BILL REQ. #:  S-0873.1 

Read first time 02/03/2003.   Referred to Committee on Children & Family Services & Corrections.

     AN ACT Relating to parental notification for abortions provided to minors; amending RCW 9.02.100; adding new sections to chapter 9.02 RCW; creating a new section; 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 known and cited as the parental notification and consent 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 an immature or incompetent person;
     (c) The capacity to become pregnant and the capacity to exercise mature judgment concerning abortion are not necessarily related;
     (d) Parents or guardians ordinarily possess information essential to a physician's medical judgment concerning an unemancipated minor child or an incompetent person;
     (e) Parents or guardians who are aware that an unemancipated minor child or incompetent person may have or has had an abortion may ensure that she receives adequate support, counseling, and medical attention before and after her abortion;
     (f) Parental or guardian consultation and notification and consent is usually desirable and in the best interest of the unemancipated minor child or incompetent person.
     (2) The purpose of the legislature in enacting this parental notification and consent law is to further the important and compelling state interests of:
     (a) Protecting the rights of parents to rear children who are members of their household;
     (b) Fostering family unity and preserving the family as a viable social unit; and
     (c) 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 other substance or device to terminate the pregnancy of a woman known by the physician 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 notification and consent" means the giving of notice directly by conversing with the parent or guardian, either in person or by telephone.
     (3) "Constructive notification and consent" 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 person by use of force, by threat of force, by 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 lawfully married or who has been emancipated.
     (6) "Incompetent person" means a person who has been found to be legally incompetent under RCW 11.88.010(1)(e).
     (7) "Medical emergency" means a condition exists that, on the basis of the physician's good-faith clinical judgment, necessitates immediate termination of pregnancy to avert her death, or failure to immediately terminate the pregnancy will create serious risk of substantial and irreversible impairment of a major bodily function of the pregnant woman.
     (8) "Neglect" means the failure of a parent or guardian to supply an unemancipated minor or incompetent person with necessary food, clothing, shelter, or medical care when that parent or guardian is reasonably able to do so, or the failure of a parent or guardian to protect an unemancipated minor or incompetent person from a condition or action that imminently and seriously endangers the health of the unemancipated minor or incompetent person when that parent or guardian is reasonably able to protect the unemancipated minor or incompetent person from that condition or action.
     (9) "Physical abuse" means any physical injury that is intentionally inflicted by a parent or guardian on an unemancipated minor child or incompetent person and that 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 a crime or offense involving sexual contact or sexual intercourse as defined in RCW 9A.44.010 and committed against an unemancipated minor or incompetent person by a family member or guardian.

NEW SECTION.  Sec. 4   (1) A physician shall not perform an abortion upon an unemancipated minor or upon an incompetent person unless the physician has given forty-eight hours actual notification and consent to a custodial parent or to the guardian of the pregnant unemancipated minor or pregnant incompetent person of the physician's intention to perform the abortion. The notification and consent may be given by a referring physician. If the notification and consent is given by a referring physician, the physician shall not perform the abortion without receiving the referring physician's written statement certifying that the referring physician has provided notification and consent. If actual notification and consent is not possible after a reasonable effort, the physician or the physician's agent shall give forty-eight hours constructive notification and consent.
     (2) Notification and consent shall not be given under subsection (1) of this section unless the unemancipated minor or incompetent person has signed a form prescribed by the department of health indicating that the unemancipated minor or incompetent person has been fully informed of the options available under sections 1 through 11 of this act. The department of health shall make the form available to all physicians in the state. The department of health shall ensure that the form includes information:
     (a) That notification and consent of a parent or guardian is generally required before an unemancipated minor or incompetent person may obtain an abortion;
     (b) That notification and consent of a parent or guardian is not required if the mother of the unborn child is emancipated as defined in section 3 of this act;
     (c) That an alternative to providing notification and consent may be available under section 5 of this act if the mother of the unborn child has been the victim of neglect or sexual or physical abuse by a parent or guardian as defined in section 3 of this act;
     (d) That notification and consent of 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 obtain the required notification and consent;
     (e) That the mother of the unborn child will be provided court-appointed counsel at her request, and that notification and consent 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 her parent or guardian; or (iii) notification and consent to a parent or guardian would not be in the best interest of the mother of the unborn child;
     (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 coercion, as defined in section 3 of this act, of the mother of an unborn child to have an abortion is a violation of the law.

NEW SECTION.  Sec. 5   If the pregnant unemancipated minor or pregnant incompetent person makes a written, signed declaration that she is a victim of sexual abuse, neglect, or physical abuse by either of her parents or her guardian, the physician intending to perform the abortion shall provide the notification and consent required by sections 1 through 11 of this act to a brother or sister of the unemancipated minor or incompetent person so long as that sibling is over twenty-one years of age, or to a stepparent or grandparent specified by the unemancipated minor or incompetent person; and that physician shall place in the unemancipated minor's or incompetent person's medical record certification of having received the written declaration of abuse or neglect. The physician shall ensure that the written declaration remains confidential.
     A physician relying in good faith upon a written declaration under this section shall not be civilly liable under sections 1 through 11 of this act for failure to provide notification and consent to a parent or guardian.
     Receipt of a written declaration under this section does not authorize the physician to perform an abortion. The physician shall not perform an abortion unless authorized to do so under sections 1 through 11 of this act.

NEW SECTION.  Sec. 6   Notification and consent is not required under section 4 or 5 of this act if:
     (1) The attending physician certifies in the unemancipated minor's or incompetent person's medical record that a medical emergency exists, and there is insufficient time to provide the required notification and consent;
     (2) Notification and consent is waived in writing by the person who is, under sections 1 through 11 of this act, entitled to notification and consent; or
     (3) Notification and consent is waived under section 9 of this act.

NEW SECTION.  Sec. 7   A parent, guardian, or other person who engages in coercion, as defined in section 3 of this act, of an unemancipated minor or incompetent person to persuade her to have an abortion performed is guilty of a misdemeanor. Being subjected to coercion to obtain or for refusal to obtain an abortion by the parents or guardian of the unemancipated minor or incompetent person shall constitute grounds for the unemancipated minor or incompetent person to be found dependent under chapter 13.34 RCW.

NEW SECTION.  Sec. 8   Physicians required to provide notification and consent under sections 1 through 11 of this act shall file with the department of health, on forms prescribed by the department, monthly reports indicating the number of notifications provided to a parent, guardian, brother, sister, stepparent, or grandparent during the preceding month under sections 1 through 11 of this act, and the number of times in which exceptions were made to the notification and consent requirement under sections 1 through 11 of this act, as well as the type of exception. Physicians shall not use names of the unemancipated minors or incompetent persons on the forms. The department shall on an annual basis compile and make available to the public the data required to be reported under this section.

NEW SECTION.  Sec. 9   (1) The provisions of this section shall apply to unemancipated minors and incompetent persons whether or not they are residents of this state.
     (2) The unemancipated minor or incompetent person may petition a superior court for a waiver of the notification and consent requirement and may participate in proceedings on her own behalf. The petition for waiver of notification and consent shall include a statement that the petitioner is pregnant and is an unemancipated minor or incompetent person. The court reviewing the petition shall appoint a guardian ad litem for her. A 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 person that she has a right to court-appointed counsel and shall provide the counsel upon request.
     (3) Court proceedings under this section shall be closed and confidential and shall ensure the anonymity of the unemancipated minor or incompetent person. All court documents under this section shall be sealed. The unemancipated minor or incompetent person has the right to file her petition in the court using a pseudonym or using solely her initials. 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 four court days from the filing of the petition, except that the four-day rule may be extended at the request of the unemancipated minor or incompetent person.
     (4) If the court finds, by clear, cogent, and convincing evidence, that the petitioner is sufficiently mature or able to decide whether to have an abortion, the court shall issue an order authorizing the petitioner to consent to the performance or inducement of an abortion without providing notification and consent to 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, cogent, and convincing evidence, that there is a pattern of physical or sexual abuse by a parent or guardian of the petitioner, or that notification and consent to a parent or guardian is not in the best interest of the petitioner, the court shall issue an order authorizing the petitioner to consent to the performance or inducement of an abortion without notification and consent to 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 maintain a confidential record of evidence and the judge's findings and conclusions.
     (7) A procedure for expedited confidential appeal shall be available, as the supreme court provides by rule, to an unemancipated minor or incompetent person whose waiver of notification and consent is denied. An order waiving the notification and consent requirement shall not be subject to appeal.
     (8) Filing fees shall not be required of an unemancipated minor or incompetent person who petitions a court for a waiver of parental notification and consent 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 physician 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 person, without providing the required notification and consent shall be guilty of a gross misdemeanor.
     (2) Failure to provide the notification and consent required under section 4 or 5 of this act is prima facie evidence of failure to provide notification and consent and of interference with family relations in appropriate civil actions. The prima facie evidence shall not apply to an issue other than failure to provide notification and consent 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 shall 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 shall be construed to limit the common law rights of parents.
     (3) A person not authorized to receive notification and consent under sections 1 through 11 of this act who signs a waiver of notification and consent 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)), 9.02.900 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)) this right((s)) in the regulation or provision of benefits, facilities, services, or information.

NEW SECTION.  Sec. 13   The provisions of this act are to be liberally construed to effectuate the policies and purposes of this act. In the event of conflict between this act and any other provision of law, the provisions of this act shall govern.

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.