By Shapiro S.B. No. 86 75R1982 DLF-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 A, Title 2, Family Code, is amended by 1-6 adding Chapter 33 to read as follows: 1-7 CHAPTER 33. NOTICE OF ABORTION 1-8 Sec. 33.001. DEFINITIONS. In this chapter: 1-9 (1) "Abortion" means the use of any means to terminate 1-10 the pregnancy of a female known by the attending physician to be 1-11 pregnant, with the intention that the termination of the pregnancy 1-12 by those means will, with reasonable likelihood, cause the death of 1-13 the fetus. 1-14 (2) "Fetus" means an individual human organism from 1-15 fertilization until birth. 1-16 (3) "Guardian" means a court-appointed guardian of the 1-17 person of the minor. 1-18 (4) "Medical emergency" means a condition that, on the 1-19 basis of a physician's good faith clinical judgment, complicates 1-20 the medical condition of a pregnant woman and necessitates the 1-21 immediate abortion of her pregnancy to avert her death or to avoid 1-22 a serious risk of substantial and irreversible impairment of a 1-23 major bodily function. 1-24 (5) "Physician" means an individual licensed to 2-1 practice medicine in this state. 2-2 Sec. 33.002. PARENTAL NOTICE. (a) A physician may not 2-3 perform an abortion on a pregnant minor unless: 2-4 (1) the physician performing the abortion gives at 2-5 least 48 hours actual notice, in person or by telephone, of the 2-6 physician's intent to perform the abortion to: 2-7 (A) a parent of the minor if the minor has no 2-8 managing conservator or guardian; or 2-9 (B) a court-appointed managing conservator or 2-10 guardian; 2-11 (2) the judge of a court having probate jurisdiction, 2-12 the judge of a county court at law, or the judge of a district 2-13 court issues an order authorizing the minor to consent to the 2-14 abortion as provided by Section 33.003 or 33.004; 2-15 (3) a probate court, county court at law, or district 2-16 court, by its inaction, constructively authorizes the minor to 2-17 consent to the abortion as provided by Section 33.003 or 33.004; or 2-18 (4) the physician performing the abortion: 2-19 (A) concludes that a medical emergency exists 2-20 and there is insufficient time to provide the required notice; and 2-21 (B) certifies in writing to the Texas 2-22 Department of Health and in the patient's medical record the 2-23 medical indications supporting the physician's judgment that a 2-24 medical emergency exists and that there is insufficient time to 2-25 provide the required notice. 2-26 (b) If a person to whom notice may be given under Subsection 2-27 (a)(1) cannot be notified after a reasonable effort, a physician 3-1 may perform an abortion if the physician gives 48 hours 3-2 constructive notice, by certified mail sent to the last known 3-3 address, to the person to whom notice may be given under Subsection 3-4 (a)(1). The period under this subsection begins when the certified 3-5 mail notice is mailed. If the person required to be notified is 3-6 not notified within the 48-hour period, the abortion may proceed 3-7 even if the certified mail notice is not received. 3-8 (c) The Texas Department of Health shall prepare a form to 3-9 be used for making the certification required by Subsection (a)(4). 3-10 (d) A physician who violates this section commits an 3-11 offense. An offense under this section is a Class A misdemeanor. 3-12 Sec. 33.003. JUDICIAL APPROVAL. (a) A pregnant minor who 3-13 wishes to have an abortion without notification to one of her 3-14 parents, her managing conservator, or her guardian may file an 3-15 application for a court order authorizing the minor to consent to 3-16 the performance of an abortion without notification to either of 3-17 her parents or a managing conservator or guardian. 3-18 (b) The application may be filed in the county court at law 3-19 or a court having probate jurisdiction for: 3-20 (1) the county in which the minor resides; 3-21 (2) a county that borders a county in which the minor 3-22 resides; or 3-23 (3) the county in which the hospital, clinic, or 3-24 facility in which the abortion would be performed is located. 3-25 (c) The application must be made under oath and include: 3-26 (1) a statement that the minor is pregnant; 3-27 (2) a statement that the minor is unmarried, is under 4-1 18 years of age, and has not had her disabilities removed for 4-2 general purposes under Chapter 31; 4-3 (3) a statement that the minor wishes to have an 4-4 abortion without the notification of either of her parents or a 4-5 managing conservator or guardian; and 4-6 (4) a statement as to whether the minor has retained 4-7 an attorney and, if she has retained an attorney, the name, 4-8 address, and telephone number of her attorney. 4-9 (d) The court shall appoint a guardian ad litem for the 4-10 minor. If the minor has not retained an attorney, the court shall 4-11 appoint an attorney to represent the minor. If the guardian ad 4-12 litem is an attorney admitted to the practice of law in this state, 4-13 the court may appoint the guardian ad litem to serve as the minor's 4-14 attorney. 4-15 (e) The court shall fix a time for a hearing on an 4-16 application filed under Subsection (a) and shall keep a record of 4-17 all testimony and other oral proceedings in the action. The court 4-18 shall enter judgment on the application immediately after the 4-19 hearing is concluded. 4-20 (f) The court shall rule on an application submitted under 4-21 this section and shall issue written findings of fact and 4-22 conclusions of law, not later than 5 p.m. on the second business 4-23 day after the date the application is filed with the court. The 4-24 minor may request an extension of the period specified by this 4-25 section. If the court fails to rule on the application and issue 4-26 written findings of fact and conclusions of law within the period 4-27 specified by this subsection and an extension was not requested, 5-1 the application is deemed to be granted and the physician may 5-2 perform the abortion as if the court had issued an order 5-3 authorizing the minor to consent to the performance of the abortion 5-4 without notification under Section 33.002. Proceedings under this 5-5 section shall be given precedence over other pending matters to the 5-6 extent necessary to assure that the court reaches a decision 5-7 promptly. 5-8 (g) The court shall determine by a preponderance of the 5-9 evidence whether the minor is mature and sufficiently well-informed 5-10 to make the decision to have an abortion performed without 5-11 notification to either of her parents or a managing conservator or 5-12 guardian, or whether notification would not be in the best interest 5-13 of the minor. If the court finds that the minor is mature and 5-14 sufficiently well-informed or that notification would not be in the 5-15 minor's best interest, the court shall enter an order authorizing 5-16 the minor to consent to the performance of the abortion without 5-17 notification to either of her parents or a managing conservator or 5-18 guardian and execute the required forms. 5-19 (h) If the court finds that the minor does not meet the 5-20 requirements of Subsection (g), the court may not authorize the 5-21 minor to consent to an abortion without the notification authorized 5-22 under Section 33.002(a)(1). 5-23 (i) The court may not notify a parent, managing conservator, 5-24 or guardian that the minor is pregnant or that the minor wants to 5-25 have an abortion. The court proceedings shall be conducted in a 5-26 manner that protects the anonymity of the minor, and the 5-27 application and all other court documents pertaining to the 6-1 proceedings are confidential and may not be made available to the 6-2 public. The minor may file the application using a pseudonym or 6-3 using only her initials. 6-4 (j) The clerk of the supreme court shall prescribe the 6-5 application form to be used by the minor filing an application 6-6 under this section. 6-7 (k) A filing fee is not required of, and court costs may not 6-8 be assessed against, a minor filing an application under this 6-9 section. 6-10 Sec. 33.004. APPEAL. (a) A minor whose application under 6-11 Section 33.003 is denied may appeal to the district court having 6-12 jurisdiction over civil matters in the county in which the 6-13 application was filed. On receipt of a notice of appeal, the clerk 6-14 of the court that denied the application shall deliver a copy of 6-15 the notice of appeal and record on appeal to the clerk of the 6-16 district court. On receipt of the notice and record, the clerk of 6-17 the district court shall place the appeal on the docket of the 6-18 court. 6-19 (b) The court shall rule on an appeal under this section not 6-20 later than 5 p.m. on the second business day after the date the 6-21 notice of appeal is filed. The minor may request an extension of 6-22 the period specified by this subsection. If the court fails to 6-23 rule on the appeal within the period specified by this subsection 6-24 and an extension was not requested, the appeal is deemed to be 6-25 granted and the physician may perform the abortion as if the court 6-26 had issued an order authorizing the minor to consent to the 6-27 performance of the abortion without notification under Section 7-1 33.002. Proceedings under this section shall be given precedence 7-2 over other pending matters to the extent necessary to assure that 7-3 the court reaches a decision promptly. 7-4 (c) The clerk of the supreme court shall prescribe the 7-5 notice of appeal form to be used by the minor appealing a judgment 7-6 under this section. 7-7 (d) A filing fee is not required of, and court costs may not 7-8 be assessed against, a minor filing an appeal under this section. 7-9 (e) An expedited confidential appeal shall be available to 7-10 any pregnant woman to whom a district court denies an order 7-11 authorizing the minor to consent to the performance of an abortion 7-12 without notification to either of her parents or a managing 7-13 conservator or guardian. 7-14 SECTION 2. The Texas Supreme Court shall issue promptly such 7-15 rules as may be necessary that the process established by Sections 7-16 33.003 and 33.004, Family Code, as added by this Act, be conducted 7-17 in such a manner as will ensure confidentiality and sufficient 7-18 precedence over all other pending matters to ensure promptness of 7-19 disposition. 7-20 SECTION 3. Except as provided by Section 5 of this Act, this 7-21 Act takes effect September 1, 1997. 7-22 SECTION 4. Chapter 33, Family Code, as added by this Act, 7-23 applies only to an abortion performed on or after January 1, 1998. 7-24 An abortion performed before January 1, 1998, is governed by the 7-25 law as it existed immediately before the effective date of this 7-26 Act, and that law is continued in effect for that purpose. 7-27 SECTION 5. Section 33.002(d), Family Code, as added by this 8-1 Act, takes effect January 1, 1998. 8-2 SECTION 6. The Texas Board of Health shall adopt the form to 8-3 be used under Section 33.002(a)(4), Family Code, as added by this 8-4 Act, not later than December 15, 1997. 8-5 SECTION 7. The clerk of the Texas Supreme Court shall adopt 8-6 the application form and notice of appeal form to be used under 8-7 Sections 33.003 and 33.004, Family Code, as added by this Act, not 8-8 later than December 15, 1997. 8-9 SECTION 8. The importance of this legislation and the 8-10 crowded condition of the calendars in both houses create an 8-11 emergency and an imperative public necessity that the 8-12 constitutional rule requiring bills to be read on three several 8-13 days in each house be suspended, and this rule is hereby suspended.