1523-S.E

AN ACT Relating to parental notice of abortion; amending RCW 9.02.100; adding new sections to chapter 9.02 RCW; prescribing penalties; and declaring an emergency.

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

NEW SECTION. Sec. 1. Sections 1 through 11 of this act may be cited as the parental notice of abortion act.

NEW SECTION. Sec. 2. (1) The legislature finds that:

(a) Unemancipated minor children and incompetent persons often lack the maturity or ability to make fully informed choices that take into account both immediate and long-range consequences.

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

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

(d) Parents or guardians ordinarily possess information essential to a physician's exercise of his or her best medical judgment concerning an unemancipated minor child or an incompetent person.

(e) Parents or guardians who are aware that an unemancipated minor daughter or incompetent person is having or has had an abortion may better ensure that she receives adequate support, counseling, and medical attention before and after her abortion.

(f) Parental or guardian consultation is usually desirable and in the best interests of the unemancipated minor child or incompetent person.

(2) The purpose of the legislature in enacting this parental notice law is to further the important and compelling state interests of:

(a) Protecting unemancipated minors and incompetent persons against their own immaturity or inability.

(b) Fostering family unity and preserving the family as a viable social unit.

(d) Reducing teenage pregnancy and unnecessary abortion.

NEW SECTION. Sec. 3. Unless the context clearly requires otherwise, the definitions in this section apply throughout sections 1 through 11 of this act.

(1) "Abortion" means the use or prescription of any instrument, medicine, drug, or any other substance or device to terminate the pregnancy of a woman known by the defendant to be pregnant. Such use or prescription is not an abortion if done with the intent to (a) save the life or preserve the health of an unborn child, (b) remove a dead unborn child, or (c) deliver an unborn child prematurely in order to preserve the health of both the pregnant woman and her unborn child.

(2) "Actual notice" means the giving of notice directly, in person or by telephone.

(3) "Constructive notice" means notice by certified mail to the last known address of the parent or guardian with delivery deemed to have occurred forty-eight hours after the certified notice is mailed.

(4) "Coercion" means restraining or dominating the choice of an unemancipated minor or incompetent by use of force, threat of force, or deprivation of necessary food and shelter or by use of fraud, misrepresentation, or deceit.

(5) "Emancipated minor" means any female person under eighteen years of age who is or has been married or who has been emancipated.

(6) "Incompetent" means any female person who has been found to be legally incompetent or disabled pursuant to chapter 11.88 RCW.

(7) "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.

(8) "Neglect" means the failure of a parent or guardian to supply an unemancipated minor or incompetent with necessary food, clothing, shelter, or medical care when reasonably able to do so or the failure to protect an unemancipated minor or incompetent from conditions or actions that imminently and seriously endanger the unemancipated minor's or incompetent's physical health when reasonably able to do so.

(9) "Physical abuse" means any physical injury that is intentionally inflicted by a parent or guardian on an unemancipated minor child or incompetent and is medically significant as determined by a physician.

(10) "Physician" means any person licensed to practice medicine under chapter 18.57 or 18.71 RCW.

(11) "Sexual abuse" means any offense involving sexual contact or sexual intercourse as defined in RCW 9A.44.010 and committed against an unemancipated minor or incompetent by a family member or guardian.

NEW SECTION. Sec. 4. (1) No person shall perform an abortion upon an unemancipated minor or upon an incompetent unless that person has given at least forty-eight hours' actual notice to one parent or to the guardian of the pregnant unemancipated minor or pregnant incompetent of his or her intention to perform the abortion. Where there is reason to believe that the father of the unborn child is an unemancipated minor or an incompetent, no person shall perform such an abortion unless that person has also given such notice to one parent or to the guardian of the father. The notice may be given by a referring physician. The person who performs the abortion must receive the written statement of the referring physician certifying that the referring physician has given notice. If actual notice is not possible after a reasonable effort, the person or his or her agent must give forty-eight hours' constructive notice.

(2) Before any notice is given under subsection (1) of this section, the unemancipated minor or incompetent must have signed a form indicating that she has been fully informed of the options available to her under this act. The form shall be prepared by the department of health. The form shall be made available to all physicians in the state and shall contain information covering at least the following:

(a) That no notice is required if she is emancipated as defined in section 3 of this act;

(b) That alternative notice may be made under section 5 of this act if she has been the victim of neglect or sexual or physical abuse by a parent or guardian;

(d) That notice may be waived by a court at no cost to her and with the assistance of a court-appointed attorney under section 9 of this act if the court finds that she is sufficiently mature to decide about an abortion, or that there is evidence of a pattern of sexual or physical abuse by a parent or guardian, or that notice to a parent or guardian would not be in her best interest.

NEW SECTION. Sec. 5. If the unemancipated minor or incompetent declares in a signed written statement that she is a victim of sexual abuse, neglect, or physical abuse by either of her parents or her guardian, the attending physician shall give the notice required by sections 1 through 11 of this act to a brother or sister of the unemancipated minor or incompetent who is over twenty-one years of age, or to a stepparent or grandparent specified by the unemancipated minor or incompetent. The doctor who intends to perform the abortion must certify in the unemancipated minor's or incompetent's medical record that he or she has received the written declaration of abuse or neglect.

Any physician relying in good faith on a written statement under this section shall not be civilly liable under any provisions of sections 1 through 11 of this act for failure to give notice to a parent or guardian. The physician shall ensure the written statement remains confidential.

Receipt by a physician of a written statement under this section does not authorize the physician to perform an abortion. The physician shall not perform an abortion unless authorized by other provisions of this act.

NEW SECTION. Sec. 6. Notice shall not be required under section 4 or 5 of this act if:

(1) The attending physician certifies in the unemancipated minor's or incompetent's medical record that a medical emergency exists and there is insufficient time to provide the required notice;

(2) Notice is waived in writing by the person who is entitled to notice; or

(3) Notice is waived under section 9 of this act.

NEW SECTION. Sec. 7. A parent, guardian, or any other person shall not coerce an unemancipated minor or incompetent to have an abortion performed. If an unemancipated minor or incompetent is denied necessary food, clothing, or shelter by the parents or guardian of the unemancipated minor or incompetent related to the minor's or incompetent's refusal to have an abortion performed, the unemancipated minor or incompetent shall be considered dependent under chapter 13.34 RCW.

NEW SECTION. Sec. 8. A monthly report indicating the number of notices issued to a parent and the number of notices issued to a guardian during the preceding month under sections 1 through 11 of this act, and the number of times in which exceptions were made to the notice requirement under sections 1 through 11 of this act, as well as the type of exception, shall be filed by the physician issuing the notice with the department of health on forms prescribed by the department. No unemancipated minor's or incompetent's name is to be used on the forms. A compilation of the data reported shall be made by the department on an annual basis and shall be available to the public.

NEW SECTION. Sec. 9. (1) The requirements and procedures under this section are available to unemancipated minors and incompetents whether or not they are residents of this state.

(2) The unemancipated minor or incompetent may petition any superior court for a waiver of the notice requirement and may participate in proceedings on her or his own behalf. The petition shall include a statement that the complainant is pregnant or is believed to be the father of the unborn child and is unemancipated or incompetent. The court shall appoint a guardian ad litem for her or him. Any guardian ad litem appointed under this section shall act to maintain the confidentiality of the proceedings.

The court shall advise the unemancipated minor or incompetent that he or she has a right to court-appointed counsel and shall provide such counsel upon request.

(3) Court proceedings under this section shall be confidential and shall ensure the anonymity of the unemancipated minor or incompetent. All court proceedings under this section shall be sealed. The unemancipated minor or incompetent has the right to file her or his petition in the court using a pseudonym or using solely her or his initials. All documents related to this petition shall be confidential and shall not be available to the public. These proceedings shall be given precedence over other pending matters to the extent necessary to ensure that the court reaches a decision promptly. The court shall rule, and issue written findings of fact and conclusions of law, within forty-eight hours of the time that the petition was filed, except that the forty-eight hour limitation may be extended at the request of the unemancipated minor or incompetent. If the court fails to rule within the forty-eight hour period and an extension was not requested, the petition shall be deemed to have been granted, and the notice requirement shall be waived.

(4)(a) In the case of a petition by a pregnant minor or incompetent, if the court finds, by clear and convincing evidence, that the unemancipated minor or incompetent is sufficiently mature or able to decide whether to have an abortion, the court shall issue an order authorizing the unemancipated minor or incompetent to consent to the performance or inducement of an abortion without the notification of a parent or guardian. If the court does not make the finding specified in this subsection or subsection (5)(a) of this section, it shall dismiss the petition.

(b) In the case of a petition by an unemancipated minor or incompetent father of an unborn child, if the court finds, by clear and convincing evidence, that the petitioner is sufficiently mature or able to deal with the decision by the pregnant unemancipated minor or incompetent regarding having an abortion, the court shall waive the requirement that a parent or the guardian of the petitioner be notified. If the court does not make the finding specified in this subsection or subsection (5)(b) of this section, it shall dismiss the petition.

(5)(a) In the case of a petition by a pregnant minor or incompetent, if the court finds, by clear and convincing evidence, that there is evidence of a pattern of physical or sexual abuse by one or both of the parents or by the guardian of the unemancipated minor or incompetent, or that the notification of a parent or guardian is not in the best interest of the unemancipated minor or incompetent, the court shall issue an order authorizing the unemancipated minor or incompetent to consent to the performance or inducement of an abortion without the notification of a parent or guardian. If the court does not make the finding specified in this subsection or subsection (4)(a) of this section, it shall dismiss the petition.

(b) In the case of a petition by an unemancipated minor or incompetent father of an unborn child, if the court finds, by clear and convincing evidence, that there is evidence of a pattern of physical or sexual abuse by one or both of the parents or by the guardian of the petitioner, or that the notification of a parent or guardian is not in the best interest of the petitioner, the court shall waive the requirement that a parent or the guardian of the petitioner be notified. If the court does not make the finding specified in this subsection or subsection (4)(b) of this section, it shall dismiss the petition.

(6) 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 and the judge's findings and conclusions be maintained.

(7) An expedited confidential appeal shall be available, as the supreme court provides by rule, to any unemancipated minor or incompetent to whom the court denies a waiver of notice. An order authorizing an abortion without notice shall not be subject to appeal.

(8) No filing fees shall be required of any unemancipated minor or incompetent who petitions a court for a waiver of parental notification under sections 1 through 11 of this act at either the trial or the appellate level.

NEW SECTION. Sec. 10. The supreme court is respectfully requested to establish rules to ensure that proceedings under sections 1 through 11 of this act are handled in an expeditious and confidential manner and to satisfy any requirements of federal courts binding on this jurisdiction.

NEW SECTION. Sec. 11. (1) 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 an unemancipated minor or an incompetent without providing the required notice is guilty of a violation of this act and shall be punished by a fine in an amount fixed by the court of not more than ten thousand dollars.

(2) Failure to provide persons with the notice required under section 4 or 5 of this act is prima facie evidence of failure to provide notice and of interference with family relations in appropriate civil actions. Such prima facie evidence shall not apply to any issue other than failure to inform the parents or guardian and interference with family relations in appropriate civil actions. The civil action may be based on a claim that the act was a result of simple negligence, gross negligence, wantonness, willfulness, intention, or other legal standard of care. 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 sections 1 through 11 of this act. Nothing in sections 1 through 11 of this act shall be construed to limit the common law rights of parents.

(3) Any person not authorized to receive notice under sections 1 through 11 of this act who signs a waiver of notice under section 6(2) of this act is guilty of a violation of this act and shall be punished by a fine in an amount fixed by the court of not more than five thousand dollars.

(4) Any person who coerces a minor to have an abortion is guilty of a violation of this act and shall be punished by a fine in an amount fixed by the court of not more than five thousand dollars.

Sec. 12. RCW 9.02.100 and 1992 c 1 s 1 are each amended to read as follows:

The sovereign people hereby declare that every individual possesses a fundamental right of privacy with respect to personal reproductive decisions.

Accordingly, it is the public policy of the state of Washington that:

(1) Every individual has the fundamental right to choose or refuse birth control;

(2) Every woman has the fundamental right to choose or refuse to have an abortion, except as specifically limited by RCW 9.02.100 through 9.02.170 ((~~and~~)), 9.02.900 through 9.02.902, and sections 1 through 11 of this act;

(3) Except as specifically permitted by RCW 9.02.100 through 9.02.170 ((~~and~~)), 9.02.900 through 9.02.902, and sections 1 through 11 of this act, the state shall not deny or interfere with a woman's fundamental right to choose or refuse to have an abortion; and

(4) The state shall not discriminate against the exercise of these rights in the regulation or provision of benefits, facilities, services, or information.

NEW SECTION. Sec. 13. If any provision of this act or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected.

NEW SECTION. Sec. 14. Sections 1 through 11 of this act are each added to chapter 9.02 RCW.

NEW SECTION. Sec. 15. This act is necessary for the immediate preservation of the public peace, health, or safety, or support of the state government and its existing public institutions, and shall take effect immediately.