00 CS FOR HOUSE BILL NO. 37(STA) 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 Rules 40 and 79, Alaska Rules of Civil 06 Procedure; Rules 204, 210, 212, 213, 508, and 512.5, Alaska Rules of Appellate 07 Procedure; and Rule 9, Alaska Administrative Rules." 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 10 surgeon's 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 14 minor; 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 18 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 18 years of age is unemancipated [CONSENT HAS BEEN RECEIVED 30 FROM THE PARENT OR GUARDIAN OF AN UNMARRIED WOMAN LESS 31 THAN 18 YEARS OF AGE]; and 01 (4) the woman is domiciled or physically present in the state for 30 02 days 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 06 custodian for compensatory and punitive damages. 07 (f) It is an affirmative defense to a prosecution or claim for a violation of 08 (a)(3) of this section that the pregnant woman provided the person who performed or 09 induced the abortion with false, misleading, or incorrect information about the 10 woman's age, marital status, or emancipation, and the person who performed or 11 induced the abortion did not otherwise have reasonable cause to believe that the 12 pregnant woman was under 18 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 16 the pregnant woman from the continuation of the pregnancy created a medical 17 emergency necessitating the immediate performance or inducement of an abortion. In 18 this subsection, "medical emergency" means a condition that, on the basis of the 19 physician's or surgeon's good faith clinical judgment, so complicates the medical 20 condition of a pregnant woman that 21 (1) an immediate abortion of the woman's pregnancy is necessary to 22 avert the woman's death; or 23 (2) a delay in providing an abortion will create serious risk of 24 substantial and irreversible impairment of a major bodily function of the pregnant 25 woman. 26 * Sec. 4. AS 18.16 is amended by adding new sections to read: 27 Sec. 18.16.020. Consent required before minor's abortion. A person may 28 not knowingly perform or induce an abortion upon a woman who is known to the 29 person to be pregnant, unmarried, under 18 years of age, and unemancipated unless, 30 before the abortion, at least one of the following applies: 31 (1) one of the woman's parents or the woman's guardian or custodian 01 has consented in writing to the performance or inducement of the abortion; 02 (2) a court issues an order under AS 18.16.030 authorizing the woman 03 to consent to the abortion without consent of a parent, guardian, or custodian and the 04 woman consents to the abortion; or 05 (3) a court, by its inaction under AS 18.16.030, constructively has 06 authorized the woman to consent to the abortion without consent of a parent, guardian, 07 or custodian and the woman consents to the abortion. 08 Sec. 18.16.030. Judicial bypass for minor seeking an abortion. (a) A 09 woman who is pregnant, unmarried, under 18 years of age, and unemancipated who 10 wishes to have an abortion without the consent of a parent, guardian, or custodian may 11 file a complaint in the superior court requesting the issuance of an order authorizing 12 the woman to consent to the performance or inducement of an abortion without the 13 consent of a parent, guardian, or custodian. 14 (b) The complaint shall be made under oath and must include all of the 15 following: 16 (1) a statement that the complainant is pregnant; 17 (2) a statement that the complainant is unmarried, under 18 years of 18 age, and unemancipated; 19 (3) a statement that the complainant wishes to have an abortion without 20 the consent of a parent, guardian, or custodian; 21 (4) an allegation of either or both of the following: 22 (A) that the complainant is sufficiently mature and well enough 23 informed to decide intelligently whether to have an abortion without the 24 consent of a parent, guardian, or custodian; or 25 (B) that one or both of the woman's parents or the woman's 26 guardian or custodian was engaged in a pattern of physical, sexual, or 27 emotional abuse against the woman, or that the consent of a parent, guardian, 28 or custodian otherwise is not in the woman's best interest; 29 (5) a statement as to whether the complainant has retained an attorney 30 and, if an attorney has been retained, the name, address, and telephone number of the 31 attorney. 01 (c) The court shall fix a time for a hearing on any complaint filed under (a) 02 of this section and shall keep a record of all testimony and other oral proceedings in 03 the action. The hearing shall be held at the earliest possible time, but not later than 04 the fifth business day after the day that the complaint is filed. The court shall enter 05 judgment on the complaint immediately after the hearing is concluded. If the hearing 06 required by this subsection is not held by the fifth business day after the complaint 07 is filed, the failure to hold the hearing shall be considered to be a constructive order 08 of the court authorizing the complainant to consent to the performance or inducement 09 of an abortion without the consent of a parent, guardian, or custodian, and the 10 complainant and any other person may rely on the constructive order to the same 11 extent as if the court actually had issued an order under this section authorizing the 12 complainant to consent to the performance or inducement of an abortion without such 13 consent. 14 (d) If the complainant has not retained an attorney, the court shall appoint an 15 attorney to represent the complainant. 16 (e) If the complainant makes only the allegation set out in (b)(4)(A) of this 17 section and if the court finds by clear and convincing evidence that the complainant 18 is sufficiently mature and well enough informed to decide intelligently whether to have 19 an abortion, the court shall issue an order authorizing the complainant to consent to 20 the performance or inducement of an abortion without the consent of a parent, 21 guardian, or custodian. If the court does not make the finding specified in this 22 subsection, it shall dismiss the complaint. 23 (f) If the complainant makes only the allegation set out in (b)(4)(B) of this 24 section and the court finds by clear and convincing evidence that there is evidence of 25 a pattern of physical, sexual, or emotional abuse of the complainant by one or both of 26 the woman's parents or the woman's guardian or custodian, or that the consent of the 27 parents, guardian, or custodian of the complainant otherwise is not in the best interest 28 of the complainant, the court shall issue an order authorizing the complainant to 29 consent to the performance or inducement of an abortion without the consent of a 30 parent, guardian, or custodian. If the court does not make the finding specified in this 31 subsection, it shall dismiss the complaint. 01 (g) If the complainant makes both of the allegations set out in (b)(4) of this 02 section, the court shall proceed as follows: 03 (1) the court first shall determine whether it can make the finding 04 specified in (e) of this section and, if so, shall issue an order under that subsection; if 05 the court issues an order under this paragraph, it may not proceed under (f) of this 06 section; if the court does not make the finding specified in (e) of this section, it shall 07 proceed under (2) of this subsection; 08 (2) if the court under (1) of this subsection does not make the finding 09 specified in (e) of this section, it shall proceed to determine whether it can make the 10 finding specified in (f) of this section and, if so, shall issue an order under that 11 subsection; if the court does not make the finding specified in (f) of this section, it 12 shall dismiss the complaint. 13 (h) The court may not notify the parents, guardian, or custodian of the 14 complainant that the complainant is pregnant or wants to have an abortion. 15 (i) If the court dismisses the complaint, the complainant has the right to appeal 16 the decision to the supreme court, and the superior court immediately shall notify the 17 complainant that there is a right to appeal. 18 (j) If the complainant files a notice of appeal authorized under this section, the 19 superior court shall deliver a copy of the notice of appeal and the record on appeal to 20 the supreme court within four days after the notice of appeal is filed. Upon receipt of 21 the notice and record, the clerk of the supreme court shall place the appeal on the 22 docket. The appellant shall file a brief within four days after the appeal is docketed. 23 Unless the appellant waives the right to oral argument, the supreme court shall hear 24 oral argument within five days after the appeal is docketed. The supreme court shall 25 enter judgment in the appeal immediately after the oral argument or, if oral argument 26 has been waived, within five days after the appeal is docketed. Upon motion of the 27 appellant and for good cause shown, the supreme court may shorten or extend the 28 maximum times set out in this subsection. However, in any case, if judgment is not 29 entered within five days after the appeal is docketed, the failure to enter the judgment 30 shall be considered to be a constructive order of the court authorizing the appellant to 31 consent to the performance or inducement of an abortion without the consent of a 01 parent, guardian, or custodian, and the appellant and any other person may rely on the 02 constructive order to the same extent as if the court actually had entered a judgment 03 under this subsection authorizing the appellant to consent to the performance or 04 inducement of an abortion without consent of another person. In the interest of justice, 05 the supreme court, in an appeal under this subsection, shall liberally modify or 06 dispense with the formal requirements that normally apply as to the contents and form 07 of an appellant's brief. 08 (k) Each hearing under this section, and all proceedings under (j) of this 09 section, shall be conducted in a manner that will preserve the anonymity of the 10 complainant. The complaint and all other papers and records that pertain to an action 11 commenced under this section, including papers and records that pertain to an appeal 12 under this section, shall be kept confidential and are not public records under 13 AS 09.25.110 - 09.25.120. 14 (l) The supreme court shall prescribe complaint and notice of appeal forms that 15 shall be used by a complainant filing a complaint or appeal under this section. The 16 clerk of each superior court shall furnish blank copies of the forms, without charge, 17 to any person who requests them. 18 (m) A filing fee may not be required of, and court costs may not be assessed 19 against, a complainant filing a complaint under this section or an appellant filing an 20 appeal under this section. 21 Sec. 18.16.090. Definitions. In this chapter, 22 (1) "abortion" means the use or prescription of an instrument, medicine, 23 drug, or other substance or device to terminate the pregnancy of a woman known to 24 be pregnant, except that "abortion" does not include the termination of a pregnancy if 25 done with the intent to 26 (A) save the life or preserve the health of the unborn child; 27 (B) deliver the unborn child prematurely to preserve the health 28 of both the pregnant woman and the woman's child; or 29 (C) remove a dead unborn child; 30 (2) "unemancipated" means that a woman who is unmarried and under 31 18 years of age has not done any of the following: 01 (A) entered the armed services of the United States; 02 (B) become employed and self-subsisting; 03 (C) been emancipated under AS 09.55.590; or 04 (D) otherwise become independent from the care and control of 05 the woman's parent, guardian, or custodian. 06 * Sec. 5. AS 44.21.410(a) is amended to read: 07 (a) The office of public advocacy shall 08 (1) perform the duties of the public guardian under AS 13.26.360 - 09 13.26.410; 10 (2) provide visitors and experts in guardianship proceedings under 11 AS 13.26.131; 12 (3) provide guardian ad litem services to children in child protection 13 actions under AS 47.17.030(e) and to wards and respondents in guardianship 14 proceedings who will suffer financial hardship or become dependent upon a 15 government agency or a private person or agency if the services are not provided at 16 state expense under AS 13.26.112; 17 (4) provide legal representation in cases involving judicial bypass 18 procedures for minors seeking abortions under AS 18.16.030, in guardianship 19 proceedings to respondents who are financially unable to employ attorneys under 20 AS 13.26.106(b), to indigent parties in cases involving child custody in which the 21 opposing party is represented by counsel provided by a public agency, to indigent 22 parents or guardians of a minor respondent in a commitment proceeding concerning 23 the minor under AS 47.30.775; 24 (5) provide legal representation and guardian ad litem services under 25 AS 25.24.310; in cases arising under AS 47.15 (Uniform Interstate Compact on 26 Juveniles); in cases involving petitions to adopt a minor under AS 25.23.125(b) or 27 petitions for the termination of parental rights on grounds set out in 28 AS 25.23.180(c)(3); in cases involving petitions to remove the disabilities of a minor 29 under AS 09.55.590; in children's proceedings under AS 47.10.050(a) or under 30 AS 47.12.090; in cases involving appointments under AS 18.66.100(a) in petitions for 31 protective orders on behalf of a minor; and in cases involving indigent persons who 01 are entitled to representation under AS 18.85.100 and who cannot be represented by 02 the public defender agency because of a conflict of interests; 03 (6) develop and coordinate a program to recruit, select, train, assign, 04 and supervise volunteer guardians ad litem from local communities to aid in delivering 05 services in cases in which the office of public advocacy is appointed as guardian ad 06 litem; 07 (7) provide guardian ad litem services in proceedings under 08 AS 12.45.046; 09 (8) establish a fee schedule and collect fees for services provided by 10 the office, except as provided in AS 18.85.120 or when imposition or collection of a 11 fee is not in the public interest as defined under regulations adopted by the 12 commissioner of administration; 13 (9) provide visitors and guardians ad litem in proceedings under 14 AS 47.30.839; 15 (10) provide legal representation to indigent parents under 16 AS 14.30.195(e). 17 * Sec. 6. AS 18.16.010(d) is repealed. 18 * Sec. 7. AS 18.16.030(c), added by sec. 4 of this Act, has the effect of amending Rule 19 40, Alaska Rules of Civil Procedure, by setting a specific timetable for hearing certain cases. 20 * Sec. 8. AS 18.16.030(j), added by sec. 4 of this Act, has the effect of amending Rules 21 204, 210, 212, and 213, Alaska Rules of Appellate Procedure, by establishing specific time 22 limits applicable to certain appeals and by instructing the supreme court to modify or dispense 23 with formal requirements applicable to certain briefs. 24 * Sec. 9. AS 18.16.030(k), added by sec. 4 of this Act, has the effect of amending Rule 25 512.5, Alaska Rules of Appellate Procedure, by making certain appellate records and papers 26 confidential. 27 * Sec. 10. AS 18.16.030(m), added by sec. 4 of this Act, has the effect of amending Rule 28 9, Alaska Administrative Rules, Rule 79, Alaska Rules of Civil Procedure, and Rule 508, 29 Alaska Rules of Appellate Procedure, by prohibiting filing fees and assessment of court costs 30 in certain actions.