00 CS FOR SENATE BILL NO. 105(FIN) 01 "An Act relating to a requirement that a parent, guardian, or custodian consent 02 before certain minors receive an abortion; establishing a judicial bypass procedure 03 by which a minor may petition a court for authorization to consent to an 04 abortion without consent of a parent, guardian, or custodian; amending the 05 definition of 'abortion'; and amending Alaska Rules of Civil Procedure 40 and 79; 06 Alaska Rules of Appellate Procedure 204, 210, 212, 213, 508, and 512.5; and 07 Alaska Administrative Rule 9." 08 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF ALASKA: 09 * Section 1. PURPOSE; FINDINGS. (a) It is the intent of the legislature in enacting this 10 Act to further the important and compelling state interests of 11 (1) protecting minors against their own immaturity; 12 (2) fostering the family structure and preserving it as a viable social unit; 13 (3) protecting the rights of parents to rear children who are members of their 14 household; and 01 (4) protecting the health of minor women. 02 (b) The legislature finds that 03 (1) immature minors often lack the ability to make fully informed choices that 04 take account of both immediate and long-range consequences; 05 (2) the physical, emotional, and psychological consequences of abortion are 06 serious and can be lasting particularly when the patient is immature; 07 (3) the capacity to become pregnant and the capacity for mature judgment 08 concerning the wisdom of an abortion are not necessarily related; 09 (4) parents ordinarily possess information essential to a physician's or surgeon's 10 best medical judgment concerning the child; 11 (5) parents who are aware that their minor daughter has had an abortion may 12 better ensure that the daughter receives adequate medical attention after the abortion; 13 (6) parental consultation is usually desirable and in the best interest of the minor; 14 and 15 (7) parental involvement legislation enacted in other states has shown to have 16 a significant effect in reducing abortion, birth, and pregnancy rates among minors. 17 * Sec. 2. AS 18.16.010(a) is amended to read: 18 (a) An abortion may not be performed in this state unless 19 (1) the abortion is performed by a physician or surgeon licensed by the 20 State Medical Board under AS 08.64.200; 21 (2) the abortion is performed in a hospital or other facility approved for 22 the purpose by the Department of Health and Social Services or a hospital operated by 23 the federal government or an agency of the federal government; 24 (3) before an abortion is knowingly performed on an unmarried, 25 unemancipated woman under 16 years of age, consent has been given as required 26 under AS 18.16.020 or a court has authorized the minor to consent to the abortion 27 under AS 18.16.030 and the minor consents; for purposes of enforcing this 28 paragraph, there is a rebuttable presumption that a woman who is unmarried and 29 under 16 years of age is unemancipated [CONSENT HAS BEEN RECEIVED FROM 30 THE PARENT OR GUARDIAN OF AN UNMARRIED WOMAN LESS THAN 18 31 YEARS OF AGE]; and 01 (4) the woman is domiciled or physically present in the state for 30 days 02 before the abortion. 03 * Sec. 3. AS 18.16.010 is amended by adding new subsections to read: 04 (e) A person who performs or induces an abortion in violation of (a)(3) of this 05 section is civilly liable to the pregnant woman and the woman's parents, guardian, or cus- 06 todian for compensatory and punitive damages. 07 (f) It is an affirmative defense to a prosecution or claim for a violation of (a)(3) 08 of this section that the pregnant woman provided the person who performed or induced 09 the abortion with false, misleading, or incorrect information about the woman's age, 10 marital status, or emancipation, and the person who performed or induced the abortion 11 did not otherwise have reasonable cause to believe that the pregnant woman was under 12 16 years of age, unmarried, or unemancipated. 13 (g) It is an affirmative defense to a prosecution or claim for violation of (a)(3) 14 of this section that compliance with the requirements of (a)(3) of this section was not 15 possible because an immediate threat of serious risk to the life or physical health of the 16 pregnant woman from the continuation of the pregnancy created a medical emergency 17 necessitating the immediate performance or inducement of an abortion. In this 18 subsection, "medical emergency" means a condition that, on the basis of the physician's 19 or surgeon's good faith clinical judgment, so complicates the medical condition of a 20 pregnant woman that 21 (1) an immediate abortion of the woman's pregnancy is necessary to avert 22 the woman's death; or 23 (2) a delay in providing an abortion will create serious risk of substantial 24 and irreversible impairment of a major bodily function of the pregnant woman. 25 * Sec. 4. AS 18.16 is amended by adding new sections to read: 26 Sec. 18.16.020. CONSENT REQUIRED BEFORE MINOR'S ABORTION. A 27 person may not knowingly perform or induce an abortion upon a woman who is known 28 to the person to be pregnant, unmarried, under 16 years of age, and unemancipated 29 unless, before the abortion, at least one of the following applies: 30 (1) one of the woman's parents or the woman's guardian or custodian 31 has consented in writing to the performance or inducement of the abortion; 01 (2) a court issues an order under AS 18.16.030 authorizing the woman 02 to consent to the abortion without consent of a parent, guardian, or custodian and the 03 woman consents to the abortion; or 04 (3) a court, by its inaction under AS 18.16.030, constructively has 05 authorized the woman to consent to the abortion without consent of a parent, guardian, 06 or custodian and the woman consents to the abortion. 07 Sec. 18.16.030. JUDICIAL BYPASS FOR MINOR SEEKING AN ABORTION. 08 (a) A woman who is pregnant, unmarried, under 16 years of age, and unemancipated 09 who wishes to have an abortion without the consent of a parent, guardian, or custodian 10 may file a complaint in the superior court requesting the issuance of an order authorizing 11 the woman to consent to the performance or inducement of an abortion without the 12 consent of a parent, guardian, or custodian. 13 (b) The complaint shall be made under oath and must include all of the 14 following: 15 (1) a statement that the complainant is pregnant; 16 (2) a statement that the complainant is unmarried, under 16 years of age, 17 and unemancipated; 18 (3) a statement that the complainant wishes to have an abortion without 19 the consent of a parent, guardian, or custodian; 20 (4) an allegation of either or both of the following: 21 (A) that the complainant is sufficiently mature and well enough 22 informed to decide intelligently whether to have an abortion without the consent 23 of a parent, guardian, or custodian; or 24 (B) that one or both of the woman's parents or the woman's 25 guardian or custodian was engaged in a pattern of physical, sexual, or emotional 26 abuse against the woman, or that the consent of a parent, guardian, or custodian 27 otherwise is not in the woman's best interest; 28 (5) a statement as to whether the complainant has retained an attorney 29 and, if an attorney has been retained, the name, address, and telephone number of the 30 attorney. 31 (c) The court shall fix a time for a hearing on any complaint filed under (a) of 01 this section and shall keep a record of all testimony and other oral proceedings in the 02 action. The hearing shall be held at the earliest possible time, but not later than the fifth 03 business day after the day that the complaint is filed. The court shall enter judgment on 04 the complaint immediately after the hearing is concluded. If the hearing required by this 05 subsection is not held by the fifth business day after the complaint is filed, the failure 06 to hold the hearing shall be considered to be a constructive order of the court authorizing 07 the complainant to consent to the performance or inducement of an abortion without the 08 consent of a parent, guardian, or custodian, and the complainant and any other person 09 may rely on the constructive order to the same extent as if the court actually had issued 10 an order under this section authorizing the complainant to consent to the performance or 11 inducement of an abortion without such consent. 12 (d) If the complainant has not retained an attorney, the court shall appoint an 13 attorney to represent the complainant. 14 (e) If the complainant makes only the allegation set out in (b)(4)(A) of this 15 section and if the court finds by clear and convincing evidence that the complainant is 16 sufficiently mature and well enough informed to decide intelligently whether to have an 17 abortion, the court shall issue an order authorizing the complainant to consent to the 18 performance or inducement of an abortion without the consent of a parent, guardian, or 19 custodian. If the court does not make the finding specified in this subsection, it shall 20 dismiss the complaint. 21 (f) If the complainant makes only the allegation set out in (b)(4)(B) of this 22 section and the court finds by clear and convincing evidence that there is evidence of a 23 pattern of physical, sexual, or emotional abuse of the complainant by one or both of the 24 woman's parents or the woman's guardian or custodian, or that the consent of the 25 parents, guardian, or custodian of the complainant otherwise is not in the best interest 26 of the complainant, the court shall issue an order authorizing the complainant to consent 27 to the performance or inducement of an abortion without the consent of a parent, 28 guardian, or custodian. If the court does not make the finding specified in this 29 subsection, it shall dismiss the complaint. 30 (g) If the complainant makes both of the allegations set out in (b)(4) of this 31 section, the court shall proceed as follows: 01 (1) the court first shall determine whether it can make the finding 02 specified in (e) of this section and, if so, shall issue an order under that subsection; if 03 the court issues an order under this paragraph, it may not proceed under (f) of this 04 section; if the court does not make the finding specified in (e) of this section, it shall 05 proceed under (2) of this subsection; 06 (2) if the court under (1) of this subsection does not make the finding 07 specified in (e) of this section, it shall proceed to determine whether it can make the 08 finding specified in (f) of this section and, if so, shall issue an order under that 09 subsection; if the court does not make the finding specified in (f) of this section, it shall 10 dismiss the complaint. 11 (h) The court may not notify the parents, guardian, or custodian of the 12 complainant that the complainant is pregnant or wants to have an abortion. 13 (i) If the court dismisses the complaint, the complainant has the right to appeal 14 the decision to the supreme court, and the superior court immediately shall notify the 15 complainant that there is a right to appeal. 16 (j) If the complainant files a notice of appeal authorized under this section, the 17 superior court shall deliver a copy of the notice of appeal and the record on appeal to 18 the supreme court within four days after the notice of appeal is filed. Upon receipt of 19 the notice and record, the clerk of the supreme court shall place the appeal on the docket. 20 The appellant shall file a brief within four days after the appeal is docketed. Unless the 21 appellant waives the right to oral argument, the supreme court shall hear oral argument 22 within five days after the appeal is docketed. The supreme court shall enter judgment 23 in the appeal immediately after the oral argument or, if oral argument has been waived, 24 within five days after the appeal is docketed. Upon motion of the appellant and for good 25 cause shown, the supreme court may shorten or extend the maximum times set out in this 26 subsection. However, in any case, if judgment is not entered within five days after the 27 appeal is docketed, the failure to enter the judgment shall be considered to be a 28 constructive order of the court authorizing the appellant to consent to the performance 29 or inducement of an abortion without the consent of a parent, guardian, or custodian, and 30 the appellant and any other person may rely on the constructive order to the same extent 31 as if the court actually had entered a judgment under this subsection authorizing the 01 appellant to consent to the performance or inducement of an abortion without consent 02 of another person. In the interest of justice, the supreme court, in an appeal under this 03 subsection, shall liberally modify or dispense with the formal requirements that normally 04 apply as to the contents and form of an appellant's brief. 05 (k) Each hearing under this section, and all proceedings under (j) of this section, 06 shall be conducted in a manner that will preserve the anonymity of the complainant. The 07 complaint and all other papers and records that pertain to an action commenced under 08 this section, including papers and records that pertain to an appeal under this section, 09 shall be kept confidential and are not public records under AS 09.25.110 - 09.25.120. 10 (l) The supreme court shall prescribe complaint and notice of appeal forms that 11 shall be used by a complainant filing a complaint or appeal under this section. The clerk 12 of each superior court shall furnish blank copies of the forms, without charge, to any 13 person who requests them. 14 (m) A filing fee may not be required of, and court costs may not be assessed 15 against, a complainant filing a complaint under this section or an appellant filing an 16 appeal under this section. 17 Sec. 18.16.090. DEFINITIONS. In this chapter, 18 (1) "abortion" means the use or prescription of an instrument, medicine, 19 drug, or other substance or device to terminate the pregnancy of a woman known to be 20 pregnant, except that "abortion" does not include the termination of a pregnancy if done 21 with the intent to 22 (A) save the life or preserve the health of the unborn child; 23 (B) deliver the unborn child prematurely to preserve the health 24 of both the pregnant woman and the woman's child; or 25 (C) remove a dead unborn child; 26 (2) "unemancipated" means that a woman who is unmarried and under 27 16 years of age has not done any of the following: 28 (A) entered the armed services of the United States; 29 (B) become employed and self-subsisting; 30 (C) been emancipated under AS 09.55.590; or 31 (D) otherwise become independent from the care and control of 01 the woman's parent, guardian, or custodian. 02 * Sec. 5. AS 44.21.410(a) is amended to read: 03 (a) The office of public advocacy shall 04 (1) perform the duties of the public guardian under AS 13.26.360 - 05 13.26.410; 06 (2) provide visitors and experts in guardianship proceedings under 07 AS 13.26.131; 08 (3) provide guardian ad litem services to children in child protection 09 actions under AS 47.17.030(e) and to wards and respondents in guardianship proceedings 10 who will suffer financial hardship or become dependent upon a government agency or 11 a private person or agency if the services are not provided at state expense under 12 AS 13.26.112; 13 (4) provide legal representation in cases involving judicial bypass 14 procedures for minors seeking abortions under AS 18.16.030, in guardianship 15 proceedings to respondents who are financially unable to employ attorneys under 16 AS 13.26.106(b), to indigent parties in cases involving child custody in which the 17 opposing party is represented by counsel provided by a public agency, to indigent parents 18 or guardians of a minor respondent in a commitment proceeding concerning the minor 19 under AS 47.30.775; 20 (5) provide legal representation and guardian ad litem services under 21 AS 25.24.310; in cases arising under AS 47.15 (Uniform Interstate Compact on 22 Juveniles); in cases involving petitions to adopt a minor under AS 25.23.125(b) or 23 petitions for the termination of parental rights on grounds set out in AS 25.23.180(c)(3); 24 in cases involving petitions to remove the disabilities of a minor under AS 09.55.590; 25 in children's proceedings under AS 47.10.050(a); and in cases involving indigent persons 26 who are entitled to representation under AS 18.85.100 and who cannot be represented 27 by the public defender agency because of a conflict of interests; 28 (6) develop and coordinate a program to recruit, select, train, assign, and 29 supervise volunteer guardians ad litem from local communities to aid in delivering 30 services in cases in which the office of public advocacy is appointed as guardian ad 31 litem; 01 (7) provide guardian ad litem services in proceedings under 02 AS 12.45.046; 03 (8) establish a fee schedule and collect fees for services provided by the 04 office, except as provided in AS 18.85.120 or when imposition or collection of a fee is 05 not in the public interest as defined under regulations adopted by the commissioner of 06 administration; 07 (9) provide visitors and guardians ad litem in proceedings under 08 AS 47.30.839; 09 (10) provide legal representation to indigent parents under 10 AS 14.30.195(e). 11 * Sec. 6. AS 18.16.010(d) is repealed. 12 * Sec. 7. AS 18.16.030(c), added by sec. 4 of this Act, has the effect of amending Alaska 13 Rule of Civil Procedure 40 by setting a specific timetable for hearing certain cases. 14 * Sec. 8. AS 18.16.030(j), added by sec. 4 of this Act, has the effect of amending Alaska 15 Rules of Appellate Procedure 204, 210, 212, and 213 by establishing specific time limits 16 applicable to certain appeals and by instructing the supreme court to modify or dispense with 17 formal requirements applicable to certain briefs. 18 * Sec. 9. AS 18.16.030(k), added by sec. 4 of this Act, has the effect of amending Alaska 19 Rule of Appellate Procedure 512.5 by making certain appellate records and papers confidential. 20 * Sec. 10. AS 18.16.030(m), added by sec. 4 of this Act, has the effect of amending Alaska 21 Administrative Rule 9, Alaska Rule of Civil Procedure 79, and Alaska Rule of Appellate 22 Procedure 508 by prohibiting filing fees and assessment of court costs in certain actions.