HB 1380

HB 1380-FN - AS INTRODUCED

AN ACT relative to parental consent for abortions performed on children less than 16 years of age.

SPONSORS: Rep. Souza, Hills 40; Rep. Drabinowicz, Hills 36; Rep. Boyce, Belk 5; Rep. Pepino, Hills 40; Rep. Hopper, Hills 5; Sen. Barnes, Dist 17; Sen. Roberge, Dist 9; Sen. Boyce, Dist 4

This bill prohibits any physician from performing an abortion on a child less than 17 years of age without the prior consent of one parent or the legal guardian of the child. The consent must be in writing, signed, and notarized. The consent requirement may be waived upon petition by the child if the court finds the minor to be mature and well-informed enough to make her own decision or that the abortion would be in her best interests. The child is entitled to a court-appointed attorney for the petition procedure and appeal of it. The bill creates an exception for medical emergencies and provides that the child shall not be coerced by her parent into obtaining an abortion against her will. A violation of these requirements constitutes a misdemeanor and is prima facie evidence of failure to obtain informed consent and of interference with family relations in civil actions.

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Matter which is either (a) all new or (b) repealed and reenacted appears in regular type.

AN ACT relative to parental consent for abortions performed on children less than 16 years of age.

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 consent provision to further the important and compelling state interests of protecting children 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) Children 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.

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

(d) Parents ordinarily possess information essential to a physician's exercise of his or her 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 her abortion.

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

2 New Subdivision; Parental Consent Prior to Abortion. Amend RSA 132 by inserting after section 23 the following new subdivision:

132:24 Definitions. For purposes of this subdivision only, the following definitions shall apply:

I. "Abortion" means the use of any instrument, medicine, drug, or any other substance or device to terminate the pregnancy of a woman 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 a dead fetus.

I. Notwithstanding any other law to the contrary, no person shall perform an abortion upon a child unless such person or his or her agent or another physician, hereafter called the "referring physician," or his or her agent first obtains the written consent of the child and the written consent of one parent or the legal guardian of the child. Such consent shall be signed and notarized. Consent of a parent without the consent of the child shall not authorize the performance of an abortion on the child by a physician.

II. If neither of the parents nor the legal guardian is available to the person performing the abortion or his or her agent or the referring physician or his or her agent in a reasonable time or manner, or the parties from whom consent must be obtained pursuant to this section refuse to consent to the performance of an abortion, or the child elects not to seek consent of those whose consent is required, then the child may petition, on her own behalf, any probate court of this state for a waiver of the consent requirement of this section pursuant to the procedures of RSA 132:26.

I. The requirements and the procedures under this subdivision are available and apply to the child whether or not the child is a resident of this state. The proceedings under RSA 169-B, 169-C, and 169-D shall not apply to procedures conducted under this subdivision.

II. The court shall ensure that the child is given assistance in preparing and filing the petition and shall ensure that the child's identity is kept anonymous.

III. The child may participate in proceedings in the court on her own behalf. The court shall advise the child that she has a right to court-appointed counsel and shall provide her with such counsel upon her request.

IV. Court proceedings under this section shall be anonymous and shall be given such precedence over other pending matters as is necessary to ensure that the court may reach a decision promptly. In no case shall the court fail to rule within 48 hours of the time of application, provided that the 48 hour limitation may be extended at the request of the child.

(a) That the child is mature and well-informed enough to make the abortion decision on her own; or

VI. A court that conducts proceedings under this section shall issue written and specific factual findings and legal conclusions supporting its decision and shall order that a confidential record of the evidence be maintained.

VII. An expedited anonymous appeal shall be available to any child. Each appeal shall be heard in chambers, anonymously, in a summary manner, and within 48 hours of the filing. The court of appeal shall issue its final judgment and order within 48 hours of its hearing.

VIII. The supreme court may adopt any rules it feels are necessary to ensure that proceedings under this subdivision are handled in an expeditious and anonymous manner.

132:27 Medical Emergency Exception. The requirements of RSA 132:23 shall not apply when, in the best medical judgment of the physician based on the facts of the case before such physician, a medical emergency exists that so complicates the pregnancy as to require an immediate termination of the pregnancy.

132:28 Penalty. Any person who intentionally performs an abortion with knowledge that, or with reckless disregard as to whether, the person upon whom the abortion is to be performed is a child, as defined in RSA 132:24, II, and who intentionally or knowingly fails to conform to any requirement of this subdivision is guilty of a misdemeanor.

132:29 Civil Damages Available. Failure to obtain consent pursuant to the requirements of this subdivision is prima facie evidence of failure to obtain informed consent and of interference with family relations in appropriate civil actions. The law of this state shall not be construed to preclude the award of exemplary damages in any appropriate civil action relevant to violations of this subdivision. Nothing in this subdivision shall be construed to limit the common law rights of parents.

132:30 Severability. If any provision, word, phrase, or clause of this subdivision or the application thereof to any person or circumstance shall be held invalid, such invalidity shall not affect the provisions, words, phrases, clauses, or application of this subdivision which can be given effect without the invalid provision, word, phrase, clause, or application and to this end, the provisions, words, phrases, and clauses of this subdivision are declared to be severable.

AN ACT relative to parental consent for abortions performed on children less than 16 years of age.

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