LRB-0505/3
GMM:wlj&ksh:ijs
1999 - 2000 LEGISLATURE
April 28, 1999 - Introduced by Senators Welch, Fitzgerald, Drzewiecki, Breske,
Schultz, Roessler, Zien and Farrow, cosponsored by Representatives Kedzie,
Plale, Hahn, Seratti, Ladwig, Suder, Duff, Sykora, Ryba, Kestell, Huebsch,
Urban, M. Lehman, Vrakas, Ziegelbauer, Gundrum, Montgomery, F. Lasee,
Albers, Kreibich, Gunderson, Staskunas, Petrowski, Hoven, Nass, Ward,
Goetsch, Porter, Meyerhofer, Walker, Owens, Grothman, Freese, Rhoades,
Leibham, Wieckert and
Hundertmark. Referred to Committee on Judiciary
and Consumer Affairs.
SB133,1,10
1An Act to repeal 48.375 (2) (b), 48.375 (2) (em), 48.375 (4) (b) 1m. and 48.375 (7)
2(bm); and
to amend 46.24, 48.23 (1) (cm), 48.257 (1) (h), 48.257 (4), 48.27 (9),
348.273 (4) (b), 48.375 (2) (c), 48.375 (4) (a) 1., 48.375 (4) (b) 1., 48.375 (4) (b) 3.,
448.375 (6), 48.375 (7) (a) (intro.), 48.375 (7) (a) 4., 48.375 (7) (b) (intro.), 48.375
5(7) (d), 48.375 (7) (f), 69.186 (1) (j), 809.105 (2), 809.105 (3) (a), 809.105 (3) (d),
6809.105 (5), 809.105 (8), 809.105 (8m), 809.105 (9), 809.105 (10), 809.105 (11)
7(a) (intro.), 809.105 (11) (a) 3., 809.105 (11) (cm), 809.105 (11) (d), 809.105 (11)
8(e), 809.105 (13) and 895.037 (3) (a) of the statutes;
relating to: the
9requirement that an unemancipated minor obtain parental or other consent or
10a judicial waiver of that consent requirement before she has 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:
SB133, s. 1
1Section
1. 46.24 of the statutes is amended to read:
SB133,4,3
246.24 Assistance to minors concerning parental consent for abortion. 3If a minor who is contemplating an abortion requests assistance from a county
4department under s. 46.215, 46.22 or 46.23 in seeking the consent of the minor's
5parent, guardian or legal custodian
, or in seeking the consent of an adult family
1member, as defined in s. 48.375 (2) (b), for the contemplated abortion or in seeking
2a waiver from the circuit court, the county department shall provide assistance,
3including, if so requested, accompanying the minor as appropriate.
SB133, s. 2
4Section
2. 48.23 (1) (cm) of the statutes is amended to read:
SB133,4,65
48.23
(1) (cm) Any minor who is subject to the jurisdiction of the circuit court
6under s. 48.16
and who is required to appear in court shall be represented by counsel.
SB133, s. 3
7Section
3. 48.257 (1) (h) of the statutes is amended to read:
SB133,4,128
48.257
(1) (h) If the minor is not represented by counsel, the place where and
9the manner in which the minor wishes to be notified of proceedings under s. 48.375
10(7) until appointment of counsel under s. 48.375 (7) (a) 1.
If the petition is filed by
11a member of the clergy on behalf of the minor, the place where and manner in which
12the member of the clergy wishes to be notified of proceedings under s. 48.375 (7).
SB133, s. 4
13Section
4. 48.257 (4) of the statutes is amended to read:
SB133,4,1514
48.257
(4) The clerk of circuit court shall give a copy of the petition to the minor
15or to the member of the clergy who files a petition on behalf of the minor, if any.
SB133, s. 5
16Section
5. 48.27 (9) of the statutes is amended to read:
SB133,4,2417
48.27
(9) Subsections (1) to (8) do not apply in any proceeding under s. 48.375
18(7). For proceedings under s. 48.375 (7), the circuit court shall provide notice only
19to the minor, her counsel
, if any, the member of the clergy who filed the petition on
20behalf of the minor, if any, and her guardian ad litem, if any. The notice shall contain
21the title and case number of the proceeding, and the nature, location, date and time
22of the hearing or other proceeding. Notice to the minor
or to the member of the clergy,
23if any, shall be provided as requested under s. 48.257 (1) (h) and, after appointment
24of the minor's counsel,
if any, by her counsel.
SB133, s. 6
25Section
6. 48.273 (4) (b) of the statutes is amended to read:
SB133,5,10
148.273
(4) (b) Personal service is required for notice of all proceedings under
2s. 48.375 (7), except that, if the minor is not represented by counsel, notice to the
3minor shall be in the manner and at the place designated
by the minor in the petition
4under s. 48.257 (1) until appointment of the minor's counsel
, if any, under s. 48.375
5(7) (a) 1. Notice shall be served immediately for any proceeding under s. 48.375 (7)
6unless the minor waives the immediate notice. If the minor waives the immediate
7notice, the notice shall be served at least 24 hours before the time of the hearing
8under s. 48.375 (7) (b) or any other proceeding under s. 48.375 (7). A minor may, in
9acknowledging receipt of service of the notice, sign the name "Jane Doe" in lieu of
10providing the minor's full signature.
SB133, s. 7
11Section
7. 48.375 (2) (b) of the statutes is repealed.
SB133, s. 8
12Section
8. 48.375 (2) (c) of the statutes is amended to read:
SB133,5,1913
48.375
(2) (c) "Counselor" means a physician including a physician specializing
14in psychiatry, a licensed psychologist, as defined in s. 455.01 (4), or an ordained
15member of the clergy
, as defined in s. 765.002 (1). "Counselor" does not include any
16person who is employed by or otherwise affiliated with a reproductive health care
17facility, a family planning clinic or a family planning agency; any person affiliated
18with the performance of abortions, except abortions performed to save the life of the
19mother; or any person who may profit from giving advice to seek an abortion.
SB133, s. 9
20Section
9. 48.375 (2) (em) of the statutes is repealed.
SB133, s. 10
21Section
10. 48.375 (4) (a) 1. of the statutes is amended to read:
SB133,6,2022
48.375
(4) (a) 1. The person or the person's agent has, either directly or through
23a referring physician or his or her agent, received and made part of the minor's
24medical record, under the requirements of s. 253.10, the voluntary and informed
25written consent of the minor and the voluntary and informed written consent of one
1of her parents; or of the minor's guardian or legal custodian, if one has been
2appointed;
or of an adult family member of the minor; or of one of the minor's foster
3parents or treatment foster parents, if the minor has been placed in a foster home
4or treatment foster home and the minor's parent has signed a waiver granting the
5department, a county department, the foster parent or the treatment foster parent
6the authority to consent to medical services or treatment on behalf of the minor.
The
7minor's parent, guardian, legal custodian, foster parent or treatment foster parent
8shall sign and acknowledge the consent document before a notary public. In taking
9the acknowledgement, the notary public shall determine, either from personal
10knowledge or from satisfactory evidence consisting of one or more forms of
11identification containing the name, address, signature and photograph of the person,
12that the person appearing before the notary public and making the acknowledgment
13is the person whose true signature is on the consent document. The notary public
14shall also determine, either from personal knowledge or from satisfactory evidence,
15that the person appearing before the notary public and making the
16acknowledgement is, in fact, the parent, guardian, legal custodian, foster parent or
17treatment foster parent of the minor and does, in fact, have the authority to consent
18to medical services or treatment on behalf of the minor. A notary public who takes
19an acknowledgment under this subdivision shall keep confidential any information
20acquired in taking the acknowledgment.
SB133, s. 11
21Section
11. 48.375 (4) (b) 1. of the statutes is amended to read:
SB133,6,2522
48.375
(4) (b) 1.
The person who intends to perform or induce the abortion
23believes, to the best of his or her medical judgment based on the facts of the case
24before him or her, that a A medical emergency
, as defined in s. 253.10 (2) (d), exists
25that complicates the pregnancy so as to require an immediate abortion.
SB133, s. 12
1Section
12. 48.375 (4) (b) 1m. of the statutes is repealed.
SB133, s. 13
2Section
13. 48.375 (4) (b) 3. of the statutes is amended to read:
SB133,7,143
48.375
(4) (b) 3. The minor provides the person who intends to perform or
4induce the abortion with a written statement, signed and dated by the minor, that
5a parent who has legal custody of the minor, or the minor's guardian or legal
6custodian, if one has been appointed,
or an adult family member of the minor, or a
7foster parent or treatment foster parent, if the minor has been placed in a foster home
8or treatment foster home and the minor's parent has signed a waiver granting the
9department, a county department, the foster parent or the treatment foster parent
10the authority to consent to medical services or treatment on behalf of the minor, has
11inflicted abuse on the minor. The person who intends to perform or induce the
12abortion shall place the statement in the minor's medical record. The person who
13intends to perform or induce the abortion shall report the abuse as required under
14s. 48.981 (2).
SB133, s. 14
15Section
14. 48.375 (6) of the statutes is amended to read:
SB133,7,1916
48.375
(6) Right to petition court for waiver. Any pregnant minor who is
17seeking an abortion in this state
, and any member of the clergy on the minor's behalf, 18may file a petition specified under s. 48.257 with any court for a waiver of the
19parental consent requirement under sub. (4) (a) 1.
SB133, s. 15
20Section
15. 48.375 (7) (a) (intro.) of the statutes is amended to read:
SB133,7,2521
48.375
(7) (a)
Receipt of petition; initial appearance. (intro.) On the date that
22a petition under s. 48.257 is filed, or if it is impossible to do so on that day, on the next
23calendar day, the court shall hold an initial appearance in chambers at which the
24minor
or the member of the clergy who filed the petition on behalf of the minor, if any, 25is present and shall do all of the following:
SB133, s. 16
1Section
16. 48.375 (7) (a) 4. of the statutes is amended to read:
SB133,8,42
48.375
(7) (a) 4. Notify the minor, the minor's counsel
, if any, the member of the
3clergy who filed the petition on behalf of the minor, if any, and the minor's guardian
4ad litem, if any, of the time, date and place of the hearing.
SB133, s. 17
5Section
17. 48.375 (7) (b) (intro.) of the statutes is amended to read:
SB133,8,106
48.375
(7) (b)
Hearing; evidence. (intro.) The court shall hold a confidential
7hearing on
a the petition
that is filed by a minor. The hearing shall be held in
8chambers, unless a public fact-finding hearing is demanded by the minor through
9her counsel. At the hearing, the court shall consider the report of the guardian ad
10litem, if any, and hear evidence relating to all of the following:
SB133, s. 18
11Section
18. 48.375 (7) (bm) of the statutes is repealed.
SB133, s. 19
12Section
19. 48.375 (7) (d) of the statutes is amended to read:
SB133,9,213
48.375
(7) (d)
Time limit. 1. The court shall make the determination under par.
14(c) and issue an order within 3 calendar days after the initial appearance unless the
15minor and her counsel
, or the member of the clergy who filed the petition on behalf
16of the minor, if any, consent to an extension of the time period. The order shall be
17effective immediately. The court shall prepare and file with the clerk of court
18findings of fact, conclusions of law and a final order granting or denying the petition
19within 24 hours after making the determination and order. If the court grants the
20petition, the court shall immediately so notify the minor by personal service on her
21counsel
, or the member of the clergy who filed the petition on behalf of the minor, if
22any, of a certified copy of the court's order granting the petition. If the court denies
23the petition, the court shall immediately so notify the minor by personal service on
24her counsel
, or the member of the clergy who filed the petition on behalf of the minor,
25if any, of a copy of the court's order denying the petition and shall also notify the minor
1by her counsel
, or the member of the clergy who filed the petition on behalf of the
2minor, if any, that she has a right to initiate an appeal under s. 809.105.
SB133,9,203
1m. Except as provided under s. 48.315 (1) (b), (c) and (f), if the court fails to
4comply with the time limits specified under subd. 1. without the prior consent of the
5minor and the minor's counsel,
if any, or the member of the clergy who filed the
6petition on behalf of the minor, if any, the minor and the minor's counsel
, if any, or
7the member of the clergy, if any, shall select a temporary reserve judge, as defined
8in s. 753.075 (1) (b), to make the determination under par. (c) and issue an order
9granting or denying the petition and the chief judge of the judicial administrative
10district in which the court is located shall assign the temporary reserve judge
11selected by the minor and the minor's counsel
, if any, or the member of the clergy, if
12any, to make the determination and issue the order. A temporary reserve judge
13assigned under this subdivision to make a determination under par. (c) and issue an
14order granting or denying a petition shall make the determination and issue the
15order within 2 calendar days after the assignment, unless the minor and her counsel
,
16if any, or the member of the clergy who filed the petition on behalf of the minor, if any, 17consent to an extension of that time period. The order shall be effective immediately.
18The court shall prepare and file with the clerk of court findings of fact, conclusions
19of law and a final order granting or denying the petition, and shall notify the minor
20of the court's order, as provided under subd. 1.
SB133,9,2521
2. Counsel for the minor
, or the member of the clergy who filed the petition on
22behalf of the minor, if any, shall immediately, upon notification under subd. 1. or 1m.
23that the court has granted or denied the petition, notify the minor. If the court has
24granted the petition, counsel for the minor
, or the member of the clergy who filed the
25petition on behalf of the minor, if any, shall hand deliver a certified copy of the court
1order to the person who intends to perform or induce the abortion. If with reasonable
2diligence the person who intends to perform or induce the abortion cannot be located
3for delivery, then counsel for the minor
, or the member of the clergy who filed the
4petition on behalf of the minor, if any, shall leave a certified copy of the order with
5the person's agent at the person's principal place of business. If a clinic or medical
6facility is specified in the petition as the corporation, limited liability company,
7partnership or other unincorporated association that employs the person who
8intends to perform or induce the abortion, then counsel for the minor
, or the member
9of the clergy who filed the petition on behalf of the minor, if any, shall hand deliver
10a certified copy of the order to an agent of the corporation, limited liability company,
11partnership or other unincorporated association at its principal place of business.
12There may be no service by mail or publication. The person or agent who receives
13the certified copy of the order under this subdivision shall place the copy in the
14minor's medical record.
SB133, s. 20
15Section
20. 48.375 (7) (f) of the statutes is amended to read:
SB133,10,2316
48.375
(7) (f)
Certain persons barred from proceedings. No parent, or guardian
17or legal custodian, if one has been appointed, or foster parent or treatment foster
18parent, if the minor has been placed in a foster home or treatment foster home and
19the minor's parent has signed a waiver granting the department, a county
20department, the foster parent or the treatment foster parent the authority to consent
21to medical services or treatment on behalf of the minor,
or adult family member, of
22any minor who is seeking a court determination under this subsection may attend,
23intervene or give evidence in any proceeding under this subsection.
SB133, s. 21
24Section
21. 69.186 (1) (j) of the statutes is amended to read:
SB133,11,5
169.186
(1) (j) If the patient is a minor, whether consent was provided under s.
248.375 (4) (a) 1. for the abortion and, if so, the relationship of the individual providing
3consent to the minor; or, if consent under s. 48.375 (4) (a) 1. was not provided, on
4which of the bases under s. 48.375 (4) (a) 2. or (b) 1., 1g.,
1m., 2. or 3. the abortion was
5performed.
SB133, s. 22
6Section
22. 809.105 (2) of the statutes is amended to read:
SB133,11,167
809.105
(2) Initiating an appeal. Only a minor may initiate an appeal under
8this section. The minor shall initiate the appeal by filing
, or by a member of the clergy
9filing on the minor's behalf, a notice of appeal with the clerk of the trial court in which
10the order appealed from was entered and shall specify in the notice of appeal the
11order appealed from. At the same time, the minor
or member of the clergy shall notify
12the court of appeals of the filing of the appeal by sending a copy of the notice of appeal
13to the clerk of the court of appeals. The clerk of the trial court shall assist the minor
14or member of the clergy in sending a copy of the notice of appeal to the clerk of the
15court of appeals. The minor may use the name "Jane Doe" instead of her name on
16the notice of appeal and all other papers filed with the court of appeals.
SB133, s. 23
17Section
23. 809.105 (3) (a) of the statutes is amended to read: