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       Florida Senate - 2010                                    SB 2446
       By Senator Gardiner
       9-01332A-10                                           20102446__
    1                        A bill to be entitled                      
    2         An act relating to parental notice of abortion;
    3         amending s. 390.01114, F.S.; revising the definition
    4         of the term “constructive notice”; revising notice
    5         requirements relating to the termination of a
    6         pregnancy of a minor; providing exceptions to the
    7         notice requirements; revising procedure for judicial
    8         waiver of notice; providing for the minor to petition
    9         for a hearing within a specified time; providing that
   10         in a hearing relating to waiving the requirement for
   11         parental notice, the court consider certain additional
   12         factors, including whether the minor’s decision to
   13         terminate her pregnancy was due to undue influence;
   14         providing procedure for appeal if judicial waiver of
   15         notice is not granted; requiring Supreme Court reports
   16         to the Governor and Legislature to include additional
   17         information; requiring mandatory reporting of child
   18         abuse; providing for construction of the act and
   19         Legislative intent; providing for severability;
   20         providing an effective date.
   22  Be It Enacted by the Legislature of the State of Florida:
   24         Section 1. Section 390.01114, Florida Statutes, is amended
   25  to read:
   26         390.01114 Parental Notice of Abortion Act.—
   27         (1) SHORT TITLE.—This section may be cited as the “Parental
   28  Notice of Abortion Act.”
   29         (2) DEFINITIONS.—As used in this section, the term:
   30         (a) “Actual notice” means notice that is given directly, in
   31  person or by telephone, to a parent or legal guardian of a
   32  minor, by a physician, at least 48 hours before the inducement
   33  or performance of a termination of pregnancy, and documented in
   34  the minor’s files.
   35         (b) “Child abuse” has the same meaning as s. 39.0015(3).
   36         (c) “Constructive notice” means notice that is given in
   37  writing, signed by the physician, and mailed at least 72 hours
   38  before the inducement or performance of the termination of
   39  pregnancy, to the last known address of the parent or legal
   40  guardian of the minor, by first-class mail and by certified
   41  mail, return receipt requested, and delivery restricted to the
   42  parent or legal guardian. After the 72 hours have passed,
   43  delivery is deemed to have occurred.
   44         (d) “Medical emergency” means a condition that, on the
   45  basis of a physician’s good faith clinical judgment, so
   46  complicates the medical condition of a pregnant woman as to
   47  necessitate the immediate termination of her pregnancy to avert
   48  her death, or for which a delay in the termination of her
   49  pregnancy will create serious risk of substantial and
   50  irreversible impairment of a major bodily function.
   51         (e) “Sexual abuse” has the meaning ascribed in s. 39.01.
   52         (f) “Minor” means a person under the age of 18 years.
   53         (3) NOTIFICATION REQUIRED.—
   54         (a) Actual notice shall be provided by the physician
   55  performing or inducing the termination of pregnancy before the
   56  performance or inducement of the termination of the pregnancy of
   57  a minor. The notice may be given by a referring physician. The
   58  physician who performs or induces the termination of pregnancy
   59  must receive the written statement of the referring physician
   60  certifying that the referring physician has given notice. If
   61  actual notice is not possible after a reasonable effort has been
   62  made, the physician performing or inducing the termination of
   63  pregnancy or the referring physician must give constructive
   64  notice. Notice given under this subsection by the physician
   65  performing or inducing the termination of pregnancy must include
   66  the name and address of the facility providing the termination
   67  of pregnancy and the name of the physician providing notice.
   68  Notice given under this subsection by a referring physician must
   69  include the name and address of the facility where he or she is
   70  referring the minor and the name of the physician providing
   71  notice. If actual notice is provided by telephone, the physician
   72  must actually speak with the parent or guardian, and must record
   73  in the minor’s medical file the name of the parent or guardian
   74  provided notice, the phone number dialed, and the date and time
   75  of the call. If constructive notice is given, the physician must
   76  document that notice by placing copies of any document related
   77  to the constructive notice, including, but not limited to, a
   78  copy of the letter and the return receipt, in the minor’s
   79  medical file. Actual notice given by telephone shall be
   80  confirmed in writing, signed by the physician, and mailed to the
   81  last known address of the parent or legal guardian of the minor,
   82  by first-class mail and by certified mail, return receipt
   83  requested, with delivery restricted to the parent or legal
   84  guardian.
   85         (b) Notice is not required if:
   86         1. In the physician’s good faith clinical judgment, a
   87  medical emergency exists and there is insufficient time for the
   88  attending physician to comply with the notification
   89  requirements. If a medical emergency exists, the physician
   90  should make reasonable attempts, whenever possible without
   91  endangering the minor, to contact the parent or legal guardian.
   92  The physician may proceed but must document reasons for the
   93  medical necessity in the patient’s medical records and must
   94  provide notice directly, in person or by telephone, to the
   95  parent or legal guardian, including details of the medical
   96  emergency and any additional risks to the minor. If the parent
   97  or legal guardian has not been notified within 24 hours after
   98  the termination of the pregnancy, the physician must provide
   99  notice in writing, including details of the medical emergency
  100  and any additional risks to the minor, signed by the physician,
  101  to the last known address of the parent or legal guardian of the
  102  minor, by first-class mail and by certified mail, return receipt
  103  requested, with delivery restricted to the parent or legal
  104  guardian;
  105         2. Notice is waived in writing by the person who is
  106  entitled to notice and such waiver is notarized, dated not more
  107  than 30 days before the termination of pregnancy, and contains a
  108  specific waiver of the right of the parent or legal guardian to
  109  notice of the minor’s termination of pregnancy;
  110         3. Notice is waived by the minor who is or has been married
  111  or has had the disability of nonage removed under s. 743.015 or
  112  a similar statute of another state;
  113         4. Notice is waived by the patient because the patient has
  114  a minor child dependent on her; or
  115         5. Notice is waived under subsection (4).
  116         (c) Violation of this subsection by a physician constitutes
  117  grounds for disciplinary action under s. 458.331 or s. 459.015.
  119         (a) A minor may petition any circuit court in a judicial
  120  circuit within the jurisdiction of the District Court of Appeal
  121  in which the minor she resides for a waiver of the notice
  122  requirements of subsection (3) and may participate in
  123  proceedings on her own behalf. The petition may be filed under a
  124  pseudonym or through the use of initials, as provided by court
  125  rule. The petition must include a statement that the petitioner
  126  is pregnant and notice has not been waived. The court shall
  127  advise the minor that she has a right to court-appointed counsel
  128  and shall provide her with counsel upon her request at no cost
  129  to the minor.
  130         (b)1. Court proceedings under this section subsection must
  131  be given precedence over other pending matters to the extent
  132  necessary to ensure that the court reaches a decision promptly.
  133  The court shall rule, and issue written findings of fact and
  134  conclusions of law, within 3 business days 48 hours after the
  135  petition is filed, except that the 3-business-day 48-hour
  136  limitation may be extended at the request of the minor. If the
  137  court fails to rule within the 3-business-day 48-hour period and
  138  an extension has not been requested, the minor may immediately
  139  petition for a hearing upon the expiration of the 3-business-day
  140  period to the chief judge of the circuit, who must ensure a
  141  hearing is held within 48 hours after receipt of the minor’s
  142  petition and an order is entered within 24 hours after the
  143  hearing the petition is granted, and the notice requirement is
  144  waived.
  145         2. If the circuit court does not grant judicial waiver of
  146  notice, the minor has the right to appeal. An appellate court
  147  must rule within 7 days after receipt of appeal, but a ruling
  148  may be remanded with further instruction for a ruling within 3
  149  business days after the remand. The reason for overturning a
  150  ruling on appeal must be based on abuse of discretion by the
  151  court and may not be based on the weight of the evidence
  152  presented to the circuit court since the proceeding is a
  153  nonadversarial proceeding.
  154         (c) If the court finds, by clear and convincing evidence,
  155  that the minor is sufficiently mature to decide whether to
  156  terminate her pregnancy, the court shall issue an order
  157  authorizing the minor to consent to the performance or
  158  inducement of a termination of pregnancy without the
  159  notification of a parent or guardian. If the court does not make
  160  the finding specified in this paragraph or paragraph (d), it
  161  must dismiss the petition. Factors the court shall consider
  162  include:
  163         1. The minor’s:
  164         a. Age.
  165         b. Overall intelligence.
  166         c. Emotional development and stability.
  167         d. Credibility and demeanor as a witness.
  168         e. Ability to accept responsibility.
  169         f. Ability to assess both the immediate and long-range
  170  consequences of the minor’s choices.
  171         g. Ability to understand and explain the medical risks of
  172  terminating her pregnancy and to apply that understanding to her
  173  decision.
  174         2. Whether there may be any undue influence by another on
  175  the minor’s decision to have an abortion.
  176         (d) If the court finds, by a preponderance of the evidence,
  177  that the petitioner is the victim there is evidence of child
  178  abuse or sexual abuse inflicted of the petitioner by one or both
  179  of her parents or her guardian, or by clear and convincing
  180  evidence that the notification of a parent or guardian is not in
  181  the best interest of the petitioner, the court shall issue an
  182  order authorizing the minor to consent to the performance or
  183  inducement of a termination of pregnancy without the
  184  notification of a parent or guardian. The best-interest standard
  185  may not include financial best interest or financial
  186  considerations or the potential financial impact on the minor or
  187  the minor’s family if the minor does not terminate the
  188  pregnancy. If the court finds evidence of child abuse or sexual
  189  abuse of the minor petitioner by any person, the court shall
  190  report the evidence of child abuse or sexual abuse of the
  191  petitioner, as provided in s. 39.201. If the court does not make
  192  the finding specified in this paragraph or paragraph (c), it
  193  must dismiss the petition.
  194         (e) A court that conducts proceedings under this section
  195  shall:
  196         1. Provide for a written transcript of all testimony and
  197  proceedings; and
  198         2. Issue a final written order containing and specific
  199  factual findings and legal conclusions supporting its decision,
  200  including factual findings and legal conclusions relating to the
  201  maturity of the minor as provided under paragraph (c); and shall
  202         3. Order that a confidential record be maintained, as
  203  required under s. 390.01116. At the hearing, the court shall
  204  hear evidence relating to the emotional development, maturity,
  205  intellect, and understanding of the minor, and all other
  206  relevant evidence.
  207         (f) All hearings under this section, including appeals,
  208  shall remain confidential and closed to the public, as provided
  209  by court rule.
  210         (g)(f) An expedited appeal shall be made available, as the
  211  Supreme Court provides by rule, to any minor to whom the circuit
  212  court denies a waiver of notice. An order authorizing a
  213  termination of pregnancy without notice is not subject to
  214  appeal.
  215         (h)(g)No Filing fees or court costs may not shall be
  216  required of any pregnant minor who petitions a court for a
  217  waiver of parental notification under this subsection at either
  218  the trial or the appellate level.
  219         (i)(h)A No county is not shall be obligated to pay the
  220  salaries, costs, or expenses of any counsel appointed by the
  221  court under this subsection.
  222         (5) PROCEEDINGS.—The Supreme Court is requested to adopt
  223  rules and forms for petitions to ensure that proceedings under
  224  subsection (4) are handled expeditiously and in a manner
  225  consistent with this act. The Supreme Court is also requested to
  226  adopt rules to ensure that the hearings protect the minor’s
  227  confidentiality and the confidentiality of the proceedings.
  228         (6) REPORT.—The Supreme Court, through the Office of the
  229  State Courts Administrator, shall report by February 1 of each
  230  year to the Governor, the President of the Senate, and the
  231  Speaker of the House of Representatives on the number of
  232  petitions filed under subsection (4) for the preceding year, and
  233  the timing and manner of disposal of such petitions by each
  234  circuit court. For each petition resulting in a waiver of
  235  notice, the reason for the waiver shall be included in the
  236  report.
  237         Section 2. It is the intent of the Legislature with respect
  238  to this act to accord the utmost comity and respect to the
  239  constitutional prerogatives of Florida’s judiciary, and nothing
  240  in this act should be construed as an effort to impinge upon
  241  those prerogatives. To that end, if any court of competent
  242  jurisdiction enters a final judgment concluding or declaring
  243  that any provision of this act improperly encroaches on the
  244  authority of the Florida Supreme Court to determine the rules of
  245  practice and procedure in Florida courts, the Legislature
  246  intends that such provision be construed as a request for a rule
  247  change pursuant to s. 2, Art. V of the State Constitution and
  248  not as a mandatory legislative directive.
  249         Section 3. If any provision of this act or its application
  250  to any individual or circumstance is held invalid, the
  251  invalidity does not affect other provisions or applications of
  252  this act which can be given effect without the invalid provision
  253  or application, and to this end the provisions of this act are
  254  severable.
  255         Section 4. This act shall take effect upon becoming a law.

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