BILL REQ. #:  S-0105.1 

Read first time 01/21/13.   Referred to Committee on Law & Justice.

     AN ACT Relating to abortion notification; amending RCW 9.02.170; adding new sections to chapter 9.02 RCW; creating new sections; repealing RCW 9.02.100 and 9.02.110; and prescribing penalties.

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

NEW SECTION.  Sec. 1   This act may be known and cited as the parental notification of abortion act.

NEW SECTION.  Sec. 2   (1) The legislature of the state of Washington 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 their 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 legislature's purpose in enacting this act 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;
     (c) Protecting the constitutional rights of parents to rear children who are members of their household;
     (d) Reducing teenage pregnancy and abortion; and
     (e) Allowing for judicial bypasses of parental notification to be made only in exceptional or rare circumstances.

Sec. 3   RCW 9.02.170 and 1992 c 1 s 8 are each amended to read as follows:
     For purposes of this chapter:
     (1) "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's sustained survival outside the uterus without the application of extraordinary medical measures.
     (2) "Abortion" means ((any medical treatment intended to induce the termination of a pregnancy except for the purpose of producing a live birth)) the act of using or prescribing any instrument, medicine, drug, or any other substance, device, or means with the intent to terminate the clinically diagnosable pregnancy of a woman with knowledge that the termination by those means will with reasonable likelihood cause the death of the unborn child. The use, prescription, or means is not an abortion if done with the intent to:
     (a) Save the life or preserve the health of the unborn child;
     (b) Remove a dead unborn child caused by spontaneous abortion; or
     (c) Remove an ectopic pregnancy.
     (3) "Pregnancy" means the reproductive process beginning with the implantation of an embryo.
     (4) "Attending physician," "physician," or "referring physician" means a ((physician)) person licensed to practice ((under chapter 18.57 or 18.71 RCW)) medicine in ((the)) this state ((of Washington)), and includes medical doctors and doctors of osteopathy.
     (5) "Health care provider" means a physician or a person acting under the general direction of a physician.
     (6) "State" means the state of Washington and counties, cities, towns, municipal corporations, and quasi-municipal corporations in the state of Washington.
     (7) "Private medical facility" means any medical facility that is not owned or operated by the state.
     (8) "Actual notice" means the giving of notice directly, in person, or by telephone.
     (9) "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.
     (10) "Coercion" means restraining or dominating the choice of a minor by force, threat of force, or deprivation of food and shelter.
     (11) "Department" means the department of health.
     (12) "Emancipated minor" means any person under eighteen years of age who is or has been married or who has been legally emancipated.
     (13) "Incompetent" means any person who has been adjudged a person with a disability and has had a guardian appointed for her under Title 11 RCW.
     (14) "Medical emergency" means a condition that, on the basis of the physician's good-faith clinical judgment, 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.
     (15) "Neglect" means the failure of a parent or legal guardian to supply a minor with necessary food, clothing, shelter, or medical care when reasonably able to do so or the failure to protect a minor from conditions or actions that imminently and seriously endanger the minor's physical or mental health when reasonably able to do so.
     (16) "Physical abuse" means any physical injury intentionally inflicted by a parent or legal guardian on a minor.
     (17) "Pregnant woman" means a woman who is pregnant, less than eighteen years of age, and not emancipated, or who has been adjudged an incompetent person under Title 70 or 71 RCW.
     (18) "Sexual abuse" means any sexual conduct or sexual intercourse as defined in RCW 9A.44.010 committed against a pregnant woman by a parent or legal guardian.

NEW SECTION.  Sec. 4   A person must not perform an abortion upon a pregnant woman unless that person has given at least forty-eight hours actual notice to one parent or the legal guardian of the pregnant woman 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 to the parent or legal guardian of the pregnant woman who is to receive the abortion. 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   Notice is not required under section 4 of this act if:
     (1) The attending physician certifies in the pregnant woman's medical record that a medical emergency exists and there is insufficient time to provide the required notice; or
     (2) Notice is waived in writing by the person who is entitled to notice; or
     (3) Notice is waived under section 8 of this act.

NEW SECTION.  Sec. 6   A parent, legal guardian, or any other person must not coerce a pregnant woman to have an abortion performed. If a pregnant woman is denied financial support by the pregnant woman's parents or legal guardian due to the pregnant woman's refusal to have an abortion, the pregnant woman is deemed emancipated for the purposes of eligibility for public assistance benefits, except that the benefits may not be used to obtain an abortion.

NEW SECTION.  Sec. 7   A monthly report indicating the number of notices issued under this act, the number of times in which exceptions were made to the notice requirement under this act, the type of exception, the pregnant woman's age, and the number of prior pregnancies and prior abortions of the pregnant woman must be filed with the department on forms prescribed by the department. Patient names must not be used on the forms. A compilation of the data reported must be made by the department on an annual basis and be available to the public.

NEW SECTION.  Sec. 8   (1) The requirements and procedures under this section are available to a pregnant woman whether or not she is a resident of this state.
     (2) A pregnant woman may petition any 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 pregnant woman is pregnant and is unemancipated. The petition must also include a statement that notice has not been waived and that the pregnant woman wishes to abort without giving notice under this act. The court must appoint a guardian ad litem for her. Any guardian ad litem appointed under this act must maintain the confidentiality of the proceedings. The superior court must advise her that she has a right to court-appointed counsel and provide her with counsel upon her request.
     (3) Court proceedings under this section must be confidential and ensure the anonymity of the pregnant woman. All court proceedings under this section must be sealed. A pregnant woman has the right to file her petition in the superior court using a pseudonym or using solely her initials. All documents related to the petition must be confidential and not be made 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 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 pregnant woman. If the court fails to rule within the forty-eight hour period and an extension was not requested, then the petition is deemed to have been granted, and the notice requirement must be waived.
     (4) If the court finds, by clear and convincing evidence, that the pregnant woman is both sufficiently mature and well-informed to decide whether to have an abortion, the court must issue an order authorizing the pregnant woman to consent to the performance or inducement of an abortion without the notification of a parent or guardian and the court must execute the required forms. If the court does not make the finding specified in this subsection or subsection (5) of this section, it must dismiss the petition.
     (5) If the court finds, by clear and convincing evidence, that the pregnant woman is the victim of physical or sexual abuse by one or both of her parents or her legal guardian, or that the notification of a parent or guardian is not in the best interest of the pregnant woman, the court must issue an order authorizing the pregnant woman 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 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 order that a confidential record of the evidence and the judge's findings and conclusions be maintained. At the hearing, the court must hear evidence relating to the emotional development, maturity, intellect, and understanding of the pregnant woman.
     (7) An expedited confidential appeal must be available, as the supreme court provides by rule, to any pregnant woman to whom the superior court denies a waiver of notice. An order authorizing an abortion without notice must not be subject to appeal.
     (8) No filing fees are required of any pregnant woman who petitions a court for a waiver of parental notification under this section at either the trial or the appellate level.

NEW SECTION.  Sec. 9   The supreme court must establish rules to ensure that proceedings under this act are handled in an expeditious and confidential manner and to satisfy the requirements of federal courts.

NEW SECTION.  Sec. 10   (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 female without providing the required notice is guilty of a gross misdemeanor. It is a defense to prosecution under this section that the minor falsely represented her age or identity to the physician to be at least eighteen years of age by displaying an apparently valid governmental record of identification such that a careful and prudent person under similar circumstances would have relied on the representation. The defense does not apply if the physician is shown to have had independent knowledge of the minor's actual age or identity or failed to use due diligence in determining the minor's age or identity.
     (2) Failure to provide a person with the notice required under 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 any issue other than failure to inform the parents or legal 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 laws of this state must not be construed to preclude the award of exemplary damages in any appropriate civil action relevant to violations of this act. Nothing in this act is construed to limit the common law rights of parents or legal guardians.
     (3) Any person not authorized to receive notice under this act who signs a waiver of notice under section 5(2) of this act is guilty of a gross misdemeanor.
     (4) Any person who coerces a pregnant woman to have an abortion is guilty of a gross misdemeanor.

NEW SECTION.  Sec. 11   (1) Nothing in this act is construed as creating or recognizing a right to abortion.
     (2) It is not the intent of this act to make lawful an abortion that is currently unlawful.

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   The legislature, by joint resolution, may appoint one or more of its members who is a sponsor or cosponsor of this act, as a matter of right and in his or her official capacity, to intervene to defend this act in any case in which its constitutionality is challenged.

NEW SECTION.  Sec. 14   The following acts or parts of acts are each repealed:
     (1) RCW 9.02.100 (Reproductive privacy -- Public policy) and 1992 c 1 s 1; and
     (2) RCW 9.02.110 (Right to have and provide) and 1992 c 1 s 2.

NEW SECTION.  Sec. 15   Sections 2 and 4 through 11 of this act are each added to chapter 9.02 RCW.