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

SPONSOR Cravens

ORIGINAL DATE

LAST UPDATED

2/14/07

HB

SHORT TITLE Parental Notification Act

SB 442

ANALYST Ortiz

APPROPRIATION (dollars in thousands)

Appropriation

Recurring

or Non-Rec

Fund

Affected

FY07

FY08

NFI

(Parenthesis ( ) Indicate Expenditure Decreases)

Duplicates SB442

SOURCES OF INFORMATION

LFC Files

Responses Received From

Attorney General’s Office (AGO)

Corrections Department

Administrative Office of the Courts (AOC)

Department of Health (DOH)

Human Services Department (HSD)

Medical Board

SUMMARY

Synopsis of Bill

Senate Bill 442 proposes to enact a new law—the Parental Notification Act—to require parental

or guardian notification at least 48 hours before an abortion is performed on an unemancipated

minor (younger than 16 years) 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 and there is insufficient time to

provide the required notice. 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 procedure must be confidential and expedited, but no time limits are set. The bill also

contains reporting requirements, both on the doctor who performs the procedure and on the

Senate Bill 442 – Page

2

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 misdemeanor. Finally,

it creates a civil cause of action that allows a parent or guardian wrongfully denies notice to sue a

physician who performs an abortion without the requisite notice, and awards attorney fees to the

prevailing party in certain circumstances.

FISCAL IMPLICATIONS

According to DOH, SB442 could require DOH 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 annual public report on adolescent abortion services. SB442 does not include any

budget to support the above-mentioned functions. The cost for two FTE to support these

functions is $93,000.

Fiscal impacts to the AOC are listed below.

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 because other cases, perhaps of

equal importance and severity of criminal charges, may be delayed resulting in an increase in

caseloads in the courts, thus requiring additional resources to handle the increase.

Further, the bill proposes that the administrative office of the courts provide reports to DOH

under the Act. The information is presently not being collected and would require that a data

system be established in order to provide the information to the department of health 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 would be

proportional 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 requiring additional resources to handle the increase.

In order to provide 24-hour access, the court of appeals would have to set up an emergency

telephone 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 and/or

mobile telephones for the judges and appropriate staff. It would also require staff time to

monitor the emergency 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 fiscal impact on the district courts would be similar but would only involve one judge and a

court monitor.

Additional fiscal impact would be incurred by AOC, 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.

SIGNIFICANT ISSUES

The Attorney General’s Office notes the following:

Senate Bill 442 – Page

3

1.

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

danger is too narrowly drawn, and would render the Act unconstitutional. (See discussion

below under Other Substantive Issues.

2.

The provision regarding notice to a guardian or conservator of an incompetent may be

overbroad, and thus unconstitutional. (See discussion below under Other Substantive Issues).

3.

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

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

render the Act unconstitutional.)

4.

Under independent state grounds, the Act may be unconstitutional. (See discussion below

under Other Substantive Issues.)

PERFORMANCE IMPLICATIONS

SB442 relates to the DOH Strategic Plan, Program Area 1, Objective 2: Prevent Teen Pregnancy.

ADMINISTRATIVE IMPLICATIONS

According to DOH administrative impact to could be significant. SB442 proposes yearly

reporting of all physicians who perform abortions to DOH and the production of an annual report

that includes statistics from the administrative offices of the court. Abortion statistics are

presently reported annually in “Selected Health Statistics", as required by statute.

SB442 proposes that DOH would ensure that all currently licensed physicians be informed of

these new requirements by October 1, 2007 and all physicians who subsequently become

licensed in this state would be so informed at the same time as they receive their license. There

are over 6,000 licensed physicians in the State although the number of physicians who actually

perform abortions is very small.

SB442 also proposes that the DOH would 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.

According to AOC, requiring the New Mexico court of appeals and the state district courts to be

accessible 24 hours a day, seven days a week, would have a great administrative impact.

Currently, the court of appeals accepts cases for filing from 8:00 a.m. to 12:00 noon and from

1:00 p.m. to 5:00 p.m. on normal workdays, not including state holidays or weekends. The Court

of Appeals now accepts filings in Santa Fe and Albuquerque. In order to provide 24-hour access,

the court would have to set up an emergency telephone 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 and/or mobile telephones for the judges and appropriate

staff. It would also require staff time to monitor the emergency 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 would be similar to the court of appeals. If the unemancipated

Senate Bill 442 – Page

4

minor or incapacitated person 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 notice, the district court

would need to have a judge and court monitor available to process and hear the case.

If proceedings identified in this bill shall be given precedence over other pending matters before

the court so that the court may reach an expedited decision without delay, there would be an

administrative impact on the courts as a result of additional case priority given to these cases and

an increase in caseload and/or in the amount of time necessary to dispose of this case type.

TECHNICAL ISSUES

The AGO and AOC note the following:

1.

Section 3(A) might contain language concerning the exceptions set forth in Section 4.

2.

Section 3(B) and (C) refer only to the parent, but should include guardians and conservators

of incompetent females (as in 3(A)).

3.

Section 6(A)(2) (page 6, line 6) “of" should be “for".

4.

Section 3.C.: Rather than add language explaining what “restricted delivery to the addressee"

means, amend the language to make its meaning clear, if necessary.

OTHER SUBSTANTIVE ISSUES

The Department of Health notes that SB442 conflicts with the Vital Statistics Act, 24-14-18

NMSA 1978, which 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. The Act mandates that the reports shall not include the name

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

involved in the abortion.

In addition, SB442 also conflicts with the following statutes:

24-8-5 NMSA 1978, which states that “Neither the state, its local governmental units nor any

health facility furnishing family planning services shall subject any person to any standard or

requirement as a prerequisite to the receipt of any requested family planning service…."

24-1-13.1 NMSA 1978 which states that “A health care provider shall have the authority, within

the limits of his license, to provide prenatal, delivery and postnatal care to a female minor. A

female minor shall have the capacity to consent to prenatal, delivery and postnatal care by a

licensed health care provider."

The Attorney General’s Office notes the following:

1.

Medical emergency exception.

As drafted, the notification requirements in SB442 do not

apply upon a physician’s certification that an immediate abortion is necessary to prevent the

death of the unemancipated or incompetent female. 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

Senate Bill 442 – Page

5

acts in Planned Parenthood v. Casey

, 505 U.S. 833, 880 (1992); see too Ayottev. Planned

Parenthood of New England

, 546 U.S. 320, 126 S.Ct. 961 at 967, reaffirming that State’s

cannot restrict access to abortions that are “necessary, in appropriate medical judgment, for

preservation of the life or health" of the female patient. Minors as well as adults are entitled

to the protections afforded by the U.S. Constitution. Planned Parenthood v. Danforth

, 428

U.S. 52, 74 (1967); Belotti v. Baird

, 443 U.S. 622 (1979); see also Hodgson v. Minnesota

,

497 U.S. 417 (1990) (declaring unconstitutional a two-parent notification requirement for a

minor’s abortion without judicial bypass). The Act’s limitation to life-threatening conditions

is unconstitutional. See

Planned Parenthood v. Neely

, 804 F.Supp. 1210 (D.C. Ariz. 1992),

declaring unconstitutional a consent statute that did not contain an exception when health

was threatened; see

also

Planned Parenthood of Blue Ridge v. Camblos

, 155 F.3d 352 (4

th

CA 1998), upholding a notification statute that allowed abortions on minors without

notification when to wait for notification would pose a serious health risk; and see

also

Planned Parenthood of Rock Mountain Serv. v. Owens

, 287 F.3d 910 (10

th

Cir. (Colo.)

2002), declaring unconstitutional requirement of parental notification before performing

abortion on minor except when imminent death of minor, finding statute did not take into

account instances when there is a health risk.

2.

Incompetents

. The term “incompetent" in SB442 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, § 45-35-301.1

(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 an “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 by “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 Belotti

. Glick v.McKay,

937 F.2d 434, 440-441 (9

th

CA 1991),

overruled on other grounds sub

nom

Lambert v. Wicklund

, 520 U.S. 292 (1997); Planned

Parenthood v. Lawall

, 180 F.3d 1022 and 193 F.3d 1042(9

th

CA 1999); compare Memphis

Planned Parenthood v. Sundquist

, 175 F.3d 456 (6

th

CA 1999) (upholding Tennessee

notification statute containing deadlines for hearings and appeals).

4.

Independent State Grounds

. In addition to the mandates of the federal constitution, the New

Mexico constitution may afford greater protections. Our Supreme Court so held in New

Mexico Right to Choose/NARAL v. Johnson

, 126 N.M. 788 (1998), in ruling that the

Medicaid regulation restricting state funding of abortions for Medicaid-eligible women

violated the Equal 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. In 2000, the New Jersey Supreme Court found that the State’s

interest in enforcing its parental notification statute, which is substantially similar to SB442,

failed to override the substantial intrusion it imposed on a young woman’s fundamental right

to abortion and was unconstitutional under the equal protection guarantee contained in its

Senate Bill 442 – Page

6

state constitution (because it imposed no corresponding limitation on a minor who seeks

medical and surgical care otherwise related to her pregnancy). Planned Parenthood of

Central New Jersey v. Farmer

, 762 A.2d 620 (2000). 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 SB442 have not withstood judicial scrutiny of this nature.

See

In re T.W.

, 551 So. 2d 1186, 1195, 1196 (Fla. 1989); see

too

American Pediatrics v.

Lungren

, 940 P.2d 797 (1997) (declaring California’s consent with judicial bypass statute

unconstitutional solely on privacy grounds). Lastly, 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. State v. Planned Parenthood of Alaska

, 35 P.3d 30

(2001). Similarly, SB442, 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.

The judiciary has concerns with unemancipated minors and incapacitated persons entering into

court hearings without representation by legal counsel.

CONFLICT, DUPLICATION, COMPANIONSHIP, RELATIONSHIP

SB 442 duplicates HB239 which would create the Parental Notification Act and allows the

notification be mailed to a guardian or conservator. HB239 list that only the parent receives the

notification.

ALTERNATIVES

Ensure through appropriate funding, an inter-agency and community-based collaboration to

provide adequate counseling for teens with unplanned pregnancies.

POSSIBLE QUESTIONS

Courts already take reasonable action to see that cases are adjudicated in the most expedited

manner possible. Section 4(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.

EO/mt