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HB 364: "An Act relating to notice and consent for a minor's abortion; relating to penalties for performing an abortion; relating to a judicial bypass procedure for an abortion; relating to coercion of a minor to have an abortion; relating to reporting of abortions performed on minors; amending Rule 24(a), Alaska Rules of Civil Procedure, amending Rule 220, Alaska Rules of Appellate Procedure, and Rule 20, Alaska Probate Rules, relating to judicial bypass for an abortion; and providing for an effective date."

00                             HOUSE BILL NO. 364                                                                          
01 "An Act relating to notice and consent for a minor's abortion; relating to penalties for                                
02 performing an abortion; relating to a judicial bypass procedure for an abortion; relating                               
03 to coercion of a minor to have an abortion; relating to reporting of abortions performed                                
04 on minors; amending Rule 24(a), Alaska Rules of Civil Procedure, amending Rule 220,                                     
05 Alaska Rules of Appellate Procedure, and Rule 20, Alaska Probate Rules, relating to                                     
06 judicial bypass for an abortion; and providing for an effective date."                                                  
07 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF ALASKA:                                                                
08    * Section 1. AS 18.16.010(a) is amended to read:                                                                   
09            (a)  An abortion may not be performed in this state unless                                                   
10                 (1)  the abortion is performed by a physician licensed by the State                                     
11       Medical Board under AS 08.64.200;                                                                                 
12                 (2)  the abortion is performed in a hospital or other facility approved for                             
13       the purpose by the Department of Health and Social Services or a hospital operated by                             
01       the federal government or an agency of the federal government;                                                    
02                 (3)  before an abortion is knowingly performed or induced on a                                      
03       pregnant, [AN] unmarried, unemancipated woman under 17 years of age, notice and                           
04       consent have [HAS] been given as required under AS 18.16.020 or a court has                                   
05       authorized the minor to consent to the abortion without parental notice under                                 
06       AS 18.16.030 and the minor consents; for purposes of enforcing this paragraph, there                              
07       is a rebuttable presumption that a woman who is unmarried and under 17 years of age                               
08       is unemancipated;                                                                                                 
09                 (4)  the woman is domiciled or physically present in the state for 30                                   
10       days before the abortion; and                                                                                     
11                 (5)  the applicable requirements of AS 18.16.060 have been satisfied.                                   
12    * Sec. 2. AS 18.16.010(g) is amended to read:                                                                      
13            (g)  It is a [AN AFFIRMATIVE] defense to a prosecution or claim for                                      
14       violation of (a)(3) of this section that, in the clinical judgment of the physician or                        
15       surgeon, compliance with the requirements of (a)(3) of this section was not possible                          
16       because, in the clinical judgment of the physician or surgeon, an immediate threat                            
17       of serious risk to the life or physical health of the pregnant minor from the                                     
18       continuation of the pregnancy created a medical emergency necessitating the                                       
19       immediate performance or inducement of an abortion. In this subsection,                                           
20                 (1)  "clinical judgment" means a physician's or surgeon's                                           
21       subjective professional medical judgment exercised in good faith;                                             
22                 (2)  "defense" has the meaning given in AS 11.81.900(b);                                            
23                 (3)  "medical emergency" means a condition that, on the basis of the                                
24       physician's or surgeon's good faith clinical judgment, so complicates the medical                                 
25       condition of a pregnant minor that                                                                                
26                      (A) [(1)]  an immediate abortion of the minor's pregnancy is                                   
27            necessary to avert the minor's death; or                                                                     
28                      (B) [(2)]  a delay in providing an abortion will create serious                                
29            risk of medical instability caused by a substantial and irreversible impairment                          
30            of a major bodily function of the pregnant minor.                                                            
31    * Sec. 3. AS 18.16.020 is repealed and reenacted to read:                                                          
01            Sec. 18.16.020. Notice and consent required before minor's abortion. (a) A                               
02       person may not knowingly perform or induce an abortion upon a minor who is known                                  
03       to the person to be pregnant, unmarried, under 17 years of age, and unemancipated                                 
04       unless, before the abortion, at least one of the following applies:                                               
05                 (1)  one of the minor's parents, the minor's legal guardian, or the                                     
06       minor's custodian has been given notice of the planned abortion not less than 48 hours                            
07       before the abortion is performed and the parent, legal guardian, or custodian has                                 
08       consented in writing to the performance or inducement of the abortion;                                            
09                 (2)  a court issues an order under AS 18.16.030 authorizing the minor                                   
10       to consent to the abortion without notice and consent of a parent, guardian, or                                   
11       custodian, and the minor consents to the abortion;                                                                
12                 (3)  a court, by its inaction under AS 18.16.030, constructively has                                    
13       authorized the minor to consent to the abortion without notice and consent of a parent,                           
14       guardian, or custodian, and the minor consents to the abortion; or                                                
15                 (4)  the minor is the victim of physical abuse, sexual abuse, or a pattern                              
16       of emotional abuse committed by one or both of the minor's parents or by a legal                                  
17       guardian or custodian of the minor and the abuse is documented by a declaration of the                            
18       abuse in a signed and notarized statement by                                                                      
19                      (A)  the minor; and                                                                                
20                      (B)  another person who has personal knowledge of the abuse                                        
21            who is                                                                                                       
22                           (i)  the sibling of the minor who is 21 years of age or                                       
23                 older;                                                                                                  
24                           (ii)  a law enforcement officer;                                                              
25                           (iii)  a representative of the Department of Health and                                       
26                 Social Services who has investigated the abuse;                                                         
27                           (iv)  a grandparent of the minor; or                                                          
28                           (v)  a stepparent of the minor.                                                               
29            (b)  In (a) of this section, actual notice must be given or attempted to be given                            
30       in person or by telephone by either the physician who has referred the minor for an                               
31       abortion or by the physician who intends to perform the abortion. The physician                                   
01       giving notice of the abortion must document the notice or attempted notice in the                                 
02       minor's medical record and take reasonable steps to verify that the person to whom the                            
03       notice is provided is the parent, legal guardian, or custodian of the minor seeking an                            
04       abortion. Reasonable steps to provide notice must include                                                         
05                 (1)  if in person, requiring the person to show government-issued                                       
06       identification along with additional documentation of the person's relationship to the                            
07       minor; additional documentation may include the minor's birth certificate or a court                              
08       order of adoption, guardianship, or custodianship;                                                                
09                 (2)  if by telephone, initiating the call, attempting to verify through a                               
10       review of published telephone directories that the number to be dialed is that of the                             
11       minor's parent, legal guardian, or custodian, and asking questions of the person to                               
12       verify that the person's relationship to the minor is that of parent, legal guardian, or                          
13       custodian; when notice is attempted by telephone but the physician is unsuccessful in                             
14       reaching the parent, legal guardian, or custodian, the physician shall continue to                                
15       initiate the call, in not less than two-hour increments, for not less than five attempts, in                      
16       a 24-hour period.                                                                                                 
17            (c)  If actual notice is attempted unsuccessfully after reasonable steps have                                
18       been taken as described under (b) of this section, the referring physician or the                                 
19       physician intending to perform an abortion on a minor may provide constructive                                    
20       notice to the minor's parent, legal guardian, or custodian. Constructive notice is                                
21       considered to have been given 48 hours after the certified notice is mailed. In this                              
22       subsection, "constructive notice" means that notice of the abortion was provided in                               
23       writing and mailed by certified mail to the last known address of the parent, legal                               
24       guardian, or custodian after taking reasonable steps to verify the mailing address.                               
25            (d)  A physician who suspects or receives a report of abuse under this section                               
26       shall report the abuse as provided under AS 47.17.020.                                                            
27            (e)  A physician who is informed that the pregnancy of a minor resulted from                                 
28       criminal sexual assault of the minor must retain, and take reasonable steps to preserve,                          
29       the products of conception following the abortion for use by law enforcement officials                            
30       in prosecuting the crime.                                                                                         
31    * Sec. 4. AS 18.16.030(a) is amended to read:                                                                      
01            (a)  A woman who is pregnant, unmarried, under 17 years of age, and                                          
02       unemancipated who wishes to have an abortion without notice to and the consent of a                           
03       parent, guardian, or custodian may file a complaint in the superior court requesting the                          
04       issuance of an order authorizing the minor to consent to the performance or                                       
05       inducement of an abortion without notice to or the consent of a parent, guardian, or                          
06       custodian.                                                                                                        
07    * Sec. 5. AS 18.16.030(b) is amended to read:                                                                      
08            (b)  The complaint shall be made under oath and must include all of the                                      
09       following:                                                                                                        
10                 (1)  a statement that the complainant is pregnant;                                                      
11                 (2)  a statement that the complainant is unmarried, under 17 years of                                   
12       age, and unemancipated;                                                                                           
13                 (3)  a statement that the complainant wishes to have an abortion                                        
14       without notice to or the consent of a parent, guardian, or custodian;                                         
15                 (4)  an allegation of either or both of the following:                                                  
16                      (A)  that the complainant is sufficiently mature and well enough                                   
17            informed to decide intelligently whether to have an abortion without notice to                           
18            or the consent of a parent, guardian, or custodian; or                                                   
19                      (B)  that one or both of the minor's parents or the minor's                                        
20            guardian or custodian was engaged in physical abuse, sexual abuse, or a                                      
21            pattern of emotional abuse against the minor, or that the consent of a parent,                               
22            guardian, or custodian otherwise is not in the minor's best interest;                                        
23                 (5)  a statement as to whether the complainant has retained an attorney                                 
24       and, if an attorney has been retained, the name, address, and telephone number of the                             
25       attorney.                                                                                                         
26    * Sec. 6. AS 18.16.030(c) is amended to read:                                                                      
27            (c)  The court shall fix a time for a hearing on any complaint filed under (a) of                            
28       this section and shall keep a record of all testimony and other oral proceedings in the                           
29       action. The hearing shall be held at the earliest possible time, but not later than the                           
30       third [FIFTH] business day after the day that the complaint is filed. The court shall                         
31       enter judgment on the complaint immediately after the hearing is concluded. If the                                
01       hearing required by this subsection is not held by the third [FIFTH] business day after                       
02       the complaint is filed, the failure to hold the hearing shall be considered to be a                               
03       constructive order of the court authorizing the complainant to consent to the                                     
04       performance or inducement of an abortion without the consent of a parent, guardian,                               
05       or custodian, and the complainant and any other person may rely on the constructive                               
06       order to the same extent as if the court actually had issued an order under this section                          
07       authorizing the complainant to consent to the performance or inducement of an                                     
08       abortion without such consent.                                                                                    
09    * Sec. 7. AS 18.16.030(j) is amended to read:                                                                      
10            (j)  If the complainant files a notice of appeal authorized under this section, the                          
11       superior court shall deliver a copy of the notice of appeal and the record on appeal to                           
12       the supreme court within three [FOUR] days after the notice of appeal is filed. Upon                          
13       receipt of the notice and record, the clerk of the supreme court shall place the appeal                           
14       on the docket. The appellant shall file a brief within three [FOUR] days after the                            
15       appeal is docketed. Unless the appellant waives the right to oral argument, the                                   
16       supreme court shall hear oral argument within five days after the appeal is docketed.                             
17       The supreme court shall enter judgment in the appeal immediately after the oral                                   
18       argument or, if oral argument has been waived, within five days after the appeal is                               
19       docketed. Upon motion of the appellant and for good cause shown, the supreme court                                
20       may shorten or extend the maximum times set out in this subsection. However, in any                               
21       case, if judgment is not entered within five days after the appeal is docketed, the                               
22       failure to enter the judgment shall be considered to be a constructive order of the court                         
23       authorizing the appellant to consent to the performance or inducement of an abortion                              
24       without notice to or the consent of a parent, guardian, or custodian, and the appellant                       
25       and any other person may rely on the constructive order to the same extent as if the                              
26       court actually had entered a judgment under this subsection authorizing the appellant                             
27       to consent to the performance or inducement of an abortion without notice to or the                           
28       consent of another person. In the interest of justice, the supreme court, in an appeal                            
29       under this subsection, shall liberally modify or dispense with the formal requirements                            
30       that normally apply as to the contents and form of an appellant's brief.                                          
31    * Sec. 8. AS 18.16.030(n) is amended to read:                                                                      
01            (n)  Blank copies of the forms prescribed under (l) of this section and                                      
02       information on the proper procedures for filing a complaint or appeal shall be made                               
03       available by the court system at the official location of each superior court, district                           
04       court, and magistrate in the state. The information required under this subsection must                           
05       also include notification to the minor that                                                                       
06                 (1)  there is no filing fee required for either form;                                                   
07                 (2)  no court costs will be assessed against the minor for procedures                                   
08       under this section;                                                                                               
09                 (3)  an attorney will be appointed to represent the minor if the minor                                  
10       does not retain an attorney;                                                                                      
11                 (4)  the minor may request that the superior court with appropriate                                     
12       jurisdiction hold a telephonic hearing on the complaint so that the minor need not                                
13       personally be present;                                                                                        
14                 (5)  the minor may request that the superior court, with                                            
15       appropriate jurisdiction, issue an order directing the minor's school to excuse the                           
16       minor from school to attend court hearings held under this section and directing                              
17       the school not to notify the minor's parent, legal guardian, or custodian that the                            
18       minor is pregnant or that the minor is seeking an abortion.                                                   
19    * Sec. 9. AS 18.16 is amended by adding new sections to read:                                                      
20            Sec. 18.16.035. Coercion of a minor prohibited; emancipation. (a) A parent,                                
21       legal guardian, or custodian of a minor may not coerce a minor who is pregnant to                                 
22       have an abortion.                                                                                                 
23            (b)  In addition to emancipation by other means provided by law, denial of                                   
24       financial support by a parent, legal guardian, or custodian who has a legal duty of                               
25       support for purposes of coercing a minor to have an abortion shall be sufficient                                  
26       evidence of emancipation status of the minor for purposes of AS 18.16.010 -                                       
27       18.16.090.                                                                                                        
28            (c)  In this section, "coercion" means to restrain or dominate a minor by force,                             
29       threat of force, or deprivation of food, support, or shelter.                                                     
30            Sec. 18.16.040. Reports. For each month in which an abortion is performed on                               
31       a minor by a physician, the physician shall file a report with the Department of Health                           
01       and Social Services indicating the number of abortions performed on a minor for that                              
02       month, the age of each minor, the number of previous abortions performed on each                                  
03       minor, if any, and the number of pregnancies of each minor, if any, and the number of                             
04       consents provided under each of the exceptions enumerated under AS 18.16.020(a)(1)                                
05       - (4). A report filed under this section may not include identifying information of the                           
06       minor other than the minor's age.                                                                                 
07    * Sec. 10. The uncodified law of the State of Alaska is amended by adding a new section to                         
08 read:                                                                                                                   
09            DIRECT COURT RULE AMENDMENT. Rule 220(a), Alaska Rules of                                                    
10       Appellate Procedure, is amended to read:                                                                          
11            (a)  Scope. This rule applies to an appeal from an order denying or dismissing                             
12       a petition filed by a minor under age 17 to bypass notice to and the [PARENTAL]                               
13       consent of a parent, guardian, or custodian to an abortion under AS 18.16.030. In                             
14       such appeals, this rule supersedes the other appellate rules to the extent they may be                            
15       inconsistent with this rule. It also supersedes the procedure for bypass appeals                                  
16       established by AS 18.16.030(j).                                                                                   
17    * Sec. 11. The uncodified law of the state of Alaska is amended by adding a new section to                         
18 read:                                                                                                                   
19            DIRECT COURT RULE AMENDMENT. Rule 220(c)(1), Alaska Rules of                                                 
20       Appellate Procedure, is amended to read:                                                                          
21                 (1)  A minor may appeal an order denying or dismissing a petition to                                    
22       bypass notice to and the [PARENTAL] consent of a parent, guardian, or custodian                           
23       by filing a notice of appeal in any district or superior court, or directly with the clerk                        
24       of the appellate courts. The notice of appeal may be filed in person, by mail, or by fax,                         
25       and must be accompanied by a copy of the order from which the appeal is taken. No                                 
26       filing fee will be charged. If the notice of appeal is filed in a district or superior court,                     
27       the clerk or magistrate shall immediately notify the clerk of the appellate courts that                           
28       the appeal has been filed.                                                                                        
29    * Sec. 12. The uncodified law of the State of Alaska is amended by adding a new section to                         
30 read:                                                                                                                   
31            DIRECT COURT RULE AMENDMENT. Rule 220(h), Alaska Rules of                                                    
01       Appellate Procedure, is amended to read:                                                                          
02            (h)  Constructive Order. If the court fails to enter an order within three                             
03       [FIVE] days after the date the clerk of the appellate courts receives the record on                               
04       appeal, the clerk shall issue a certificate stating that (1) no order was entered within                          
05       three [FIVE] days after the appeal was docketed; and (2) under AS 18.16.030(j), the                           
06       failure to enter an order constitutes a constructive order of the court authorizing the                           
07       minor to consent to an abortion without the consent of a parent, guardian, or custodian.                          
08       For purposes of AS 18.16.030(j), an appeal is deemed to be docketed on the date the                               
09       clerk of the appellate courts receives the record on appeal.                                                      
10    * Sec. 13. The uncodified law of the State of Alaska is amended by adding a new section to                         
11 read:                                                                                                                   
12            DIRECT COURT RULE AMENDMENT. Rule 20(a), Alaska Probate Rules,                                               
13       is amended to read:                                                                                               
14            (a)  Petition. An action for an order authorizing a minor under age 17 to                                  
15       consent to an abortion without notice to or the consent of a parent, guardian, or                             
16       custodian is commenced by filing a petition. The petition must be under oath and must                             
17       include the information required by AS 18.16.030(b). The petitioner is not required to                            
18       provide an address or telephone number. Blank petition forms will be available at all                             
19       court locations and will be mailed or faxed to a petitioner upon request. No fee will be                          
20       charged for this service or other services provided to a petitioner.                                              
21    * Sec. 14. The uncodified law of the State of Alaska is amended by adding a new section to                         
22 read:                                                                                                                   
23            DIRECT COURT RULE AMENDMENT. Rule 20(e), Alaska Probate Rules,                                               
24       is amended to read:                                                                                               
25            (e)  Findings and Order. The court shall enter an order immediately after the                              
26       hearing is concluded. The court shall grant the petition if the court finds by clear and                          
27       convincing evidence that one of the statutory grounds for dispensing with notice to or                        
28       the [PARENTAL] consent of a parent, guardian, or custodian exists. Otherwise, the                         
29       court shall deny the petition. If the petition is denied, the court shall inform the                              
30       petitioner of her right to an expedited appeal to the supreme court.                                              
31    * Sec. 15. The uncodified law of the State of Alaska is amended by adding a new section to                         
01 read:                                                                                                                   
02            DIRECT COURT RULE AMENDMENT. Rule 20(f), Alaska Probate Rules, is                                            
03       amended to read:                                                                                                  
04            (f)  Constructive Order. If the court fails to hold a hearing within three                             
05       [FIVE] days after the petition is filed, the presiding judge of the judicial district, or                         
06       another judge designated by the presiding judge, shall issue a certificate stating that                           
07       (1) no hearing was held within three [FIVE] business days after the petition was filed;                       
08       and (2) under AS 18.16.030(c), the failure to hold a hearing constitutes a constructive                           
09       order of the court authorizing the minor to consent to an abortion without the consent                            
10       of a parent, guardian, or custodian. A certificate should not be issued if the hearing                            
11       was not held because it was postponed at the petitioner's request or because the                                  
12       petitioner failed to appear at the hearing.                                                                       
13    * Sec. 16. The uncodified law of the State of Alaska is amended by adding a new section to                         
14 read:                                                                                                                   
15       INDIRECT COURT RULE AMENDMENT. Section 18 of this Act has the effect of                                           
16 changing Rule 24(a), Alaska Rules of Civil Procedure, by changing the standard for                                      
17 intervention of right for judicial challenges to this Act.                                                              
18    * Sec. 17. The uncodified law of the State of Alaska is amended by adding a new section to                         
19 read:                                                                                                                   
20       SEVERABILITY. If any provision of this Act is held to be invalid or unenforceable                               
21 by its terms or as applied to any person or circumstance, the remainder of the provisions shall                         
22 be construed to give the maximum effect permitted by law, unless the holding shall be of utter                          
23 invalidity or unenforceability, in which event, the provision shall be considered severable and                         
24 does not affect the remaining provisions or the application of the severed provision to other                           
25 persons who are not similarly situated or to other dissimilar circumstances.                                            
26    * Sec. 18. The uncodified law of the State of Alaska is amended by adding a new section to                         
27 read:                                                                                                                   
28       RIGHT OF INTERVENTION. The legislature may, by joint resolution or through the                                  
29 Legislative Council, appoint one or more of its members who sponsored or cosponsored this                               
30 Act, as a matter of right and in the member's official capacity, to intervene to defend this Act                        
31 in any case in which the constitutionality of the law is challenged.                                                    
01    * Sec. 19. The uncodified law of the State of Alaska is amended by adding a new section to                         
02 read:                                                                                                                   
03       CONDITIONAL EFFECT. Section 18 of this Act takes effect only if sec. 16 of this                                   
04 Act receives the two-thirds majority vote of each house required by art. IV, sec. 15,                                   
05 Constitution of the State of Alaska.                                                                                    
06    * Sec. 20. This Act takes effect 30 days after enactment.