Revision: March 21, 2011, midnight
HB 329-FN – AS AMENDED BY THE HOUSE
16Mar2011… 0531h
2011 SESSION
01/09
HOUSE BILL 329-FN
AN ACT requiring parental notification before abortions may be performed on unemancipated minors.
SPONSORS: Rep. K. Souza, Hills 11; Rep. Kappler, Rock 2; Rep. Bates, Rock 4; Rep. Cebrowski, Hills 18; Rep. Groen, Straf 1; Rep. Krasucki, Hills 26; Rep. Parison, Hills 3; Rep. K. Murphy, Hills 18; Rep. Seidel, Hills 20; Sen. Barnes, Jr., Dist 17; Sen. White, Dist 9; Sen. Groen, Dist 6
This bill prohibits any abortion provider from performing an abortion on certain minors or incompetent females without giving 48 hours’ written notice, in person or by certified mail, to a parent or guardian unless a medical emergency exists. The bill provides a procedure for alternate notice in certain circumstances.
This bill also establishes a procedure for waiver of the notice in certain circumstances.
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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Matter which is either (a) all new or (b) repealed and reenacted appears in regular type.
16Mar2011… 0531h
11-0008
01/09
STATE OF NEW HAMPSHIRE
In the Year of Our Lord Two Thousand Eleven
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 31 the following new subdivision:
Parental Notification Prior to Abortion
132:32 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.
VIII. “Medical emergency” means a condition that, 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 a major bodily function.
132:33 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.
132:34 Waiver of Notice.
I. No notice shall be required under RSA 132:33 if:
(a) The attending abortion provider certifies in the pregnant minor’s medical record that a medical emergency exists 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. Any guardian ad litem appointed under this subdivision shall maintain the confidentiality of the proceedings. 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 under this section shall be held in closed court, shall be confidential and shall ensure the anonymity of the minor. All court proceedings under this section shall be sealed. The minor shall have the right to file her petition in the court using a pseudonym or using solely her initials. All documents related to this petition shall be confidential and shall not be available to the public. These proceedings 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 48 hours from the time the petition is filed, except that the 48-hour limitation may be extended at the request of the minor. 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. If the court fails to rule within the 48-hour period and an extension was not requested, then the petition shall be deemed to have been granted, and the notice requirement shall be waived.
(c) An expedited confidential appeal shall be available, as the supreme court provides by rule, to any such pregnant minor for whom the court denies an order authorizing an abortion without notification. The court shall make a ruling within 48 hours 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.
(d) The supreme court shall make rules to ensure that procedures followed in the appeals process are handled in an expeditious manner and protect the confidentiality of the parties involved in the appeal to satisfy the requirements of the federal courts.
3 Effective Date. This act shall take effect January 1, 2012.
LBAO
11-0008
Revised 01/31/11
HB 329 FISCAL NOTE
AN ACT requiring parental notification before abortions may be performed on unemancipated minors.
FISCAL IMPACT:
The Judicial Branch, Judicial Council, Department of Justice, and New Hampshire Association of Counties state this bill may increase state and county expenditures by an indeterminable amount in FY 2012 and in 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 on unemancipated minors. The bill has potential cost ramifications for the Branch in several sections. Proposed RSA 132:34,II, allows for a hearing if a minor wishes to avoid notification of her parents, provides for a court appointed guardian ad litem and for a court appointed counsel, and makes an expedited appeal available to a pregnant minor if the order authorizing abortion without notification is denied. Proposed RSA 132:35 provides for both criminal and civil actions for violations of the statute. Finally, the proposed bill requires the Branch to provide access to both the trail courts and appellate courts twenty-four hours per day, seven days per week. The Branch is unable to accurately estimate the additional costs of these provisions because there is no way to estimate the number of hearings which would result from minors seeking to avoid parental notification. The Branch assumes the average hearing will require a full day at an estimated cost of $1,480 in FY 2012 based on a seven and one-half hour day including the costs associated with a judge, a court monitor, a deputy clerk and a bailiff. With the addition of time to write a decision and clerical processing the cost of a hearing could exceed $2,000. The court-appointed guardian and court appointed counsel are both is paid $60 per hour. The Supreme Court would set the maximum fee for both in this type of case and it is not clear if these costs would be borne by the Judicial Branch. Should a decision be appealed, several thousand dollars of additional costs could be incurred for judge, law clerk, and staff time at the Supreme Court, as well as additional guardian ad litem and counsel costs.
The Branch has no information on which to estimate how many new misdemeanors will be brought pursuant to proposed RSA 132:35. The Branch does, however, have information on the average costs of processing a misdemeanor charge in the trail courts. Misdemeanor charges can be either class A or class B, with the presumption being class B in accordance with RSA 625:9, IV as enacted in 2009. The cost to the Branch to process and average class A misdemeanor charge in the district court is $60.03 in FY 2012 and $60.88 in FY 2013. For class B misdemeanor charges that cost is $43.58 in FY 2012 and $44.34 in FY 2013. These amounts do not consider the cost of any appeals of a misdemeanor that may be taken following trial in the district court. The Branch has no information available to estimate how many new civil actions would be brought, but the Branch does have information on the average cost of processing a complex civil case in the superior court. The cost to the Branch of an average complex civil case in the superior court is estimated to be $640.23 in FY 2012 and $648.08 in FY 2013. Finally, additional costs will be incurred by the Branch to provide access to the trial courts and to the NH Supreme Court twenty-four hours per day, seven days per week. This cost is not known as the manner of providing that access has not been determined. While no accurate estimate of the total cost of the proposed bill can be made, the Branch states it could reasonably be assumed that it would result in a fiscal impact well in excess of $10,000 annually.
The Judicial Council states this bill prohibits any abortion provider from performing an abortion on certain minors or incompetent females without giving 48 hours written notice, in person or by certified mail, to a parent or guardian unless a medical emergency exists. The Council indicates three forms of representation provided in this bill. If a minor elects not to allow for notification of her parents, guardian or conservator, she has a right to a court appointed Guardian ad Litem. In addition, the minor has the right to a court appointed attorney. Both the Guardian ad Litem and the attorney are paid a rate or $60 per hour. There are no Supreme Court rules that set fee caps for this type of representation. The Council indicated that the Guardian ad Litem or the attorney may also request “Services Other Than Counsel”, such as an independent psychological review, subject to approval by the court.
In addition, the Council states, this bill establishes a new criminal penalty which triggers criminal defense representation. If the individual charged is determined to be indigent, the court will appoint an attorney to represent the defendant. If a Public Defender or Contract Attorney is appointed, a fixed fee of $265 is charged per misdemeanor or $756.25 for a felony. If these are not available or if there are multiple codefendants, an Assigned Counsel Attorney would be assigned at a rate of $60 per hour with a fee cap of $1,400. Services Other Than Counsel may also be requested by the defense and approved by the court. In addition, there may be appeals which could also result in indigent defense costs. The Council states this bill may increase in general fund expenditures but cannot determine the number of cases or what representation would be assigned to either the minor or possibly a defendant.
The Department of Justice states the criminal offense created by this bill is typically prosecuted by a county attorney’s office. There may be some fiscal impact to the Department where an appeal is taken to the Supreme Court. The Department indicated that a violation may also trigger a complaint to the medical licensing board for which the Department’s Civil Bureau may incur costs for client counseling duties relevant to the licensing board. If the Administrative Prosecutions Unit investigates and prosecutes a complaint filed before a licensing board, the services of an Assistant Attorney General, an investigator and a paralegal would be necessary for the investigation and prosecution. The Department of Justice states it is not possible to determine how many additional cases or how much time would be required to investigate and prosecute violations under this bill.
The New Hampshire Association of Counties states this bill establishes a new misdemeanor. To the extent that any individuals are prosecuted, convicted, and sentenced to incarceration in a county correctional facility county expenditures will increase. The Association states the average annual statewide cost of incarceration in a county correctional facility is approximately $35,000, but the Association is not able to determine the number of individuals that might be incarcerated.
The Department of Health and Human Services states this bill will have no impact on the Department.