45th legislature - STATE OF NEW MEXICO - first session, 2001

RELATING TO HEALTH; ENACTING THE PARENTAL NOTIFICATION ACT; ESTABLISHING PROCEDURES WHEN CERTAIN FEMALES REQUEST AN ABORTION; PROVIDING FOR JUDICIAL HEARINGS; PRESCRIBING PENALTIES.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:

Section 1. SHORT TITLE.--This act may be cited as the "Parental Notification Act".

Section 2. DEFINITIONS.--As used in the Parental Notification Act:

A. "abortion" means the intentional termination of the pregnancy of a female by a person who knows the female is pregnant;

B. "fetus" means the biological offspring of human parents;

C. "parent" means one parent of the pregnant female or a guardian or conservator of the pregnant female; and

D. "physician" means a person licensed to practice in the state as a licensed physician pursuant to the Medical Practice Act or an osteopathic physician licensed pursuant to Chapter 61, Article 10 NMSA 1978.

Section 3. NOTIFICATION CONCERNING ABORTION.--

A. An abortion shall not be performed upon a female less than sixteen years of age, until at least forty-eight hours after written notice of the pending operation has been delivered in the manner specified in Sections 3, 4 and 5 of the Parental Notification Act.

B. The notice shall be addressed to the parent by the physician or an agent. The notice shall be addressed to the parent at the usual abode of the parent and shall be sent by certified mail with return receipt requested and restricted delivery to the addressee. Time of delivery shall be deemed to occur at twelve o'clock noon on the next day on which regular mail delivery takes place, subsequent to mailing.

Section 4. LIMITATIONS.--

A. A notice shall not be required pursuant to the provisions of the Parental Notification Act if:

(1) the attending physician certifies in the pregnant female's medical record that the abortion is necessary to preserve the pregnant female's life or physical health and there is insufficient time to provide the required notice;

(2) the person who is entitled to notice informs the physician that he has been notified; or

(3) if a pregnant female elects not to allow the notification of her parent, a judge of a court of competent jurisdiction shall, upon petition or motion, and after a hearing, authorize a physician to perform the abortion if the judge determines that the pregnant female is capable of giving informed consent to the proposed abortion, or if the judge determines that the performance of an abortion upon her without notification of her parent would be in her best interest.

B. A pregnant female may participate in proceedings in the court on her own behalf, and the court may appoint a guardian ad litem for her. The court shall, however, advise her that she has a right to court appointed counsel, and shall, upon her request, provide her with counsel.

C. Proceedings in the court pursuant to this section shall be confidential and shall be held within forty-eight hours of the filing of the petition or motion. The court shall enter its decision within twenty-four hours of the hearing. A judge of the court who conducts proceedings pursuant to this section shall make findings of fact and legal conclusions on the record to support the decision.

D. An expedited confidential appeal shall be available to a pregnant female for whom the court denies an order authorizing an abortion without notification. An order authorizing an abortion without notification shall not be subject to appeal. Filing fees shall not be required of a pregnant female at either the trial or the appellate level. Access to the trial court for the purposes of a petition or motion, and access to the appellate courts for purposes of making an appeal from denial of the same, shall be afforded to a pregnant female twenty-four hours a day, seven days a week.

Section 5. PREGNANCY--PRENATAL, DELIVERY AND POSTNATAL TREATMENT FOR A FEMALE MINOR--CAPACITY TO CONSENT.--A physician or health care provider shall have the authority, within the limits of his license, to provide prenatal, delivery and postnatal care to a female less than sixteen years of age. A female less than sixteen years of age shall have the capacity to consent to prenatal, delivery and postnatal care by a licensed physician or health care provider.

Section 6. PENALTY.--Performance of an abortion in knowing violation of the Parental Notification Act shall be a misdemeanor and the offender shall be sentenced pursuant to Section 31-19-1 NMSA 1978. A person shall not be held criminally liable pursuant to this section if the person establishes that the person relied upon evidence sufficient to convince a reasonable person that the representations of the pregnant female were bona fide and true, or if the person attempted with reasonable diligence to deliver notice, but was unable to do so.

Section 7. SEVERABILITY.--If any part or application of the Parental Notification Act is held invalid, the remainder or its application to other situations or persons shall not be affected.

Section 8. EFFECTIVE DATE.--The effective date of the provisions of this act is July 1, 2001.