Bill 3122

                    Current Status

Bill Number:               3122
Ratification Number:       374
Act Number                 341
Introducing Body:          House
Subject:                   Abortions, consent for, by minors

(A341, R374, H3122)

AN ACT TO AMEND THE CODE OF LAWS OF SOUTH CAROLINA, 1976, BY ADDING SECTIONS 44-41-31 THROUGH 44-41-37 SO AS TO PROVIDE REQUIREMENTS THAT MUST BE FOLLOWED BEFORE PERFORMING AN ABORTION ON A MINOR AND TO PERMIT A MINOR TO PETITION THE CIRCUIT OR FAMILY COURT FOR AN ORDER GRANTING HER THE RIGHT TO OBTAIN AN ABORTION WITHOUT THE CONSENT REQUIRED IN SECTION 44-41-31, TO PROVIDE PROCEDURES FOR THE FILING OF THE PETITION, TO REQUIRE THE COURT TO ENTER A WRITTEN ORDER STATING FINDINGS OF FACT AND CONCLUSIONS OF LAW IN SUPPORT OF ITS DECISION, TO PROVIDE THAT IF THE FATHER OF A CHILD BORN AFTER THE DENIAL OF A PETITION IS IDENTIFIED BY ADJUDICATION HE SHALL SHARE IN THE EXPENSES OF THE DELIVERY AND REARING OF THE CHILD AS DETERMINED BY THE COURT, TO PROVIDE A RIGHT OF APPEAL BY A MINOR TO THE SUPREME COURT ON A DECISION RENDERED PURSUANT TO SECTION 44-41-33, TO PROVIDE THAT FAILURE TO OBTAIN REQUIRED CONSENT CONSTITUTES PRIMA FACIE EVIDENCE OF INTERFERENCE WITH FAMILY RELATIONS IN AN APPROPRIATE CIVIL ACTION, TO PROVIDE A PENALTY FOR A PERSON WHO INTENTIONALLY PERFORMS AN ABORTION WITH KNOWLEDGE THAT, OR RECKLESS DISREGARD AS TO WHETHER, THE PERSON UPON WHOM THE ABORTION IS TO BE PERFORMED IS AN UNEMANCIPATED MINOR, AND WHO INTENTIONALLY OR KNOWINGLY FAILS TO CONFORM TO ANY REQUIREMENT IN SECTIONS 44-41-10 THROUGH 44-41-36, AND TO PROVIDE THAT A PHYSICIAN OR OTHER PROFESSIONAL PERSON OR AGENCY COUNSELING OR DISCUSSING WITH A MINOR THE QUESTION OF HER OBTAINING AN ABORTION SHALL FULLY INFORM HER OF THE PROCEDURES SHE MUST FOLLOW UNDER THE LAW TO OBTAIN AN ABORTION WITHOUT THE CONSENT REQUIRED IN SECTION 44-41-31; TO AMEND SECTION 44-41-10, RELATING TO DEFINITIONS USED REGARDING THE REGULATION OF THE PERFORMANCE OF AN ABORTION, SO AS TO DEFINE "MINOR", "EMANCIPATED MINOR", AND "IN LOCO PARENTIS", AND REDEFINE "ABORTION"; TO AMEND SECTION 44-41-30, RELATING TO PERSONS FROM WHOM CONSENT IS REQUIRED TO PERFORM AN ABORTION, SO AS TO PROVIDE THAT CONSENT IS REQUIRED BEFORE THE PERFORMANCE OF AN ABORTION FROM A PREGNANT WOMAN IN EVERY CASE AND IN THE CASE OF A MINOR IT MUST BE OBTAINED PURSUANT TO THE PROVISIONS OF SECTION 44-41-31, PROVIDE FOR THE OBTAINING OF CONSENT OF A WOMAN WHO IS UNDER ADJUDICATION OF MENTAL INCOMPETENCE, AND PROVIDE FOR THE WAIVER OF CONSENT UNDER CERTAIN CIRCUMSTANCES; AND TO AMEND SECTION 44-41-60, RELATING TO THE REPORTING OF ABORTIONS, SO AS TO PROVIDE THAT THE FORM ON WHICH THE ABORTION IS REPORTED MUST INDICATE FROM WHOM CONSENT WAS OBTAINED OR CIRCUMSTANCES WAIVING CONSENT.

Whereas, the General Assembly finds that there exists an important and compelling state interest in protecting minors against their own immaturity, fostering the family structure and preserving it as a viable social unit, and protecting the rights of parents to rear children who are members of their household; and

Whereas, the General Assembly finds that immature minors often lack the ability to make fully informed choices that take account of both immediate and long-range consequences. The medical, emotional, and psychological consequences of abortion are serious and can be lasting, particularly when the patient is immature. The capacity to become pregnant and the capacity for mature judgment concerning the wisdom of an abortion are not related necessarily. Parents ordinarily possess information essential to a physician's exercise of his best medical judgment concerning the child; and parents who are aware that their minor daughter has had an abortion may better ensure that she receives adequate medical attention after the abortion; and

Whereas, the General Assembly further finds that parental consultation usually is desirable and in the best interests of the minor. Now, therefore,

Be it enacted by the General Assembly of the State of South Carolina:

Abortions, consent for, by minors

SECTION 1. Chapter 41, Title 44, of the 1976 Code is amended by adding:

"Section 44-41-31. (A) No person may perform an abortion upon a minor unless consent is obtained in accordance with one of the following provisions:

(1) the attending physician or his agent or the referring physician or his agent has secured the informed written consent, signed and witnessed, of the pregnant minor and:

(a) one parent of the minor; or

(b) a legal guardian of the minor; or

(c) a grandparent of the minor; or

(d) any person who has been standing in loco parentis to the minor for a period not less than sixty days;

(2) the minor is emancipated and the attending physician or his agent has received the informed signed written consent of the minor; or

(3) the attending physician or his agent has obtained the informed signed written consent of the minor and has received the order of the court obtained by the minor pursuant to this chapter.

(B) If a parent or legal guardian refuses to give the informed written consent for the minor's abortion and there has been a judicial finding of refusal of consent, and the minor has a child or children as a result of that pregnancy, the duty imposed by law of supporting the child or children extends to the minor and jointly and severally to the refusing parent or legal guardian and the natural father until the minor reaches the age of eighteen years or is emancipated.

(C) Any person standing in loco parentis and who consents to the abortion of the minor as permitted in subsection (A)(1) of this section shall sign an affidavit indicating the nature and length of his or her relationship with the minor. The affidavit must state the penalties for wilfully or knowingly making a false representation. Anyone who knowingly or wilfully makes a false representation in the affidavit shall be guilty of a misdemeanor and, upon conviction, must be fined not more than three thousand dollars or imprisoned for not more than one year.

Section 44-41-32. Every minor has the right to petition the court for an order granting her the right to obtain an abortion without the consent required in Section 44-41-31(1). In seeking this relief the following procedures apply:

(1) The minor may prepare and file a petition in either the circuit or family court. The petition may be filed in the name of Jane Doe to protect the anonymity of the minor.

(2) The Adoption and Birth Parent Services Division of the Department of Social Services, upon request of the minor, must provide assistance to the minor in preparing and filing the petition. Preparation and filing of the petition must be completed within forty-eight hours after the request. The Department of Social Services shall promulgate regulations establishing the procedures to be followed in providing this assistance.

(3) Upon the filing of the petition, the court shall appoint a guardian ad litem for the minor, taking into consideration the preference of the minor. The minor may participate in court proceedings on her own behalf, but the court shall advise her that she has a right to court-appointed counsel and shall provide her with counsel upon her request.

(4) All proceedings pursuant to this section must be given precedence over other matters pending before the court.

(5) The court shall hold a hearing and rule on the merits of the petition within seventy-two hours of the filing of the petition. This time may be extended upon the request of the minor. The court shall consider the emotional development, maturity, intellect, and understanding of the minor; the nature and possible consequences of the abortion and of the alternatives to the abortion; and other evidence that the court may find useful in determining whether the minor should be granted the right on her own behalf to consent to the abortion or whether the abortion is in the best interest of the minor.

Section 44-41-33. (A) The court shall enter a written order stating findings of fact and conclusions of law in support of its decision to:

(1) grant the minor the right on her own behalf to consent to the abortion if the court finds that the minor is mature and well-informed enough to make the abortion decision on her own;

(2) grant consent for the abortion if the court finds that the performance of the abortion would be in the minor's best interest; or

(3) deny the petition if the court finds that the minor is immature and that performance of the abortion would not be in the minor's best interest. If the father of the child born after the denial of the petition is identified by adjudication, he shall share in the expenses of the delivery and rearing of the child as determined by the court. Orders issued under this item shall specify that the minor shall have the right to counseling services, appropriate prenatal care, delivery, neonatal, and post-natal care, the cost of which may be paid by the State. Additionally, the State shall have subrogation rights against the father for payments made by the State on behalf of the child.

(B) The court shall immediately issue a written order to the minor, her guardian ad litem, attorney, or other person designated by the minor to receive notice on her behalf.

Section 44-41-34. (A) A minor has the right to appeal to the Supreme Court a decision rendered pursuant to Section 44-41-33. She is entitled to an anonymous and expeditious appellate review which takes precedence over other matters pending before the court.

(B) A minor who declares she has insufficient funds to pursue the procedures provided in this section or in Section 44-41-32 must not be required to pay the costs associated with these procedures.

(C) The notice of intent to appeal must be filed with the court issuing the order described in Section 44-41-33 within seventy-two hours from the date the order is received. The record on appeal must be completed and the appeal must be perfected within ten days from the filing of the notice of intent to appeal. These filing requirements are not considered jurisdictional and may be extended by the Supreme Court upon request of the minor for good cause shown.

(D) All hearings conducted under Sections 44-41-32 and 44-41-34 must be closed to the public. All records related to these sections and Section 44-41-33 are not open to public examination and must be sealed by the court.

(E) The Supreme Court shall adopt rules governing the administration of the courts or practice and procedure before such courts necessary to carry out the provisions of Sections 44-41-32, 44-41-33, and 44-41-34.

Section 44-41-35. Failure to obtain required consent constitutes prima facie evidence of interference with family relations in appropriate civil actions. The law of this State does not preclude the award of exemplary damages in an appropriate civil action relevant to violations concerning a minor. Nothing in this chapter may be construed to limit the common law rights of parents.

Section 44-41-36. (A) A person who intentionally performs an abortion with knowledge that, or with reckless disregard as to whether, the person upon whom the abortion is to be performed is an unemancipated minor, and who intentionally or knowingly fails to conform to any requirement in Sections 44-41-10 through 44-41-36 is guilty of a misdemeanor and, upon conviction, must be fined not less than two thousand dollars nor more than ten thousand dollars or imprisoned for not more than three years, or both. No part of the minimum fine may be suspended. For conviction of a third or subsequent offense, the sentence must be imprisonment for not less than sixty days nor more than three years, none of which may be suspended.

(B) A physician or any person employed or connected with a physician, hospital, or health care facility performing abortions who acts in good faith is justified in relying on the representations of the unemancipated minor or of any other person providing the information required under this chapter. A physician or other person who furnishes professional services related to an act authorized or required by this chapter and who relies upon the information furnished pursuant to this chapter may not be held to have violated any criminal law or to be civilly liable for the reliance, provided that the physician or other person acted in good faith.

Section 44-41-37. A physician or other professional person or agency counseling or discussing with a minor the question of her obtaining an abortion shall fully inform her of the procedures she must follow under law to obtain an abortion without the consent required in Section 44-41-31(1).

The Adoption and Birth Parent Services Division of the Department of Social Services shall develop and distribute brochures to health and education professionals for use in counseling pregnant minors. This brochure shall include the following:

(1) how to access her local health department for prenatal care;

(2) how to access her local Adoption and Birth Parent Services Division of the Department of Social Services or any private not for profit adoption service;

(3) the parental consent requirement as outlined in this bill;

(4) the judicial by-pass procedure as referred in Sections 44-41-32, 44-41-33, and 44-41-34; and

(5) how to access her local mental health center for counseling services."

Definitions

SECTION 2. Section 44-41-10 of the 1976 Code is amended by adding:

"(m) 'Minor' means a female under the age of seventeen.

(n) 'Emancipated minor' means a minor who is or has been married or has by court order been freed from the care, custody, and control of her parents.

(o) 'In loco parentis' means any person over the age of eighteen who has placed himself or herself in the position of a lawful parent by assuming obligations which are incidental to the parental relationship and has so served for a period of sixty days."

Definition

SECTION 3. Section 44-41-10(a) of the 1976 Code is amended to read:

"(a) 'Abortion' means the use of an instrument, medicine, drug, or other substance or device with intent to terminate the pregnancy of a woman known to be pregnant for reasons other than to increase the probability of a live birth, to preserve the life or health of the child after live birth, or to remove a dead fetus."

Consent required before abortion performed

SECTION 4. Section 44-41-30 of the 1976 Code is amended to read:

"Section 44-41-30. (A) Consent is required before the performance of an abortion from the pregnant woman in every case and in the case of a minor, it must be obtained pursuant to the provisions of Section 44-41-31.

(B) In the case of a woman who is under adjudication of mental incompetency by a court of competent jurisdiction, consent must be obtained from her spouse or a legal guardian if she is married; if she is not married, from one parent or a legal guardian.

(C) Notwithstanding the consent required in subsections (A) and (B) consent must be waived if:

(1) a physician determines that a medical emergency exists involving the life of or grave physical injury to the pregnant woman; or

(2) the pregnancy is the result of incest.

(D) In cases of incest the physician performing the abortion shall report the alleged incest to the local county department of social services or to a law enforcement agency in the county where the child resides or is found. Failure to report is a violation punishable under the child abuse laws of this State.

(E) Nothing in this section permits a physician to perform an abortion without first obtaining the consent of the pregnant woman if she is capable of giving consent."

Reporting of abortion

SECTION 5. Section 44-41-60 of the 1976 Code is amended to read:

"Section 44-41-60. Any abortion performed in this State must be reported by the performing physician on the standard form for reporting abortions to the state registrar, Department of Health and Environmental Control, within seven days after the abortion is performed provided that the name of the patient may not be reported on the form or otherwise disclosed to the state registrar. The form must indicate from whom consent was obtained or circumstances waiving consent."

Severability clause

SECTION 6. If a provision of this act or the application of it to a person or circumstance is held invalid, this invalidity does not affect the provisions or application of this act which can be given effect without the invalid provision or application, and the provisions of this act are declared to be severable.

Time effective

SECTION 7. This act takes effect ninety days after approval by the Governor.

Approved the 28th day of February, 1990.