,  IDAHO  CODE, TO PROVIDE FOR CRIMINAL ACT STATE OF MIND; REPEALING
  6        SECTION 18-609A, IDAHO CODE, RELATING TO CONSENT  REQUIRED  FOR  ABORTIONS
  7        FOR  MINORS;  AMENDING CHAPTER 6, TITLE 18, IDAHO CODE, BY THE ADDITION OF
  8        NEW SECTIONS 18-609A, 18-609F AND 18-609G, IDAHO CODE, TO  PROVIDE  PROCE-
  9        DURES  FOR  OBTAINING  CONSENT  FOR  ABORTIONS  FOR MINORS, TO PROVIDE FOR
 10        REPORTING BY COURTS AND TO PROVIDE FOR STATISTICAL RECORDS; AMENDING  SEC-
 11        TION  18-614,  IDAHO  CODE,  TO  DELETE PROVISIONS RELATING TO AFFIRMATIVE
 12        DEFENSE AND A MEDICAL EMERGENCY AND TO MAKE TECHNICAL CORRECTIONS; PROVID-
 13        ING SEVERABILITY; AND DECLARING AN EMERGENCY.
                                                                        
 14    Be It Enacted by the Legislature of the State of Idaho:
                                                                        
 15        SECTION 1.  That Chapter 393, Laws of 2005, be, and  the  same  is  hereby
 16    repealed.
                                                                        
 17        SECTION  2.  That  Section  9-340G, Idaho Code, be, and the same is hereby
 18    amended to read as follows:
                                                                        
 19        9-340G.  EXEMPTION FROM DISCLOSURE -- RECORDS OF COURT PROCEEDINGS REGARD-
 20    ING JUDICIAL AUTHORIZATION OF ABORTION PROCEDURES FOR  MINORS.  In  accordance
 21    with section 18-609A, Idaho Code, the following records are exempt from public
 22    disclosure:  all  records  contained  in  court  files of judicial proceedings
 23    regarding judicial authorization of a minor's consent to an  abortion  or  the
 24    performance  of  abortion  procedures upon a minor who would otherwise have to
 25    obtain consent for the procedure from a parent or  guardian,  in  addition  to
 26    records  of  any  judicial proceedings filed arising under section 18-609A(3),
 27    Idaho Code, are exempt from disclosure.
                                                                        
 28        SECTION 3.  That Section 18-605, Idaho Code, be, and the  same  is  hereby
 29    amended to read as follows:
                                                                        
 30        18-605.  UNLAWFUL ABORTIONS -- PROCUREMENT OF -- PENALTY. (1) Every person
 31    not  licensed  or  certified  to  provide  health care in Idaho who knowingly,
 32    except as permitted by this chapter, provides,  supplies  or  administers  any
 33    medicine,  drug or substance to any woman or uses or employs any instrument or
 34    other means whatever upon any then-pregnant woman with intent thereby to cause
 35    or perform an abortion shall be guilty of a felony and shall be fined  not  to
 36    exceed  five  thousand  dollars ($5,000) and/or imprisoned in the state prison
 37    for not less than two (2) and not more than five (5) years.
 38        (2)  Any person licensed or certified to provide health care  pursuant  to
 39    title 54, Idaho Code, and who knowingly, except as permitted by the provisions
 40    of  this chapter, provides, supplies or administers any medicine, drug or sub-
                                                                        
                                       2
                                                                        
  1    stance to any woman or uses or employs any instrument or other means  whatever
  2    upon  any  then-pregnant  woman  with  intent  to cause or perform an abortion
  3    shall:
  4        (a)  For the first violation, be subject to professional discipline and be
  5        assessed a civil penalty of not less than one thousand  dollars  ($1,000),
  6        payable to the board granting such person's license or certification;
  7        (b)  For  the  second  violation,  have  their license or certification to
  8        practice  suspended for a period of not less than six (6)  months  and  be
  9        assessed  a  civil penalty of not less than two thousand five hundred dol-
 10        lars ($2,500), payable to the board granting such person's license or cer-
 11        tification; and
 12        (c)  For each subsequent violation, have their license or certification to
 13        practice revoked and be assessed a civil penalty of  not  less  than  five
 14        thousand  dollars  ($5,000),  payable  to the board granting such person's
 15        license or certification.
 16        (3)  Any person who is licensed or certified to provide health care pursu-
 17    ant to title 54, Idaho Code, and who knowingly violates the provisions of this
 18    chapter is guilty of a felony punishable as set forth  in  subsection  (1)  of
 19    this  section,  separate  from and in addition to the administrative penalties
 20    set forth in subsection (2) of this section.
                                                                        
 21        SECTION 4.  That Section 18-609A, Idaho Code, be, and the same  is  hereby
 22    repealed.
                                                                        
 23        SECTION  5.  That  Chapter  6,  Title  18, Idaho Code, be, and the same is
 24    hereby amended by the addition thereto of NEW SECTIONS, to be known and desig-
 25    nated as Sections 18-609A, 18-609F and 18-609G, Idaho Code,  and  to  read  as
 26    follows:
                                                                        
 27        18-609A.  CONSENT  REQUIRED FOR ABORTIONS FOR MINORS. (1) Except as other-
 28    wise provided in this section, a person shall not knowingly perform  an  abor-
 29    tion  on  a  pregnant  unemancipated  minor unless the attending physician has
 30    secured the written consent from one (1) of the minor's parents or the minor's
 31    guardian or conservator.
 32        (2)  A judge of the district court shall, on petition or motion, and after
 33    an appropriate hearing, authorize a physician to perform the abortion  if  the
 34    judge determines, by clear and convincing evidence, that:
 35        (a)  The  pregnant  minor is mature and capable of giving informed consent
 36        to the proposed abortion; or
 37        (b)  The performance of an abortion would be in her best interests.
 38        (3)  The pregnant minor may participate in the court  proceedings  on  her
 39    own behalf. The court may appoint a guardian ad litem for her. The court shall
 40    provide her with counsel unless she appears through private counsel.
 41        (4)  Proceedings  in the court under this section shall be closed and have
 42    precedence over other pending matters. A judge who conducts proceedings  under
 43    this  section  shall  make in writing specific factual findings and legal con-
 44    clusions supporting the decision and shall order a confidential record of  the
 45    evidence  to be maintained including the judge's own findings and conclusions.
 46    The minor may file the petition using a fictitious name. All records contained
 47    in court files of judicial proceedings arising under the  provisions  of  this
 48    section  shall  be confidential and exempt from disclosure pursuant to section
 49    9-340G, Idaho Code. Dockets and other court records shall  be  maintained  and
 50    court  proceedings  undertaken so that the names and identities of the parties
 51    to actions brought pursuant to this section will not be disclosed to the  pub-
 52    lic.
                                                                        
                                       3
                                                                        
  1        (5)  The  court  shall  hold  the  hearing  within forty-eight (48) hours,
  2    excluding weekends and holidays, after the petition is filed, and shall  issue
  3    its  ruling  at the conclusion of the hearing. If the court fails to issue its
  4    ruling at the conclusion of the hearing, the petition is deemed to  have  been
  5    granted and the consent requirement is waived.
  6        (6)  An expedited confidential appeal is available to a pregnant minor for
  7    whom  the  court denies an order authorizing an abortion without parental con-
  8    sent. A minor shall  file her notice of appeal within five (5) days, excluding
  9    weekends and holidays, after her petition was denied by  the  district  court.
 10    The  appellate  court  shall  hold  the hearing within forty-eight (48) hours,
 11    excluding weekends and holidays, after the notice of appeal is filed and shall
 12    issue its ruling at the conclusion of the  hearing.  If  the  appellate  court
 13    fails  to  issue  its ruling at the conclusion of the hearing, the petition is
 14    deemed to have been granted and the consent requirement is waived. Filing fees
 15    are not required of the pregnant minor at either the  district  court  or  the
 16    appellate level.
 17        (7)  Parental consent or judicial authorization is not required under this
 18    section if either:
 19        (a)  The  pregnant  minor  certifies  to  the attending physician that the
 20        pregnancy resulted from rape as defined in section  18-6101,  Idaho  Code,
 21        excepting  subsection  1. thereof, or sexual conduct with the minor by the
 22        minor's parent, stepparent, uncle, grandparent, sibling, adoptive  parent,
 23        legal guardian or foster parent.
 24        (b)  A  medical emergency exists for the minor and the attending physician
 25        records the symptoms and diagnosis upon which such judgment  was  made  in
 26        the minor's medical record.
                                                                        
 27        18-609F.  REPORTING  BY  COURTS. The administrative director of the courts
 28    shall compile statistics for each calendar year,  accessible  to  the  public,
 29    including:
 30        (1)  The  total  number  of  petitions  filed pursuant to section 18-609A,
 31    Idaho Code; and
 32        (2)  The number of such petitions filed where  a  guardian  ad  litem  was
 33    requested  and  the number where a guardian ad litem or other person acting in
 34    such capacity was appointed; and
 35        (3)  The number of petitions where counsel appeared for the minor  without
 36    court appointment; and
 37        (4)  The  number of petitions where counsel was requested by the minor and
 38    the number where counsel was appointed by the court; and
 39        (5)  The number of such petitions for which the right to self-consent  was
 40    granted; and
 41        (6)  The  number  of  such   petitions  for  which  the  court granted its
 42    informed consent; and
 43        (7)  The number of such petitions which were denied; and
 44        (8)  The number of such petitions which were withdrawn by the minor; and
 45        (9)  For categories described in subsections (3), (4) and (7) of this sec-
 46    tion, the number of appeals taken from the court's order in each category; and
 47        (10) For each of the categories set out in subsection (9) of this section,
 48    the number of cases for which the district court's order was affirmed and  the
 49    number of cases for which the district court's order was reversed; and
 50        (11) The age of the minor for each petition; and
 51        (12) The  time  between the filing of the petition and the hearing of each
 52    petition; and
 53        (13) The time between the hearing and the decision by the court  for  each
 54    petition; and
                                                                        
                                       4
                                                                        
  1        (14) The  time between the decision and filing a notice of appeal for each
  2    case, if any; and
  3        (15) The time of extension granted by the court in each case, if any.
                                                                        
  4        18-609G.  STATISTICAL RECORDS. (1) The bureau of vital statistics  of  the
  5    department  of  health  and  welfare  shall,  in addition to other information
  6    required pursuant to section 39-261, Idaho  Code,  require  the  complete  and
  7    accurate  reporting  of information relevant to each abortion performed upon a
  8    minor which shall include, at a minimum, the following:
  9        (a)  Whether the abortion was performed following the physician's  receipt
 10        of:
 11             (i)   The written informed consent of a parent, guardian or conserva-
 12             tor and the minor; or
 13             (ii)  The  written  informed consent of an emancipated minor for her-
 14             self; or
 15             (iii) The written informed consent of a minor for herself pursuant to
 16             a court order granting the minor the right to self-consent; or
 17             (iv)  The court order which includes a finding that  the  performance
 18             of  the  abortion, despite the absence of the consent of a parent, is
 19             in the best interests of the minor; or
 20             (v)   Certification from the pregnant minor to the  attending  physi-
 21             cian  pursuant  to section 18-609A, Idaho Code, that parental consent
 22             is not required because the pregnancy resulted from rape  as  defined
 23             in  section  18-6101, Idaho Code, excepting subsection 1. thereof, or
 24             sexual conduct with the minor  by  the  minor's  parent,  stepparent,
 25             uncle,  grandparent, sibling, adoptive parent, legal guardian or fos-
 26             ter parent.
 27        (b)  If the abortion was performed due to a medical emergency and  without
 28        consent from a parent, guardian or conservator or court order, the diagno-
 29        sis  upon  which  the attending physician determined that the abortion was
 30        immediately necessary due to a medical emergency.
 31        (2)  The knowing failure of the attending physician to perform any one (1)
 32    or more of the acts required under this section is grounds for discipline pur-
 33    suant to section 54-1814(6), Idaho Code, and shall subject  the  physician  to
 34    assessment  of a civil penalty of one hundred dollars ($100) for each month or
 35    portion thereof that each such failure continues, payable  to  the  bureau  of
 36    vital  statistics  of  the  department of health and welfare, but such failure
 37    shall not constitute a criminal act.
                                                                        
 38        SECTION 6.  That Section 18-614, Idaho Code, be, and the  same  is  hereby
 39    amended to read as follows:
                                                                        
 40        18-614.  DEFENSES  TO  PROSECUTION.  (1)  No physician shall be subject to
 41    criminal or administrative liability for causing  or  performing  an  abortion
 42    upon  a  minor  in  violation  of  any  provision of subsection (1) of section
 43    18-609A, Idaho Code, if prior to causing or performing the abortion the physi-
 44    cian obtains either positive identification or other documentary evidence from
 45    which a reasonable person would have concluded  that  the  woman  seeking  the
 46    abortion  was  either  an emancipated minor or was not then a minor and if the
 47    physician retained, at the time of receiving the evidence, a legible photocopy
 48    of such evidence in the physician's office file for the woman. This defense is
 49    an affirmative defense that shall be raised by the defendant  and  is  not  an
 50    element  of  any  crime or administrative violation that must be proved by the
 51    state.
 52        (2)  If, due to a medical emergency as defined in subsection (5)  of  sec-
                                                                        
                                       5
                                                                        
  1    tion  18-609A,  Idaho  Code,  there was insufficient time for the physician to
  2    confirm that the woman, due to her age, did not then come  within  the  provi-
  3    sions  of  subsection  (1) of section 18-609A, Idaho Code, the physician shall
  4    not be subject to criminal or  administrative  liability  for  performing  the
  5    abortion  in violation of subsection (1)(a)(v) of section 18-609A, Idaho Code,
  6    if, as soon as possible but in no event longer  than  twenty-four  (24)  hours
  7    after  performing the abortion, the physician obtained positive identification
  8    or other documentary evidence from which a reasonable person would  have  con-
  9    cluded  that the woman seeking the abortion was either an emancipated minor or
 10    was not then a minor and if the physician retained, at the time  of  receiving
 11    the  evidence,  a legible photocopy of such evidence in the physician's office
 12    file for the woman. This defense is  an  affirmative  defense  that  shall  be
 13    raised  by  the defendant and is not an element of any crime or administrative
 14    violation that must be proved by the state.
 15        (3)  If after performing an abortion  under  circumstances  of  a  medical
 16    emergency  as  defined  in  subsection (5) of section 18-609A, Idaho Code, the
 17    physician, after reasonable inquiry, is unable to determine whether or not the
 18    woman is a minor, the physician shall not be subject  to  criminal,  civil  or
 19    administrative  liability  for taking any action that would have been required
 20    by subsection (1)(a)(v) of section 18-609A, Idaho Code, if the woman had  been
 21    a minor at the time the abortion was caused or performed.
 22        (42)  For purposes of this section, "positive identification" means a law-
 23    fully issued state, district, territorial, possession, provincial, national or
 24    other  equivalent government driver's license, identification card or military
 25    card, bearing the person's photograph and date of birth,  the  person's  valid
 26    passport or a certified copy of the person's birth certificate.
                                                                        
 27        SECTION  7.  SEVERABILITY.  If any one or more provision, section, subsec-
 28    tion, sentence, clause, phrase or word of this act or the application  thereof
 29    to  any  person  or circumstance, or application to any other section of Idaho
 30    Code is found to be unconstitutional, the same is hereby declared to be sever-
 31    able and the balance of this act shall remain effective  notwithstanding  such
 32    unconstitutionality. The Legislature hereby declares that it would have passed
 33    this act, and each provision, section, subsection, sentence, clause, phrase or
 34    word  thereof,  irrespective  of the fact that any one or more provision, sec-
 35    tion, subsection, sentence, clause, phrase or  word  be  declared  unconstitu-
 36    tional.
                                                                        
 37        SECTION  8.  An  emergency  existing  therefor,  which emergency is hereby
 38    declared to exist, this act shall be in full force and effect on and after its
 39    passage and approval.

Statement of Purpose / Fiscal Impact



                       STATEMENT OF PURPOSE

                            RS 16822C1

This bill would reinstate parental consent requirements before a
minor girl can obtain a legal abortion in Idaho.


                           FISCAL NOTE

Enactment of the legislation should result in saving money now
being expended as a result of the litigation (appeal) now pending
before the U.S. 9th Circuit Court of Appeals.




Contact
Senator Russ Fulcher 
Phone: 332-1340
Representative Tom Loertscher
Phone: 332-1145


STATEMENT OF PURPOSE/FISCAL NOTE                        S 1082