SB 279: "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 SENATE BILL NO. 279 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.