HB 0329-NH Parental Notification Bill

HB 0329

HB 329-FN – VERSION ADOPTED BY BOTH BODIES

16Mar2011...0531h

2011 SESSION

11-0008

01/09

HOUSE BILL 329-FN

AN ACT requiring parental notification before abortions may be performed on unemancipated minors.

SPONSORS: Rep. K. Souza, Hills 11; Rep. Kappler, Rock 2; Rep. Bates, Rock 4; Rep. Cebrowski, Hills 18; Rep. Groen, Straf 1; Rep. Krasucki, Hills 26; Rep. Parison, Hills 3; Rep. K. Murphy, Hills 18; Rep. Seidel, Hills 20; Sen. Barnes, Jr., Dist 17; Sen. White, Dist 9; Sen. Groen, Dist 6

COMMITTEE: Judiciary

ANALYSIS

This bill prohibits any abortion provider from performing an abortion on certain minors or incompetent females without giving 48 hours’ written notice, in person or by certified mail, to a parent or guardian unless a medical emergency exists. The bill provides a procedure for alternate notice in certain circumstances.

This bill also establishes a procedure for waiver of the notice in certain circumstances.

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Explanation: Matter added to current law appears in bold italics.

Matter removed from current law appears [in brackets and struckthrough.]

Matter which is either (a) all new or (b) repealed and reenacted appears in regular type.

16Mar2011...0531h

11-0008

01/09

STATE OF NEW HAMPSHIRE

In the Year of Our Lord Two Thousand Eleven

AN ACT requiring parental notification before abortions may be performed on unemancipated minors.

Be it Enacted by the Senate and House of Representatives in General Court convened:

1 Legislative Purpose and Findings.

I. It is the intent of the legislature in enacting this parental notification provision to further the important and compelling state interests of protecting minors against their own immaturity, fostering the family structure and preserving it as a viable social unit, and protecting the rights of parents to rear children who are members of their household.

II. The legislature finds as fact that:

(a) Immature minors often lack the ability to make fully informed choices that take account of both immediate and long-range consequences.

(b) The medical, emotional, and psychological consequences of abortion are serious and can be lasting, particularly when the patient is immature.

(c) The capacity to become pregnant and the capacity for mature judgment concerning the wisdom of abortion are not necessarily related.

(d) Parents ordinarily possess information essential to a physician’s exercise of best medical judgment concerning the child.

(e) Parents who are aware that their minor daughter has had an abortion may better ensure that she receives adequate medical attention after the abortion.

III. The legislature further finds that parental consultation is usually desirable and in the best interest of the minor.

2 New Subdivision; Parental Notification Prior to Abortion. Amend RSA 132 by inserting after section 31 the following new subdivision:

Parental Notification Prior to Abortion

132:32 Definitions. In this subdivision:

I. “Abortion” means the use or prescription of any instrument, medicine, drug, or any other substance or device intentionally to terminate the pregnancy of a female known to be pregnant with an intention other than to increase the probability of a live birth, to preserve the life or health of the child after live birth, or to remove an ectopic pregnancy or the products from a spontaneous miscarriage.

II. “Commissioner” means the commissioner of the department of health and human services.

III. “Department” means the department of health and human services.

IV. “Emancipated minor” means any minor female who is or has been married or has by court order otherwise been freed from the care, custody, and control of her parents.

V. “Guardian” means the guardian or conservator appointed under RSA 464-A, for pregnant females.

VI. “Minor” means any person under the age of 18 years.

VII. “Parent” means one parent of the pregnant girl if one is living or the guardian or conservator if the pregnant girl has one.

VIII. “Medical emergency” means a condition that, on the basis of the physician’s good-faith clinical judgment, so complicates the medical condition of a pregnant woman as to necessitate the immediate abortion of her pregnancy to avert her death or for which a delay will create serious risk of substantial and irreversible impairment of a major bodily function.

132:33 Notification Required.

I. No abortion shall be performed upon an unemancipated minor or upon a female for whom a guardian or conservator has been appointed pursuant to RSA 464-A because of a finding of incompetency, until at least 48 hours after written notice of the pending abortion has been delivered in the manner specified in paragraphs II and III.

II. The written notice shall be addressed to the parent at the usual place of abode of the parent and delivered personally to the parent by the physician or an agent.

III. In lieu of the delivery required by paragraph II, notice shall be made by certified mail addressed to the parent at the usual place of abode of the parent with return receipt requested and with restricted delivery to the addressee, which means the postal employee shall only deliver the mail to the authorized addressee. Time of delivery shall be deemed to occur at 12 o’clock noon on the next day on which regular mail delivery takes place, subsequent to mailing.

132:34 Waiver of Notice.

I. No notice shall be required under RSA 132:33 if:

(a) The attending abortion provider certifies in the pregnant minor’s medical record that a medical emergency exists and there is insufficient time to provide the required notice; or

(b) The person or persons who are entitled to notice certify in writing that they have been notified.

II. If such a pregnant minor elects not to allow the notification of her parent or guardian or conservator, any judge of a court of competent jurisdiction shall, upon petition, or motion, and after an appropriate hearing, authorize an abortion provider to perform the abortion if said judge determines that the pregnant minor is mature and capable of giving informed consent to the proposed abortion. If said judge determines that the pregnant minor is not mature, or if the pregnant minor does not claim to be mature, the judge shall determine whether the performance of an abortion upon her without notification of her parent, guardian, or conservator would be in her best interests and shall authorize an abortion provider to perform the abortion without such notification if said judge concludes that the pregnant minor’s best interests would be served thereby.

(a) Such a pregnant minor may participate in proceedings in the court on her own behalf, and the court may appoint a guardian ad litem for her. Any guardian ad litem appointed under this subdivision shall maintain the confidentiality of the proceedings. The court shall, however, advise her that she has a right to court-appointed counsel, and shall, upon her request, provide her with such counsel.

(b) Proceedings under this section shall be held in closed court, shall be confidential and shall ensure the anonymity of the minor. All court proceedings under this section shall be sealed. The minor shall have the right to file her petition in the court using a pseudonym or using solely her initials. All documents related to this petition shall be confidential and shall not be available to the public. These proceedings shall be given such precedence over other pending matters so that the court may reach a decision promptly and without delay so as to serve the best interest of the pregnant minor. In no case shall the court fail to rule within 48 hours from the time the petition is filed, except that the 48-hour limitation may be extended at the request of the minor. A judge of the court who conducts proceedings under this section shall make in writing specific factual findings and legal conclusions supporting the decision and shall order a record of the evidence to be maintained including the judge’s own findings and conclusions. If the court fails to rule within the 48-hour period and an extension was not requested, then the petition shall be deemed to have been granted, and the notice requirement shall be waived.

(c) An expedited confidential appeal shall be available, as the supreme court provides by rule, to any such pregnant minor for whom the court denies an order authorizing an abortion without notification. The court shall make a ruling within 48 hours from the time of the docketing of the appeal. An order authorizing an abortion without notification shall not be subject to appeal. No filing fees shall be required of any such pregnant minor at either the trial or the appellate level. Access to the trial court for the purposes of such a petition or motion, and access to the appellate courts for purposes of making an appeal from denial of the same, shall be afforded such a pregnant minor 24 hours a day, 7 days a week.

(d) The supreme court shall make rules to ensure that procedures followed in the appeals process are handled in an expeditious manner and protect the confidentiality of the parties involved in the appeal to satisfy the requirements of the federal courts.

132:35 Penalty. Performance of an abortion in violation of this subdivision shall be a misdemeanor and shall be grounds for a civil action by a person wrongfully denied notification. A person shall not be held liable under this section if the person establishes by written evidence that the person relied upon evidence sufficient to convince a careful and prudent person that the representations of the pregnant minor regarding information necessary to comply with this section are bone fide and true, or if the person has attempted with reasonable diligence to deliver notice, but has been unable to do so.

132:36 Severability. If any provision of this subdivision or the application thereof to any person or circumstance is held invalid, such invalidity shall not affect the provisions or applications of this subdivision which can be given effect without the invalid provisions or applications, and to this end, the provisions of this subdivision are severable.

3 Effective Date. This act shall take effect January 1, 2012.

LBAO

11-0008

01/18/11

HB 329-FN - FISCAL NOTE

AN ACT requiring parental notification before abortions may be performed on unemancipated minors.

FISCAL IMPACT:

Due to time constraints, the Office of Legislative Budget Assistant is unable to provide a fiscal note for this bill at this time. When completed, the fiscal note will be forwarded to the House Clerk's Office.