HB274 (2009) Detail

Requiring parental notification before abortions may be performed on unemancipated minors.


HB 274-FN – AS INTRODUCED

2009 SESSION

09-0033

01/09

HOUSE BILL 274-FN

AN ACT requiring parental notification before abortions may be performed on unemancipated minors.

SPONSORS: Rep. Hess, Merr 9; Rep. Pepino, Hills 11; Rep. Kappler, Rock 2

COMMITTEE: Judiciary

ANALYSIS

This bill restores the parental notification law and adds an exception to such law in cases of serious damage to the minor’s health.

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Matter which is either (a) all new or (b) repealed and reenacted appears in regular type.

09-0033

01/09

STATE OF NEW HAMPSHIRE

In the Year of Our Lord Two Thousand Nine

AN ACT requiring parental notification before abortions may be performed on unemancipated minors.

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

1 Legislative Purpose and Findings.

I. It is the intent of the legislature in enacting this parental notification 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 abortion are not necessarily related.

(d) Parents ordinarily possess information essential to a physician’s exercise of 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 the abortion.

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

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

VII. “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 the abortion is necessary to prevent the minor’s death or to avert serious damage to the minor’s health and there is insufficient time to provide the required notice; 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.

(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 bona 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.

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

LBAO

09-0033

01/07/09

HB 274-FN - FISCAL NOTE

AN ACT requiring parental notification before abortions may be performed on unemancipated minors.

FISCAL IMPACT:

      The Judicial Branch, the Judicial Council, and the New Hampshire Association of Counties state this bill may increase state and county expenditures by an indeterminable amount in FY 2010 and each year thereafter. There will be no fiscal impact on local expenditures or state, county, and local revenue.

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 $1,298 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 of 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 and paid from funds for ancillary non-counsel services. 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 misdemeanor, which triggers criminal defense representation, if a person performs an abortion 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, which may be waived or exceeded upon motion filed with the court in advance and approved. The flat fee paid to public defenders and contract attorneys for a misdemeanor is $275. The Council states it is hard to conceive that the person performing the abortion might not have sufficient funds to pay for their own representation, but that could be the case. 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 New Hampshire Association of Counties states to the extent an individual is prosecuted, convicted, and sentenced to incarceration, the counties may have increased expenditures. The Association is unable to determine the number of individuals who might be detained or incarcerated as a result of this bill. The average cost to incarcerate an individual in a county facility is $30,165 per year.

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