By: Shapiro S.B. No. 1105 73R4563 CAE-F A BILL TO BE ENTITLED 1-1 AN ACT 1-2 relating to parental notification before an abortion may be 1-3 performed on a minor; providing a criminal penalty. 1-4 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: 1-5 SECTION 1. Subtitle C, Title 2, Family Code, is amended by 1-6 adding Chapter 37 to read as follows: 1-7 CHAPTER 37. NOTICE OF ABORTION 1-8 Sec. 37.01. DEFINITIONS. In this chapter: 1-9 (1) "Abortion" means a medical procedure or act 1-10 committed on or with respect to a woman by any means, including 1-11 acting directly on the woman's body with an instrument or other 1-12 object or administering or prescribing a drug or other substance, 1-13 with the intent or with a representation that the procedure or act 1-14 is done to cause the death of an unborn child or to cause the 1-15 expulsion or removal of an unborn child from the womb of the woman 1-16 for a purpose other than for producing a live birth or for removing 1-17 fetal remains. 1-18 (2) "Guardian" means a court-appointed guardian of the 1-19 person of the minor. 1-20 (3) "Medical emergency" means a condition that, on the 1-21 basis of a physician's good faith clinical judgment, complicates 1-22 the medical condition of a pregnant woman and necessitates the 1-23 immediate abortion of her pregnancy to avert her death or to avoid 1-24 a serious risk of substantial and irreversible impairment of a 2-1 major bodily function. 2-2 (4) "Physician" means an individual licensed to 2-3 practice medicine in this state. 2-4 (5) "Unborn child" means an unborn offspring of a 2-5 human from the time of the offspring's conception, during 2-6 pregnancy, and until its live birth. 2-7 Sec. 37.02. PARENTAL NOTICE. (a) Except as provided by 2-8 Section 37.03 of this code, a person may not perform an abortion on 2-9 a pregnant minor unless: 2-10 (1) the person performing the abortion gives at least 2-11 48 hours actual notice, in person or by telephone, of the person's 2-12 intent to perform the abortion to: 2-13 (A) a parent of the minor if the minor has no 2-14 managing conservator or guardian; or 2-15 (B) a court-appointed managing conservator or 2-16 guardian; 2-17 (2) a person to whom notice may be given under 2-18 Subsection (a)(1) consents in writing to the performance of the 2-19 abortion; 2-20 (3) the judge of a court having probate jurisdiction 2-21 or the judge of a district court issues an order authorizing the 2-22 minor to consent to the abortion as provided by Section 37.04 or 2-23 37.05 of this code; 2-24 (4) a probate court or a district court, by its 2-25 inaction, constructively authorizes the minor to consent to the 2-26 abortion as provided by Section 37.04 or 37.05 of this code; or 2-27 (5) the person performing the abortion is a physician 3-1 who: 3-2 (A) concludes that a medical emergency exists 3-3 without sufficient time to provide the required notice; and 3-4 (B) certifies in writing to the Texas 3-5 Department of Health and in the patient's medical record the 3-6 medical indications supporting the physician's judgment that the 3-7 abortion was authorized by this subdivision. 3-8 (b) If a person to whom notice may be given under Subsection 3-9 (a)(1) of this section cannot be notified after a reasonable 3-10 effort, a person may perform an abortion if the person gives 48 3-11 hours constructive notice, by certified mail sent to the last known 3-12 address, to the person to whom notice may be given under Subsection 3-13 (a)(1) of this section. The period under this subsection begins 3-14 when the certified mail notice is mailed. If the person required 3-15 to be notified is not notified within the period, the abortion may 3-16 proceed even if the certified mail notice is not received. 3-17 (c) The Texas Department of Health shall prepare a form to 3-18 be used for making the certification required by Subsection (a)(5) 3-19 of this section. 3-20 (d) A person who violates this section commits an offense. 3-21 An offense under this section is a Class A misdemeanor. 3-22 Sec. 37.03. EXCEPTION TO PARENTAL NOTICE. (a) A person may 3-23 perform an abortion on a pregnant minor without satisfying the 3-24 requirement of Section 37.02(a) of this code if the minor has 3-25 executed an affidavit stating that she is in fear of physical, 3-26 sexual, or severe emotional abuse from both parents, a managing 3-27 conservator, or guardian who would be notified under Section 4-1 37.02(a)(1) of this code and that the fear arises from a pattern of 4-2 physical, sexual, or severe emotional abuse of her exhibited by 4-3 those parents, the managing conservator, or guardian. 4-4 (b) The person performing the abortion shall certify in 4-5 writing to the Texas Department of Health that the minor has 4-6 executed an affidavit as required by Subsection (a) of this section 4-7 and that the abortion is permitted without notification as provided 4-8 by this section. The Texas Department of Health shall prepare a 4-9 form to be used for making this certification. 4-10 Sec. 37.04. JUDICIAL APPROVAL. (a) A pregnant minor who 4-11 wishes to have an abortion without notification to one of her 4-12 parents, her managing conservator, or her guardian may file in the 4-13 probate court of the county in which the minor resides, in the 4-14 probate court of a county that borders the county in which the 4-15 minor resides, or in the probate court of the county in which the 4-16 hospital, clinic, or other facility in which the abortion would be 4-17 performed is located, an application for a court order authorizing 4-18 the minor to consent to the performance of an abortion without 4-19 notification to either of her parents or a managing conservator or 4-20 guardian. 4-21 (b) The application must be made under oath and include: 4-22 (1) a statement that the minor is pregnant; 4-23 (2) a statement that the minor is unmarried, is under 4-24 18 years of age, and has not had her disabilities removed for 4-25 general purposes under Chapter 31 of this code; 4-26 (3) a statement that the minor wishes to have an 4-27 abortion without the notification of either of her parents or a 5-1 managing conservator or guardian; and 5-2 (4) a statement as to whether the minor has retained 5-3 an attorney and, if she has retained an attorney, the name, 5-4 address, and telephone number of her attorney. 5-5 (c) The court shall appoint a guardian ad litem for the 5-6 minor. If the minor has not retained an attorney, the court shall 5-7 appoint an attorney to represent the minor. If the guardian ad 5-8 litem is an attorney admitted to the practice of law in this state, 5-9 the court may appoint the guardian ad litem to serve as the minor's 5-10 attorney. 5-11 (d) The court shall fix a time for a hearing on an 5-12 application filed under Subsection (a) of this section and shall 5-13 keep a record of all testimony and other oral proceedings in the 5-14 action. The hearing shall be held at the earliest possible time, 5-15 but not later than the fifth business day after the date that the 5-16 application is filed. The court shall enter judgment on the 5-17 application immediately after the hearing is concluded. 5-18 (e) If the hearing required in Subsection (d) of this 5-19 section is not held by the fifth business day after the date the 5-20 application is filed, the failure to hold the hearing is considered 5-21 to be a constructive order of the court authorizing the minor to 5-22 consent to the performance of an abortion without further 5-23 notification and the minor and any other person may rely on the 5-24 constructive order to the same extent as if the court actually had 5-25 issued an order under this section authorizing the minor to consent 5-26 to the performance of an abortion without notification. 5-27 (f) The court shall determine by clear and convincing 6-1 evidence whether the minor is mature and sufficiently well-informed 6-2 to make the decision to have an abortion performed without 6-3 notification to either of her parents or a managing conservator or 6-4 guardian or whether notification would not be in the best interest 6-5 of the minor. If the court finds that the minor is mature and 6-6 sufficiently well-informed or that notification would not be in the 6-7 minor's best interest, the court shall enter an order authorizing 6-8 the minor to consent to the performance of the abortion without 6-9 notification to either of her parents or a managing conservator or 6-10 guardian and execute the required forms. 6-11 (g) In ruling on a petition for a minor to consent to an 6-12 abortion under this section, the court shall hear evidence 6-13 regarding: 6-14 (1) the emotional development, maturity, intellect, 6-15 and understanding of the pregnant minor; 6-16 (2) the fact and duration of the pregnancy; 6-17 (3) the nature and possible consequences of, and 6-18 alternatives to, an abortion; and 6-19 (4) any additional evidence that the court may find 6-20 useful in determining whether the pregnant minor may obtain an 6-21 abortion without notification to either of the minor's parents or a 6-22 managing conservator or guardian. 6-23 (h) If the court finds by clear and convincing evidence that 6-24 the minor does not meet the requirements of Subsection (f) of this 6-25 section, the court may not authorize the minor to consent to an 6-26 abortion without the notification authorized under Section 6-27 37.02(a)(1) of this code. 7-1 (i) The court may not notify a parent, managing conservator, 7-2 or guardian that the minor is pregnant or that the minor wants to 7-3 have an abortion. The court proceedings shall be conducted in a 7-4 manner that protects the anonymity of the minor, and all court 7-5 documents pertaining to the proceedings are confidential. 7-6 (j) The clerk of the supreme court shall prescribe the 7-7 application form to be used by the minor filing an application 7-8 under this section. 7-9 (k) A filing fee is not required of, and court costs may not 7-10 be assessed against, a minor filing an application under this 7-11 section. 7-12 Sec. 37.05. APPEAL. (a) A minor whose application under 7-13 Section 37.04 of this code is denied by a probate court may appeal 7-14 to the district court having jurisdiction over civil matters in the 7-15 county in which the application was filed. Not later than the 7-16 fourth day after the date notice of appeal is filed in a probate 7-17 court, the clerk of the probate court shall deliver a copy of the 7-18 notice of appeal and the record on appeal to the clerk of the 7-19 district court. On receipt of the notice and record, the clerk of 7-20 the district court shall place the appeal on the docket of the 7-21 court. 7-22 (b) The minor may file a brief with the district court not 7-23 later than the fourth day after the date the appeal is docketed. 7-24 Unless the minor waives the right to oral argument, the district 7-25 court shall hear oral argument not later than the fifth day after 7-26 the date the appeal is docketed. The district court shall enter a 7-27 judgment on the appeal immediately after the oral argument or, if 8-1 oral argument has been waived, within five days after the appeal is 8-2 docketed. 8-3 (c) Failure of the district court to enter a judgment not 8-4 later than the fifth day after the date the appeal is docketed is 8-5 considered to be a constructive order of the court authorizing the 8-6 minor to consent to the performance of an abortion without 8-7 notification of either of her parents or a managing conservator or 8-8 guardian, and the minor and any other person may rely on the 8-9 constructive order to the same extent as if the court actually 8-10 entered a judgment under this section consenting to the performance 8-11 of an abortion without notification. 8-12 (d) The clerk of the supreme court shall prescribe the 8-13 notice of appeal form to be used by the minor appealing a judgment 8-14 under this section. 8-15 (e) A filing fee is not required of, and court costs may not 8-16 be assessed against, a minor filing an appeal under this section. 8-17 SECTION 2. This Act takes effect September 1, 1993. 8-18 SECTION 3. The importance of this legislation and the 8-19 crowded condition of the calendars in both houses create an 8-20 emergency and an imperative public necessity that the 8-21 constitutional rule requiring bills to be read on three several 8-22 days in each house be suspended, and this rule is hereby suspended.