HB 1511

HB 1511-FN - AS INTRODUCED

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

SPONSORS: Rep. Brothers, Graf 6; Rep. D. Ouellette, Hills 42; Rep. P. Woods, Straf 11; Rep. Torressen, Carr 10; Rep. McDonald, Hills 41; Sen. Roberge, Dist 9

This bill prohibits any physician 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. 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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Matter which is either (a) all new or (b) repealed and reenacted appears in regular type.

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:

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:

(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 21 the following new subdivision:

I. "Abortion" means the use of any means to terminate the pregnancy of a female known to be pregnant with knowledge that the termination with those means will, with reasonable likelihood, cause the death of the fetus and "fetus" means any individual human organism from fertilization until birth.

II. "Commissioner" means the commissioner of 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. "Parent" means one parent of the pregnant girl if one is living or the guardian or conservator if the pregnant girl has one.

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 I and II.

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.

(a) The attending physician certifies in the pregnant minor's medical record that the abortion is necessary to prevent the minor's death 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 a physician 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 a physician 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. 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 in the court under this section shall be confidential and 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 7 calendar days from the time the petition is filed. 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.

(c) An expedited confidential appeal shall be available to any such pregnant minor for whom the court denies an order authorizing an abortion without notification. The court shall make a ruling within 7 calendar days 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.

132:25 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.

I. Within 90 days after the effective date of this subdivision, the commissioner shall prepare a reporting form for physicians listing:

(a) The number of females from whom the physician or an agent of the physician provided notice under RSA 132:23; of that number, the number provided personally as described in paragraph I of RSA 132:23; and the number provided notice by mail as described in paragraph II of RSA 132:23; and of each of those numbers, the number of females who, to the best of the reporting physician's information and belief, went on to obtain the abortion.

(b) The number of females upon whom the physician performed an abortion without providing to the parent of the minor the notice described in RSA 132:23; of that number, the number who were emancipated minors, and the numbers from whom RSA 132:24 was applicable.

(c) The number of abortions performed upon a female by the physician after receiving judicial authorization to do so without parental notification; and

(d) The same information described in subparagraphs I(a)-(c) with respect to females for whom a guardian or conservator has been appointed pursuant to RSA 464-A because of a finding of incompetency.

II. The department shall ensure that copies of the reporting forms described in paragraph I, together with a reprint of this subdivision, are provided:

(a) Within 120 days after the effective date of this subdivision, to all physicians licensed to practice in New Hampshire.

(b) To each physician who subsequently becomes newly licensed to practice in New Hampshire, at the same time as official notification to that physician that the physician is so licensed; and

(c) By December 1 of every year, other than the calendar year in which forms are distributed in accordance with subparagraph I(a), to all physicians licensed to practice in New Hampshire.

III. By February 28 of each year following a calendar year in any part of which this subdivision was in effect, each physician who provided, or whose agent provided, notice described in RSA 132:23 and any physician who knowingly performed an abortion upon a female for whom a guardian or conservator had been appointed pursuant to RSA 464-A because a finding of incompetency during the previous calendar year shall submit to the department a copy of the form described in paragraph I, with the requested data entered accurately and completely.

IV. Reports that are not submitted within a grace period of 30 days following the due date shall be subject to a late fee of $500 for each additional 30-day period or portion of a 30-day period they are overdue. Any physician required to report in accordance with this section who has not submitted a report, or has submitted an incomplete report, more than one year following the due date, may, in an action brought by the department, be directed by a court of competent jurisdiction to submit a complete report within a period stated by court order or be subject to sanctions for civil contempt.

V. By June 30 of each year the department shall issue a public record providing statistics for the previous calendar year complied from all the reports covering that year submitted in accordance with paragraph III for each of the items listed in paragraph I. The report shall also include statistics which shall be obtained by the administrative office of the courts giving the total number of petitions or motions filed under RSA 132:24, II, and of that number, the number in which the court appointed a guardian ad litem, the number in which the judge issued an order authorizing an abortion without notification, the number in which the judge denied such an order, and of the last, the number of denials from which an appeal was filed, the number of such appeals that resulted in the denials being affirmed, and the number of such appeals that resulted in reversals of such denials. Each report shall also provide the statistics for all previous calendar years for which such a public statistic was required to be issued. The administrative office of the courts shall ensure that none of the information included in the public reports could reasonably lead to the identification of any individual female, or of any female for whom a guardian or conservator has been appointed.

VI. The commissioner shall adopt rules, pursuant to RSA 541-A, relative to the forms and reporting requirements required by this section. The department may by rule, alter the dates established in paragraphs I and III or consolidate the forms or reports to achieve administrative convenience or financial savings or to reduce the burden of reporting requirements, so long as reporting forms are sent to all licensed physicians in the state at least once every year and the report in paragraph III is issued at least once a year.

VII. If the department fails to issue the public report required by paragraph V, any group of 10 or more citizens of this state may seek an injunction in a court of competent jurisdiction against the commissioner requiring that a complete report be issued within a period stated by court order. Failure to abide by such an injunction shall subject the commissioner to sanctions of civil contempt.

VIII. If judgment is rendered in favor of the plaintiff in any action described in paragraph VII, the court shall also render judgment for reasonable attorneys' fees in favor of the plaintiff against the defendant. If judgment is rendered in favor of the defendant and the court finds that plaintiff's suit was frivolous and brought in bad faith, the court shall also render judgment for reasonable attorney's fees in favor of the defendant against the plaintiff.

132:27 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.

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

The Office of Legislative Budget Assistant is unable to complete a fiscal note for this bill as it is awaiting information from an agency.