PAK C.S.S.B. 86 75(R) BILL ANALYSIS STATE AFFAIRS C.S.S.B. 86 By: Shapiro (Marchant) 5-22-97 Committee Report (Substituted) BACKGROUND Currently, Texas law does not require parents to receive notification that their minor child is seeking an abortion. Texas does have a law that deals with a minor's ability to consent to certain procedures, but it is not enforced. SB 86 requires parental notification before an abortion can be performed on a minor, and provides exceptions in which parental notification is not in the child's best interest. PURPOSE As engrossed, S.B. 86 would prohibit a physician from performing an abortion on a minor unless: -the physician gives the parent or guardian of the minor 48 hours notice of the abortion; -a county or district court authorizes the minor to consent to the abortion; -a physician (outside the abortion facility) determines that an abortion is in the best interest of the minor; notice may lead to physical, sexual, or emotional abuse of the minor; or the minor is mature and capable of giving informed consent; -a county or district court by inaction, authorizes a minor to consent to the abortion; or -the physician certifies that the abortion is necessary to care for a medical emergency. RULEMAKING AUTHORITY It is the committee's opinion that this bill grants rulemaking authority to the Supreme Court of Texas in SECTION 2 of the bill. SECTION BY SECTION ANALYSIS SECTION 1. Creates Chapter 33, Subtitle A, Title 2, Family Code (Notice of Abortion). Creates Subchapter A (General Provisions; Notice Required) as follows: Section 33.001 defines "abortion," "guardian," "medical emergency," and "physician." Section 33.002(a) prohibits a physician from performing an abortion on a minor without giving 48 hours actual notice to a parent of the minor of the physician's intent to perform the abortion. Section 33.002(b) establishes that a physician may perform the abortion if, after reasonable effort, the physician is unable to notify the parent and sends notice by certified mail. The abortion may be performed 48 hours after the certified mail is sent. Section 33.002(c) establishes that the physician may execute an affidavit stating that the physician gave notice or constructive notice and that such affidavit shall create a conclusive presumption that the physician complied with the requirements. Section 33.003(a) establishes that a physician may perform an abortion without giving notice under the following circumstances: (1) if another physician off the premises of the abortion clinic determines and certifies in writing that notice may lead to physical, sexual, or emotional abuse of the minor; the minor is mature and capable of giving informed consent; or the abortion would be in the minor's best interest. (2) if there is a medical emergency. Section 33.003(b) provides that certification under subsection (a) is confidential and privileged. Section 33.003(c) provides that if a minor does not obtain certification under subsection (a), the right to proceed in a county or district court is not affected. Sec. 33.004(a) establishes that a physician who violates Chapter 33 is subject to disciplinary action under Subchapter D of the Medical Practice Act. (b) Establishes that the State Board of Medical Examiners shall review submitted information and initiate disciplinary action for violations of Section 33.002 and 33.003. Section 33.005 permits a physician or a court to report sexual abuse of the minor to local or state law enforcement agencies, the Department of Protective and Regulatory Services, or the state agency that operates, licenses, certifies, or registers the facility in which the alleged abuse occurred, if the facility is operated, licensed, certified, or registered by a state agency. Section 33.051(a) permits a pregnant minor to file an application for court authorization to consent to the abortion without the required notice. Section 33.051(b) provides that the application may be filed in the county or district court having jurisdiction for the county of the minor's residence or a bordering county, or the county in which the facility in which the abortion will be performed is located. Section 33.051(c) requires that the application state the following: that the minor is pregnant; that she is unmarried; that she is under the age of 18 and has not had the disabilities of minority removed; that she wishes to have an abortion without giving notice or obtaining a physician certification; and whether the minor has retained an attorney. Section 33.051(d) requires the court to appoint an attorney if the minor has not retained one. Section 33.051(e) requires the court to set a hearing, keep a record of all testimony and oral proceedings, and enter judgment immediately after the hearing. Section 33.051(f) requires the court to rule on a minor's application and issue written findings of fact and conclusions of law not later than 5 p.m. on the second business day after the date the minor filed the application. The minor may request an extension and the court shall rule on the application not later than 5 p.m. on the second business day after the date the minor indicates she is ready to proceed. Provides that if the court does not act by the specified time, the application is deemed granted and the abortion may be performed as if it had been authorized by the court. Section 33.051(g) requires the court to determine by a preponderance of the evidence whether: (1) notice may lead to physical, sexual, or emotional abuse of the minor; (2) the minor is mature and capable of giving informed consent to an abortion; or (3) the abortion would be in the minor's best interest. Section 33.051(h) provides that if the court finds that the minor meets one of the requirements set out in subsection (g), the court shall enter an order authorizing the abortion without notice or certification by a physician. Section 33.051(i) provides that if the court finds that the minor does not meet the requirements of subsection (g), the court may not authorize the abortion without notice or certification by a physician. Section 33.051(j) provides that a court may not notify any person that the minor is pregnant or wants to have an abortion and requires that all proceedings should be protect the anonymity of the minor, and that all documents are confidential and privileged. Section 33.051(k) requires the clerk of the supreme court to issue the application form to be used by the minor. Section 33.051(l) exempts the minor from the filing fee and court costs. Section 33.052 provides that a minor whose application with a county court is denied may file an original application in a district court. Such application is governed by Section 33.051. Section 33.053 provides that a minor whose application with a district court is denied may appeal to a court of appeals. Requires the court of appeals to rule on a minor's application not later than 5 p.m. on the second business day after the date the notice of appeals is filed. The minor may request an extension and the court shall rule on the application not later than 5 p.m. on the second business day after the date the minor indicates she is ready to proceed. Provides that if the court does not act by the specified time, the application is deemed granted and the abortion may be performed as if it had been authorized by the court. Prohibits the court of appeals from from notifying any person that the minor is pregnant or that she wants to have an abortion. Provides that the documents and proceedings are confidential and privileged and that the anonymity of the minor must be protected. Section 33.054 establishes that the physician may execute an affidavit stating that the physician gave notice or constructive notice and that such affidavit shall create a conclusive presumption that the physician complied with the requirements. Section 33.055 establishes that a court's denial of an application does not bar the minor from giving notice or obtaining a physician certification. Section 33.056 provides that the costs of the judicial proceedings, including the cost of the attorney ad litem, are the responsibility of the county in which the proceedings were conducted. SECTION 2. Requires the supreme court to issues rules relating to the judicial proceedings under Section 33.051 in order to ensure confidentiality and sufficient precedence over all other pending matters. SECTION 3. Requires the State Board of Medical Examiners to adopt the forms to be used in reporting under Section 33.003(a)(2). SECTION 4. Establishes that Chapter 33, Family Code applies only to an abortion performed on or after January 1, 1998. SECTION 5. Effective date: September 1, 1997. SECTION 6. Emergency clause. COMPARISON OF ORIGINAL TO SUBSTITUTE The substitute makes the following changes to the original: 1) The substitute changes the caption to remove the criminal penalty. 2) SECTION 1 adds SUBCHAPTER A. GENERAL PROVISIONS; NOTICE REQUIRED, and makes the following changes: Sec. 33.001 changes the definitions of "abortion" and "medical emergency" and removes the definition of "fetus." Sec. 33.002 makes conforming changes. Permits an agent of the physician to provide the required notice and to execute and conclusively rely on an affidavit stating that the physician provided the required notice. Sec. 33.003 is replaced and provides for an outside physician to provide a bypass to parental notification. The substitute also requires the Texas State Board of Medical Examiners to create the certification form instead of the Department of Health. Sec. 33.004 is replaced and changes the penalty from a Class A misdemeanor to a disciplinary action from the Texas Board of Medical Examiners. Sec. 33.005 (Sec. 33.007 of the original) permits a physician to report sexual abuse, in addition to the court, and removes the attorney and guardian ad litem from the section. Sections 33.006 and 33.007 of the original are deleted and the provisions contained in those sections are moved to other sections. Adds SUBCHAPTER B. JUDICIAL APPROVAL Sections 33.051-33.056 are added and replace sections 33.003 and 33.004 in the original bill relating to the judicial bypass and make the following changes: Section 33.051(b) removes probate courts and adds district courts. Section 33.051(d) clarifies that a court must appoint an attorney, who shall serve as the guardian ad litem, if the minor has not retained an attorney. Section 33.051(f) provides a time frame for court action if a minor requests an extension. Section 33.051(g) modifies the finding to be made by the judge in determining whether to authorize the minor to consent. A new Section 33.051 (h) is added requiring the court to enter an order authorizing the minor to consent if the court finds that the requirements of (g) are met. Section 33.051(j) clarifies that court documents are privileged and not subject to legal process, and prohibits the court from notifying any person that the minor is pregnant or wants to have an abortion. Makes conforming changes. Sec. 33.052 provides that a minor whose application is denied by a county court may file an original application in a district court. Sec. 33.053 provides for appeal to a court of appeals. The court of appeals must follow the same expediency procedures as the county and district courts and the documents and proceedings have the same protections from disclosure. The appeal from probate or county court to the district court, and the ad litem immunity section are deleted. Sec. 33.054 provides that a physician may execute and rely on a affidavit that the physician did not receive notice that a court denied the minor's application by the appropriate deadline. Sec. 33.055 provides that a minor may choose to have the physician give notice or to obtain certification by a physician if a court denies the minor's application. Sec. 33.056 (Sec. 33.006 of the original) changes the funding from state family planning funds to county funds of the county where the proceeding is conducted. 3) SECTION 2 makes a conforming change. 4) New SECTION 3 changes: the Texas State Board of Medical Examiners shall adopt the forms to be used instead of the Texas Board of Health (as found in original SECTION 6, which is deleted). Effective date provisions of original moved to new SECTION 5. 5) SECTION 5 changes: the entire act becomes effective September 1, 1997. 6) SECTION 6 is deleted, provisions in the original moved to SECTION 3. New SECTION 6 contains the emergency clause. 7) SECTION 7 is deleted, provisions in the original moved to SECTION 1, Sec. 33.051. 8) SECTION 8 is deleted, provisions in the original moved to SECTION 6.