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H.688

Introduced by   Representatives Marcotte of Coventry, Canfield of Fair Haven, Clark of St. Johnsbury, Dates of Shelburne, Donaghy of Poultney, Flory of Pittsford, Gervais of Enosburg, Houston of Ferrisburgh, Howrigan of Fairfield, Hudson of Lyndon, Kennedy of Chelsea, Kilmartin of Newport City, Larocque of Barnet, Lawrence of Lyndon, Louras of Rutland City, Otterman of Topsham, Parent of St. Albans City, Pillsbury of Brattleboro, Shaw of Derby, Sunderland of Rutland Town, Valliere of Barre City and Winters of Swanton

Referred to Committee on

Date:

Subject:  Health; abortion; parental notification

Statement of purpose:  This bill proposes to require at least one parent or a guardian of an unemancipated minor to receive written notice at least 48 hours before an abortion is performed on the minor.  Notification is not required if the abortion is necessary to prevent death or serious bodily injury to the minor, or if a court finds one of the following by clear and convincing evidence:

(1)  the minor is sufficiently mature to decide whether to terminate her pregnancy and provide for her own postabortion care and understands the nature, risks, and consequences of the procedure to be performed;

(2)  notification would place the minor at substantial risk of being physically or emotionally harmed by a parent or guardian;

(3)  notification would cause irreparable harm to the minor’s relationship with her parent or guardian; or

(4)  notification is not in the best interests of the minor.

The bill also requires health care providers to provide, to the extent already required by the providers’ code of professional conduct, pregnancy counseling and information before providing pregnancy-related services to a minor.  The requirement does not apply in cases of medical emergency.

AN ACT TO REQUIRE PARENTAL NOTIFICATION PRIOR TO PERFORMING AN ABORTION ON AN UNEMANCIPATED MINOR

It is hereby enacted by the General Assembly of the State of Vermont:

Sec. 1.  FINDINGS

The General Assembly finds:

(1)  Despite the fact that violent crime in Vermont and the nation has declined, convictions for sex offenses in Vermont have increased five fold in the last 20-year period, and of Vermont's population of incarcerated males the most frequently occurring, most serious offense is sexual assault on a minor.

(2)  The fastest growing segment of the Vermont inmate population is women, and a department of corrections profile of Vermont incarcerated women indicates that over 40 percent have been sexually abused as a child and over 30 percent have been sexually abused as an adult.

(3)  As many as 75 percent of women in treatment for alcoholism report a history of incest or childhood sexual abuse, and up to 70% of women in drug abuse treatment report a history of repeated physical and sexual abuse before age 11.

(4)  Sixty-two percent of pregnant or parenting adolescents have experienced contact molestation, attempted rape, or rape prior to their first pregnancy; between 11 and 20 percent of girls become pregnant as a direct result of sexual assault.

(5)  Parental involvement, where possible, can provide essential support, especially when a minor is facing a personal crisis resulting from harm, and therefore should be required by abortion providers.

(6)  Where parental involvement is not possible, it should be required that a minor have an adult named to fill the advisory role to support the minor in such cases.

(7)  Therefore, the state of Vermont shall take additional measures to reduce the incidence of sexual abuse of minors, and young women in particular, by notification of parents or guardians not responsible for the abuse and by notification of the proper authorities when such abuse is discovered.


Sec. 2.  18 V.S.A. chapter 115 is added to read:

CHAPTER 115.  PARENTAL NOTIFICATION OF ABORTION

§ 5280.  Definitions

As used in this chapter:

(1)  “Abortion” means the use of any means to terminate the pregnancy of a female known to be pregnant with knowledge that the termination with those means will, with reasonable likelihood, cause the death of the fetus.

(2)  “Fetus” means any individual human organism from fertilization until birth.

(3)  “Health care provider” means any health care professional who is authorized to perform an abortion and is proposing to provide an abortion.   

§ 5281.  Notification

No abortion shall be performed upon an unemancipated minor or upon a minor for whom a guardian has been appointed, according to subdivisions 2645(1), (2), (3), and (4) of Title 14, until 48 hours after written notification of the pending abortion has been delivered to at least one parent of the unemancipated minor or to the guardian of the minor.  The notification shall be delivered at the parent’s or guardian’s usual place of abode, if possible; otherwise, at any other appropriate place, and shall be:

(1)  personally delivered to the parent or guardian by the attending health care provider proposing to provide the abortion or an agent of the health care provider; or

(2)  sent to the parent or guardian by certified mail, return receipt requested, delivery restricted to the addressee.  Time of delivery shall be deemed to occur at the time the return receipt is signed by the recipient.

§ 5282.  Limitations

Notification required under section 5281 of this title shall not be required if:

(1)  the attending health care provider proposing to provide the abortion certifies in the minor’s medical record that the abortion is necessary to prevent the minor’s death or serious physical injury to the minor, and there is insufficient time to provide the required notification to a parent or guardian; or

(2)  the parent or guardian entitled to notification certifies in writing, with proof of identification, that he or she has been notified of the minor’s intent to have an abortion; or 

(3)  a court authorizes the health care provider to proceed with the abortion pursuant to the following procedure:

(A)  A minor, with the assistance of her health care provider and without notification to a parent or guardian, may petition any probate court for a waiver of the parental notification requirement.  The petition shall be in simple form prescribed by rules adopted by the Vermont supreme court, and shall include a statement that the petitioner is pregnant, that notification has not been waived, and that the minor has not petitioned any other court for a waiver to the notification requirement relating to this pregnancy.

(B)  The probate court shall forthwith appoint an attorney and an appropriately-trained guardian ad litem for the minor.

(C)  The probate court shall hold an ex parte hearing on a petition filed under this subdivision (3), which may be in a setting other than a traditional courtroom.  The hearing shall be informal and closed to the public.  Strict rules of evidence shall not apply.  Witnesses shall be sworn and the testimony shall be audio recorded.  A copy of the audio recording shall be made available to the minor without cost.

(D)  Probate court proceedings under this subdivision (3) shall be given precedence over other pending matters to the extent necessary to ensure that the court reaches a decision promptly and in the best interests of the minor. 

(E)  The probate court shall hear the matter and issue a written entry order within three business days after the petition is filed, except that the three‑business-day limitation may be extended at the request of the minor.  A certified copy of the court’s written entry order shall be sent to the minor’s health care provider.  If the court fails to rule within three business days of receiving the petition or fails to rule by the expiration of any extension, the petition is granted.  A certified copy of the automatic waiver of parental notification shall be delivered forthwith to the minor’s health care provider.  

(F)  The probate court shall issue an order authorizing the minor to consent to an abortion without the notification of a parent or guardian if the court finds, by clear and convincing evidence, any of the following:

(i)  upon an evaluation of relevant factors, including a minor’s age, intelligence, reasoning ability, and emotional state, the minor is sufficiently mature to decide whether to terminate her pregnancy and provide for her own post-abortion care, and understands the nature, risks and consequences of the procedure to be performed;

(ii)  notification would place the minor at substantial risk of being physically or emotionally harmed by a parent or guardian;

(iii)  notification would cause irreparable harm to the minor’s relationship with her parent or guardian; or

(iv)  notification is not in the best interests of the minor. 

(G)  All records of proceedings that take place under this section shall remain confidential and be placed under seal.  Any information that is sent to the minor’s health care provider in accordance with this section shall become part of the minor’s confidential medical record.

(H)  For purposes of this section, any probate judge who grants a waiver of notification based upon a decision that the pregnancy is a result of abuse, neglect, or the commission of a crime against the minor, or any guardian ad litem who has a suspicion that the pregnancy is a result of abuse, neglect, or the commission of a crime against the minor, shall report or cause a report to be made within 24 hours after the decision, in accordance with the provisions of sections 4913 and 4914 of Title 33.   

§ 5283.  APPEAL

An expedited, confidential appeal to the presiding judge of the family court in the county in which the probate court action occurred, pursuant to section 5282 of this title, shall be available to any minor for whom the probate court denies a waiver of notification. 

(1)  Notice of an appeal must be filed in family court within 11 days of the probate court decision. 

(2)  Within three business days of filing the notice of appeal, the presiding judge of the family court shall conduct a hearing de novo and issue a decision, including findings of fact and conclusions of law, on this matter.  The three-business-day limitation may be extended at the request of the minor. 

(3)  The presiding judge of the family court shall hold an ex parte hearing on a notice of appeal filed under this section, which may be in a setting other than a traditional courtroom.  The hearing shall be informal and closed to the public.  Strict rules of evidence shall not apply.  Witnesses shall be sworn and the testimony shall be audio recorded.  A copy of the audio recording shall be made available to the minor without cost.

(4)  Family court proceedings under this section shall be given precedence over other pending matters to the extent necessary to ensure that the court reaches a decision promptly and in the best interests of the minor. 

(5)  A certified copy of the family court’s written decision shall be sent to the minor’s health care provider.  If the family court fails to rule within three business days of receiving the notice of appeal or fails to rule by the expiration of any extension, the request for a waiver of notification is granted.  A certified copy of the automatic waiver of parental notification shall be delivered forthwith to the minor’s health care provider.  

(6)  The presiding judge of the family court shall issue an order authorizing the minor to consent to an abortion without the notification of a parent or guardian if the court finds, by clear and convincing evidence, that any of the requirements of subdivision 5282(3)(F) of this chapter have been met.

(7)  All records of proceedings that take place under this section shall remain confidential and be placed under seal.  Any information that is sent to the minor’s health care provider in accordance with this section shall become part of the minor’s confidential medical record.

(8)  For purposes of this section, any presiding judge of a family court who grants a waiver of notification based upon a finding that the pregnancy is a result of abuse, neglect, or the commission of a crime against the minor, or any guardian ad litem who has a suspicion that the pregnancy is a result of abuse, neglect, or the commission of a crime against the minor, shall report or cause a report to be made within 24 hours after the finding has been made, in accordance with the provisions of sections 4913 and 4914 of Title 33.

§ 5284.  LIMITATIONS ON APPEAL

An order authorizing an abortion without notification shall not be subject to appeal.

§ 5285.  RECUSAL; FEES AND COSTS 

(a)  In the event of a judge’s recusal, a substitute judge shall be appointed immediately, and the hearing and decision shall be concluded within two business days thereafter.

(b)  No filing fees or court costs shall be required of the minor in either the probate court or the family court.

Sec. 3.  4 V.S.A. § 311 is amended to read:

§ 311.  JURISDICTION GENERALLY

The probate court shall have jurisdiction of the probate of wills, the settlement of estates, trusts created by will, trusts of absent person's estates, charitable, cemetery, and philanthropic trusts, irrevocable trusts created by inter vivos agreements solely for the purpose of removal and replacement of trustees pursuant to subsection 2314(c) of Title 14, the appointment of guardians, and of the powers, duties, and rights of guardians and wards, accountings of attorneys in fact where no guardian has been appointed and the agent has reason to believe the principal is incompetent, relinquishment for adoption, adoptions, uniform gifts to minors, changes of name, issuance of new birth certificates, amendment of birth certificates, correction or amendment of marriage certificates, correction or amendment of death certificates, emergency waiver of premarital medical certificates, proceedings relating to cemetery lots, trusts relating to community mausoleums or columbariums, proceedings relating to the conveyance of a homestead interest of an insane spouse, the issuance of declaratory judgments, issuance of certificates of public good authorizing the marriage of persons under 16 years of age, waiver of parental notification prior to performing an abortion on an unemancipated minor, appointment of administrators to discharge mortgagees, appointment of trustees for persons confined under sentences of imprisonment, fixation of compensation and expenses of boards of arbitrators of death taxes of Vermont domiciliaries, and as otherwise provided by law.

Sec. 4.  4 V.S.A. § 311a is amended to read:

§ 311a.  VENUE GENERALLY

For proceedings authorized to probate courts, venue shall lie in a district of the court as follows:

* * *

(29)  Waiver of parental notification prior to performing an abortion on an unemancipated minor:  in the district or county where the minor petitions the probate court for a waiver of the parental notification requirement.

Sec. 5.  4 V.S.A. § 454 is amended to read:

§ 454.  JURISDICTION

(a)  Notwithstanding any other provision of law to the contrary, the family court shall have exclusive jurisdiction to hear and dispose of the following proceedings filed or pending on or after October 1, 1990.  The family court shall also have exclusive jurisdiction to hear and dispose of any requests to modify or enforce any orders issued by the district or superior court relating to the following proceedings:

* * *

(b)  The family court shall have appellate jurisdiction to hear and dispose of an appeal from the probate court regarding a waiver of parental notification prior to performing an abortion on an unemancipated minor. 

Sec. 6.  18 V.S.A. chapter 42A is added to read:

CHAPTER 42A.  PREGNANCY INFORMATION

AND COUNSELING FOR MINORS

§ 1870.  PROVISION OF INFORMATION AND COUNSELING

Prior to providing services related to pregnancy, a health care provider, as defined in subdivision 9432(8) of this title, or a mental health professional, as defined in subdivision 7101(13) of this title, shall, to the extent already required by the providers’ code of professional conduct, provide information and counseling in a manner and language that will be understood by the minor, including:

(1)  an explanation that the information is being given objectively, and is not intended to coerce, persuade, or induce the minor to make a particular decision;

(2)  an explanation that the minor may withdraw or reconsider a decision related to her pregnancy, within certain limits, which shall also be explained to her;

(3)  an explanation to the minor of the options available for managing pregnancy decisions and follow-up care;

(4)  an explanation that public and private agencies are available to assist the minor with services related to her pregnancy, and that a list of these agencies and the services available from each will be provided if the minor requests;

(5)  a discussion of the possibility of involving the minor’s parents, guardian or other adult family members in the minor’s reproductive health care decision‑making; and

(6)  an adequate opportunity for the minor to ask questions and receive answers concerning reproductive health care.  The health care provider and mental health professional shall indicate where the minor can receive the information requested if he or she is unable to provide such information.

§ 1871.  MEDICAL EMERGENCY EXCEPTION

Information and counseling required under section 1870 of this title shall not be required if a health care provider determines that a medical emergency exists and complicates the pregnancy or the health, safety, or well-being of the

minor to the extent that an immediate abortion is necessary.



Published by:

The Vermont General Assembly
115 State Street
Montpelier, Vermont


www.leg.state.vt.us