AB312: Bill Text

LRB-1990/1

GMM:wlj&ksh:hmh

1999 - 2000 LEGISLATURE

1999 Assembly BILL 312

April 27, 1999 - Introduced by Representatives Kedzie, Plale, Kestell, Pettis, M. Lehman, Handrick, Porter, Hahn, Ward, Huebsch, Meyerhofer, Johnsrud, F. Lasee, Ainsworth, Kreibich, Owens, Hoven, Goetsch, Walker, Ladwig, Grothman, Albers, Duff, Sykora, Gard, Freese, Vrakas, Gunderson, Petrowski, Montgomery, Ziegelbauer, Staskunas, Urban, Ryba, Seratti, Ott, Rhoades, Leibham, Wieckert, Powers, Suder, Nass, Jeskewitz, Hundertmark and Gundrum, cosponsored by Senators Welch, Schultz, Fitzgerald, Breske, Zien, Roessler, Farrow and Drzewiecki. Referred to Committee on Judiciary and Personal Privacy.

AB312,1,10 An Act to repeal 48.375 (2) (b), 48.375 (2) (em), 48.375 (4) (b) 1m. and 48.375 (7) (bm); and to amend 46.24, 48.23 (1) (cm), 48.257 (1) (h), 48.257 (4), 48.27 (9), 48.273 (4) (b), 48.375 (2) (c), 48.375 (4) (a) 1., 48.375 (4) (b) 1., 48.375 (4) (b) 3., 48.375 (6), 48.375 (7) (a) (intro.), 48.375 (7) (a) 4., 48.375 (7) (b) (intro.), 48.375 (7) (d), 48.375 (7) (f), 69.186 (1) (j), 809.105 (2), 809.105 (3) (a), 809.105 (3) (d), 809.105 (5), 809.105 (8), 809.105 (8m), 809.105 (9), 809.105 (10), 809.105 (11) (a) (intro.), 809.105 (11) (a) 3., 809.105 (11) (cm), 809.105 (11) (d), 809.105 (11) (e), 809.105 (13) and 895.037 (3) (a) of the statutes; relating to: the requirement that an unemancipated minor obtain parental or other consent or a judicial waiver of that consent requirement before she have an abortion.

Analysis by the Legislative Reference Bureau

This bill makes various changes to the law that requires an unemancipated minor to obtain parental or other consent or a judicial waiver of that consent requirement before she may have an abortion (generally referred to as "the parental consent" law).

Consent or judicial waiver requirement.

Under current law, subject to certain exceptions, before an unemancipated minor may have an abortion, she must have the written consent of one of her parents; or of her guardian or legal custodian, if one has been appointed; or of an adult family member; or one of her foster parents or treatment foster parents, if the minor has been placed in a foster home or a treatment foster home and the minor's parent has signed a waiver granting the department of health and family services, a county department of human services or social services, the foster parent or the treatment foster parent the authority to consent to medical services or treatment on behalf of the minor; unless the minor obtains a waiver of this requirement from the circuit court. Current law defines "adult family member" as a grandparent, aunt, uncle, sister or brother who is at least 25 years of age.

This bill eliminates the authority of an adult family member to consent to an unemancipated minor's abortion. The bill also requires the parent, guardian, legal custodian, foster parent or treatment foster parent who consents to the minor's abortion to sign and acknowledge, that is, declare that he or she has signed the consent document for the purpose stated in the consent document, before a notary public. The bill requires the notary public, in taking the acknowledgment, to determine, either from personal knowledge or satisfactory evidence, that the person appearing before the notary public and making the acknowledgment is the person whose signature is on the consent document, that the person is, in fact, the parent, guardian, legal custodian, foster parent or treatment foster parent of the minor and that the person does, in fact, have the authority to consent to medical services or treatment on behalf of the minor. The bill also requires the notary public to keep confidential any information acquired in taking the acknowledgment.

Exceptions to consent or judicial waiver requirement.

Under current law, the consent or judicial waiver requirement does not apply if the person who intends to perform or induce the abortion believes, to the best of his or her medical judgment based on the facts of the case before him or her, that a medical emergency exists that complicates the pregnancy so as to require an immediate abortion. This bill provides that the consent or judicial waiver requirement does not apply if a medical emergency, as defined in the law requiring voluntary and informed consent to an abortion (informed consent law), exists. The informed consent law defines a "medical emergency" as a condition that, in a physician's reasonable medical judgment, so complicates the medical condition of a pregnant woman as to necessitate the immediate abortion of her pregnancy to avert her death or for which a 24-hour delay in the performance or inducement of the abortion will create a serious risk of substantial and irreversible impairment of one or more of the woman's major bodily functions.

In addition, under current law, the consent or judicial waiver requirement does not apply if a psychiatrist or psychologist states in writing that he or she believes that the minor is likely to commit suicide rather than seek consent or a judicial waiver. This bill eliminates that exception.

Civil liability for violation of consent or judicial waiver requirement.

Under current law, a person who intentionally performs or induces an abortion on or for a minor without prior consent or waiver of the consent requirement by a court is liable to the minor and to the minor's parent, guardian and legal custodian for damages arising out of the performance or inducement of the abortion. This bill eliminates the requirement that the violation of the consent or judicial waiver requirement be intentional.

Judicial waiver procedures.

Under current law, a minor who is seeking an abortion, or a member of the clergy on behalf of the minor, may petition a circuit court for a waiver of the consent requirement. If the minor files a petition on her own behalf, the minor must be present at an initial appearance at which the court appoints counsel for the minor and sets a date for a hearing to determine whether the minor is mature and well-informed enough to make the abortion decision on her own or whether the performance or inducement of an abortion is in the minor's best interests. If a member of the clergy files a petition on behalf of the minor, the member of the clergy may be present at the initial appearance instead of the minor and the court need not appoint counsel for the minor or set a date for a hearing on the petition. Instead, the member of the clergy must file with the petition an affidavit stating that the member of the clergy has explored with the minor alternative choices for managing the minor's pregnancy, including keeping the baby or placing the baby for adoption, and has discussed with the minor the possibility of obtaining consent for the abortion and whether or not obtaining that consent would be in the minor's best interests. The court may grant the petition, without hearing, based on the member of the clergy's affidavit.

This bill eliminates the option of permitting a member of the clergy to file a petition and affidavit on behalf of the minor. Under the bill, the minor must file her own petition and be present at the initial appearance, and the court must appoint counsel for the minor and hold a hearing on the petition.

For further information see the state and local fiscal estimate, which will be printed as an appendix to this bill.

The people of the state of Wisconsin, represented in senate and assembly, do enact as follows:

AB312, s. 1 Section 1. 46.24 of the statutes is amended to read:

AB312,4,3 46.24 Assistance to minors concerning parental consent for abortion. If a minor who is contemplating an abortion requests assistance from a county department under s. 46.215, 46.22 or 46.23 in seeking the consent of the minor's parent, guardian or legal custodian, or in seeking the consent of an adult family member, as defined in s. 48.375 (2) (b), for the contemplated abortion or in seeking a waiver from the circuit court, the county department shall provide assistance, including, if so requested, accompanying the minor as appropriate.

AB312, s. 2 Section 2. 48.23 (1) (cm) of the statutes is amended to read:

AB312,4,6 48.23 (1) (cm) Any minor who is subject to the jurisdiction of the circuit court under s. 48.16 and who is required to appear in court shall be represented by counsel.

AB312, s. 3 Section 3. 48.257 (1) (h) of the statutes is amended to read:

AB312,4,12 48.257 (1) (h) If the minor is not represented by counsel, the place where and the manner in which the minor wishes to be notified of proceedings under s. 48.375 (7) until appointment of counsel under s. 48.375 (7) (a) 1. If the petition is filed by a member of the clergy on behalf of the minor, the place where and manner in which the member of the clergy wishes to be notified of proceedings under s. 48.375 (7).

AB312, s. 4 Section 4. 48.257 (4) of the statutes is amended to read:

AB312,4,15 48.257 (4) The clerk of circuit court shall give a copy of the petition to the minor or to the member of the clergy who files a petition on behalf of the minor, if any.

AB312, s. 5 Section 5. 48.27 (9) of the statutes is amended to read:

AB312,4,24 48.27 (9) Subsections (1) to (8) do not apply in any proceeding under s. 48.375 (7). For proceedings under s. 48.375 (7), the circuit court shall provide notice only to the minor, her counsel, if any, the member of the clergy who filed the petition on behalf of the minor, if any, and her guardian ad litem, if any. The notice shall contain the title and case number of the proceeding, and the nature, location, date and time of the hearing or other proceeding. Notice to the minor or to the member of the clergy, if any, shall be provided as requested under s. 48.257 (1) (h) and, after appointment of the minor's counsel, if any, by her counsel.

AB312, s. 6 Section 6. 48.273 (4) (b) of the statutes is amended to read:

AB312,5,10 48.273 (4) (b) Personal service is required for notice of all proceedings under s. 48.375 (7), except that, if the minor is not represented by counsel, notice to the minor shall be in the manner and at the place designated by the minor in the petition under s. 48.257 (1) until appointment of the minor's counsel, if any, under s. 48.375 (7) (a) 1. Notice shall be served immediately for any proceeding under s. 48.375 (7) unless the minor waives the immediate notice. If the minor waives the immediate notice, the notice shall be served at least 24 hours before the time of the hearing under s. 48.375 (7) (b) or any other proceeding under s. 48.375 (7). A minor may, in acknowledging receipt of service of the notice, sign the name "Jane Doe" in lieu of providing the minor's full signature.

AB312, s. 7 Section 7. 48.375 (2) (b) of the statutes is repealed.

AB312, s. 8 Section 8. 48.375 (2) (c) of the statutes is amended to read:

AB312,5,19 48.375 (2) (c) "Counselor" means a physician including a physician specializing in psychiatry, a licensed psychologist, as defined in s. 455.01 (4), or an ordained member of the clergy, as defined in s. 765.002 (1). "Counselor" does not include any person who is employed by or otherwise affiliated with a reproductive health care facility, a family planning clinic or a family planning agency; any person affiliated with the performance of abortions, except abortions performed to save the life of the mother; or any person who may profit from giving advice to seek an abortion.

AB312, s. 9 Section 9. 48.375 (2) (em) of the statutes is repealed.

AB312, s. 10 Section 10. 48.375 (4) (a) 1. of the statutes is amended to read:

AB312,6,20 48.375 (4) (a) 1. The person or the person's agent has, either directly or through a referring physician or his or her agent, received and made part of the minor's medical record, under the requirements of s. 253.10, the voluntary and informed written consent of the minor and the voluntary and informed written consent of one of her parents; or of the minor's guardian or legal custodian, if one has been appointed; or of an adult family member of the minor; or of one of the minor's foster parents or treatment foster parents, if the minor has been placed in a foster home or treatment foster home and the minor's parent has signed a waiver granting the department, a county department, the foster parent or the treatment foster parent the authority to consent to medical services or treatment on behalf of the minor. The minor's parent, guardian, legal custodian, foster parent or treatment foster parent shall sign and acknowledge the consent document before a notary public. In taking the acknowledgement, the notary public shall determine, either from personal knowledge or from satisfactory evidence consisting of one or more forms of identification containing the name, address, signature and photograph of the person, that the person appearing before the notary public and making the acknowledgment is the person whose true signature is on the consent document. The notary public shall also determine, either from personal knowledge or from satisfactory evidence, that the person appearing before the notary public and making the acknowledgement is, in fact, the parent, guardian, legal custodian, foster parent or treatment foster parent of the minor and does, in fact, have the authority to consent to medical services or treatment on behalf of the minor. A notary public who takes an acknowledgment under this subdivision shall keep confidential any information acquired in taking the acknowledgment.

AB312, s. 11 Section 11. 48.375 (4) (b) 1. of the statutes is amended to read:

AB312,6,25 48.375 (4) (b) 1. The person who intends to perform or induce the abortion believes, to the best of his or her medical judgment based on the facts of the case before him or her, that a A medical emergency , as defined in s. 253.10 (2) (d), exists that complicates the pregnancy so as to require an immediate abortion.

AB312, s. 12 Section 12. 48.375 (4) (b) 1m. of the statutes is repealed.

AB312, s. 13 Section 13. 48.375 (4) (b) 3. of the statutes is amended to read:

AB312,7,14 48.375 (4) (b) 3. The minor provides the person who intends to perform or induce the abortion with a written statement, signed and dated by the minor, that a parent who has legal custody of the minor, or the minor's guardian or legal custodian, if one has been appointed, or an adult family member of the minor, or a foster parent or treatment foster parent, if the minor has been placed in a foster home or treatment foster home and the minor's parent has signed a waiver granting the department, a county department, the foster parent or the treatment foster parent the authority to consent to medical services or treatment on behalf of the minor, has inflicted abuse on the minor. The person who intends to perform or induce the abortion shall place the statement in the minor's medical record. The person who intends to perform or induce the abortion shall report the abuse as required under s. 48.981 (2).

AB312, s. 14 Section 14. 48.375 (6) of the statutes is amended to read:

AB312,7,19 48.375 (6) Right to petition court for waiver. Any pregnant minor who is seeking an abortion in this state, and any member of the clergy on the minor's behalf, may file a petition specified under s. 48.257 with any court for a waiver of the parental consent requirement under sub. (4) (a) 1.

AB312, s. 15 Section 15. 48.375 (7) (a) (intro.) of the statutes is amended to read:

AB312,7,25 48.375 (7) (a) Receipt of petition; initial appearance. (intro.) On the date that a petition under s. 48.257 is filed, or if it is impossible to do so on that day, on the next calendar day, the court shall hold an initial appearance in chambers at which the minor or the member of the clergy who filed the petition on behalf of the minor, if any, is present and shall do all of the following: