LRB-3590/1
GMM:kjf:jf
2003 - 2004 LEGISLATURE
November 4, 2003 - Introduced by Representatives Vukmir, Nass, D. Meyer, Suder,
Ladwig, Hahn, Gundrum, Hines, Owens, Albers, Stone, Freese, Bies, Ott,
LeMahieu, Kreibich and
Weber, cosponsored by Senators Leibham,
Reynolds, Kedzie, Lazich, Stepp, Roessler and Schultz. Referred to
Committee on Judiciary.
AB635,1,12
1An Act to repeal 48.375 (2) (b), 48.375 (2) (em), 48.375 (4) (b) 1m. and 48.375 (7)
2(bm);
to renumber and amend 48.375 (4) (a) 1.;
to amend 46.24, 48.23 (1m)
3(cm), 48.257 (1) (h), 48.257 (4), 48.27 (9), 48.273 (4) (b), 48.375 (2) (c), 48.375 (4)
4(b) 1., 48.375 (4) (b) 3., 48.375 (6), 48.375 (7) (a) (intro.), 48.375 (7) (a) 4., 48.375
5(7) (b) (intro.), 48.375 (7) (d) 1., 48.375 (7) (d) 1m., 48.375 (7) (d) 2., 48.375 (7)
6(f), 69.186 (1) (j), 809.105 (2), 809.105 (3) (a), 809.105 (3) (d), 809.105 (5), 809.105
7(8), 809.105 (8m), 809.105 (9), 809.105 (10), 809.105 (11) (a) (intro.), 809.105 (11)
8(a) 3., 809.105 (11) (cm), 809.105 (11) (d), 809.105 (11) (e), 809.105 (13) and
9895.037 (3) (a); and
to create 48.375 (2) (fm), 48.375 (4) (a) 1. a., 48.375 (4) (a)
101. b., 48.375 (4) (a) 1. c. and 48.375 (7) (b) 2m. of the statutes;
relating to: the
11requirement that an unemancipated minor obtain parental or other consent or
12a 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, 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 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:
AB635, s. 1
1Section
1. 46.24 of the statutes is amended to read:
AB635,4,8
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
6member, as defined in s. 48.375 (2) (b), for the contemplated abortion or in seeking
7a waiver from the circuit court, the county department shall provide assistance,
8including, if so requested, accompanying the minor as appropriate.
AB635, s. 2
9Section
2. 48.23 (1m) (cm) of the statutes is amended to read:
AB635,4,1110
48.23
(1m) (cm) Any minor who is subject to the jurisdiction of the circuit court
11under s. 48.16
and who is required to appear in court shall be represented by counsel.
AB635, s. 3
12Section
3. 48.257 (1) (h) of the statutes is amended to read:
AB635,4,1713
48.257
(1) (h) If the minor is not represented by counsel, the place where and
14the manner in which the minor wishes to be notified of proceedings under s. 48.375
15(7) until appointment of counsel under s. 48.375 (7) (a) 1.
If the petition is filed by
16a member of the clergy on behalf of the minor, the place where and manner in which
17the member of the clergy wishes to be notified of proceedings under s. 48.375 (7).
AB635, s. 4
18Section
4. 48.257 (4) of the statutes is amended to read:
AB635,5,2
148.257
(4) The clerk of circuit court shall give a copy of the petition to the minor
2or to the member of the clergy who files a petition on behalf of the minor, if any.
AB635, s. 5
3Section
5. 48.27 (9) of the statutes is amended to read:
AB635,5,114
48.27
(9) Subsections (1) to (8) do not apply in any proceeding under s. 48.375
5(7). For proceedings under s. 48.375 (7), the circuit court shall provide notice only
6to the minor, her counsel,
if any, the member of the clergy who filed the petition on
7behalf of the minor, if any, and her guardian ad litem, if any. The notice shall contain
8the title and case number of the proceeding, and the nature, location, date
, and time
9of the hearing or other proceeding. Notice to the minor
or to the member of the clergy,
10if any, shall be provided as requested under s. 48.257 (1) (h) and, after appointment
11of the minor's counsel,
if any, by her counsel.
AB635, s. 6
12Section
6. 48.273 (4) (b) of the statutes is amended to read:
AB635,5,2213
48.273
(4) (b) Personal service is required for notice of all proceedings under
14s. 48.375 (7), except that, if the minor is not represented by counsel, notice to the
15minor shall be in the manner and at the place designated
by the minor in the petition
16under s. 48.257 (1) until appointment of the minor's counsel
, if any, under s. 48.375
17(7) (a) 1. Notice shall be served immediately for any proceeding under s. 48.375 (7)
18unless the minor waives the immediate notice. If the minor waives the immediate
19notice, the notice shall be served at least 24 hours before the time of the hearing
20under s. 48.375 (7) (b) or any other proceeding under s. 48.375 (7). A minor may, in
21acknowledging receipt of service of the notice, sign the name "Jane Doe" in lieu of
22providing the minor's full signature.
AB635, s. 7
23Section
7. 48.375 (2) (b) of the statutes is repealed.
AB635, s. 8
24Section
8. 48.375 (2) (c) of the statutes is amended to read:
AB635,6,8
148.375
(2) (c) "Counselor" means a physician
, including a physician
2specializing in psychiatry, a licensed psychologist, as defined in s. 455.01 (4), or an
3ordained member of the clergy
, as defined in s. 765.002 (1). "Counselor" does not
4include any person who is employed by or otherwise affiliated with a reproductive
5health care facility, a family planning clinic
, or a family planning agency; any person
6affiliated with the performance of abortions, except abortions performed to save the
7life of the mother; or any person who may profit from giving advice to seek an
8abortion.
AB635, s. 9
9Section
9. 48.375 (2) (em) of the statutes is repealed.
AB635, s. 10
10Section
10. 48.375 (2) (fm) of the statutes is created to read:
AB635,6,1411
48.375
(2) (fm) "Parent who has legal custody of the minor" means a parent who
12has the right and responsibility to make major decisions concerning the minor,
13whether that right and responsibility are derived from common law, statute, or court
14order.
AB635, s. 11
15Section
11. 48.375 (4) (a) 1. of the statutes is renumbered 48.375 (4) (a) 1.
16(intro.) and amended to read:
AB635,7,417
48.375
(4) (a) 1. (intro.) The person or the person's agent has, either directly
18or through a referring physician or his or her agent, received and made part of the
19minor's medical record, under the requirements of s. 253.10, the voluntary and
20informed written consent of the minor and the voluntary and informed written
21consent of one of
her the minor's parents
; who has legal custody of the minor or of the
22minor's guardian or legal custodian, if one has been appointed
; or of an adult family
23member of the minor; or of one of the minor's foster parents or treatment foster
24parents, if the minor has been placed in a foster home or treatment foster home and
25the minor's parent has signed a waiver granting the department, a county
1department, the foster parent or the treatment foster parent the authority to consent
2to medical services or treatment on behalf of the minor.
All of the following shall
3govern the provision of consent under this subdivision by the parent, guardian, or
4legal custodian of a minor:
AB635, s. 12
5Section
12. 48.375 (4) (a) 1. a. of the statutes is created to read:
AB635,7,206
48.375
(4) (a) 1. a. The parent, guardian, or legal custodian shall sign and
7acknowledge the consent document before a notary public, who shall determine,
8either from personal knowledge or from satisfactory evidence consisting of one or
9more forms of identification, that the person appearing before the notary public and
10making the acknowledgment is the person whose signature is on the consent
11document. The parent, guardian, or legal custodian shall also verify upon oath or
12affirmation before the notary public that he or she is the parent, guardian, or legal
13custodian of the minor, and the notary public shall determine, either from personal
14knowledge or from satisfactory evidence consisting of one or more forms of
15identification, that the person appearing before the notary public and making the
16verification is the person whose true signature is on the statement verified. The
17person signing the consent document and verification upon oath or affirmation shall
18provide the consent document and verification to the person who intends to perform
19or induce the abortion or the person's agent, who shall place the consent document
20and verification in the minor's medical record.
AB635, s. 13
21Section
13. 48.375 (4) (a) 1. b. of the statutes is created to read:
AB635,8,622
48.375
(4) (a) 1. b. For purposes of subd. 1. a., a form of identification constitutes
23satisfactory evidence of a person's identity if it contains the name, address,
24signature, and photograph of the person identified and if it has been issued by a
25federal, state, local, or foreign governmental agency. Forms of identification that
1constitute satisfactory evidence of a person's identity, when they contain the name,
2address, signature, and photograph of the person identified, include a valid
3operator's license issued under ch. 343 or under the laws of any other state, an
4identification card issued under s. 343.50, a military identification card, a valid
5passport, an alien registration card, or any other identification document issued by
6a federal, state, local, or foreign governmental agency.
AB635, s. 14
7Section
14. 48.375 (4) (a) 1. c. of the statutes is created to read:
AB635,8,128
48.375
(4) (a) 1. c. A notary public who takes an acknowledgement and a
9verification upon oath or affirmation under subd. 1. a. shall keep confidential any
10information acquired in taking the acknowledgement and verification. Any person
11who under oath or affirmation makes a statement under subd. 1. a. that the person
12does not believe is true is subject to prosecution for a violation of s. 946.32.
AB635, s. 15
13Section
15. 48.375 (4) (b) 1. of the statutes is amended to read:
AB635,8,1714
48.375
(4) (b) 1.
The person who intends to perform or induce the abortion
15believes, to the best of his or her medical judgment based on the facts of the case
16before him or her, that a A medical emergency
, as defined in s. 253.10 (2) (d), exists
17that complicates the pregnancy so as to require an immediate abortion.
AB635, s. 16
18Section
16. 48.375 (4) (b) 1m. of the statutes is repealed.
AB635, s. 17
19Section
17. 48.375 (4) (b) 3. of the statutes is amended to read:
AB635,9,620
48.375
(4) (b) 3. The minor provides the person who intends to perform or
21induce the abortion with a written statement, signed and dated by the minor, that
22a parent who has legal custody of the minor, or the minor's guardian or legal
23custodian, if one has been appointed,
or an adult family member of the minor, or a
24foster parent or treatment foster parent, if the minor has been placed in a foster home
25or treatment foster home and the minor's parent has signed a waiver granting the
1department, a county department, the foster parent or the treatment foster parent
2the authority to consent to medical services or treatment on behalf of the minor, has
3inflicted abuse on the minor. The person who intends to perform or induce the
4abortion shall place the statement in the minor's medical record. The person who
5intends to perform or induce the abortion shall report the abuse as required under
6s. 48.981 (2).
AB635, s. 18
7Section
18. 48.375 (6) of the statutes is amended to read:
AB635,9,118
48.375
(6) Right to petition court for waiver. Any pregnant minor who is
9seeking an abortion in this state
, and any member of the clergy on the minor's behalf, 10may file a petition specified under s. 48.257 with any court for a waiver of the
11parental consent requirement under sub. (4) (a) 1.
AB635, s. 19
12Section
19. 48.375 (7) (a) (intro.) of the statutes is amended to read:
AB635,9,1713
48.375
(7) (a)
Receipt of petition; initial appearance. (intro.) On the
date that 14day on which a petition under s. 48.257 is filed
, or
, if it is impossible to do so on that
15day, on the next calendar day, the court shall hold an initial appearance in chambers
16at which the minor
or the member of the clergy who filed the petition on behalf of the
17minor, if any, is present and shall do all of the following:
AB635, s. 20
18Section
20. 48.375 (7) (a) 4. of the statutes is amended to read:
AB635,9,2119
48.375
(7) (a) 4. Notify the minor, the minor's counsel,
if any, the member of the
20clergy who filed the petition on behalf of the minor, if any, and the minor's guardian
21ad litem, if any, of the time, date
, and place of the hearing.
AB635, s. 21
22Section
21. 48.375 (7) (b) (intro.) of the statutes is amended to read: