H-2623

AN ACT Relating to parental notification for abortions provided to minors; amending RCW 9.02.100 and 13.34.030; adding new sections to chapter 9.02 RCW; repealing RCW 9.02.170; 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 notification 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 ensure that she receives adequate support, counseling, and medical attention before and after her abortion; and

(f) Parental or guardian consultation and notification 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 notification 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. The definitions in this section apply throughout sections 1 through 11 of this act unless the context clearly requires otherwise.

(1) "Abortion" means the use or prescription of any instrument, medicine, drug, or other substance or device to terminate the pregnancy of a woman known by the defendant to be pregnant. The 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 a person under eighteen years of age who is or has been married or who has been emancipated under chapter 13.64 RCW.

(6) "Health care provider" means a physician or a person acting under the general direction of a physician.

(7) "Incompetent" means a person who has been found to be legally incompetent or incapacitated under chapter 11.88 RCW.

(8) "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.

(9) "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.

(10) "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.

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

(12) "Pregnancy" means the reproductive process beginning with the implantation of an embryo.

(13) "Private medical facility" means any medical facility that is not owned or operated by the state.

(14) "Sexual abuse" means an 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.

(15) "State" means the state of Washington and counties, cities, towns, municipal corporations, and quasi-municipal corporations in the state of Washington.

(16) "Viability" means the point in the pregnancy when, in the judgment of the physician on the particular facts of the case before such physician, there is a reasonable likelihood of the fetus' sustained survival outside the uterus without the application of extraordinary medical measures.

NEW SECTION. Sec. 4. (1) No person may perform an abortion upon an unemancipated minor or upon an incompetent unless that person has given forty-eight hours actual notice to a custodial parent or to the guardian of the pregnant unemancipated minor or pregnant 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 provided 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 notice is given under subsection (1) of this section, the unemancipated minor or incompetent must have signed a form prepared by the department of health indicating that the unemancipated minor or incompetent has been fully informed of the options available under sections 1 through 11 of this act. The form must be made available to all physicians in the state and must include information covering the following:

(a) That notice of a parent or guardian is generally required before the unemancipated minor or incompetent may obtain an abortion;

(b) That notice of a parent or guardian of the mother of the unborn child is not required if the mother is emancipated as defined in section 3 of this act;

(c) That an alternative to providing notice to a parent or guardian of the mother of the unborn child may be available under section 5 of this act if the mother has been the victim of neglect, sexual abuse, or physical abuse by a parent or guardian as defined in section 3 of this act;

(d) That notice to a parent or guardian of the mother of the unborn child may not be required under section 6 of this act if a medical emergency exists and there is insufficient time to provide the required notice;

(e) That the mother of the unborn child will be provided court‑appointed counsel at her request and that notice may be waived by a court under section 9 of this act if the court finds by clear and convincing evidence that: (i) She is sufficiently mature to decide whether to have an abortion, (ii) there is evidence of a pattern of sexual or physical abuse by a parent or guardian of the mother, or (iii) notice to a parent or guardian would not be in her best interest;

(f) That in any circumstance the mother of the unborn child may choose to discuss her situation with her parent or guardian; and

(g) That it is a violation of law for a person to coerce the mother of an unborn child to have an abortion as defined in section 3 of this act.

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 provide 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 physician 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.

A physician relying in good faith on a written statement under this section is not civilly liable under sections 1 through 11 of this act for failure to provide notice to a parent or guardian. The physician must 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 must not perform an abortion unless authorized under sections 1 through 11 of this act.

NEW SECTION. Sec. 6. Notice is not 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 other person must 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 is considered dependent under chapter 13.34 RCW.

NEW SECTION. Sec. 8. A monthly report indicating the number of notices provided to a parent and the number of notices provided 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, must be filed by the physician providing 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 must be made by the department on an annual basis and must 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 a superior court for a waiver of the notice requirement and may participate in proceedings on her own behalf. The petition must include a statement that the complainant is pregnant and is an unemancipated minor or incompetent. The court must appoint a guardian ad litem for her. A guardian ad litem appointed under this section must act to maintain the confidentiality of the proceedings.

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

(3) Court proceedings under this section are confidential and must ensure the anonymity of the unemancipated minor or incompetent. All court proceedings under this section must be held in chambers and the records of the proceedings must be sealed. The unemancipated minor or incompetent has the right to file her petition in the court using a pseudonym or using solely her initials. All documents related to this petition are confidential and are not available to the public. These proceedings must be given precedence over other pending matters to the extent necessary to ensure that the court reaches a decision promptly. The court must rule, and issue written findings of fact and conclusions of law, within four court days from the time that the petition was filed, except that the four-day rule may be extended at the request of the unemancipated minor or incompetent.

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

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

(6) A court that conducts proceedings under this section must issue written and specific factual findings and legal conclusions supporting its decision and must order that a confidential record of the evidence and the judge's findings and conclusions be maintained.

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

(8) No filing fees are required of an unemancipated minor or incompetent who petitions a court for a waiver of parental notice 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 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 gross misdemeanor.

(2) Failure to provide 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. The prima facie evidence does not apply to an issue other than failure to provide notice to 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 must not be construed to preclude the award of exemplary damages in an appropriate civil action relevant to violations of sections 1 through 11 of this act. Nothing in sections 1 through 11 of this act may be construed to limit the common law rights of parents.

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

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~~)) 9.02.160, 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~~)) 9.02.160, 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.

Sec. 13. RCW 13.34.030 and 1995 c 311 s 23 are each amended to read as follows:

For purposes of this chapter:

(1) "Child" and "juvenile" means any individual under the age of eighteen years.

(2) "Current placement episode" means the period of time that begins with the most recent date that the child was removed from the home of the parent, guardian, or legal custodian for purposes of placement in out-of-home care and continues until the child returns home, an adoption decree or guardianship order is entered, or the dependency is dismissed, whichever occurs soonest. If the most recent date of removal occurred prior to the filing of a dependency petition under this chapter or after filing but prior to entry of a disposition order, such time periods shall be included when calculating the length of a child's current placement episode.

(3) "Dependency guardian" means the person, nonprofit corporation, or Indian tribe appointed by the court pursuant to RCW 13.34.232 for the limited purpose of assisting the court in the supervision of the dependency.

(4) "Dependent child" means any child:

(a) Who has been abandoned; that is, where the child's parent, guardian, or other custodian has expressed either by statement or conduct, an intent to forego, for an extended period, parental rights or parental responsibilities despite an ability to do so. If the court finds that the petitioner has exercised due diligence in attempting to locate the parent, no contact between the child and the child's parent, guardian, or other custodian for a period of three months creates a rebuttable presumption of abandonment, even if there is no expressed intent to abandon;

(b) Who is abused or neglected as defined in chapter 26.44 RCW by a person legally responsible for the care of the child;

(c) Who has no parent, guardian, or custodian capable of adequately caring for the child, such that the child is in circumstances which constitute a danger of substantial damage to the child's psychological or physical development; ((or))

(d) Who has a developmental disability, as defined in RCW 71A.10.020 and whose parent, guardian, or legal custodian together with the department determines that services appropriate to the child's needs can not be provided in the home. However, (a), (b), and (c) of this subsection may still be applied if other reasons for removal of the child from the home exist; or

(e) Who is coerced to have an abortion by use of force, threat of force, or deprivation of food, clothing, or shelter by the parents or guardian of the unemancipated child or incompetent person as provided in chapter 9.02 RCW.

(5) "Guardian" means the person or agency that: (a) Has been appointed as the guardian of a child in a legal proceeding other than a proceeding under this chapter; and (b) has the legal right to custody of the child pursuant to such appointment. The term "guardian" shall not include a "dependency guardian" appointed pursuant to a proceeding under this chapter.

(6) "Guardian ad litem" means a person, appointed by the court to represent the best interest of a child in a proceeding under this chapter, or in any matter which may be consolidated with a proceeding under this chapter. A "court-appointed special advocate" appointed by the court to be the guardian ad litem for the child, or to perform substantially the same duties and functions as a guardian ad litem, shall be deemed to be guardian ad litem for all purposes and uses of this chapter.

(7) "Guardian ad litem program" means a court-authorized volunteer program, which is or may be established by the superior court of the county in which such proceeding is filed, to manage all aspects of volunteer guardian ad litem representation for children alleged or found to be dependent. Such management shall include but is not limited to: Recruitment, screening, training, supervision, assignment, and discharge of volunteers.

(8) "Out-of-home care" means placement in a foster family home or group care facility licensed pursuant to chapter 74.15 RCW or placement in a home, other than that of the child's parent, guardian, or legal custodian, not required to be licensed pursuant to chapter 74.15 RCW.

(9) "Preventive services" means preservation services, as defined in chapter 74.14C RCW, and other reasonably available services capable of preventing the need for out-of-home placement while protecting the child.

NEW SECTION. Sec. 14. 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. 15. Sections 1 through 11 of this act are each added to chapter 9.02 RCW.

NEW SECTION. Sec. 16. This act is necessary for the immediate preservation of the public peace, health, morals, or safety, or support of the state government and its existing public institutions, and takes effect immediately.

NEW SECTION. Sec. 17. RCW 9.02.170 and 1992 c 1 s 8 are each repealed.