SENATE, No. 2131
STATE OF NEW JERSEY
INTRODUCED JUNE 5, 1997
By Senators SCOTT, CARDINALE, Cafiero, Inverso, O'Connor, Sacco and Kenny
An Act concerning parental notification for abortion, amending and supplementing P.L.1965, c.217.
Be It Enacted by the Senate and General Assembly of the State of New Jersey:
1. Section 1 of P.L.1965, c.217 (C.9:17A-1) is amended to read as follows:
1. The consent to the performance of medical or surgical care and procedure by a hospital or by a physician licensed to practice medicine and surgery executed by a married person who is a minor, or by a pregnant woman who is a minor, on his or her behalf or on behalf of any of his or her children, shall be valid and binding, and, for such purposes, a married person who is a minor or a pregnant woman who is a minor shall be deemed to have the same legal capacity to act and shall have the same powers and obligations as has a person of legal age. Notwithstanding any other provision of the law, an unmarried, pregnant minor may give consent to the furnishing of hospital, medical and surgical care related to her pregnancy or her child, except for the purposes and requirements of P.L. , c. (C. ) (now pending before the Legislature as this bill) and such consent shall not be subject to disaffirmance because of minority. The consent of the parent or parents of an unmarried, pregnant minor shall not be necessary in order to authorize hospital, medical and surgical care related to her pregnancy or her child, except for the purposes and requirements of P.L. , c. (C. ) (now pending before the Legislature as this bill).
(cf: P.L.1965, c.217, s.1)
2. (New section) Sections 2 through 10 of this act shall be known and may be cited as the "Parental Notification for Abortion Act."
3. (New section) The Legislature finds that there exist compelling and important State interests in protecting minors against their own immaturity, in fostering the family structure and preserving it as a viable social unit, and in protecting the rights of parents to rear their children.
The Legislature further finds that minors often lack the ability to make fully informed choices that take into account both immediate and long-range consequences of their actions; that the medical, emotional, and psychological consequences of abortion are serious and of indeterminate duration, particularly when the patient is a minor; that parents ordinarily possess information essential to a physician's exercise of his best medical judgment concerning their child; and that parents who are aware that their minor daughter has had an abortion may better insure that the minor receives adequate medical attention after her abortion. The Legislature further finds that parental consultation regarding abortion is desirable and in the best interest of the minor.
It is, therefore, the intent of the Legislature to further the interests stated above by enacting this parental notice provision.
4. (New section) As used in this act:
"Abortion" means the use of any means to terminate the pregnancy of a female known to be pregnant with knowledge that the termination with those means will, with reasonable likelihood, cause the death of the fetus.
"Fetus" means the offspring of human beings existing from the moment of fertilization of the ovum by the spermatozoa through every stage of development until birth.
"Parent" means: a. Both parents of an unemancipated minor, if both parents are domiciled at the same address; or b. The parent with primary custody, care and control of the unemancipated minor; or c. If there is no parent with primary custody, care and control, then the foster parents, foster parent or the guardian of the unemancipated minor.
"Unemancipated minor" means a female under the age of 18 years who is unmarried and is not currently serving active duty in one of the military services of the United States of America or a female for whom a guardian has been appointed pursuant to N.J.S.3B:12-25 because of a finding of incompetency. For the purposes of this act, pregnancy does not emancipate a female under the age of 18 years.
5. (New section) a. Notwithstanding any other provision of law to the contrary, an abortion shall not be performed upon an unemancipated minor until at least 48 hours after written notice of the pending operation has been delivered in the manner specified in this act.
b. The notice shall be addressed to the parent at the parent's last known address and delivered personally to the parent by the physician.
c. In lieu of the personal delivery required in subsection b. of this section, notice may be made by certified mail addressed to the parent at the parent's last known address with return receipt requested and restricted delivery to the addressee, which means a postal employee may only deliver the mail to the authorized addressee. At the same time that notice is mailed by certified mail, it shall also be sent by first class mail to the parent at the parent's last known address. The 48 hour period for notice sent under the provisions of this subsection shall begin at noon on the next day on which regular mail delivery takes place following the day on which the mailings are posted.
6. (New section) Notice of a pending abortion shall not be required under this act if the parent who is entitled to notice has set forth in a notarized writing that notice was received.
7. (New section) Notice of a pending abortion shall not be required under this act if the attending physician certifies in the unemancipated minor's medical records that the abortion is necessary to prevent the unemancipated minor's death and there is insufficient time to provide the required notice.
8. (New section) a. If the pregnant unemancipated minor objects to notice being given to her parent because of allegations that she is the victim by her parent of abuse, cruelty or neglect, as defined in R.S.9:6-1, she may, by petition or motion, seek a waiver of parental notification from a judge of the Superior Court. Such judicial determination of parental abuse shall not be based, in whole or in part, on either (1) the personal opposition of such parent to the pending abortion or to abortion in general, or (2) the refusal by such parent to pay for the pending abortion, or the unemancipated minor's assertion that such parent would not pay for the pending abortion.
If the judge, after an appropriate hearing, determines the allegations are unfounded, notice shall be given as provided for in section 5 of this act. If the judge determines the allegations are true, and that notification of the minor's parent would not be in her best interest, then the judge shall authorize a waiver of notification. Notice of that determination shall be made to the Division of Youth and Family Services.
b. The minor may participate in proceedings in the court on her own behalf, and the court may appoint a guardian ad litem for her. The court shall, however, advise her that she has a right to court appointed counsel, and shall, upon her request, provide her with such counsel.
c. Proceedings in the court under this section shall be confidential and shall be given such precedence over other pending matters so that the court may reach a decision promptly and without delay so as to serve the best interest of the minor. A judge of the Superior Court who conducts proceedings under this section shall make specific written factual findings and legal conclusions supporting the decision and shall order a record of the evidence to be maintained including the judge's findings and conclusions.
d. An expedited confidential appeal shall be available to a minor for whom the court denies an order waiving notification. No filing fees shall be required of any minor at either the trial or the appellate level. Access to the trial court for the purposes of such a petition or motion, and access to the appellate courts for purposes of making an appeal from denial of the same, shall be afforded such a minor on an emergent basis in accordance with the rules of court.
9. (New section) Nothing in this act shall be interpreted to deny a pregnant unemancipated minor who is under the age of 18 any benefits to which she would otherwise be entitled pursuant to law.
10. (New section) Any person who performs an abortion in violation of this act shall be subject to a civil penalty of not less than $1,000 and not more than $5,000 and shall be liable in a civil action by a parent wrongfully denied notification. A person shall not be liable under this act if the person establishes by written evidence that the person relied upon evidence sufficient to convince a careful and prudent person that the representations of the unemancipated minor regarding information necessary to comply with this section are bona fide and true, or if the person has attempted with reasonable diligence to deliver notice, but has been unable to do so.
11. This act shall take effect immediately.
This bill requires that before a doctor may perform or induce an abortion on a pregnant unemancipated minor, written notice must be given to the minor's parent or guardian. "Parent" is defined as both parents of an unemancipated minor, if both parents are domiciled at the same address; or the parent with primary custody, care and control of the unemancipated minor; or, if there is no parent with primary custody, care and control, then the foster parents, foster parent or the guardian of the unemancipated minor.
The bill requires the notice to be delivered to the parent at the parent's last known address either personally by the doctor or by certified mail, return receipt requested and restricted delivery to the addressee. The abortion procedure cannot be performed until at least 48 hours after the notice has been delivered or posted to the parent.
The bill provides that notice of a pending abortion will not be required if the parent who is entitled to notice has set forth in a notarized writing that notice was received or if there is an emergency need for the abortion because of an immediate threat to the life of the unemancipated minor.
If the unemancipated minor objects to notice because of allegations that she is a victim of abuse, cruelty or neglect, she may petition the court for a waiver of notification. If the judge determines the allegations are true, and that parental notification would not be in the minor's best interest, he shall order the waiver. Notice of the judge's determination shall be made to the Division of Youth and Family Services. The court proceedings shall be confidential and the decision made promptly so as to serve the best interest of the minor. Additionally, an expedited confidential appeal from an order denying the waiver shall be available to the pregnant minor.
The bill also provides that performance of an abortion in violation of the act will result in a civil penalty of between $1,000 and $5,000 and shall be grounds for a civil action by the parent denied notification.
Requires parental notification of abortion performed on minor.