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Second Regular Session

Sixty-first General Assembly

LLS NO. 98­0822.01D MN HOUSE BILL 98­1384

STATE OF COLORADO

BY REPRESENTATIVES Hefley, Dean, Allen, Arrington, Epps, May, McElhany, Musgrave, Owen, Paschall, and Salaz;

also SENATOR Lamborn.

STATE, VETERANS & MILITARY AFFAIRS

A BILL FOR AN ACT

CONCERNING PARENTAL NOTIFICATION OF A MINOR'S REQUEST FOR AN ABORTION.

Bill Summary

(Note: This summary applies to this bill as introduced and does not necessarily reflect any amendments that may be subsequently adopted.)

Enacts the "Parental Notification Act".

Requirements. Requires any physician who performs an abortion on a minor to:

! Obtain written consent from the minor;

! Serve written notice on the minor's parent; and

! Wait until 48 hours after service of notice on the parent before performing the abortion.

Defines a "parent" as the natural or adoptive mother or father living together or having joint custody, the natural or adoptive mother or father if only one is living, the natural or adoptive mother or father having legal custody of a minor, a legal guardian, or a legal custodian.

Service of notice. Specifies the procedures for serving notice on the parent and obtaining and preserving written proof of service.

Emergency exception. In case of emergency, allows the attending physician to perform an abortion on a minor without obtaining written consent or notifying the minor's parent, but requires the attending physician to submit a report of the procedure to the parent within 48 hours after performing the abortion.

Judicial waiver. Establishes procedures under which the minor may petition the court for a waiver of the parental notification requirement. Provides procedures for appealing the court's decision to deny a waiver.

Construction. Specifies that the act does not create a right to an abortion and does not legalize an otherwise illegal abortion.

Criminal penalty. Makes it a misdemeanor to perform an abortion in violation of the act. Provides that an attending physician who violates any provision of the act engages in unprofessional conduct. Establishes failure to serve notice on a parent as prima facie evidence of negligence in a civil action.

Makes a conforming amendment.


Be it enacted by the General Assembly of the State of Colorado:

SECTION 1.  Part 1 of article 22 of title 13, Colorado Revised Statutes, is amended BY THE ADDITION OF A NEW SECTION to read:

13­22­107.  Minors ­ termination of pregnancy ­ parental notification. (1)  Short title. THIS SECTION SHALL BE KNOWN AND MAY BE CITED AS THE "PARENTAL NOTIFICATION ACT".

(2)  Legislative declaration. THE GENERAL ASSEMBLY HEREBY FINDS AND DECLARES THAT PARENTS OF MINORS NEED TO BE INVOLVED IN MAJOR DECISIONS THAT AFFECT THE HEALTH, WELFARE, AND WELL­BEING OF SUCH MINORS. A MINOR'S DECISION TO TERMINATE A PREGNANCY IS SUCH A DECISION.

(3)  Definitions. AS USED IN THIS SECTION, UNLESS THE CONTEXT OTHERWISE REQUIRES:

(a)  "ABORTION" MEANS THE INTENTIONAL USE OF AN INSTRUMENT, DRUG, OR OTHER SUBSTANCE OR DEVICE TO TERMINATE A PREGNANCY FOR A PURPOSE OTHER THAN TO INCREASE THE PROBABILITY OF A LIVE BIRTH OR TO REMOVE THE REMAINS OF AN UNBORN OFFSPRING. "ABORTION" DOES NOT INCLUDE THE USE OF A DRUG OR DEVICE MANUFACTURED AND INTENDED TO BE USED AS A CONTRACEPTIVE DRUG OR DEVICE.

(b)  "COURT" MEANS THE DISTRICT COURT FOR THE JUDICIAL DISTRICT IN WHICH A MINOR RESIDES OR CAN BE FOUND OR THE DENVER PROBATE COURT IF THE MINOR RESIDES OR CAN BE FOUND IN THE CITY AND COUNTY OF DENVER.

(c)  "EMERGENCY" MEANS ANY CIRCUMSTANCE UNDER WHICH THE CONTINUATION OF A PREGNANCY OF A MINOR WOULD LEAD TO THE IMMINENT DEATH OR THE SUBSTANTIAL IMPAIRMENT OF A MAJOR BODILY FUNCTION OF THE PREGNANT MINOR.

(d)  "MINOR" MEANS ANY UNEMANCIPATED FEMALE, WHETHER A RESIDENT OF THIS STATE OR ANY OTHER STATE, WHO IS UNDER EIGHTEEN YEARS OF AGE.

(e)  "NEXT FRIEND" MEANS A PERSON WHO IS TWENTY­ONE YEARS OF AGE OR OLDER AND IS NOT ANY OF THE FOLLOWING:

(I)  AN ATTENDING PHYSICIAN WHO PERFORMS ABORTIONS;

(II)  A PERSON EMPLOYED BY OR WHO RECEIVES FINANCIAL CONSIDERATION FROM AN ATTENDING PHYSICIAN WHO PERFORMS ABORTIONS OR AN ORGANIZATION THAT PROVIDES ABORTIONS, ABORTION COUNSELING, ABORTION REFERRAL SERVICES, OR ANY OTHER SERVICE IN CONNECTION WITH THE PERFORMANCE OF ABORTIONS;

(III)  A PERSON WHO SERVES AS A BOARD MEMBER OR VOLUNTEER FOR ANY ORGANIZATION DESCRIBED IN SUBPARAGRAPH (II) OF THIS PARAGRAPH (e);

(IV)  THE FATHER OF THE UNBORN OFFSPRING OR A RELATIVE OF THE FATHER OF THE UNBORN OFFSPRING.

(f)  "PARENT" MEANS:

(I)  THE NATURAL OR ADOPTIVE MOTHER AND FATHER LIVING TOGETHER OR HAVING JOINT CUSTODY OF THE MINOR;

(II)  THE NATURAL OR ADOPTIVE MOTHER OR FATHER OF THE MINOR, IF ONLY ONE IS LIVING;

(III)  THE NATURAL OR ADOPTIVE MOTHER OR FATHER HAVING LEGAL CUSTODY OF THE MINOR;

(IV)  A LEGAL GUARDIAN OR A LEGAL CUSTODIAN IF ONE HAS BEEN APPOINTED FOR THE MINOR.

(g)  "PHYSICIAN" MEANS THE ATTENDING PHYSICIAN OR ANY MEMBER OF THE PHYSICIAN'S STAFF WHO IS TWENTY­ONE YEARS OF AGE OR OLDER.

(4)  Parental notice required. (a) (I)  EXCEPT AS OTHERWISE PROVIDED IN SUBSECTION (5) OF THIS SECTION, BEFORE PERFORMING AN ABORTION ON A PREGNANT MINOR, AN ATTENDING PHYSICIAN SHALL OBTAIN WRITTEN CONSENT FROM THE PREGNANT MINOR AND SHALL WAIT UNTIL FORTY­EIGHT HOURS AFTER NOTICE HAS BEEN SERVED ON THE PREGNANT MINOR'S PARENT IN ACCORDANCE WITH PARAGRAPH (b) OF THIS SUBSECTION (4).

(II)  THE REQUIREMENTS OF THIS SUBSECTION (4) SHALL NOT APPLY TO AN ATTENDING PHYSICIAN WHO HAS OBTAINED A COPY OF A COURT ORDER WAIVING THE PARENTAL NOTIFICATION PROVISION OF THIS SUBSECTION (4) FOR A PREGNANT MINOR IN ACCORDANCE WITH THE PROVISIONS OF SUBSECTION (6) OF THIS SECTION AND THEREAFTER PERFORMS AN ABORTION ON SUCH PREGNANT MINOR.

(b) (I)  THE ATTENDING PHYSICIAN SHALL SERVE WRITTEN NOTICE ON A PREGNANT MINOR'S PARENT AT THE PARENT'S USUAL PLACE OF RESIDENCE BY PERSONAL SERVICE OR BY FIRST­CLASS CERTIFIED MAIL, RETURN RECEIPT REQUESTED, AND SIGNED BY THE PREGNANT MINOR'S PARENT ONLY. PERSONAL SERVICE SHALL BE MADE ONLY BY PERSONS AUTHORIZED TO SERVE PROCESS UNDER RULE 4 OF THE COLORADO RULES OF CIVIL PROCEDURE. NOTICE IS DEEMED SERVED ON THE DATE OF PERSONAL SERVICE OR, IF BY MAIL, THE DATE OF RECEIPT. A NOTICE SHALL BE SEALED AND MARKED "PERSONAL AND CONFIDENTIAL".

(II)  THE FOLLOWING SHALL CONSTITUTE WRITTEN PROOF OF SERVICE:

(A)  IF NOTICE IS SERVED BY PERSONAL SERVICE, AN AFFIDAVIT COMPLETED BY THE PERSON WHO PERSONALLY SERVES NOTICE ON THE PREGNANT MINOR'S PARENT, WHICH AFFIDAVIT STATES THE DATE, TIME, PLACE, AND MANNER OF PERSONAL SERVICE; OR

(B)  IF NOTICE IS SERVED BY MAIL, AN AFFIDAVIT BY THE PERSON MAILING THE NOTICE TO THE PREGNANT MINOR'S PARENT, WHICH AFFIDAVIT STATES THE DATE, TIME, AND PLACE OF THE RECEIPT.

(III)  ANY WRITTEN PROOF OF SERVICE DESCRIBED IN SUBPARAGRAPH (II) OF THIS PARAGRAPH (b) SHALL BE SUBMITTED TO THE ATTENDING PHYSICIAN WHO SHALL MAINTAIN WRITTEN PROOF OF SERVICE IN THE MINOR'S MEDICAL RECORD. IN ADDITION TO WRITTEN PROOF OF SERVICE, AN ATTENDING PHYSICIAN SHALL MAINTAIN IN THE MINOR'S MEDICAL RECORD ANY RETURN RECEIPT SIGNED BY THE MINOR'S PARENT.

(5)  Emergency terminations. NOTWITHSTANDING THE REQUIREMENTS SET FORTH IN SUBSECTIONS (4) AND (6) OF THIS SECTION, AN ATTENDING PHYSICIAN MAY PERFORM AN ABORTION ON A PREGNANT MINOR IN AN EMERGENCY IF THERE IS INSUFFICIENT TIME TO PROVIDE THE NOTICE PURSUANT TO THE REQUIREMENTS SET FORTH IN SUBSECTION (4) OF THIS SECTION. AN ATTENDING PHYSICIAN WHO PERFORMS AN ABORTION ON A PREGNANT MINOR PURSUANT TO THE PROVISIONS OF THIS SUBSECTION (5) SHALL BE REQUIRED TO SUBMIT A WRITTEN REPORT OF THE PROCEDURE TO THE PARENTS OF SUCH MINOR WITHIN FORTY­EIGHT HOURS AFTER THE ABORTION HAS BEEN PERFORMED.

(6)  Judicial waiver. (a)  THE COURT SHALL HAVE EXCLUSIVE JURISDICTION OVER A PETITION FOR WAIVER OF THE PARENTAL NOTIFICATION REQUIREMENT SET FORTH IN SUBSECTION (4) OF THIS SECTION. JUDICIAL PROCEEDINGS FOR WAIVER OF THE PARENTAL NOTIFICATION REQUIREMENT SHALL BE STRICTLY CONFIDENTIAL AND SHALL BE CONSIDERED PROMPTLY ENOUGH TO PROVIDE AN EFFECTIVE OPPORTUNITY FOR A MINOR TO OBTAIN A WAIVER OF THE PARENTAL NOTIFICATION REQUIREMENT AND, THEREAFTER, TO OBTAIN A SAFE AND TIMELY ABORTION.

(b)  THE COURT SHALL GRANT A PREGNANT MINOR'S PETITION TO WAIVE THE PARENTAL NOTIFICATION REQUIREMENT IF THE COURT FINDS BY A PREPONDERANCE OF THE EVIDENCE AT THE HEARING REQUIRED PURSUANT TO PARAGRAPH (d) OF THIS SUBSECTION (6) THAT:

(I)  WAIVER OF THE PARENTAL NOTIFICATION REQUIREMENT IS IN THE MINOR'S BEST INTEREST BECAUSE THE PREGNANCY IS THE RESULT OF INCEST OR SEXUAL ABUSE OR BECAUSE THERE IS A SUBSTANTIAL RISK THAT THE MINOR WILL BE SUBJECT TO PHYSICAL ABUSE IF EITHER PARENT IS NOTIFIED; OR

(II)  THE PREGNANT MINOR IS A HOMELESS YOUTH, AS DEFINED IN SECTION 26­5.7­102, C.R.S., AND WAIVER OF THE PARENTAL NOTIFICATION REQUIREMENT IS IN SUCH MINOR'S BEST INTEREST; OR

(III)  A GOOD FAITH AND REASONABLE ATTEMPT TO PROVIDE NOTIFICATION PURSUANT TO THE PROVISIONS OF PARAGRAPH (b) OF SUBSECTION (4) OF THIS SECTION HAS BEEN UNSUCCESSFUL AND WAIVER OF THE PARENTAL NOTIFICATION REQUIREMENT IS IN THE MINOR'S BEST INTEREST.

(c)  A COURT SHALL APPLY THE FOLLOWING FILING REQUIREMENTS TO A REQUEST FOR A WAIVER OF PARENTAL NOTIFICATION:

(I)  UPON A MINOR'S REQUEST FOR A WAIVER, THE COURT SHALL ADVISE THE MINOR OF THE FOLLOWING RIGHTS:

(A)  THE RIGHT TO STRICT CONFIDENTIALITY IN CONNECTION WITH THE PROCEEDINGS;

(B)  THE RIGHT TO A COURT­APPOINTED ATTORNEY OR GUARDIAN AD LITEM;

(C)  THE RIGHT TO ASSISTANCE IN PREPARING AND FILING A PETITION.

(II)  UPON A MINOR'S REQUEST FOR ASSISTANCE, THE COURT SHALL PROVIDE THE MINOR WITH ASSISTANCE IN PREPARING AND FILING A PETITION.

(III)  THE COURT SHALL NOT REQUIRE A MINOR TO PAY A FEE IN CONNECTION WITH FILING A PETITION PURSUANT TO THIS SUBSECTION (6).

(IV)  IF THE MINOR CHOOSES, A NEXT FRIEND MAY FILE A PETITION ON BEHALF OF THE MINOR.

(V)  UPON REQUEST BY THE MINOR AND WITHIN TWENTY­FOUR HOURS AFTER THE REQUEST, THE COURT SHALL APPOINT AN ATTORNEY OR A GUARDIAN AD LITEM FOR THE MINOR.

(VI)  THE CAPTION OF A PETITION SHALL USE THE INITIALS OF THE MINOR TO ENSURE CONFIDENTIALITY.

(VII)  THE COURT SHALL ADVISE THE MINOR OF THE PENALTIES FOR PERJURY IN CONNECTION WITH THE MINOR'S AVERMENTS IN HER PETITION.

(d)  THE COURT SHALL APPLY THE FOLLOWING PROCEDURES TO HEARINGS ON A PETITION FOR WAIVER OF THE PARENTAL NOTIFICATION REQUIREMENT:

(I)  A HEARING SHALL BE HELD ON A PETITION WITHIN SEVENTY­TWO HOURS AFTER THE PETITION HAS BEEN FILED.

(II)  THE HEARING SHALL BE CLOSED TO THE PUBLIC, AND ANY RECORD RELATED TO ANY PROCEEDINGS IN CONNECTION WITH THE PETITION SHALL BE SEALED AND SHALL NOT BE A PUBLIC RECORD SUBJECT TO INSPECTION UNDER ARTICLE 72 OF TITLE 24, C.R.S.

(III)  THE COURT SHALL ENTER SPECIFIC FINDINGS OF FACT AND CONCLUSIONS OF LAW INTO THE RECORD AND AS PART OF ANY ORDER ISSUED BY THE COURT.

(IV)  THE COURT SHALL ISSUE AN ORDER GRANTING OR DENYING THE MINOR'S PETITION WITHIN FORTY­EIGHT HOURS AFTER THE COURT HOLDS A HEARING ON THE PETITION.

(e)  IF THE COURT DENIES A MINOR'S PETITION, THE MINOR MAY APPEAL THE COURT'S DECISION TO THE COLORADO COURT OF APPEALS. AN APPEAL SHALL BE CONSIDERED EXPEDITIOUSLY AND SHALL BE CONFIDENTIAL. A NOTICE OF APPEAL SHALL BE FILED WITHIN TWENTY­FOUR HOURS AFTER THE COURT ISSUES AN ORDER DENYING THE MINOR'S PETITION, AND THE APPEAL SHALL BE PERFECTED WITHIN SEVENTY­TWO HOURS AFTER THE FILING OF THE NOTICE OF APPEAL. THERE IS NO RIGHT OF APPEAL IF THE COURT GRANTS THE MINOR'S PETITION.

(f)  IN THE EVENT THAT THE COURT GRANTS THE PETITION BASED UPON THE PROVISIONS OF SUBPARAGRAPH (I) OF PARAGRAPH (b) OF THIS SUBSECTION (6), THE COURT SHALL IMMEDIATELY THEREUPON:

(I)  MAKE A REPORT OF CHILD ABUSE TO THE APPLICABLE COUNTY DEPARTMENT OF SOCIAL SERVICES IN ACCORDANCE WITH THE PROVISIONS OF THE "CHILD PROTECTION ACT OF 1987", PART 3 OF ARTICLE 3 OF TITLE 19, C.R.S.;

(II)  INFORM THE MINOR OF THE APPLICABLE STATE CHILD PROTECTION LAWS; AND

(III)  APPOINT AN ATTORNEY TO REPRESENT THE MINOR IN ANY CHILD PROTECTION PROCEEDING.

(7)  Construction of section. NOTHING IN THIS SECTION SHALL BE CONSTRUED TO CREATE ANY RIGHT FOR A WOMAN TO OBTAIN AN ABORTION. ANY ABORTION THAT IS OTHERWISE PROHIBITED BY LAW MAY NOT BE PERFORMED PURSUANT TO THIS SECTION.

(8)  Penalties ­ criminal and civil ­ evidence in civil actions. (a)  AN ATTENDING PHYSICIAN WHO INTENTIONALLY PERFORMS AN ABORTION IN VIOLATION OF THIS SECTION IS GUILTY OF A CLASS 1 MISDEMEANOR AND SHALL BE PUNISHED AS PROVIDED IN SECTION 18­1­106, C.R.S.

(b)  THE FACT THAT AN ATTENDING PHYSICIAN PERFORMED AN ABORTION WITHOUT FIRST PROVIDING PARENTAL NOTIFICATION IN ACCORDANCE WITH SUBSECTION (4) OF THIS SECTION OR OBTAINING A COPY OF THE COURT'S ORDER WAIVING THE PARENTAL NOTIFICATION REQUIREMENT SHALL BE PRIMA FACIE EVIDENCE IN APPROPRIATE CIVIL ACTIONS THAT THE ATTENDING PHYSICIAN NEGLIGENTLY PERFORMED AN ABORTION.

(c)  NOTWITHSTANDING THE PROVISIONS OF SUBSECTION (4) OF THIS SECTION, A MINOR'S CONSENT TO AN ABORTION SHALL BE DEEMED TO BE INVALID IF AN ATTENDING PHYSICIAN DOES NOT COMPLY WITH ANY OF THE PROVISIONS OF THIS SECTION.

(d)  AN ATTENDING PHYSICIAN WHO FAILS TO COMPLY WITH ANY OF THE PROVISIONS OF THIS SECTION ENGAGES IN UNPROFESSIONAL CONDUCT AS SET FORTH IN SECTION 12­36­117, C.R.S.

SECTION 2. 12­36­117 (1), Colorado Revised Statutes, is amended BY THE ADDITION OF A NEW PARAGRAPH to read:

12­36­117. Unprofessional conduct. (1)  "Unprofessional conduct" as used in this article means:

(jj)  FAILING TO COMPLY WITH ANY OF THE PROVISIONS OF SECTION 13­22­107, C.R.S.

SECTION 3.  Effective date ­ applicability. This act shall take effect July 1, 1998, and section 13­22­107 (8) (a), Colorado Revised Statutes, shall apply to offenses committed on or after said date.

SECTION 4.  Safety clause. The general assembly hereby finds, determines, and declares that this act is necessary for the immediate preservation of the public peace, health, and safety.