SB1120 - 541R

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

Section 1. 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; pregnancy information and counseling

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 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 the 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 any of the following applies:

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.

3. A physician provides the information and counseling described in subsection N of this section or refers the minor to a counselor who will provide the information and counseling described in subsection N of this section, and the person providing the information and counseling pursuant to subsection N of this section complies with the requirements of subsection O of this section.

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.

N. A physician or counselor who provides pregnancy information and counseling under this subsection shall do all of the following in a manner that the minor will understand:

1. Explain that the information being given to the minor is objective and is not intended to coerce, persuade or induce the minor to choose to either have an abortion or carry the pregnancy to term.

2. Explain that the minor may withdraw her decision to have an abortion at any time before the abortion is performed or may reconsider a decision not to have an abortion at any time within the time period during which an abortion may legally be performed.

3. Clearly and fully explore with the minor the alternative choices available for managing the pregnancy, including all of the following:

(a) Carrying the pregnancy to term and keeping the child.

(b) Carrying the pregnancy to term and placing the child with a relative or with another family through foster care or adoption.

(d) Having an abortion.

4. Explain that agencies are available to provide birth control information and that a list of these agencies and the services available from each will be provided if the minor requests.

5. Discuss the possibility of involving the minor's parent, guardian or other adult family member in the minor's decision‑making concerning the pregnancy and explore whether the minor believes that involvement would be in the minor's best interests.

6. Provide adequate opportunity for the minor to ask any questions concerning the pregnancy, abortion, child care and adoption and provide the information the minor seeks or, if the physician or counselor cannot provide the information, indicate where the minor can receive the information.

O. After providing the information and counseling to a minor as required by subsection N of this section, the physician or counselor shall:

1. Have the minor sign and date a form stating:

(a) that The minor has received information on prenatal and postnatal care and alternatives to abortion and that there are agencies that will provide assistance.

(b) that The minor has received an explanation that the minor may withdraw an abortion decision or reconsider her decision to carry a pregnancy to term.

(d) that The minor has received an explanation about agencies available to provide birth control information.

(e) that The minor has discussed with the physician or counselor the possibility of involving the minor's parent, guardian or other adult family member in the minor's decision‑making about the pregnancy.

(f) The reasons for not involving the minor's parent, guardian or other adult family member, if applicable.

(g) that The minor has been given an adequate opportunity to ask questions.

2. Sign and date the form and include the physician's or counselor's address and telephone number. The physician or counselor shall keep a copy for the physician's or counselor's files and shall give the form to the minor or, if the minor requests and if the physician or counselor providing the information is not the attending physician, transmit the form to the minor's attending physician. END_STATUTE