HB 1517-FN – AS INTRODUCED
2008 SESSION
01/04
HOUSE BILL 1517-FN
AN ACT relative to parental consent for abortions.
SPONSORS: Rep. N. Elliott, Hills 19; Rep. Hogan, Hills 25; Rep. Garcia, Rock 4; Rep. Ulery, Hills 27; Rep. Dumaine, Rock 3
This bill prohibits any physician from performing an abortion on any unemancipated minor less than 18 years of age without the consent of the minor and the consent of both parents except in certain circumstances. 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 bill creates an exception for medical emergencies and establishes penalties for violations of the law.
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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Matter which is either (a) all new or (b) repealed and reenacted appears in regular type.
08-2583
01/04
STATE OF NEW HAMPSHIRE
In the Year of Our Lord Two Thousand Eight
AN ACT relative to parental consent for abortions.
Be it Enacted by the Senate and House of Representatives in General Court convened:
1 New Subdivision; Parental Consent Prior to Abortion. Amend RSA 132 by inserting after section 28 the following new subdivision:
Parental Consent Prior to Abortion
132:29 Definitions. In this subdivision:
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 any 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.
132:30 Consent Required.
I. Notwithstanding any other law to the contrary, no person shall perform an abortion upon an unemancipated minor unless he or she first obtains both the consent of the minor and that of her parents, except as hereinafter provided. In deciding whether to grant such consent, a minor’s parents shall consider only their child’s best interests. If one of the minor’s parents has died or is unavailable to the physician within a reasonable time and in a reasonable manner, consent of the remaining parent shall be sufficient. If both parents have died or are otherwise unavailable to the physician within a reasonable time and in a reasonable manner, consent of the minor’s guardian or guardians shall be sufficient. If the minor’s parents are divorced, consent of the parent having primary residential responsibility shall be sufficient.
II. If one or both of the minor’s parents or guardians refuse to consent to the performance of an abortion, or if she elects not to seek the consent of one or both of her parents or guardians, a judge of the superior court shall, upon petition, or motion, and after an appropriate hearing, authorize a physician to perform the abortion if the judge determines that the minor is mature and capable of giving informed consent to the proposed abortion or, if the judge determines that she is not mature, that the performance of an abortion upon her would be in her best interests. A minor may participate in proceedings in the superior 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. Proceedings in the superior court under this section shall be confidential and shall be given such precedence over other pending matters that the court may reach a decision promptly and without delay so as to serve the best interests of the pregnant woman. A judge of the superior court who conducts proceedings under this section shall make in writing specific factual findings and legal conclusions supporting his or her decision and shall order a record of the evidence to be maintained including his or her own findings and conclusions.
132:31 Medical Emergency Exception. Under RSA 132:30 no physician, provider, hospital, or clinic shall be held liable for damages for failure to obtain consent of a parent, legal guardian, or other person having custody or control of a minor for emergency examination and treatment, when delay in treatment will endanger the life or mental well-being of the patient.
132:32 Enjoining Performance of Abortion. The attorney general or any person whose consent is required either pursuant to RSA 132:30 or under common law, may petition the superior court for an order enjoining the performance of any abortion that may be performed contrary to the provisions of this subdivision.
132:33 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.
132:34 Civil Damages Available. Failure to obtain consent pursuant to the requirements of this subdivision is prima facie evidence of interference with family relations in appropriate civil actions. Nothing in this subdivision shall be construed to limit the common law rights of parents.
132:35 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.
2 Effective Date. This act shall take effect 60 days after its passage.
LBAO
08-2583
12/03/07
HB 1517-FN - FISCAL NOTE
AN ACT relative to parental consent for abortions.
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 consent 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 the consent of her parents. It also provides for a court appointed guardian ad litem and a court appointed counsel. Proposed RSA 132:32 provides for injunction actions in the Superior Court to enjoin the performance of an abortion that may be contrary to statute. Proposed RSA 132:33 makes performance of an abortion contrary to the statute an unspecified misdemeanor, and proposed RSA 132:34 provides for civil damages for failure to obtain consent. The Branch states they are unable to accurately estimate the number of hearings which would result from minors seeking to avoid parental consent, nor the number of ancillary criminal or civil proceedings that could arise as a result of the proposed bill, 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 the proposed bill prohibits a physician from performing an abortion on certain minors or incompetent females without consent of the minor and the consent of both parents except in certain circumstances. 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 abortion would be in her best interest. This bill creates an exception for medical emergencies and establishes a new misdemeanor for violations of the law. The Council states this bill also provides that when a pregnant minor elects not to allow for the notification of her parents, guardian, or conservator, that she has a right to a court appointed guardian ad litem. In addition, the court shall also advise her that she has a right to a court appointed attorney. The representation provided to the minor in either the form of guardian ad litem or an attorney represent a civil right to counsel for which a payment source is not specifically identified. Currently certain statutory forms of civil representation are paid for from the Guardian Ad Litem fund based upon historical precedent. These forms of representation include guardianships, representation of both children and parents in Termination of Parental Rights (TPR) proceedings among others. Both the guardian ad litem and the attorney provided for in this bill would be compensated at the rate of $60 per hour. 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. This bill would also authorize the Attorney General or any person whose consent is required to petition the Superior Court for an order enjoining the performance of any abortion contrary to the provisions of the bill. The Department states this provision may have a fiscal impact on the Department, however because it is difficult to estimate how many such actions would be taken, an exact fiscal impact cannot be determined at this time.
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 therefore are 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.