46th legislature - STATE OF NEW MEXICO - first session, 2003

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 use of any means to terminate the pregnancy of a female known to be pregnant, with knowledge that the termination will, with reasonable likelihood, cause the death of the fetus;

B. "fetus" means an individual human organism from fertilization until birth; and

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

Section 3. NOTIFICATION CONCERNING ABORTION.--

A. An abortion shall not be performed upon an unemancipated minor or upon a female for whom a guardian or conservator has been appointed because of a finding of incompetency 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, guardian or conservator, as appropriate, at the usual place of abode of the addressee and delivered personally to the addressee by the physician or an agent.

C. In lieu of the delivery required pursuant to Subsection B of this section, notice shall be made by certified mail addressed to the parent, guardian or conservator at the usual place of abode of the addressee with return receipt requested and restricted delivery to the addressee. Time of delivery shall be deemed to occur at 12:00 noon on the next day subsequent to mailing on which regular mail delivery takes place.

Section 4. LIMITATIONS.--A notice shall not be required pursuant to the provisions of the Parental Notification Act if:

A. the attending physician certifies in the pregnant female's medical record that the abortion is necessary to prevent the pregnant female's death and there is insufficient time to provide the required notice; or

B. the person who is entitled to notice certifies in writing that he has been notified.

Section 5. ELECTION BY FEMALE NOT TO ALLOW NOTICE.--

A. If a pregnant female elects not to allow the notification of her parent, guardian or conservator, a judge of a court of competent jurisdiction shall, upon petition or motion, and after an appropriate hearing, authorize a physician to perform the abortion if the judge determines that the pregnant female is mature and capable of giving informed consent to the proposed abortion. If the judge determines that the pregnant female is not mature, or if the pregnant female does not claim to be mature, the judge shall determine whether the performance of an abortion upon her without notification of her parent, guardian or conservator would be in her best interests and shall authorize a physician to perform the abortion without such notification if the judge concludes that the pregnant female's best interests would be served thereby.

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 given precedence over other pending matters so that the court may reach a decision promptly and without delay so as to serve the best interests of the pregnant female. A judge of the court who conducts proceedings pursuant to this section shall make in writing specific factual findings and legal conclusions supporting the decision and shall order a record of the evidence to be maintained, including the judge's own findings and conclusions.

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 6. PENALTY.--

A. Performance of an abortion in knowing or reckless violation of the Parental Notification Act shall be a misdemeanor and the offender shall be sentenced pursuant to Section 31-19-1 NMSA 1978.

B. Performance of an abortion in knowing or reckless violation of the Parental Notification Act shall be grounds for a civil action by a person wrongfully denied notification.

C. A person shall not be held liable pursuant to this section if he establishes by written evidence that he relied upon evidence sufficient to convince a careful and prudent person that the representations of the pregnant female regarding information necessary to comply with this section were bona fide and true, or if the person attempted with reasonable diligence to deliver notice, but was unable to do so.

Section 7. REPORTING REQUIREMENTS--INJUNCTION--ATTORNEY FEES.--

A. No later than October 1, 2003, the department of health shall prepare a reporting form for physicians regarding:

(1) the number of parents to whom the physician or an agent of the physician provided the notice described in Section 3 of the Parental Notification Act; of that number, the number provided personally, the number provided by mail, and of each of those numbers, the number of females who, to the best of the reporting physician's information and belief, went on to obtain an abortion;

(2) the number of females upon whom the physician performed an abortion without providing to the parent of the female the notice described in Section 3 of the Parental Notification Act; of that number, the number who were emancipated minors, and the numbers for whom each of the subsections of Section 5 of the Parental Notification Act were applicable;

(3) the number of abortions performed upon a female by the physician after receiving judicial authorization to do so without parental notification; and

(4) the same information described in Paragraphs (1) through (3) of this subsection with respect to females for whom a guardian or conservator has been appointed because of a finding of incompetency.

B. The department of health shall ensure that copies of the reporting form described in Subsection A of this section, together with a reprint of the Parental Notification Act, are provided:

(1) no later than October 1, 2003 to all physicians licensed to practice in this state;

(2) to each physician who subsequently becomes licensed to practice in this state, at the same time as official notification to that physician that the physician is so licensed; and

(3) by December 1 of every year, other than the calendar year in which forms are distributed in accordance with Paragraph (1) of this subsection, to all physicians licensed to practice in this state.

C. By February 28 of each year following a calendar year in any part of which the Parental Notification Act was in effect, each physician who provided, or whose agent provided, the notice described in Section 3 of that act and any physician who knowingly performed an abortion upon a female or upon a female for whom a guardian or conservator had been appointed due to a finding of incompetency during the previous calendar year shall submit to the department of health a copy of the form described in Subsection A of this section, with the requested data entered accurately and completely.

D. Reports that are not submitted within a grace period of thirty days following the due date shall be subject to a late fee of five hundred dollars ($500) for each additional thirty-day period or portion of a thirty-day period they are overdue. A physician required to report in accordance with this section who has not submitted a report, or has submitted only an incomplete report, more than one year following the due date, may, in an action brought by the department of health, be directed by a court of competent jurisdiction to submit a complete report within a period stated by court order or be subject to sanctions for civil contempt.

E. By June 30 of each year, the department of health shall issue a public report providing:

(1) statistics for the previous calendar year compiled from all of the reports covering that year submitted in accordance with this section for each of the items listed in Subsection A of this section;

(2) statistics that shall be provided to the department by the administrative office of the courts setting forth the total number of petitions or motions filed pursuant to Section 5 of the Parental Notification Act and of that number:

(a) the number in which the court appointed a guardian ad litem;

(b) the number in which the court appointed counsel;

(c) the number in which the judge issued an order authorizing an abortion without notification;

(d) the number in which the judge denied an order;

(e) the number of denials from which an appeal was filed;

(f) the number of appeals that resulted in the denials being affirmed; and

(g) the number of appeals that resulted in reversals of denials;

(3) statistics for all previous calendar years for which such a public statistical report was required to be issued, adjusted to reflect any additional information from late or corrected reports; and

(4) no information that could reasonably lead to the identification of any individual female or of any female for whom a guardian or conservator has been appointed.

F. The department of health may by rule alter the dates established in this section or consolidate the forms or reports to achieve administrative convenience or fiscal savings or to reduce the burden of reporting requirements, so long as reporting forms are sent to all licensed physicians in the state at least once every year and the report described in Subsection E of this section is issued at least once every year.

G. If the department of health fails to issue the public report required by Subsection E of this section, any group of ten or more citizens of this state may seek an injunction in a court of competent jurisdiction against the secretary of health requiring that a complete report be issued within a period stated by court order. Failure to abide by such an injunction shall subject the secretary of health to sanctions for civil contempt.

H. If judgment is rendered in favor of the plaintiff in any action described in this section, the court shall also render judgment for reasonable attorney fees in favor of the plaintiff against the defendant. If judgment is rendered in favor of the defendant and the court finds that the plaintiff's suit was frivolous and brought in bad faith, the court shall also render judgment for reasonable attorney fees in favor of the defendant against the plaintiff.

Section 8. 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 9. EFFECTIVE DATE.--The effective date of the provisions of this act is July 1, 2003.