REPORT TITLE:
Notice of Abortion


DESCRIPTION:
Requires a physician to give notice of abortion to parent or
guardian of a minor or an incapacitated person to perform an
abortion.

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                        1907
HOUSE OF REPRESENTATIVES                H.B. NO.           
TWENTIETH LEGISLATURE, 2000                                
STATE OF HAWAII                                            
                                                             
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                   A  BILL  FOR  AN  ACT

RELATING TO RIGHTS OF PARENTS AND GUARDIANS. 


BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:

 1      SECTION 1.  (a)  The legislature finds that:
 
 2      (1)  Immature minors often lack the ability to make fully
 
 3           informed choices that take into account immediate and
 
 4           long-range consequences;
 
 5      (2)  The medical, emotional, and psychological consequences
 
 6           of abortion are sometimes serious and can be lasting,
 
 7           particularly when the patient is immature;
 
 8      (3)  The capacity to become pregnant and the capacity for
 
 9           mature judgment concerning the wisdom of an abortion
 
10           are not necessarily related;
 
11      (4)  Parents ordinarily possess information essential to a
 
12           physician's exercise of the physician's best medical
 
13           judgment concerning the child;
 
14      (5)  Parents who are aware their minor daughter has had an
 
15           abortion may better ensure that she receives adequate
 
16           medical attention after her abortion; and
 
17      (6)  Parental consultation is usually desirable and in the
 
18           best interests of the minor.
 
19      (b)  The purpose of this Act is to further the important and
 

 
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 1 compelling state interests of:
 
 2      (1)  Protecting minors against their own immaturity;
 
 3      (2)  Fostering family unity and preserving the family as a
 
 4           viable social unit;
 
 5      (3)  Protecting the constitutional rights of parents to rear
 
 6           children who are members of their household; and
 
 7      (4)  Reducing teenage pregnancy and unnecessary abortion.
 
 8      SECTION 2.  The Hawaii Revised Statutes, is amended by
 
 9 adding a new chapter to be appropriately designated and to read
 
10 as follows:
 
11                             "CHAPTER
 
12          NOTIFICATION OF ABORTION PERFORMED ON MINOR OR
 
13                       INCAPACITATED PERSON
 
14      §   -1  Definitions.  As used in this chapter:
 
15      "Abortion" means the use or prescription of any instrument,
 
16 medicine, drug, or any other substance or device to terminate the
 
17 pregnancy of a woman known by the person performing the abortion
 
18 to be pregnant.
 
19      "Actual notice" means the giving of notice directly, in
 
20 person or by telephone.
 
21      "Coercion" means restraining or dominating of a minor female
 
22 by force, threat of force, or deprivation of food and shelter.
 
23      "Constructive notice" means notice by certified mail to the
 

 
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                                     H.B. NO.           
                                                        
                                                        

 
 1 last known address of the parent or guardian with delivery deemed
 
 2 to have occurred forty-eight hours after mailing.
 
 3      "Emancipated minor" means a person under eighteen years of
 
 4 age who is or has been married or who has been emancipated.
 
 5      "Incapacitated" means a person who has been adjudged an
 
 6 incapacitated person under section 560:5-303 and who has had a
 
 7 guardian appointed under section 560:5-304.
 
 8      "Medical emergency" means a condition that, on the basis of
 
 9 the physician's good faith clinical judgment, so complicates the
 
10 medical condition of a pregnant woman as to necessitate the
 
11 immediate abortion of the pregnancy to avert the woman's death or
 
12 for which a delay will create serious risk of substantial and
 
13 irreversible impairment of a major bodily function.
 
14      "Minor" means a person who is under eighteen years of age,
 
15 not including an emancipated minor.
 
16      "Neglect" means the failure of a parent or legal guardian to
 
17 supply a child with necessary food, clothing, shelter, or medical
 
18 care when reasonably able to do so or the failure to protect a
 
19 child from conditions or actions that imminently and seriously
 
20 endanger the child's physical or mental health when reasonably
 
21 able to do so.
 
22      "Physical abuse" means any physical injury intentionally
 
23 inflicted by a parent or legal guardian on a minor.
 

 
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 1      "Physician" means a person licensed under chapter 453 or
 
 2 460.
 
 3      "Sexual abuse" means sexual contact or sexual penetration as
 
 4 defined in section 707-700.
 
 5      §   -2  Applicability.(a)  This chapter applies to minors
 
 6 and incapacitated persons.
 
 7      (b)  This chapter does not apply to an abortion performed on
 
 8 an emancipated minor.
 
 9      (c)  This chapter does not apply to an abortion performed on
 
10 a minor or incapacitated person, as applicable, with the intent
 
11 to:
 
12      (1)  Save the life or preserve the health of an unborn
 
13           child;
 
14      (2)  Remove a dead unborn child; or
 
15      (3)  Deliver an unborn child prematurely for the purpose of
 
16           preserving the health of the pregnant woman and her
 
17           unborn child.
 
18      (d)  This chapter is in addition to section 453-16.
 
19      (e)  This chapter shall not be construed to limit the common
 
20 law rights of parents.
 
21      § -3 Notice required; reports of notices.(a)  No
 
22 physician shall perform an abortion on a minor or upon an
 
23 incapacitated person unless the physician has given at least
 

 
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                                     H.B. NO.           
                                                        
                                                        

 
 1 forty-eight hours actual notice to one parent or to the legal
 
 2 guardian of the pregnant minor or incapacitated person of the
 
 3 intent to perform an abortion.  The physician performing the
 
 4 abortion, if different from the physician giving the notice, must
 
 5 receive a written statement from the referring physician that
 
 6 actual notice was given.  If actual notice is not possible after
 
 7 reasonable effort, the physician shall give forty-eight hours
 
 8 constructive notice.
 
 9      (b)  A physician shall make monthly reports to the
 
10 department of health, on forms prescribed by the department,
 
11 indicating the:
 
12      (1)  Number of notices issued under this part;
 
13      (2)  Number and types of exceptions;
 
14      (3)  Minor's age; and
 
15      (4)  Minor's number of prior pregnancies and prior
 
16           abortions;
 
17 provided that no patient names shall be used on the form.  The
 
18 department of health shall compile data annually and make the
 
19 data available to the public on the data.
 
20      § -4 Alternative notice.(a)  If a minor patient
 
21 declares in a signed written statement that the minor is a victim
 
22 of sexual abuse, neglect, or physical abuse by either of the
 
23 minor's parents or legal guardian, the physician shall give
 

 
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                                     H.B. NO.           
                                                        
                                                        

 
 1 actual notice required under section    -3 to a brother or sister
 
 2 of the minor who is over twenty-one years of age, or to a
 
 3 stepparent or grandparent specified by the minor.  The physician
 
 4 who performs the abortion shall certify in the patient's medical
 
 5 record that the physician has received written declaration from
 
 6 the minor of abuse or neglect.
 
 7      (b)  A physician who relies in good faith on a written
 
 8 statement under subsection (a) shall not be subject to civil or
 
 9 criminal liability for failure to give notice under this chapter.
 
10      § -5 Exceptions to notice.  Notice under section
 
11    -3 or    -4, as applicable, shall not be required if:
 
12      (1)  The physician certifies in the patient's medical record
 
13           that a medical emergency exists and there is
 
14           insufficient time to provide the required notice;
 
15      (2)  Notice is waived in writing by the person entitled to
 
16           receive the notice; or
 
17      (3)  Notice is waived by the court under section    -6.
 
18      § -6 Judicial waiver of notice.(a)  Notice under
 
19 section    -3 or    -4, as applicable, shall not be required if
 
20 the court issues an order to waive the notice.
 
21      (b)  A minor or an incapacitated person, whether or not a
 
22 resident of the State, may petition the circuit court for a
 
23 waiver of notice and may participate in proceedings in person.
 

 
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 1 The petition shall include a statement that the complainant is
 
 2 pregnant and is unemancipated.  The court shall appoint a
 
 3 guardian ad litem for the petitioner.  The guardian ad litem
 
 4 shall maintain the confidentiality of the proceedings.
 
 5      (c)  The court shall advise the petitioner of a right to
 
 6 court-appointed counsel and shall provide a counsel upon request
 
 7 of the petitioner for purposes of the proceedings under this
 
 8 part.
 
 9      (d)  Judicial proceedings shall be confidential to ensure
 
10 the anonymity of the minor or incapacitated person.  All court
 
11 proceedings and records shall be sealed and remain unavailable to
 
12 the public.
 
13      (e)  The petition shall be filed with a pseudonym name for
 
14 the petitioner or using only the initials of the petitioner.
 
15      (f)  The court shall give precedence to processing and
 
16 hearing a petition under this section.  The court shall issue a
 
17 written order no later than forty-eight hours after the petition
 
18 is filed; provided that the time may be extended at the request
 
19 of the petitioner.  The order shall contain findings of fact and
 
20 conclusions of law.  If the forty-eight hours pass without an
 
21 extension requested, the petition shall be deemed to have been
 
22 granted and the notice requirement waived.
 
23      (g)  The court shall waive the notice if it finds, by clear
 

 
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                                     H.B. NO.           
                                                        
                                                        

 
 1 and convincing evidence, that:
 
 2      (1)  The minor is sufficiently mature to decide whether to
 
 3           have an abortion;
 
 4      (2)  There is a pattern of physical, sexual, or emotional
 
 5           abuse of the petitioner by one or both parents,
 
 6           guardian, or custodian, as applicable; or
 
 7      (3)  Notification is not in the best interest of the
 
 8           petitioner.
 
 9 Waiver of notice shall be in the form of an order authorizing the
 
10 minor to consent to the performance of the abortion without the
 
11 required notification.  If the court makes contrary findings to
 
12 paragraph (1), (2), or (3), the court shall dismiss the petition.
 
13      (h)  For purposes of subsection (g), the court may conduct a
 
14 hearing in chambers to determine the emotional development,
 
15 maturity, intellect, and understanding of the minor.
 
16      (i)  There shall be an expedited appeal from an order of the
 
17 circuit court to the supreme court from a dismissal of the
 
18 petition.  There shall be no appeal from an order waiving the
 
19 notice.
 
20      (j)  No court fees shall be required for a court proceeding
 
21 under this section in the circuit court or supreme court, or
 
22 both.
 
23      § -7 Penalties.(a)  A physician who performs an
 

 
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                                     H.B. NO.           
                                                        
                                                        

 
 1 abortion without complying with the notice requirements under
 
 2 this chapter shall be subject to punishment under section
 
 3 453-16(c) and shall be subject to a civil action for interference
 
 4 with family relations, including punitive damages.
 
 5      (b)  A person who coerces a minor or an incapacitated person
 
 6 into having an abortion shall be guilty of a class C felony."
 
 7      SECTION 3.  This Act shall take effect upon its approval.
 
 8 
 
 9                           INTRODUCED BY:  _______________________