AB812: Bill Text

February 12, 2002 - Introduced by Representatives Leibham, Plale, Kedzie, Suder, Duff, Owens, Gundrum, Kreibich, Albers, Nass, Hahn, Urban, Ott, J. Fitzgerald, Freese, Grothman, Petrowski, Kestell, Ryba, Gunderson, Vrakas, Loeffelholz and Sykora, cosponsored by Senators Welch, Roessler, S. Fitzgerald, Zien and Lazich. Referred to Committee on Judiciary.

AB812,1,12 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 (1) (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 one of her parents; or of her guardian or legal custodian, if one has been appointed; or of an adult family member; or of 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, 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, that is, declare that he or she has signed the consent document for the purpose stated in the consent document, before a notary public, who must 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 is the person whose signature is on the consent document. In addition, the bill requires the parent, guardian, or legal custodian to verify upon oath or affirmation before the notary public that he or she is the parent, guardian, or legal custodian of the minor, and 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 verification is the person whose signature is on the 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:

AB812, s. 1 Section 1. 46.24 of the statutes is amended to read:

AB812,4,8 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.

AB812, s. 2 Section 2. 48.23 (1) (cm) of the statutes is amended to read:

AB812,4,11 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.

AB812, s. 3 Section 3. 48.257 (1) (h) of the statutes is amended to read:

AB812,4,17 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).

AB812, s. 4 Section 4. 48.257 (4) of the statutes is amended to read:

AB812,4,20 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.

AB812, s. 5 Section 5. 48.27 (9) of the statutes is amended to read:

AB812,5,9 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.

AB812, s. 6 Section 6. 48.273 (4) (b) of the statutes is amended to read:

AB812,5,20 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.

AB812, s. 7 Section 7. 48.375 (2) (b) of the statutes is repealed.

AB812, s. 8 Section 8. 48.375 (2) (c) of the statutes is amended to read:

AB812,6,5 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.

AB812, s. 9 Section 9. 48.375 (2) (em) of the statutes is repealed.

AB812, s. 10 Section 10. 48.375 (2) (fm) of the statutes is created to read:

AB812,6,11 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.

AB812, s. 11 Section 11. 48.375 (4) (a) 1. of the statutes is renumbered 48.375 (4) (a) 1. (intro.) and amended to read:

AB812,7,2 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:

AB812, s. 12 Section 12. 48.375 (4) (a) 1. a. of the statutes is created to read:

AB812,7,18 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.

AB812, s. 13 Section 13. 48.375 (4) (a) 1. b. of the statutes is created to read:

AB812,8,4 48.375 (4) (a) 1. b. For purposes of subd. 1. a., a form of identification constitutes satisfactory evidence of a person's identity if it contains the name, address, signature, and photograph of the person identified and if it has been issued by a federal, state, local, or foreign governmental agency. Forms of identification that constitute satisfactory evidence of a person's identity, when they contain the name, address, signature, and photograph of the person identified, include a valid operator's license issued under ch. 343 or under the laws of any other state, an identification card issued under s. 343.50, a military identification card, a valid passport, an alien registration card, or any other identification document issued by a federal, state, local, or foreign governmental agency.

AB812, s. 14 Section 14. 48.375 (4) (a) 1. c. of the statutes is created to read:

AB812,8,10 48.375 (4) (a) 1. c. A notary public who takes an acknowledgement and a verification upon oath or affirmation under subd. 1. a. shall keep confidential any information acquired in taking the acknowledgement and verification. Any person who under oath or affirmation makes a statement under subd. 1. a. that the person does not believe is true is subject to prosecution for a violation of s. 946.32.

AB812, s. 15 Section 15. 48.375 (4) (b) 1. of the statutes is amended to read:

AB812,8,15 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.

AB812, s. 16 Section 16. 48.375 (4) (b) 1m. of the statutes is repealed.

AB812, s. 17 Section 17. 48.375 (4) (b) 3. of the statutes is amended to read:

AB812,9,4 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).

AB812, s. 18 Section 18. 48.375 (6) of the statutes is amended to read:

AB812,9,9 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.

AB812, s. 19 Section 19. 48.375 (7) (a) (intro.) of the statutes is amended to read:

AB812,9,15 48.375 (7) (a) Receipt of petition; initial appearance. (intro.) On the date that day on which 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:

AB812, s. 20 Section 20. 48.375 (7) (a) 4. of the statutes is amended to read:

AB812,9,19 48.375 (7) (a) 4. Notify the minor, the minor's counsel, if any, the member of the clergy who filed the petition on behalf of the minor, if any, and the minor's guardian ad litem, if any, of the time, date, and place of the hearing.

AB812, s. 21 Section 21. 48.375 (7) (b) (intro.) of the statutes is amended to read:

AB812,9,25 48.375 (7) (b) Hearing; evidence. (intro.) The court shall hold a confidential hearing on a the petition that is filed by a minor. The hearing shall be held in chambers, unless a public fact-finding hearing is demanded by the minor through her counsel. At the hearing, the court shall consider the report of the guardian ad litem, if any, and hear evidence relating to all of the following:

AB812, s. 22 Section 22. 48.375 (7) (b) 2m. of the statutes is created to read:

AB812,10,3 48.375 (7) (b) 2m. The nature of the relationship between the minor and her parents.

AB812, s. 23 Section 23. 48.375 (7) (bm) of the statutes is repealed.

AB812, s. 24 Section 24. 48.375 (7) (d) 1. of the statutes is amended to read:

AB812,10,20 48.375 (7) (d) 1. The court shall make the determination under par. (c) and issue an order within 3 calendar days after the initial appearance unless the minor and her counsel, or the member of the clergy who filed the petition on behalf of the minor, if any, consent to an extension of the time period. The order shall be effective immediately. The court shall prepare and file with the clerk of court findings of fact, conclusions of law, and a final order granting or denying the petition within 24 hours after making the determination and order. If the court grants the petition, the court shall immediately so notify the minor by personal service on her counsel , or the member of the clergy who filed the petition on behalf of the minor, if any, of a certified copy of the court's order granting the petition. If the court denies the petition, the court shall immediately so notify the minor by personal service on her counsel, or the member of the clergy who filed the petition on behalf of the minor, if any, of a copy of the court's order denying the petition and shall also notify the minor by her counsel, or the member of the clergy who filed the petition on behalf of the minor, if any, that she has a right to initiate an appeal under s. 809.105.

AB812, s. 25 Section 25. 48.375 (7) (d) 1m. of the statutes, as affected by 2001 Wisconsin Act 16, is amended to read:

AB812,11,15 48.375 (7) (d) 1m. Except as provided under s. 48.315 (1) (b), (c), (f), and (h) if the court fails to comply with the time limits specified under subd. 1. without the prior consent of the minor and the minor's counsel, if any, or the member of the clergy who filed the petition on behalf of the minor, if any, the minor and the minor's counsel, if any, or the member of the clergy, if any, shall select a temporary reserve judge, as defined in s. 753.075 (1) (b), to make the determination under par. (c) and issue an order granting or denying the petition, and the chief judge of the judicial administrative district in which the court is located shall assign the temporary reserve judge selected by the minor and the minor's counsel, if any, or the member of the clergy, if any, to make the determination and issue the order. A temporary reserve judge assigned under this subdivision to make a determination under par. (c) and issue an order granting or denying a petition shall make the determination and issue the order within 2 calendar days after the assignment, unless the minor and her counsel, if any, or the member of the clergy who filed the petition on behalf of the minor, if any, consent to an extension of that time period. The order shall be effective immediately. The court shall prepare and file with the clerk of court findings of fact, conclusions of law, and a final order granting or denying the petition, and shall notify the minor of the court's order, as provided under subd. 1.

AB812, s. 26 Section 26. 48.375 (7) (d) 2. of the statutes is amended to read:

AB812,12,10 48.375 (7) (d) 2. Counsel for the minor, or the member of the clergy who filed the petition on behalf of the minor, if any, shall immediately, upon notification under subd. 1. or 1m. that the court has granted or denied the petition, notify the minor. If the court has granted the petition, counsel for the minor, or the member of the clergy who filed the petition on behalf of the minor, if any, shall hand deliver a certified copy of the court order to the person who intends to perform or induce the abortion. If with reasonable diligence the person who intends to perform or induce the abortion cannot be located for delivery, then counsel for the minor, or the member of the clergy who filed the petition on behalf of the minor, if any, shall leave a certified copy of the order with the person's agent at the person's principal place of business. If a clinic or medical facility is specified in the petition as the corporation, limited liability company, partnership, or other unincorporated association that employs the person who intends to perform or induce the abortion, then counsel for the minor, or the member of the clergy who filed the petition on behalf of the minor, if any, shall hand deliver a certified copy of the order to an agent of the corporation, limited liability company, partnership, or other unincorporated association at its principal place of business. There may be no service by mail or publication. The person or agent who receives the certified copy of the order under this subdivision shall place the copy in the minor's medical record.

AB812, s. 27 Section 27. 48.375 (7) (f) of the statutes is amended to read:

AB812,12,19 48.375 (7) (f) Certain persons barred from proceedings. No parent, or guardian or legal custodian, if one has been appointed, or 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, or adult family member, of any minor who is seeking a court determination under this subsection may attend, intervene, or give evidence in any proceeding under this subsection.

AB812, s. 28 Section 28. 69.186 (1) (j) of the statutes is amended to read:

AB812,12,25 69.186 (1) (j) If the patient is a minor, whether consent was provided under s. 48.375 (4) (a) 1. for the abortion and, if so, the relationship of the individual providing consent to the minor; or, if consent under s. 48.375 (4) (a) 1. was not provided, on which of the bases under s. 48.375 (4) (a) 2. or (b) 1., 1g., 1m., 2., or 3. the abortion was performed.

AB812, s. 29 Section 29. 809.105 (2) of the statutes is amended to read:

AB812,13,11 809.105 (2) Initiating an appeal. Only a minor may initiate an appeal under this section. The minor shall initiate the appeal by filing, or by a member of the clergy filing on the minor's behalf, a notice of appeal with the clerk of the trial court in which the order appealed from was entered and shall specify in the notice of appeal the order appealed from. At the same time, the minor or member of the clergy shall notify the court of appeals of the filing of the appeal by sending a copy of the notice of appeal to the clerk of the court of appeals. The clerk of the trial court shall assist the minor or member of the clergy in sending a copy of the notice of appeal to the clerk of the court of appeals. The minor may use the name "Jane Doe" instead of her name on the notice of appeal and all other papers filed with the court of appeals.

AB812, s. 30 Section 30. 809.105 (3) (a) of the statutes is amended to read:

AB812,13,15 809.105 (3) (a) Fee. No fee for filing an appeal in the court of appeals under this section may be required of a minor or of a member of the clergy who files an appeal under this section on behalf of the minor.

AB812, s. 31 Section 31. 809.105 (3) (d) of the statutes is amended to read:

AB812,13,18 809.105 (3) (d) Statement on transcript. A minor or member of the clergy may not be required to file a statement on transcript in an appeal under this section.

AB812, s. 32 Section 32. 809.105 (5) of the statutes is amended to read:

AB812,14,2 809.105 (5) Transcript of reporter's notes. At the time that a minor or member of the clergy files a notice of appeal, the minor or member of the clergy shall make arrangements with the reporter for the preparation of a transcript of the reporter's notes of the proceedings under s. 48.375 (7). The reporter shall file the transcript with the trial court within 2 calendar days after the notice of appeal is filed. The county of the court that held the proceeding under s. 48.375 (7) shall pay the expense of transcript preparation under this subsection.

AB812, s. 33 Section 33. 809.105 (8) of the statutes is amended to read:

AB812,14,9 809.105 (8) Assignment and advancement of cases. The court of appeals shall take cases appealed under this section in an order that ensures that a judgment is made within 4 calendar days after the appeal has been filed in the court of appeals. The time limit under this subsection may be extended with the consent of the minor and her counsel, if any, or the member of the clergy who initiated the appeal under this section, if any.

AB812, s. 34 Section 34. 809.105 (8m) of the statutes is amended to read:

AB812,14,16 809.105 (8m) Oral argument. If the court of appeals determines that a case appealed under this section is to be submitted with oral argument, the oral argument shall be held in chambers or, on motion of the minor through her counsel or through the member of the clergy who filed the appeal under this section, if any, or on the court of appeals' own motion, by telephone, unless the minor through her counsel or the member of the clergy demands that the oral argument be held in open court.

AB812, s. 35 Section 35. 809.105 (9) of the statutes is amended to read:

AB812,14,19 809.105 (9) Costs. The court of appeals may not assess costs against a minor or member of the clergy in an appeal under this section.

AB812, s. 36 Section 36. 809.105 (10) of the statutes is amended to read: