SB97: Bill Text

LRB-0416/1

GMM:kjf:rs

2005 - 2006 LEGISLATURE

2005 Senate BILL 97

March 2, 2005 - Introduced by Senators Leibham, Kedzie, A. Lasee, Reynolds and Grothman, cosponsored by Representatives Vukmir, Kestell, Gundrum, Suder, Ziegelbauer, Kerkman, J. Fitzgerald, Nischke, Nass, LeMahieu, Hahn, Hines, Ainsworth, Albers, Kreibich, Owens, Krawczyk, Kleefisch, Freese, Ballweg, Ott, Petrowski, Gunderson, Townsend, Van Roy, Hundertmark, McCormick, Vrakas and Pridemore. Referred to Committee on Judiciary, Corrections and Privacy.

SB97,1,12 An Act to repeal 48.375 (2) (b), 48.375 (2) (em), 48.375 (4) (b) 1m. and 48.375 (7) (bm); to renumber and amend 48.375 (4) (a) 1.; to amend 46.24, 48.23 (1m) (cm), 48.257 (1) (h), 48.257 (4), 48.27 (9), 48.273 (4) (b), 48.375 (2) (c), 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) 1., 48.375 (7) (d) 1m., 48.375 (7) (d) 2., 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); and to create 48.375 (2) (fm), 48.375 (4) (a) 1. a., 48.375 (4) (a) 1. b., 48.375 (4) (a) 1. c. and 48.375 (7) (b) 2m. 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 may 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 any of the following, unless she obtains a waiver of this requirement from the circuit court:

1. One of her parents.

2. Her guardian or legal custodian, if one has been appointed.

3. An adult family member, which is defined under current law as a grandparent, aunt, uncle, sister, or brother who is at least 25 years of age.

4. 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.

This bill eliminates the authority of an adult family member, a foster parent, a treatment foster parent, or a parent who does not have legal custody of an unemancipated minor to consent to an abortion for the minor.

The bill also requires the parent, guardian, or legal custodian who consents to the minor's abortion to sign and acknowledge the consent document, which means that the parent, guardian, or legal custodian must declare before a notary public that he or she has signed the consent document for the purpose stated in the consent document, to verify upon oath or affirmation before the notary public that he or she is the parent, guardian, or legal custodian of the minor. In addition, the bill requires the notary public to determine, either from personal knowledge or from satisfactory evidence consisting of one or more forms of identification issued by a governmental agency, that the person appearing before the notary public and making the acknowledgment and verification is the person whose signature is on the consent document and statement verified. The bill also requires the notary public to keep confidential any information acquired in taking the acknowledgment and verification.

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 and instead requires that the violation be committed under circumstances in which the person knew or, in the exercise of reasonable care, should have known that the consent or judicial waiver requirement was not complied with.

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.

In addition, under current law, the court must hear evidence relating to the emotional development, maturity, intellect, and understanding of the minor and the understanding of the minor about the nature of, possible consequences of, and alternatives to the intended abortion before the court may grant a waiver of the consent requirement. This bill requires the court, in addition to hearing the evidence that the court must hear under current law, to hear evidence relating to the nature of the relationship between the minor and her parents before the court may grant a waiver of the consent requirement.

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:

SB97, s. 1 Section 1. 46.24 of the statutes is amended to read:

SB97,4,8 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.

SB97, s. 2 Section 2. 48.23 (1m) (cm) of the statutes is amended to read:

SB97,4,11 48.23 (1m) (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.

SB97, s. 3 Section 3. 48.257 (1) (h) of the statutes is amended to read:

SB97,4,17 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).

SB97, s. 4 Section 4. 48.257 (4) of the statutes is amended to read:

SB97,4,20 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.

SB97, s. 5 Section 5. 48.27 (9) of the statutes is amended to read:

SB97,5,9 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.

SB97, s. 6 Section 6. 48.273 (4) (b) of the statutes is amended to read:

SB97,5,20 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.

SB97, s. 7 Section 7. 48.375 (2) (b) of the statutes is repealed.

SB97, s. 8 Section 8. 48.375 (2) (c) of the statutes is amended to read:

SB97,6,5 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.

SB97, s. 9 Section 9. 48.375 (2) (em) of the statutes is repealed.

SB97, s. 10 Section 10. 48.375 (2) (fm) of the statutes is created to read:

SB97,6,11 48.375 (2) (fm) "Parent who has legal custody of the minor" means a parent who has the right and responsibility to make major decisions concerning the minor, whether that right and responsibility are derived from common law, statute, or court order.

SB97, s. 11 Section 11. 48.375 (4) (a) 1. of the statutes is renumbered 48.375 (4) (a) 1. (intro.) and amended to read:

SB97,7,2 48.375 (4) (a) 1. (intro.) 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 the minor's parents; who has legal custody of the minor 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. All of the following shall govern the provision of consent under this subdivision by the parent, guardian, or legal custodian of a minor:

SB97, s. 12 Section 12. 48.375 (4) (a) 1. a. of the statutes is created to read:

SB97,7,18 48.375 (4) (a) 1. a. The parent, guardian, or legal custodian shall sign and acknowledge the consent document before a notary public, who shall determine, either from personal knowledge or from satisfactory evidence consisting of one or more forms of identification, that the person appearing before the notary public and making the acknowledgment is the person whose signature is on the consent document. The parent, guardian, or legal custodian shall also verify upon oath or affirmation before the notary public that he or she is the parent, guardian, or legal custodian of the minor, and the notary public shall determine, either from personal knowledge or from satisfactory evidence consisting of one or more forms of identification, that the person appearing before the notary public and making the verification is the person whose true signature is on the statement verified. The person signing the consent document and verification upon oath or affirmation shall provide the consent document and verification to the person who intends to perform or induce the abortion or the person's agent, who shall place the consent document and verification in the minor's medical record.