House Engrossed




State of Arizona

House of Representatives

Fifty-first Legislature

Second Regular Session












Amending sections 36‑449.02, 36‑2152 and 36‑2161, Arizona Revised Statutes; relating to abortion.





Be it enacted by the Legislature of the State of Arizona:

Section 1.  Section 36-449.02, Arizona Revised Statutes, is amended to read:

START_STATUTE36-449.02.  Abortion clinics; licensure requirements; rules; inspections; standing to intervene

A.  Beginning on April 1, 2000, an abortion clinic shall meet the same licensure requirements as prescribed in article 2 of this chapter for health care institutions.

B.  An abortion clinic that holds an unclassified health care facility license issued before the effective date of this article August 6, 1999 may retain that classification until April 1, 2000 subject to compliance with all laws that relate to unclassified health care facilities.

C.  Beginning on April 1, 2000, abortion clinics shall comply with department requirements for abortion clinics and department rules that govern abortion clinics.

D.  If the director determines that there is reasonable cause to believe an abortion clinic is not adhering to the licensing requirements of this article or any other law or rule concerning abortion, the director and any duly designated employee or agent of the director, including county health representatives and county or municipal fire inspectors, consistent with standard medical practices, may enter on and into the premises of the abortion clinic that is licensed or required to be licensed pursuant to this article during regular business hours of the abortion clinic to determine compliance with this article, rules adopted pursuant to this article, local fire ordinances or rules and any other law or rule relating to abortion.

E.  An application for licensure pursuant to this article constitutes permission for, and complete acquiescence in, an entry or inspection of the premises during the pendency of the application and, if licensed, during the term of the license.

F.  If an inspection conducted pursuant to this section reveals that an abortion clinic is not adhering to the licensing requirements prescribed pursuant to this article or any other law or rule concerning abortion, the director may take action authorized by this article.

G.  An abortion clinic whose license has been suspended or revoked pursuant to this article or section 36-424 is subject to inspection on application for relicensure or reinstatement of the license.

H.  In any proceeding in which the constitutionality, legality or application of this section is challenged, the attorney general or any county or city attorney who wishes to defend the law has the right to intervene as a party and is deemed to have proper standing in the matter.  The only objection that may be raised to a motion to intervene as of right pursuant to this subsection is that the proposed intervenor does not have a good faith intention to defend the law.  Any party or proposed intervenor may raise this objection.  Notwithstanding section 41‑192, the department may employ legal counsel and make an expenditure or incur an indebtedness for legal services for the purposes of defending this section. END_STATUTE

Sec. 2.  Section 36-2152, Arizona Revised Statutes, is amended to read:

START_STATUTE36-2152.  Parental consent; exception; hearings; time limits; violations; classification; civil relief; statute of limitations

A.  In addition to the other requirements of this chapter, a person shall not knowingly perform an abortion on a pregnant unemancipated minor unless the attending physician has secured the written and notarized consent from one of the minor's parents or the minor's guardian or conservator or unless a judge of the superior court authorizes the physician to perform the abortion pursuant to subsection B of this section.  Notwithstanding section 41‑319, the notarized statement of parental consent and the description of the document or notarial act recorded in the notary journal are confidential and are not public records.

B.  A judge of the superior court, on petition or motion, and after an appropriate hearing, shall authorize a physician to perform the abortion if the judge determines that the pregnant minor is mature and capable of giving informed consent to the proposed abortion.  If the judge determines that the pregnant minor is not mature or if the pregnant minor does not claim to be mature, the judge shall determine whether the performance of an abortion on her without the consent from one of her parents or her guardian or conservator would be in her best interests and shall authorize a physician to perform the abortion without consent if the judge concludes that the pregnant minor's best interests would be served.

C.  If the pregnant minor claims to be mature at a proceeding held pursuant to subsection B of this section, the minor must prove by clear and convincing evidence that she is sufficiently mature and capable of giving informed consent without consulting her parent or legal guardian based on her experience level, perspective and judgment.  In assessing the pregnant minor's experience level, the court may consider, among other relevant factors, the minor's age and experiences working outside the home, living away from home, traveling on her own, handling personal finances and making other significant decisions.  In assessing the pregnant minor's perspective, the court may consider, among other relevant factors, what steps the minor took to explore her options and the extent to which she considered and weighed the potential consequences of each option.  In assessing the pregnant minor's judgment, the court may consider, among other relevant factors, the minor's conduct since learning of her pregnancy and her intellectual ability to understand her options and to make an informed decision.

D.  The pregnant minor may participate in the court proceedings on her own behalf.  The court shall appoint a guardian ad litem for her.  The court shall advise her that she has the right to court appointed counsel and, on her request, shall provide her with counsel unless she appears through private counsel or she knowingly and intelligently waives her right to counsel.

E.  Proceedings in the court under this section are confidential and have precedence over other pending matters.  Members of the public shall not inspect, obtain copies of or otherwise have access to records of court proceedings under this section unless authorized by law.  A judge who conducts proceedings under this section shall make in writing specific factual findings and legal conclusions supporting the decision and shall order a confidential record of the evidence to be maintained, including the judge's own findings and conclusions.  The minor may file the petition using a fictitious name.  For purposes of this subsection, public does not include judges, clerks, administrators, professionals or other persons employed by or working under the supervision of the court or employees of other public agencies who are authorized by state or federal rule or law to inspect and copy closed court records.

F.  The court shall hold the hearing and shall issue a ruling within forty‑eight hours, excluding weekends and holidays, after the petition is filed.  If the court fails to issue a ruling within this time period, the petition is deemed to have been granted and the consent requirement is waived.

G.  An expedited confidential appeal is available to a pregnant minor for whom the court denies an order authorizing an abortion without parental consent.  The appellate court shall hold the hearing and issue a ruling within forty‑eight hours, excluding weekends and holidays, after the petition for appellate review is filed.  Filing fees are not required of the pregnant minor at either the trial or the appellate level.

H.  Parental consent or judicial authorization is not required under this section if either:

1.  The pregnant minor certifies to the attending physician that the pregnancy resulted from sexual conduct with a minor by the minor's parent, stepparent, uncle, grandparent, sibling, adoptive parent, legal guardian or foster parent or by a person who lives in the same household with the minor and the minor's mother.  The physician performing the abortion shall report the sexual conduct with a minor to the proper law enforcement officials pursuant to section 13‑3620 and shall preserve and forward a sample of the fetal tissue to these officials for use in a criminal investigation.

2.  The attending physician certifies in the pregnant minor's medical record that, on the basis of the physician's good faith clinical judgment, the pregnant minor has a condition that so complicates her medical condition as to necessitate the immediate abortion of her pregnancy to avert her death or for which a delay will create serious risk of substantial and irreversible impairment of major bodily function.

I.  A person who performs an abortion in violation of this section is guilty of a class 1 misdemeanor.  A person who intentionally causes, aids or assists a minor in obtaining an abortion in violation of this section is guilty of a class 1 misdemeanor.  A person is not subject to any liability under this section if the person establishes by written evidence that the person relied on evidence sufficient to convince a careful and prudent person that the representations of the pregnant minor regarding information necessary to comply with this section are true.

J.  In addition to other remedies available under the common or statutory law of this state, one or both of the minor's parents or the minor's guardian may bring a civil action in the superior court in the county in which the parents or the guardian resides to obtain appropriate relief for a violation of this section, unless the pregnancy resulted from the criminal conduct of the parent or guardian.  The civil action may be based on a claim that failure to obtain consent was a result of simple negligence, gross negligence, wantonness, wilfulness, intention or any other legal standard of care.  The civil action may be brought against the person who performs the abortion in violation of this section and any person who causes, aids or assists a minor to obtain an abortion without meeting the requirements of this section.  Relief pursuant to this subsection includes the following:

1.  Money damages for all psychological, emotional and physical injuries that result from the violation of this section.

2.  Statutory damages in an amount equal to five thousand dollars or three times the cost of the abortion, whichever is greater.

3.  Reasonable attorney fees and costs.

K.  A civil action brought pursuant to this section must be initiated within six years after the violation occurred.

L.  The consent required by this section must be obtained on a form prescribed by the department of health services.  At a minimum, the form must:

1.  List the possible medical risks that may occur with any surgical, medical or diagnostic procedure, including the potential for infection, blood clots, hemorrhage, allergic reactions and death.

2.  List the possible medical risks that may occur with a surgical abortion, including hemorrhage, uterine perforation, sterility, injury to the bowel or bladder, a possible hysterectomy as a result of a complication or injury during the procedure and failure to remove all products of conception that may result in an additional procedure.

3.  List the possible medical risks that may occur with a medication abortion, including hemorrhage, infection, failure to remove all products of conception that may result in an additional procedure, sterility and the possible continuation of the pregnancy.

4.  Require the pregnant minor's and the pregnant minor's parent's initials on each page of the form and a full signature on the final page of the form.

5.  Include a space for the notary's signature and seal on the final page of the form.

M.  The physician must maintain the form in the pregnant minor's records for seven years after the date of the procedure or five years after the date of the minor's maturity, whichever is longer. END_STATUTE

Sec. 3.  Section 36-2161, Arizona Revised Statutes, is amended to read:

START_STATUTE36-2161.  Abortions; reporting requirements

A.  A hospital or facility in this state where abortions are performed must submit to the department of health services on a form prescribed by the department a report of each abortion performed in the hospital or facility.  The report shall not identify the individual patient by name but must include the following information:

1.  The name and address of the facility where the abortion was performed.

2.  The type of facility where the abortion was performed.

3.  The county where the abortion was performed.

4.  The woman's age.

5.  The woman's educational background by highest grade completed and, if applicable, level of college completed.

6.  The county and state in which the woman resides.

7.  The woman's race and ethnicity.

8.  The woman's marital status.

9.  The number of prior pregnancies and prior abortions of the woman.

10.  The number of previous spontaneous terminations of pregnancy of the woman.

11.  The gestational age of the unborn child at the time of the abortion.

12.  The reason for the abortion, including whether the abortion is elective or due to maternal or fetal health considerations.

13.  The type of procedure performed or prescribed and the date of the abortion.

14.  Any preexisting medical conditions of the woman that would complicate pregnancy and any known medical complication that resulted from the abortion.

15.  The basis for any medical judgment that a medical emergency existed that excused the physician from compliance with the requirements of this chapter.

16.  The physician's statement if required pursuant to section 36‑2301.01.

17.  If applicable, the weight of the aborted fetus for any abortion performed pursuant to section 36‑2301.01.

18.  Whether an infant was born alive during or immediately after an attempted abortion and the efforts made to promote, preserve and maintain the life of the infant pursuant to section 36‑2301.

B.  The report must be signed by the physician who performed the abortion or, if a health professional other than a physician is authorized by law to prescribe or administer abortion medication, the signature and title of the person who prescribed or administered the abortion medication.  The form may be signed electronically and shall indicate that the person who signs the report is attesting that the information in the report is correct to the best of the person's knowledge.  The hospital or facility must transmit the report to the department within fifteen days after the last day of each reporting month.

C.  Any report filed pursuant to this section shall be filed electronically at an internet website that is designated by the department unless the person required to file the report applies for a waiver from electronic reporting by submitting a written request to the department. END_STATUTE

Sec. 4.  Exemption from rulemaking

For the purposes of implementing this act, the department of health services is exempt from the rulemaking requirements of title 41, chapter 6, Arizona Revised Statutes, for one year after the effective date of this act.

Sec. 5.  Legislative findings

A.  Concerning section 36‑449.02, Arizona Revised Statutes, as amended by this act, the legislature finds that abortion clinics are closely regulated health care entities.  The legislature further finds that the authority of the director of the department of health services to inspect abortion clinics is essential for maintaining adequate health and safety standards.  The same public health considerations that apply to the inspection of other health care institutions pursuant to section 36‑424, Arizona Revised Statutes, supported by a determination of reasonable cause, also apply to abortion clinics.

B.  Concerning section 36‑2152, Arizona Revised Statutes, as amended by this act, the legislature recognizes that the decision whether to have an abortion is serious and "fraught with consequences."  Planned Parenthood of Southeeastern Pa. v. Casey, 505 U.S. 833, 852 (1992).  Immature minors often lack the ability to make fully informed choices that take into account both immediate and long‑term consequences; therefore, parental involvement in the abortion decision is usually desirable and in the best interests of the minor.  See In re B.S., 205 Ariz. 611, 616-17, 74 P.3d 285, 290-91 (App. 2003).  The legislature further finds that Arizona has a compelling interest in its public policy favoring parental involvement for minors facing pregnancy and ensuring that parental rights under the law are not circumvented by individuals other than a parent or guardian transporting minors across state lines to avoid Arizona's parental involvement laws.  The law of Arizona should be followed and any judicial relief should be confined to that provided under Arizona statutes.  See Jackie Doe v. Hon. Michael Ryan and Arizona Dept. of Economic Security, CV-99-0343-SA (1999) (Zlaket, C.J., and Jones, J., dissenting).

Sec. 6.  Severability

If a provision of this act or its application to any person or circumstance is held invalid, the invalidity does not affect other provisions or applications of the act that can be given effect without the invalid provision or application, and to this end the provisions of this act are severable.