1-1 By: Shapiro, et al. S.B. No. 83 1-2 (In the Senate - Filed November 21, 1994; January 11, 1995, 1-3 read first time and referred to Committee on Health and Human 1-4 Services; April 28, 1995, reported adversely, with favorable 1-5 Committee Substitute by the following vote: Yeas 6, Nays 2; 1-6 April 28, 1995, sent to printer.) 1-7 COMMITTEE SUBSTITUTE FOR S.B. No. 83 By: Patterson 1-8 A BILL TO BE ENTITLED 1-9 AN ACT 1-10 relating to parental notification before an abortion may be 1-11 performed on a minor; providing a criminal penalty. 1-12 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: 1-13 SECTION 1. Subtitle C, Title 2, Family Code, is amended by 1-14 adding Chapter 37 to read as follows: 1-15 CHAPTER 37. NOTICE OF ABORTION 1-16 Sec. 37.01. DEFINITIONS. In this chapter: 1-17 (1) "Abortion" means the use of any means to terminate 1-18 the pregnancy of a female known by the attending physician to be 1-19 pregnant, with the intention that the termination of the pregnancy 1-20 by those means will, with reasonable likelihood, cause the death of 1-21 the fetus. 1-22 (2) "Fetus" means an individual human organism from 1-23 fertilization until birth. 1-24 (3) "Guardian" means a court-appointed guardian of the 1-25 person of the minor. 1-26 (4) "Medical emergency" means a condition that, on the 1-27 basis of a physician's good faith clinical judgment, complicates 1-28 the medical condition of a pregnant woman and necessitates the 1-29 immediate abortion of her pregnancy to avert her death or to avoid 1-30 a serious risk of substantial and irreversible impairment of a 1-31 major bodily function. 1-32 (5) "Physician" means an individual licensed to 1-33 practice medicine in this state. 1-34 Sec. 37.02. PARENTAL NOTICE. (a) A physician may not 1-35 perform an abortion on a pregnant minor unless: 1-36 (1) the physician performing the abortion gives at 1-37 least 48 hours actual notice, in person or by telephone, of the 1-38 physician's intent to perform the abortion to: 1-39 (A) a parent of the minor if the minor has no 1-40 managing conservator or guardian; or 1-41 (B) a court-appointed managing conservator or 1-42 guardian; 1-43 (2) the judge of a court having probate jurisdiction, 1-44 the judge of a county court at law, or the judge of a district 1-45 court issues an order authorizing the minor to consent to the 1-46 abortion as provided by Section 37.03 or 37.04; 1-47 (3) a probate court, county court at law, or district 1-48 court, by its inaction, constructively authorizes the minor to 1-49 consent to the abortion as provided by Section 37.03 or 37.04; or 1-50 (4) the physician performing the abortion: 1-51 (A) concludes that a medical emergency exists 1-52 and there is insufficient time to provide the required notice; and 1-53 (B) certifies in writing to the Texas 1-54 Department of Health and in the patient's medical record the 1-55 medical indications supporting the physician's judgment that a 1-56 medical emergency exists and that there is insufficient time to 1-57 provide the required notice. 1-58 (b) If a person to whom notice may be given under Subsection 1-59 (a)(1) cannot be notified after a reasonable effort, a physician 1-60 may perform an abortion if the physician gives 48 hours 1-61 constructive notice, by certified mail sent to the last known 1-62 address, to the person to whom notice may be given under Subsection 1-63 (a)(1). The period under this subsection begins when the certified 1-64 mail notice is mailed. If the person required to be notified is 1-65 not notified within the 48-hour period, the abortion may proceed 1-66 even if the certified mail notice is not received. 1-67 (c) The Texas Department of Health shall prepare a form to 1-68 be used for making the certification required by Subsection (a)(4). 2-1 (d) A physician who violates this section commits an 2-2 offense. An offense under this section is a Class A misdemeanor. 2-3 Sec. 37.03. JUDICIAL APPROVAL. (a) A pregnant minor who 2-4 wishes to have an abortion without notification to one of her 2-5 parents, her managing conservator, or her guardian may file an 2-6 application for a court order authorizing the minor to consent to 2-7 the performance of an abortion without notification to either of 2-8 her parents or a managing conservator or guardian. 2-9 (b) The application may be filed in the county court at law 2-10 or a court having probate jurisdiction for: 2-11 (1) the county in which the minor resides; 2-12 (2) a county that borders a county in which the minor 2-13 resides; or 2-14 (3) the county in which the hospital, clinic, or 2-15 facility in which the abortion would be performed is located. 2-16 (c) The application must be made under oath and include: 2-17 (1) a statement that the minor is pregnant; 2-18 (2) a statement that the minor is unmarried, is under 2-19 18 years of age, and has not had her disabilities removed for 2-20 general purposes under Chapter 31; 2-21 (3) a statement that the minor wishes to have an 2-22 abortion without the notification of either of her parents or a 2-23 managing conservator or guardian; and 2-24 (4) a statement as to whether the minor has retained 2-25 an attorney and, if she has retained an attorney, the name, 2-26 address, and telephone number of her attorney. 2-27 (d) The court shall appoint a guardian ad litem for the 2-28 minor. If the minor has not retained an attorney, the court shall 2-29 appoint an attorney to represent the minor. If the guardian ad 2-30 litem is an attorney admitted to the practice of law in this state, 2-31 the court may appoint the guardian ad litem to serve as the minor's 2-32 attorney. 2-33 (e) The court shall fix a time for a hearing on an 2-34 application filed under Subsection (a) and shall keep a record of 2-35 all testimony and other oral proceedings in the action. The court 2-36 shall enter judgment on the application immediately after the 2-37 hearing is concluded. 2-38 (f) The court shall rule on an application submitted under 2-39 this section and shall issue written findings of fact and 2-40 conclusions of law, not later than 5 p.m. on the second business 2-41 day after the date the application is filed with the court. The 2-42 minor may request an extension of the period specified by this 2-43 section. If the court fails to rule on the application and issue 2-44 written findings of fact and conclusions of law within the period 2-45 specified by this subsection and an extension was not requested, 2-46 the application is deemed to be granted and the physician may 2-47 perform the abortion as if the court had issued an order 2-48 authorizing the minor to consent to the performance of the abortion 2-49 without notification under Section 37.02. Proceedings under this 2-50 section shall be given precedence over other pending matters to the 2-51 extent necessary to assure that the court reaches a decision 2-52 promptly. 2-53 (g) The court shall determine by a preponderance of the 2-54 evidence whether the minor is mature and sufficiently well informed 2-55 to make the decision to have an abortion performed without 2-56 notification to either of her parents or a managing conservator or 2-57 guardian, or whether notification would not be in the best interest 2-58 of the minor. If the court finds that the minor is mature and 2-59 sufficiently well informed or that notification would not be in the 2-60 minor's best interest, the court shall enter an order authorizing 2-61 the minor to consent to the performance of the abortion without 2-62 notification to either of her parents or a managing conservator or 2-63 guardian and execute the required forms. 2-64 (h) If the court finds that the minor does not meet the 2-65 requirements of Subsection (g), the court may not authorize the 2-66 minor to consent to an abortion without the notification authorized 2-67 under Section 37.02(a)(1). 2-68 (i) The court may not notify a parent, managing conservator, 2-69 or guardian that the minor is pregnant or that the minor wants to 2-70 have an abortion. The court proceedings shall be conducted in a 3-1 manner that protects the anonymity of the minor, and the 3-2 application and all other court documents pertaining to the 3-3 proceedings are confidential and may not be made available to the 3-4 public. The minor may file the application using a pseudonym or 3-5 using only her initials. 3-6 (j) The clerk of the supreme court shall prescribe the 3-7 application form to be used by the minor filing an application 3-8 under this section. 3-9 (k) A filing fee is not required of, and court costs may not 3-10 be assessed against, a minor filing an application under this 3-11 section. 3-12 Sec. 37.04. APPEAL. (a) A minor whose application under 3-13 Section 37.03 is denied may appeal to the district court having 3-14 jurisdiction over civil matters in the county in which the 3-15 application was filed. On receipt of a notice of appeal, the clerk 3-16 of the court that denied the application shall deliver a copy of 3-17 the notice of appeal and record on appeal to the clerk of the 3-18 district court. On receipt of the notice and record, the clerk of 3-19 the district court shall place the appeal on the docket of the 3-20 court. 3-21 (b) The court shall rule on an appeal under this section not 3-22 later than 5 p.m. on the second business day after the date the 3-23 notice of appeal is filed. The minor may request an extension of 3-24 the period specified by this subsection. If the court fails to 3-25 rule on the appeal within the period specified by this subsection 3-26 and an extension was not requested, the appeal is deemed to be 3-27 granted and the physician may perform the abortion as if the court 3-28 had issued an order authorizing the minor to consent to the 3-29 performance of the abortion without notification under Section 3-30 37.02. Proceedings under this section shall be given precedence 3-31 over other pending matters to the extent necessary to assure that 3-32 the court reaches a decision promptly. 3-33 (c) The clerk of the supreme court shall prescribe the 3-34 notice of appeal form to be used by the minor appealing a judgment 3-35 under this section. 3-36 (d) A filing fee is not required of, and court costs may not 3-37 be assessed against, a minor filing an appeal under this section. 3-38 (e) An expedited confidential appeal shall be available to 3-39 any pregnant woman to whom a district court denies an order 3-40 authorizing the minor to consent to the performance of an abortion 3-41 without notification to either of her parents or a managing 3-42 conservator or guardian. 3-43 SECTION 2. The Texas Supreme Court shall issue promptly such 3-44 rules as may be necessary that the process established by Sections 3-45 37.03 and 37.04, Family Code, as added by this Act, be conducted in 3-46 such a manner as will ensure confidentiality and sufficient 3-47 precedence over all other pending matters to ensure promptness of 3-48 disposition. 3-49 SECTION 3. Except as provided by Section 5 of this Act, this 3-50 Act takes effect September 1, 1995. 3-51 SECTION 4. Chapter 37, Family Code, as added by this Act, 3-52 applies only to an abortion performed on or after January 1, 1996. 3-53 An abortion performed before January 1, 1996, is governed by the 3-54 law as it existed immediately before the effective date of this 3-55 Act, and that law is continued in effect for that purpose. 3-56 SECTION 5. Subsection (d), Section 37.02, Family Code, as 3-57 added by this Act, takes effect January 1, 1996. 3-58 SECTION 6. The Texas Board of Health shall adopt the form to 3-59 be used under Section 37.02(a)(4), Family Code, as added by this 3-60 Act, not later than December 15, 1995. 3-61 SECTION 7. The clerk of the Texas Supreme Court shall adopt 3-62 the application form and notice of appeal form to be used under 3-63 Sections 37.03 and 37.04, Family Code, as added by this Act, not 3-64 later than December 15, 1995. 3-65 SECTION 8. The importance of this legislation and the 3-66 crowded condition of the calendars in both houses create an 3-67 emergency and an imperative public necessity that the 3-68 constitutional rule requiring bills to be read on three several 3-69 days in each house be suspended, and this rule is hereby suspended. 3-70 * * * * *