1989 SESSION 0301B

89-0431

01

SENATE BILL NO.             

INTRODUCED BY: Sen. Roberge of Dist. 9; Sen. Bond of Dist. 1; Sen. Magee

of Dist. 12; Sen. Nelson of Dist. 13; Rep. Fields of

Hillsborough Dist. 13; Rep. Bolduc of Belknap Dist. 10;

Rep. Frank of Hillsborough Dist. 13;

REFERRED TO: Judiciary

AN ACT prohibiting abortions performed on certain minors without parental consent.

ANALYSIS

This bill prohibits any physician from performing an abortion on an unemancipated minor without the prior consent of one parent. The consent must be in writing, signed and notarized. The consent requirement may be waived upon petition by the minor if the court finds the minor to be mature and well-informed enough to make her own decision or that the abortion would be in her best interests. The minor is entitled to a court appointed attorney for the petition procedure and appeal of it. The bill creates an exception for medical emergencies and provides that the minor shall not be coerced by her parent into obtaining an abortion against her will. A violation of these requirements constitutes a misdemeanor and is prima facie evidence of failure to obtain informed consent and of interference with family relations in civil actions.

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EXPLANATION: Matter added appears in bold italics.

Matter removed appears in [brackets].

Matter which is repealed and reenacted or all new appears in regular type.

0301B

89-0431

01

SB 136-FN

STATE OF NEW HAMPSHIRE

In the year of Our Lord one thousand

nine hundred and eighty-nine

AN ACT

prohibiting abortions performed on certain

minors without parental consent.

Be it Enacted by the Senate and House of Represen-

tatives in General Court convened:

1 Legislative Purpose and Findings.

I. It is the intent of the legislature in enacting this parental consent provision to further the important and compelling state interests of protecting minors against their own immaturity, fostering the family structure and preserving it as a viable social unit, and protecting the rights of parents to rear children who are members of their household.

II. The legislature finds as fact that:

(a) Immature minors often lack the ability to make fully informed choices that take account of both immediate and long-range consequences.

(b) The medical, emotional, and psychological consequences of abortion are 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 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.

III. The legislature further finds that parental consultation is usually desirable and in the best interests of the minor.

2 New Subdivision; Parental Consent Prior to Abortion. Amend RSA 132 by inserting after section 18 the following new subdivision:

Parental Consent Prior to Abortion

132:19 Definitions. For purposes of this subdivision, the following definitions shall apply:

I. "Abortion" means the use of any instrument, medicine, drug, or any other substance or device to terminate the pregnancy of a woman known to be pregnant with an intention other than to increase the probability of a live birth, to preserve the life or health of the child after live birth, or to remove a dead fetus.

II. "Emancipated minor" means any minor who is or has been married or has by court order or otherwise been freed from the care, custody, and control of her parents.

III. "Minor" means any person under the age of 18.

132:20 Consent Required.

I. Notwithstanding any other law to the contrary, no person shall perform an abortion upon an unemancipated minor unless he or his agent or another physician, hereafter called the "referring physician," or his agent, first obtains the written consent of the minor and the written consent of one parent or the legal guardian of the minor. Such consent shall be signed and notarized. Consent of a parent without the consent of the minor shall not authorize the performance of an abortion on the minor by a physician.

II. If neither of the parents nor the legal guardian is available to the person performing the abortion or his agent or the referring physician or his agent in a reasonable time or manner, or the parties from whom consent must be obtained pursuant to this section refuse to consent to the performance of an abortion, or the minor elects not to seek consent of those whose consent is required, then the pregnant minor may petition, on her own behalf or by next friend, any probate court of this state for a waiver of the consent requirement of this section pursuant to the procedures of RSA 132:21.

132:21 Procedure for Waiver of Consent.

I. The requirements and procedures under this subdivision are available and apply to minors whether or not they are residents of this state. The proceedings under RSA 169-B, 169-C, and 169-D shall not apply to procedures conducted under this subdivision.

II. The court shall ensure that the minor or her next friend is given assistance in preparing and filing the petition and shall ensure that the minor's identity is kept anonymous.

III. The minor may participate in proceedings in the court on her own behalf or through her next friend. The court shall advise the minor that she has a right to court appointed counsel and shall provide her with such counsel upon her request.

IV. Court proceedings under this section shall be anonymous and shall be given such precedence over other pending matters as is necessary to ensure that the court may reach a decision promptly. In no case shall the court fail to rule within 48 hours of the time of application, provided that the 48 hour limitation may be extended at the request of the minor.

V. The consent requirement shall be waived if the court finds either:

(a) That the minor is mature and well-informed enough to make the abortion decision on her own; or

(b) That the performance of the abortion would be in the minor's best interests.

VI. 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 be maintained.

VII. An expedited anonymous appeal shall be available to any minor.

VIII. The supreme court may adopt any rules it feels are necessary to ensure that proceedings under this subdivision are handled in an expeditious and anonymous manner.

132:22 Medical Emergency Exception. The requirements of RSA 132:20 shall not apply when, in the best medical judgment of the physician based on the facts of the case before him, a medical emergency exists that so complicates the pregnancy as to require an immediate abortion.

132:23 Penalty. 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, and who intentionally or knowingly fails to conform to any requirement of this subdivision is guilty of a misdemeanor.

132:24 Civil Damages Available. Failure to obtain consent pursuant to the requirements of this subdivision is prima facie evidence of failure to obtain informed consent and of interference with family relations in appropriate civil actions. 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 this subdivision. Nothing in this subdivision shall be construed to limit the common law rights of parents.

132:25 Severability. If any provision, word, phrase, or clause of this subdivision or the application thereof to any person or circumstance shall be held invalid, such invalidity shall not affect the provisions, words, phrases, clauses, or application of this subdivision which can be given effect without the invalid provision, word, phrase, clause, or application and to this end, the provisions, words, phrases, and clauses of this subdivision are declared to be severable.

3 Conflict with Existing Law. This act shall not prevent the enforcement of RSA 585:12, RSA 585:13, or RSA 585:14, relative to penalties for abortion.

4 Effective Date. This act shall take effect January 1, 1990.

LBAO

LSR 89-0431

1/2/89

FISCAL NOTE for an act prohibiting abortions performed on certain minors without parental consent.

FISCAL IMPACT: The Administrative Office of the Courts indicates this bill will increase state revenues and expenditures by an undeterminable amount. There will be no fiscal impact on county or local revenues and expenditures.

METHODOLOGY: This bill entitles a minor to a court- appointed attorney for the petition procedure and its appeal; the cost for assigned counsel services would be borne by the state. State revenues will increase to the extent that fines are collected from those found guilty of a misdemeanor, as provided in the bill. In addition, the cost of prosecuting and possibly incarcerating individuals would further increase state expenditures. The Administrative Office of the Courts is unable to predict the number of persons who would be effected by this bill.

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