BP BHEAD INT H

AN ACT Relating to parental notice of abortion; 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) Immature minors often lack the 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.

(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.

(f) Parental consultation is usually desirable and in the best interests of the minor.

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

(a) Protecting minors against their own immaturity.

(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 a minor female by force, threat of force, or deprivation of food and shelter.

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

(6) "Incompetent" means any 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 to supply a child with necessary food, clothing, shelter, or medical care when reasonably able to do so or the failure to protect a child from conditions or actions that imminently and seriously endanger the child's physical or mental health when reasonably able to do so.

(9) "Physical abuse" means any physical injury intentionally inflicted by a parent or legal guardian on a child.

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

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

NEW SECTION. Sec. 4. 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 legal guardian of the pregnant minor or incompetent of his or her intention to perform the abortion. 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.

NEW SECTION. Sec. 5. If the minor patient 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 legal guardian, the attending physician shall give the notice required by sections 1 through 11 of this act to a brother or sister of the minor who is over twenty-one years of age, or to a stepparent or grandparent specified by the minor. The doctor who intends to perform the abortion must certify in the patient'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 or criminally liable under any provisions of sections 1 through 11 of this act for failure to give notice.

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 patient'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 a minor to have an abortion performed. If a minor is denied financial support by the minor's parents, guardian, or custodian due to the minor's refusal to have an abortion performed, the minor shall be deemed emancipated for the purposes of eligibility for public assistance benefits, except that such benefits may not be used to obtain an abortion.

NEW SECTION. Sec. 8. A monthly report indicating the number of notices issued 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 with the department of health on forms prescribed by the department. No patient names are 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 minors and incompetent persons whether or not they are residents of this state.

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

The circuit court shall advise her that she has a right to court-appointed counsel and shall provide her with counsel upon her request.

(3) Court proceedings under this section shall be confidential and shall ensure the anonymity of the minor or incompetent person. All court proceedings under this section shall be sealed. The minor or incompetent person has the right to file her petition in the circuit 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 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 minor or incompetent person. 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) If the court finds, by clear and convincing evidence, that the minor is sufficiently mature to decide whether to have an abortion, the court shall issue an order authorizing the minor 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) of this section, it shall dismiss the petition.

(5) If the court finds, by clear and convincing evidence, that there is evidence of a pattern of physical, sexual, or emotional abuse of the complainant by one or both of her parents, her guardian, or her custodian, or that the notification of a parent or guardian is not in the best interest of the complainant, the court shall issue an order authorizing the minor 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) 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 minor or incompetent person to whom the circuit 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 pregnant minor 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 the requirements of federal courts.

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 gross misdemeanor.

(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 misdemeanor.

(4) Any person who coerces a minor to have an abortion is guilty of a misdemeanor.

NEW SECTION. Sec. 12. 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. 13. Sections 1 through 11 of this act are each added to chapter 9.02 RCW.

NEW SECTION. Sec. 14. 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.