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SPONSOR: |
Regensberg |
DATE TYPED: |
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HB |
344 |
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SHORT TITLE: |
Parental Notification Act |
SB |
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ANALYST: |
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APPROPRIATION
Appropriation
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Estimated
Additional Impact |
Recurring or
Non-Rec |
Fund Affected |
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FY03 |
FY04 |
FY03 |
FY04 |
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See Narrative |
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(Parenthesis
( ) Indicate Expenditure Decreases)
Conflicts with HB 328,
HB 309
Responses Received From
Department of Health (DOH)
Health Policy Commission (HPC)
Administrative Office of the Courts (AOC)
Office of the Attorney General (AG)
SUMMARY
Synopsis of Bill
This bill enacts a new
law--the Parental Notification Act--which requires parental or guardian notification
at least 48 hours before an abortion is performed on an unemancipated minor (16
years or younger) or a female of any age who has been declared incompetent and
has had a guardian or conservator appointed. The only exception to the
notification requirement is when the procedure is necessary to save the life of
the patient.
The bill contains a
judicial bypass procedure, which allows a court to direct that notification is
not required upon a finding that the minor or incompetent woman is mature enough
to make the decision, or that an abortion is in the patient’s best interests. This
bypass must be confidential and expedited, but no time limits are set. The bill also contains reporting
requirements, on the doctor who performs the procedure, and on the Department
of Health to publish statistics on an annual basis. The bill also makes the performance of an
abortion in knowing or reckless disregard of the Act a crime--misdemeanor. Finally, it creates a civil cause of action
that allows a parent or guardian wrongfully denied notice to sue a physician
who performs an abortion without the requisite notice, and awards attorney gees
to the prevailing party in certain circumstances.
Significant Issues
The
AOC reports that courts already take reasonable action to see that cases are
adjudicated in the most expedited manner possible. Section 5(D) requires that the court assign
some level of additional priority to this type of case to assure that a
decision is reached as quickly as possible.
Would adding an additional level of priority for these cases jeopardize
the six-month rule for cases already on the court’s docket?
This bill, if enacted,
will add new hearings and require the district courts and the Court of Appeals
to be accessible 24 hours a day, seven days a week. Section 5(D).
The
Vital Statistics Act, 24-14-2 NMSA 1978, has already defined induced
abortion as “the purposeful interruption of pregnancy with the intention
other than to produce a live born infant.”
The Vital Statistics Act, 24-14-18 NMSA 1978, mandates that all
abortions occurring in
HB 344 would require the DOH to develop a
form and distribute to every licensed and newly licensed physician in the
State. This would require the DOH to
receive continuously updated lists of all licensed physicians. There are over 5,000 licensed physicians in
the State. The number of physicians who
actually perform abortions is very small.
The DOH would need to maintain continuous communication with Department
of Regulation and Licensing. In
addition, the DOH would need to produce a public report of abortions of minors
that contains information that is not related to health.
DOH sites the following information
relating to the public health and adolescent health issues:
·
Current state law allows an adolescent to
consent for an abortion without parental notification.
·
Although abortion restrictions do reduce
the number of abortions to teens they also result in a greater proportion of
late term abortions.
·
Most adolescents do consult their parents
about issues of pregnancy and abortion.
·
Parental notification laws do not
increase the communication between parents and adolescents on the topic of
abortion.
·
Many minors who do not consult their
parents about abortion have experienced family violence and are afraid that it
will recur. Prominent medical
associations support allowing adolescents to consent for abortion without
parental notification
·
The most damaging impact of mandatory
parental notification laws is that they can delay and obstruct the access of
pregnant adolescents to timely professional advice and medical care.
·
The proposed court proceedings are
detrimental to emotional well-being, because adolescents perceive such court
proceedings as extremely burdensome, humiliating, and stressful.
Additionally,
DOH notes that many health care providers agree on the need to increase and strengthen
family involvement, and surveys show that the vast majority of teenagers who
seek abortions do talk to their families. However, DOH states that not all
teenagers can count on the support of their families in dealing with personal
problems, and may not even feel safe in talking openly about those problems.
Some health care providers will attest that parental consent laws expose an
abused woman to even more abuse.
FISCAL IMPLICATIONS
The
AOC provided the following:
Additional fiscal impact
would be incurred by the administrative office of the courts, which would pay
for court appointed guardians ad litem in cases where
the pregnant female chose not to consent to the notification of her parent or
guardian and she petitioned the district court for an order for an abortion
without notification
HB
344 would require the DOH to provide administrative support for contacting
physicians, the statistical compilation of physician reports, as well as
coordination with the administrative offices of the courts in order to assemble
an annual public report on adolescent abortion services. The bill does not
currently include any budget to support the above-mentioned functions.
ADMINISTRATIVE
IMPLICATIONS
The
AOC outlines the following administrative impact concerns relating to the bill:
Administrative
impact to the DOH would be significant. HB 344 proposes yearly reporting of all
physicians who perform abortions to the DOH and the production of an annual
report that includes statistics from the administrative offices of the
court. This bill would require a minimum
of one FTE for collection and reporting of data and another FTE financial
analyst to track non-reporting and associated fines, plus substantially
increased postage and printing. Abortion
statistics are presently reported annually in “Selected Health Statistic, as
required by statute.
CONFLICT
Conflicts with HB 328
and SB 309 in
that the phrase “sixteen years of age or younger” has been added following the
phrase “unemancipated minor.” According to 24-7A-6.1
NMAC 1978, “Decisions for Unemancipated Minors”, an unemancipated minor is defined in Part G as “a person at or under the age of fifteen.”
Therefore, HB344 would require the same parental notification requirements as
SB309 and HB328 for a larger, slightly older, population.
HB344 differs from HB 328 in that Section 4,
Part A. (3) and Section 4, Parts B, C and D in HB328 are numbered as Section 5
in HB344 and SB309 without text variations other than insertion of a section
title.
TECHNICAL ISSUES
The
following are concerns expressed by the Office of the Attorney General on the
bill:
overbroad, and thus
unconstitutional. (See discussion below
under Other Substantive Issues).
proceeding to which the unemancipated minor or incompetent is entitled, which would
render the Act unconstitutional. (See
discussion below under Other Substantive Issues).
The
judiciary has concerns with unemancipated minors and
incapacitated persons entering into court hearings without representation by
legal counsel.
OTHER SUBSTANTIVE
ISSUES
Medical
emergency exception. As drafted, the notification requirements do
not apply upon a physician’s certification that an immediate abortion is
necessary to prevent the death of the unemancipated
or incompetent. In 1973, the United
States Supreme Court determined that statutes regulating abortions must allow,
based on medical judgment, abortions not only when a woman’s life is at risk,
but also when her health is at risk. Roe
v. Wade, 410 U.S. 113 (1973); reaffirmed in the context of parental consent
and notification acts in Planned Parenthood v.
Casey,
505
2. Incompetents. The term “incompetent” in the bill is not
defined. Under the New Mexico Probate
Code, which contains the statutory mechanism for appointing conservators and
guardians for individuals who are determined to be incapacitated, such a person
retains all legal and civil rights except those expressly limited by the court
order or which are specifically granted to the guardian in a court order. See NMSA 1978,§ 45-5-301.1 (1989); see too §
45-5-209(E) re guardians of minors. Thus, to the extent this bill requires
notification to a guardian or conservator in a situation where the
“incompetent” individual retains the right to make this decision, the bill
conflicts with that statute, and may also violate that person’s rights under
both the federal and state constitutions.
3. Lack of deadlines re judicial proceedings.
Although the bill requires cases
brought by
unemancipated
minors or incompetents seeking to bypass the notice requirements be “given
precedence” at the trial court level, that the decision be issued “promptly and
without delay”, and that an “expedited” appeal be available, the absence of any
timetables or deadlines for trial court hearing, decision or appellate ruling
has rendered similar provisions in other states unconstitutional under Bellotti. Glick
v. McKay, 937 F.2d 434, 440-441(9th CA 1991); Planned Parenthood v. Lawall,
180 F.3d 1022 and 193 F.3d 1042 (9th CA, 1999); compare Memphis Planned Parenthood v. Sundquist, 175 F.3d 456 (6th CA, 1999) (upholding
4.
Pediatrics v. Lungren, 940 P.2d 797 (1997) (declaring
The DOH does not license physicians and
thus does not maintain list(s) of all licensed physicians. DOH maintains that it would be impossible to
notify all physicians because there are some who practice in the state and who
are not licensed, such as those employed by federal agencies. HB 344 law would require the DOH to contact
physicians and the administrative offices of the courts in order to assemble an
annual public report on adolescent abortion services. The DOH, Vital Records
and Health Statistics currently collects data on induced terminations of
pregnancy and reports such data annually for the Division of Reproductive
Health at the Centers for Disease Control.
In
2001 there were 251 abortions performed on females age 16 and under. A large percentage of impregnated children 15
and under reported to have been impregnated due to incest.
DOH asserts that
studies show that adolescents for the most part do consult parents on issues of
pregnancy and when they don’t consult a parent they consult another caring and
concerned relative or responsible adult in their lives. A survey of 1519
unmarried pregnant minors in states where parental involvement is not mandatory
found that 61% told one or both parents about their intent to have abortions.
The younger the minor the more likely she was to do so (90% of 14 year olds,
74% of 16 year olds.) Among minors that
did not involve a parent, virtually all involved at least one responsible adult
other than clinic staff (such as another relative, teacher, counselor,
professional or clergy). A study of
inner city black, pregnant teens confirmed that 91% voluntarily consulted a
parent or “parent surrogate”.
Moreover, DOH supplies
the following information:
· Adolescents who fear telling their parents about a pregnancy do so because they believe that the knowledge will damage their relationship with their parent, the fear that it will escalate family conflict and the desire to protect a vulnerable parent from stress and disappointment. Involuntary parental notification can precipitate a family crisis characterized by anger and rejection. One third of minors who do not inform parents already have experienced family violence and fear it will recur.
· Current data indicate that parental notification laws do not increase the likelihood that parents will be involved in adolescent’s decisions about abortion. Percentages of minors who inform parents about their intent to have abortions are essentially the same in states with and without notification laws.
BD/yr