SB 302-FN – AS INTRODUCED

2008 SESSION

08-2072

01/09

SENATE BILL 302-FN

AN ACT relative to parental notification.

SPONSORS: Sen. Barnes, Dist 17; Sen. Gallus, Dist 1; Sen. Kenney, Dist 3; Sen. Roberge, Dist 9; Sen. Bragdon, Dist 11; Sen. Clegg, Dist 14; Sen. Gatsas, Dist 16; Sen. Letourneau, Dist 19; Sen. Downing, Dist 22; Rep. Mooney, Hills 19; Rep. Kappler, Rock 2

COMMITTEE: Judiciary

ANALYSIS

This bill restores the parental notification law and adds a medical emergency exception to such law. The bill also affords the pregnant minor 24-hour access to a judge for waiver of notification.

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Explanation: Matter added to current law appears in bold italics.

Matter removed from current law appears [in brackets and struckthrough.]

Matter which is either (a) all new or (b) repealed and reenacted appears in regular type.

08-2072

01/09

STATE OF NEW HAMPSHIRE

In the Year of Our Lord Two Thousand Eight

AN ACT relative to parental notification.

Be it Enacted by the Senate and House of Representatives in General Court convened:

1 New Subdivision; Parental Notification Prior to Abortion. Amend RSA 132 by inserting after section 28 the following new subdivision:

Parental Notification Prior to Abortion

132:29 Definitions. In this subdivision:

I. “Abortion” means the use or prescription of any instrument, medicine, drug, or any other substance or device intentionally to terminate the pregnancy of a female 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 an ectopic pregnancy or the products from a spontaneous miscarriage.

II. “Commissioner” means the commissioner of the department of health and human services.

III. “Department” means the department of health and human services.

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

V. “Guardian’’ means the guardian or conservator appointed under RSA 464-A, for pregnant females.

VI. “Medical emergency” means that condition which, 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 major bodily function.

VII. “Minor” means any person under the age of 18 years.

VIII. “Parent” means one parent of the pregnant girl if one is living or the guardian or conservator if the pregnant girl has one.

132:30 Notification Required.

I. No abortion shall be performed upon an unemancipated minor or upon a female for whom a guardian or conservator has been appointed pursuant to RSA 464-A because of a finding of incompetency, until at least 48 hours after written notice of the pending abortion has been delivered in the manner specified in paragraphs II and III.

II. The written notice shall be addressed to the parent at the usual place of abode of the parent and delivered personally to the parent by the physician or an agent.

III. In lieu of the delivery required by paragraph II, notice shall be made by certified mail addressed to the parent at the usual place of abode of the parent with return receipt requested and with restricted delivery to the addressee, which means the postal employee shall only deliver the mail to the authorized addressee. Time of delivery shall be deemed to occur at 12 o’clock noon on the next day on which regular mail delivery takes place, subsequent to mailing.

132:31 Waiver of Notice.

I. No notice shall be required under RSA 132:30 if:

(a) The attending abortion provider certifies in the pregnant minor’s medical record that there exists a medical emergency, as defined in RSA 132:29, VI; or

(b) The person or persons who are entitled to notice certify in writing that they have been notified.

II. If such a pregnant minor elects not to allow the notification of her parent or guardian or conservator, any judge of a court of competent jurisdiction shall, upon petition, or motion, and after an appropriate hearing, authorize an abortion provider to perform the abortion if said judge determines that the pregnant minor is mature and capable of giving informed consent to the proposed abortion. If said judge determines that the pregnant minor is not mature, or if the pregnant minor does not claim to be mature, the judge shall determine whether the performance of an abortion upon her without notification of her parent, guardian, or conservator would be in her best interests and shall authorize an abortion provider to perform the abortion without such notification if said judge concludes that the pregnant minor’s best interests would be served thereby. Access to a judge for the purposes of this paragraph shall be afforded such a pregnant minor 24 hours a day, 7 days a week. All proceedings conducted pursuant to this section shall be confidential.

(a) Such a pregnant minor may participate in proceedings in the court on her own behalf, and the court may appoint a guardian ad litem for her. The court shall, however, advise her that she has a right to court-appointed counsel, and shall, upon her request, provide her with such counsel.

(b) Proceedings in the court under this section shall be confidential and shall be given such precedence over other pending matters so that the court may reach a decision promptly and without delay so as to serve the best interest of the pregnant minor. In no case shall the court fail to rule within 7 calendar days from the time the petition is filed. A judge of the court who conducts proceedings under this section shall make in writing specific factual findings and legal conclusions supporting the decision and shall order a record of the evidence to be maintained including the judge’s own findings and conclusions.

(c) An expedited confidential appeal shall be available to any such pregnant minor for whom the court denies an order authorizing an abortion without notification. The court shall make a ruling within 7 calendar days from the time of the docketing of the appeal. An order authorizing an abortion without notification shall not be subject to appeal. No filing fees shall be required of any such pregnant minor at either the trial or the appellate level. Access to the trial court for the purposes of such a petition or motion, and access to the appellate courts for purposes of making an appeal from denial of the same, shall be afforded such a pregnant minor 24 hours a day, 7 days a week.

132:32 Penalty. Performance of an abortion in violation of this subdivision shall be a misdemeanor and shall be grounds for a civil action by a person wrongfully denied notification. A person shall not be held liable under this section if the person establishes by written evidence that the person relied upon evidence sufficient to convince a careful and prudent person that the representations of the pregnant minor regarding information necessary to comply with this section are bone fide and true, or if the person has attempted with reasonable diligence to deliver notice, but has been unable to do so.

132:33 Severability. If any provision of this subdivision or the application thereof to any person or circumstance is held invalid, such invalidity shall not affect the provisions or applications of this subdivision which can be given effect without the invalid provisions or applications, and to this end, the provisions of this subdivision are severable.

2 Effective Date. This act shall take effect upon its passage.

LBAO

08-2072

11/29/07

SB 302-FN - FISCAL NOTE

AN ACT relative to parental notification.

FISCAL IMPACT:

The Judicial Branch, Judicial Council, Department of Justice, and Association of Counties state this bill may increase state and county expenditures by an indeterminable amount in FY 2008 and each year thereafter. This bill will have no fiscal impact on state, county, and local revenue, or local expenditures.

METHODOLOGY:

The Judicial Branch states this bill concerns parental notification before abortions may be performed. The bill has potential cost ramifications for the Branch in several sections. Proposed RSA 132:31, II allows for a hearing if a minor wishes to avoid notification of her parents. It also provides for a court appointed guardian ad litem and a court appointed counsel. That same section makes available to a pregnant minor an expedited appeal should an order authorizing an abortion without notification be denied. Proposed RSA 132:32 provides for both criminal and civil actions for violations of statute. Finally, the proposed bill requires the Branch to provide access to both the trial courts and the appellate courts twenty-four hours per day, seven days per week. The Branch states they are unable to accurately estimate the number of hearings which would result from minors seeking to avoid parental notification, and cannot determine the fiscal impact at this time. The Branch assumes the average hearing will require a full day, and the cost of a full day hearing is estimated at $1,261 in FY 2009, and $1,298 in FY 2010 and each year thereafter. This includes the cost of a judge, court monitor, deputy clerk, and bailiff. In addition, there would be costs associated with writing a decision and clerical processing which would make the cost of a full day hearing exceed $1,500. The Branch states that a court appointed guardian ad litem is paid $60 per hour with a maximum of $1,000 per case, and a court appointed counsel is paid $60 per hour with a maximum of $1,200 per case. The Branch states it is unclear whether this cost would be borne by the Judicial Branch. The Branch states should a decision be appealed, several thousand dollars of additional costs would be incurred in judge, law clerk, and staff time at the Supreme Court, as well as guardian ad litem and counsel costs a the Supreme Court level. The exact fiscal impact cannot be determined at this time.

The Judicial Council states there are varied sources of funding which are drawn upon to pay for the mandated legal costs associated with this bill. These funding sources are administered by the Judicial Council. With regard to an incompetent child, the bill provides that no abortion shall be performed upon an unemancipated minor or female for whom a guardian or conservatory has been appointed pursuant to RSA 464-A until at least 48 hours after written notice of the pending abortion has been delivered in the manner specified in the bill. The Council assumes that the additional work/time required of the guardian or conservator as proposed in this bill would be negligible and could be covered by the usually billed services of the guardian or conservator. This billing, if the minor is indigent, would be at $60.00 per hour. The bill also provides that when a pregnant minor elects not to allow for the notification or her parent, guardian or conservator, that she has a right to a court appointed guardian ad litem. The Council assumes that this would be paid at the $60 per hour rate. In addition, the court shall also advise her that she has a right to a court appointed attorney. The Council states there are no applicable Supreme Court rules which set any fees caps for this type of representation. Accordingly, the fees for these services would be billed based upon court approval. It is also conceivable that either the guardian ad litem or the attorney who is appointed might seek from the court so-called services other than council for an independent psychological review as an example of potential services. These costs would also have to be approved by the court. RSA 490:21 provides that when the court orders services or appoints counsel and there is no apparent funding source, it shall be liable for the payment. The Council states it is also conceivable that the source of funding for this case type which is uniquely civil might lie within the court budget. Finally, the bill establishes a new criminal penalty, which triggers criminal defense representation, if a person performs an abortion on a minor in violation of the provisions of this chapter. This representation would fall under the indigent defense fund and would be payable at the Supreme Court hourly rates or at the contract attorney fixed fee rate which applies to both the public defender and contract attorneys. If an assigned counsel attorney must provide this representation, it would be billed at the $60 per hour with a fee cap of $1,400 (effective January 1, 2008), which may be waived or exceeded upon motion filed with the court in advance and approved. The Judicial Council is unable to predict the number of cases which may result from the passage of this bill, and are unable to determine the exact fiscal impact at this time.

The Department of Justice states the criminal offense created by this bill would typically be prosecuted by a county attorney’s office. There would be some fiscal impact to the Department in instances when an appeal would be taken to the NH Supreme Court. Because it is difficult to estimate if any cases would be appealed to the Supreme Court, the Department is unable to estimate a fiscal impact.

The Association of Counties states the average annual cost to incarcerate an individual in a county correctional facility is approximately $29,000. The Association is unable to determine the number of individuals who will be detained or incarcerated under the new misdemeanor and are therefore unable to determine the impact on county expenditures at this time.

The Department of Health and Human Services states this bill would have no fiscal impact on the Department.