Fiscal impact reports (FIRs) are prepared by the Legislative Finance Committee (LFC) for standing finance

committees of the NM Legislature. The LFC does not assume responsibility for the accuracy of these reports

if they are used for other purposes.

Current FIRs (in HTML & Adobe PDF formats) are a vailable on the NM Legislative Website (legis.state.nm.us).

Adobe PDF versions include all attachments, whereas HTML versions may not. Previously issued FIRs and

attachments may be obtained from the LFC in Suite 101 of the State Capitol Building North.

F I S C A L I M P A C T R E P O R T

SPONSOR Larranaga

DATE TYPED 2/22/05

HB 251

SHORT TITLE Parental Notification Act

SB

ANALYST Wilson

APPROPRIATION

Appropriation Contained Estimated Additional Impact Recurring

or Non-Rec

Fund

Affected

FY05

FY06

FY05

FY06

See Narrative See Narrative

Duplicates SB 126

SOURCES OF INFORMATION

LFC Files

Responses Received From

Administrative Office of the Courts (AOC)

Attorney General’s Office (AGO)

Children, Youth & Families (CYFD)

Commission on the Status of Women (CSW)

Corrections Department (CD)

Department of Health (DOH)

Human Services Department (HSD)

SUMMARY

Synopsis of Bill

House Bill 251 creates the Parental Notification Act, establishes procedures for imposing a 48-

hour waiting period when unemancipated minors age 16 years of age or less or females for

whom a guardian or conservator has been appointed, request an abortion. This bill will require

written parental notification except in the event the procedure will prevent the pregnant female’s

death or the parent certifies he or she has already been notified.

House Bill 251-- Page 2

This bill will provide for judicial hearing and prescribe penalties. This bill will also require the

DOH to prepare annually and distribute notification reporting forms to all licensed physicians in

the state, collect and compile data concerning abortions to unemancipated minors, and to prepare

a public report that includes information provided by the AOC.

Significant Issues

The CSW believes that the confidentiality of females will be violated, particularly in small towns

where everyone knows each other.

The DOH provided the following:

The Vital Statistics Act mandates that all abortions occurring in New Mexico be reported

to the State Registrar, and that these reports be statistical reports used only for medical

and health purposes and shall not be incorporated into the permanent statistical records of

the system of vital records and health statistics. Additionally, reports shall not include

the name or address of the patient and DOH shall not release the name or address of the

physician involved in the abortion. In 2001 there were 251 abortions performed in New

Mexico on females age 16 and under according to data provided by New Mexico Vital

Records and Health Statistics. A large percentage of impregnated children 15 and under

is reported to have been impregnated due to incest or rape.

Abortion restrictions affect the timing of abortions, resulting in more late term abortions.

Restricting access to timely abortion service may increase the number of unintended and

unwanted live births or late term abortions. A study of adolescent pregnancies from 1974-

1997 in states with parental involvement laws revealed that parental notification laws in-

creased the share of later term abortions by lowering the first trimester abortion rate. A

study in Mississippi before and after the implementation of parental notification for abor-

tion – showed an increase of 19% in the ratio of minors to adults who obtained their abor-

tion after 12 weeks gestation.

Clarification is indicated in the bill’s definition section regarding the definition of “fe-

tus”, which according to Webster’s Medical Desk Dictionary, refers to a developing hu-

man from three months after conception. This bill defines “fetus” as “an individual hu-

man organism from fertilization until birth”. This bill s reference to fertilization also runs

counter to accepted medical definition of pregnancy, which occurs with implantation of

the embryo, not at fertilization. It is possible that many widely utilized contraceptives

may act after fertilization but before implantation.

FISCAL IMPLICATIONS

The DOH will be required to provide administrative support for contacting physicians; follow up

to assure that reports are submitted to the DOH; the statistical compilation of physician reports,

as well as coordination with the administrative offices of the courts in order to assemble an an-

nual public report on adolescent abortion services. This bill does not include any budget to sup-

port these provisions. DOH will need two more FTEs to support these functions at an estimated

cost of $93 thousand.

House Bill 251-- Page 3

HSD states that the payment of abortion claims by the Medicaid Program will be affected so

minimally as to have a negligible fiscal impact.

The AGO will have to defend this bill in the event of a judicial challenge.

Additional costs are anticipated for the judicial branch in conducting judicial bypass proceed-

ings. The AOC states that giving an additional level of priority to specific types of cases in an

effort to reach an expedited adjudication will have a fiscal impact on the court’s operation since

other cases, perhaps of equal importance and severity of criminal charges, may be delayed result-

ing in an increase in caseloads in the courts, thus requiring additional resources to handle the in-

crease.

Further, the bill proposes that AOC provides reports to the DOH. The information is presently

not being collected and will require that a data system be established in order to provide the in-

formation to the DOH on an annual basis.

In addition, there will be a minimal administrative cost for statewide update, distribution, and

documentation of statutory changes. Any additional fiscal impact on the judiciary will be pro-

portional to the enforcement of this law and commenced prosecutions. New laws, amendments

to existing laws, and new hearings have the potential to increase caseloads in the courts, thus re-

quiring additional resources to handle the increase. AOC will also have to pay for court ap-

pointed guardians ad litem in cases where the pregnant female chooses not to consent to the noti-

fication of her parent or guardian and petitions the district court for an order for an abortion

without notification.

ADMINISTRATIVE IMPLICATIONS

The administrative impact to DOH will be significant. This proposes yearly reporting of all phy-

sicians who perform abortions to DOH and the production of an annual report that includes sta-

tistics from the administrative offices of the court. Abortion statistics are presently reported

annually as required by statute.

This bill requires DOH to ensure that all currently licensed physicians be informed of these new

requirements by October 1, 2005 and all physicians who subsequently become licensed in this

state would be so informed at the same time as they receive their license. This bill also proposes

that the DOH will bring court action against individual physicians who have not submitted

timely reports. A minimum of one FTE would be necessary for collection, tracking and reporting

of data and another FTE financial analyst to track non-reporting and associated fines, plus

substantially increased postage and printing.

Medicaid Program regulations will need to be changed.

CYFD’s Protective Services and Juvenile Justice Services staff will be required to engage in case

management and treatment planning for clients consistent with the intent of this legislation.

The AGO personnel will have to defend this bill in the event of a judicial challenge. Additional

costs are anticipated for the judicial branch in conducting judicial bypass proceedings.

House Bill 251-- Page 4

Administrative impact on the courts, both as to adopting rules regarding judicial bypass proceed-

ings and actually conducting those proceedings may be anticipated.

In order to provide 24-hour access, the Court of Appeals will have to set up an emergency tele-

phone number and a workable procedure for contacting three judges for a three-judge panel on

short notice. This procedure may require acquisition and maintenance of pagers or mobile tele-

phones for the judges and appropriate staff. It will also require staff time to monitor the emer-

gency telephones and possible overtime compensation for clerical and legal staff if they were

required to open the court and its offices for filings or emergency hearings. The impact on the

district courts will be similar but will only involve one judge and a court monitor.

DUPLICATION

HB 251 duplicates SB 126.

OTHER SUBSTANTIVE ISSUES

The AGO supplied the following:

The “medical emergency” exception dispensing with notice when the life of the patient is

in danger is too narrowly drawn and will render the act unconstitutional. In this bill 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 al-

low, based on medical judgment, abortions not only when a woman’s life is at risk, but

also when her health is at risk. The courts have affirmed that minors as adults are entitled

to the protections afforded by the constitution.

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. 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.

The judicial bypass procedures may not be specific enough to guarantee the expedited

proceeding to which the unemancipated minor or incompetent is entitled, which will

render the Act unconstitutional. Although the bill requires cases brought by unemanci-

pated minors or incompetents seeking to bypass the notice requirements be “given prece-

dence” 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.

In addition to the mandates of the federal constitution, the New Mexico constitution may

afford greater protections. Our supreme court so held in ruling that the Medicaid regula-

tion restricting state funding of abortions for Medicaid-eligible women violated the Equal

House Bill 251-- Page 5

Rights Amendment of our state constitution. Although our courts have not been faced

with analyzing the issues that arise in parental notice or consent statutes, courts in other

states have. The Supreme Court of New Jersey recently found that the State’s interest in

enforcing its parental notification statute, which is substantially similar to the Act con-

tained in this bill, failed to override the substantial intrusion it imposed on a young

woman's fundamental right to abortion and was unconstitutional under the equal protec-

tion guarantee contained in its state constitution because it imposed no corresponding

limitation on a minor who seeks medical and surgical care otherwise related to her preg-

nancy. Other jurisdictions have recognized a minor’s right to privacy is fundamental, and

because it is implicated in parental consent statutes, the state must be able to satisfy a

strict scrutiny review by demonstrating a compelling state interest that imposes the least

restrictive means available. Consent statutes containing provisions similar to the Act

have not withstood judicial scrutiny of this nature. Most recently, the Alaska Supreme

Court directed the lower court to conduct an evidentiary hearing to determine whether,

under the Alaska Constitution’s guarantee of privacy, the state has a compelling interest

in enforcing its parental consent statute, and, if so, whether that statute contains the least

restrictive means necessary to promote such an interest. Similarly, this bill, if enacted,

may be found unconstitutional under the right to privacy, equal protection, due process or

equal rights guarantees contained in the New Mexico Constitution.

POSSIBLE QUESTIONS

HSD asks the following:

Does this bill apply to the termination of ectopic pregnancies because it could result in death of

the mother.

Does this bill apply to “morning after pills” administered by either a physician or by a pharma-

cist without physician involvement because in most cases it will not be known for certain if the

patient were pregnant.

DW/njw