CSHB 35(FIN)(ct rule fld)(efd fld): "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; and relating to reporting of abortions performed on minors."
00 CS FOR HOUSE BILL NO. 35(FIN)(ct rule fld)(efd fld) 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; and relating to reporting of abortions 04 performed on minors." 05 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF ALASKA: 06 * Section 1. AS 18.16.010(a) is amended to read: 07 (a) An abortion may not be performed in this state unless 08 (1) the abortion is performed by a physician licensed by the State 09 Medical Board under AS 08.64.200; 10 (2) the abortion is performed in a hospital or other facility approved for 11 the purpose by the Department of Health and Social Services or a hospital operated by 12 the federal government or an agency of the federal government; 13 (3) before an abortion is knowingly performed or induced on a 14 pregnant, [AN] unmarried, unemancipated woman under 17 years of age, notice and
01 consent have [HAS] been given as required under AS 18.16.020 or a court has 02 authorized the minor to consent to the abortion without parental notice under 03 AS 18.16.030 and the minor consents; for purposes of enforcing this paragraph, there 04 is a rebuttable presumption that a woman who is unmarried and under 17 years of age 05 is unemancipated; 06 (4) the woman is domiciled or physically present in the state for 30 07 days before the abortion; and 08 (5) the applicable requirements of AS 18.16.060 have been satisfied. 09 * Sec. 2. AS 18.16.010(g) is amended to read: 10 (g) It is a [AN AFFIRMATIVE] defense to a prosecution or claim for 11 violation of (a)(3) of this section that, in the clinical judgment of the physician or 12 surgeon, compliance with the requirements of (a)(3) of this section was not possible 13 because, in the clinical judgment of the physician or surgeon, an immediate threat 14 of serious risk to the life or physical health of the pregnant minor from the 15 continuation of the pregnancy created a medical emergency necessitating the 16 immediate performance or inducement of an abortion. In this subsection, 17 (1) "clinical judgment" means a physician's or surgeon's 18 subjective professional medical judgment exercised in good faith; 19 (2) "defense" has the meaning given in AS 11.81.900(b); 20 (3) "medical emergency" means a condition that, on the basis of the 21 physician's or surgeon's good faith clinical judgment, so complicates the medical 22 condition of a pregnant minor that [(1)] an immediate abortion of the minor's 23 pregnancy is necessary to avert the minor's death [;] or serious risk to the minor's 24 physical health [(2) A DELAY IN PROVIDING AN ABORTION WILL CREATE 25 SERIOUS RISK OF SUBSTANTIAL AND IRREVERSIBLE IMPAIRMENT OF A 26 MAJOR BODILY FUNCTION OF THE PREGNANT MINOR]. 27 * Sec. 3. AS 18.16.020 is repealed and reenacted to read: 28 Sec. 18.16.020. Notice and consent required before minor's abortion. (a) A 29 person may not knowingly perform or induce an abortion upon a minor who is known 30 to the person to be pregnant, unmarried, under 17 years of age, and unemancipated 31 unless, before the abortion, at least one of the following applies:
01 (1) one of the minor's parents, the minor's legal guardian, or the 02 minor's custodian has been given notice of the planned abortion not less than 48 hours 03 before the abortion is performed and the parent, legal guardian, or custodian has 04 consented in writing to the performance or inducement of the abortion; 05 (2) a court issues an order under AS 18.16.030 authorizing the minor 06 to consent to the abortion without notice and consent of a parent, guardian, or 07 custodian, and the minor consents to the abortion; 08 (3) a court, by its inaction under AS 18.16.030, constructively has 09 authorized the minor to consent to the abortion without notice and consent of a parent, 10 guardian, or custodian, and the minor consents to the abortion; or 11 (4) the minor is the victim of physical abuse, sexual abuse, or a pattern 12 of emotional abuse committed by one or both of the minor's parents or by a legal 13 guardian or custodian of the minor and the abuse is documented by a declaration of the 14 abuse in a signed and notarized statement by 15 (A) the minor; and 16 (B) another person who has personal knowledge of the abuse 17 who is 18 (i) the sibling of the minor who is 21 years of age or 19 older; 20 (ii) a law enforcement officer; 21 (iii) a representative of the Department of Health and 22 Social Services who has investigated the abuse; 23 (iv) a grandparent of the minor; or 24 (v) a stepparent of the minor. 25 (b) In (a)(1) of this section, actual notice must be given or attempted to be 26 given in person or by telephone by either the physician who has referred the minor for 27 an abortion or by the physician who intends to perform the abortion. An individual 28 designated by the physician may initiate the notification process, but the actual notice 29 shall be given by the physician. The physician giving notice of the abortion must 30 document the notice or attempted notice in the minor's medical record and take 31 reasonable steps to verify that the person to whom the notice is provided is the parent,
01 legal guardian, or custodian of the minor seeking an abortion. Reasonable steps to 02 provide notice must include 03 (1) if in person, requiring the person to show government-issued 04 identification along with additional documentation of the person's relationship to the 05 minor; additional documentation may include the minor's birth certificate or a court 06 order of adoption, guardianship, or custodianship; 07 (2) if by telephone, initiating the call, attempting to verify through a 08 review of published telephone directories that the number to be dialed is that of the 09 minor's parent, legal guardian, or custodian, and asking questions of the person to 10 verify that the person's relationship to the minor is that of parent, legal guardian, or 11 custodian; when notice is attempted by telephone but the physician or physician's 12 designee is unsuccessful in reaching the parent, legal guardian, or custodian, the 13 physician's designee shall continue to initiate the call, in not less than two-hour 14 increments, for not less than five attempts, in a 24-hour period. 15 (c) If actual notice is attempted unsuccessfully after reasonable steps have 16 been taken as described under (b) of this section, the referring physician or the 17 physician intending to perform an abortion on a minor may provide constructive 18 notice to the minor's parent, legal guardian, or custodian. Constructive notice is 19 considered to have been given 48 hours after the certified notice is mailed. In this 20 subsection, "constructive notice" means that notice of the abortion was provided in 21 writing and mailed by certified mail, delivery restricted to addressee only, to the last 22 known address of the parent, legal guardian, or custodian after taking reasonable steps 23 to verify the mailing address. 24 (d) A physician who suspects or receives a report of abuse under this section 25 shall report the abuse as provided under AS 47.17.020. 26 (e) A physician who is informed that the pregnancy of a minor resulted from 27 criminal sexual assault of the minor must retain, and take reasonable steps to preserve, 28 the products of conception and evidence following the abortion for use by law 29 enforcement officials in prosecuting the crime. 30 * Sec. 4. AS 18.16.030(a) is amended to read: 31 (a) A woman who is pregnant, unmarried, under 17 years of age, and
01 unemancipated who wishes to have an abortion without notice to and the consent of a 02 parent, guardian, or custodian may file a complaint in the superior court requesting the 03 issuance of an order authorizing the minor to consent to the performance or 04 inducement of an abortion without notice to or the consent of a parent, guardian, or 05 custodian. 06 * Sec. 5. AS 18.16.030(b) is amended to read: 07 (b) The complaint shall be made under oath and must include all of the 08 following: 09 (1) a statement that the complainant is pregnant; 10 (2) a statement that the complainant is unmarried, under 17 years of 11 age, and unemancipated; 12 (3) a statement that the complainant wishes to have an abortion 13 without notice to or the consent of a parent, guardian, or custodian; 14 (4) an allegation of either or both of the following: 15 (A) that the complainant is sufficiently mature and well enough 16 informed to decide intelligently whether to have an abortion without notice to 17 or the consent of a parent, guardian, or custodian; or 18 (B) that one or both of the minor's parents or the minor's 19 guardian or custodian was engaged in physical abuse, sexual abuse, or a 20 pattern of emotional abuse against the minor, or that the consent of a parent, 21 guardian, or custodian otherwise is not in the minor's best interest; 22 (5) a statement as to whether the complainant has retained an attorney 23 and, if an attorney has been retained, the name, address, and telephone number of the 24 attorney. 25 * Sec. 6. AS 18.16.030(c) is amended to read: 26 (c) The court shall fix a time for a hearing on any complaint filed under (a) of 27 this section and shall keep a record of all testimony and other oral proceedings in the 28 action. The hearing shall be held at the earliest possible time, but not later than the 29 third [FIFTH] business day after the day that the complaint is filed. The court shall 30 enter judgment on the complaint immediately after the hearing is concluded. If the 31 hearing required by this subsection is not held by the third [FIFTH] business day after
01 the complaint is filed, the failure to hold the hearing shall be considered to be a 02 constructive order of the court authorizing the complainant to consent to the 03 performance or inducement of an abortion without notice to or the consent of a 04 parent, guardian, or custodian, and the complainant and any other person may rely on 05 the constructive order to the same extent as if the court actually had issued an order 06 under this section authorizing the complainant to consent to the performance or 07 inducement of an abortion without such consent. 08 * Sec. 7. AS 18.16.030(j) is amended to read: 09 (j) If the complainant files a notice of appeal authorized under this section, the 10 superior court shall deliver a copy of the notice of appeal and the record on appeal to 11 the supreme court within three [FOUR] days after the notice of appeal is filed. Upon 12 receipt of the notice and record, the clerk of the supreme court shall place the appeal 13 on the docket. The appellant shall file a brief within three [FOUR] days after the 14 appeal is docketed. Unless the appellant waives the right to oral argument, the 15 supreme court shall hear oral argument within five days after the appeal is docketed. 16 The supreme court shall enter judgment in the appeal immediately after the oral 17 argument or, if oral argument has been waived, within five days after the appeal is 18 docketed. Upon motion of the appellant and for good cause shown, the supreme court 19 may shorten or extend the maximum times set out in this subsection. However, in any 20 case, if judgment is not entered within five days after the appeal is docketed, the 21 failure to enter the judgment shall be considered to be a constructive order of the court 22 authorizing the appellant to consent to the performance or inducement of an abortion 23 without notice to or the consent of a parent, guardian, or custodian, and the appellant 24 and any other person may rely on the constructive order to the same extent as if the 25 court actually had entered a judgment under this subsection authorizing the appellant 26 to consent to the performance or inducement of an abortion without notice to or the 27 consent of another person. In the interest of justice, the supreme court, in an appeal 28 under this subsection, shall liberally modify or dispense with the formal requirements 29 that normally apply as to the contents and form of an appellant's brief. 30 * Sec. 8. AS 18.16.030(n) is amended to read: 31 (n) Blank copies of the forms prescribed under (l) of this section and
01 information on the proper procedures for filing a complaint or appeal shall be made 02 available by the court system at the official location of each superior court, district 03 court, and magistrate in the state. The information required under this subsection must 04 also include notification to the minor that 05 (1) there is no filing fee required for either form; 06 (2) no court costs will be assessed against the minor for procedures 07 under this section; 08 (3) an attorney will be appointed to represent the minor if the minor 09 does not retain an attorney; 10 (4) the minor may request that the superior court with appropriate 11 jurisdiction hold a telephonic hearing on the complaint so that the minor need not 12 personally be present; 13 (5) the minor may request that the superior court with 14 appropriate jurisdiction issue an order directing the minor's school to excuse the 15 minor from school to attend court hearings held under this section and to have 16 the abortion if one is authorized by the court and directing the school not to 17 notify the minor's parent, legal guardian, or custodian that the minor is 18 pregnant, seeking an abortion, or is absent for purposes of obtaining 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 person 21 may not coerce a minor who is pregnant to have an abortion. 22 (b) In addition to emancipation by other means provided by law, denial of 23 financial support by a parent, legal guardian, or custodian who has a legal duty of 24 support for purposes of coercing a minor to have an abortion shall be sufficient 25 evidence of emancipation status of the minor for purposes of AS 18.16.010 - 26 18.16.090. 27 (c) In this section, "coercion" means to restrain or dominate a minor by force, 28 threat of force, or deprivation of food, support, or shelter. 29 Sec. 18.16.040. Reports. For each month in which an abortion is performed on 30 a minor by a physician, the physician shall file a report with the Department of Health 31 and Social Services indicating the number of abortions performed on a minor for that
01 month, the age of each minor, the number of previous abortions performed on each 02 minor, if any, and the number of pregnancies of each minor, if any, and the number of 03 consents provided under each of the exceptions enumerated under AS 18.16.020(a)(1) 04 - (4). A report filed under this section may not include identifying information of the 05 minor other than the minor's age. 06 * Sec. 10. The uncodified law of the State of Alaska is amended by adding a new section to 07 read: 08 SEVERABILITY. If any provision of this Act is held to be invalid or unenforceable 09 by its terms or as applied to any person or circumstance, the remainder of the provisions shall 10 be construed to give the maximum effect permitted by law, unless the holding shall be of utter 11 invalidity or unenforceability, in which event, the provision shall be considered severable and 12 does not affect the remaining provisions or the application of the severed provision to other 13 persons who are not similarly situated or to other dissimilar circumstances.