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Billno should always have and extension i.e. h1.ih

S 1104 PCS

To amend title 10, United States Code, to provide for parental involvement in abortions of dependent children of members of the Armed Forces.

May 22, 2003

Mr. BROWNBACK introduced the following bill; which was read the first time

May 23, 2003

Read the second time and placed on the calendar

To amend title 10, United States Code, to provide for parental involvement in abortions of dependent children of members of the Armed Forces.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,

SECTION 1. PROTECTION OF CHILDREN AND PARENTAL INVOLVEMENT IN THE PERFORMANCE OF ABORTIONS FOR DEPENDENT CHILDREN OF MEMBERS OF THE ARMED FORCES.

Section 1093 of title 10, United States Code, is amended by adding at the end the following new subsections:

`(c) PARENTAL NOTICE- (1) A physician may not use facilities of the Department of Defense to perform an abortion on a pregnant unemancipated minor who is a child of a member of the armed forces unless--

`(A) the physician gives at least 48 hours actual notice, in person or by telephone, of the physician's intent to perform the abortion to--

`(i) the member of the armed forces, or another parent of the minor, if the minor has no managing conservator or guardian; or

`(ii) a court-appointed managing conservator or guardian;

`(B) the judge of an appropriate district court of the United States issues an order authorizing the minor to consent to the abortion as provided by subsection (d) or (e);

`(C) the appropriate district court of the United States by its inaction constructively authorizes the minor to consent to the abortion as provided by subsection (d) or (e); or

`(D) the physician performing the abortion--

`(i) concludes that on the basis of the physician's good faith clinical judgment, a condition exists that complicates the medical condition of the minor and necessitates the immediate abortion of her pregnancy to avert her death or to avoid a serious risk of substantial and irreversible impairment of a major bodily function; and

`(ii) certifies in writing to the appropriate medical official of the Department of Defense, and in the patient's medical record, the medical indications supporting the physician's judgment that the circumstances described by clause (i) exist.

`(2) If a person to whom notice may be given under paragraph (1)(A) cannot be notified after a reasonable effort, a physician may perform an abortion if the physician gives 48 hours constructive notice, by certified mail, restricted delivery, sent to the last known address, to the person to whom notice may be given under that paragraph. The period under this paragraph begins when the notice is mailed. If the person required to be notified is not notified within the 48-hour period, the abortion may proceed even if the notice by mail is not received.

`(3) The requirement that 48 hours actual notice be provided under this subsection may be waived by an affidavit of--

`(A) the member of the armed forces concerned, or another parent of the minor, if the minor has no managing conservator or guardian; or

`(B) a court-appointed managing conservator or guardian.

`(4) A physician may execute for inclusion in the minor's medical record an affidavit stating that, according to the best information and belief of the physician, notice or constructive notice has been provided as required by this subsection. Execution of an affidavit under this paragraph creates a presumption that the requirements of this subsection have been satisfied.

`(5) A certification required by paragraph (1)(D) is confidential and privileged and is not subject to disclosure, discovery, subpoena, or other legal process. Personal or identifying information about the minor, including her name, address, or social security number, may not be included in a certification under paragraph (1)(D). The physician must keep the medical records on the minor in compliance with regulations prescribed by the Secretary of Defense.

`(6) A physician who intentionally performs an abortion on a pregnant unemancipated minor in violation of this subsection commits an offense punishable by a fine not to exceed $10,000.

`(7) It is a defense to prosecution under this subsection that the minor falsely represented her age or identity to the physician to be at least 18 years of age by displaying an apparently valid governmental record of identification such that a reasonable person under similar circumstances would have relied on the representation. The defense does not apply if the physician is shown to have had independent knowledge of the minor's actual age or identity or failed to use due diligence in determining the minor's age or identity.

`(d) JUDICIAL APPROVAL- (1) A pregnant unemancipated minor who is a child of a member of the armed forces and who wishes to have an abortion using facilities of the Department of Defense without notification to the member of the armed forces, another parent, her managing conservator, or her guardian may file an application for a court order authorizing the minor to consent to the performance of an abortion without notification to either of her parents or a managing conservator or guardian.

`(2) Any application under this subsection may be filed in any appropriate district court of the United States. In the case of a minor who elects not to travel to the United States in pursuit of an order authorizing the abortion, the court may conduct the proceedings in the case of such application by telephone.

`(3) An application under this subsection shall be made under oath and include--

`(A) a statement that the minor is pregnant;

`(B) a statement that the minor is unmarried, is under 18 years of age, and has not had her disabilities removed;

`(C) a statement that the minor wishes to have an abortion without the notification of either of her parents or a managing conservator or guardian; and

`(D) a statement as to whether the minor has retained an attorney and, if she has retained an attorney, the name, address, and telephone number of her attorney.

`(4) The court shall appoint a guardian ad litem for the minor. If the minor has not retained an attorney, the court shall appoint an attorney to represent the minor. If the guardian ad litem is an attorney, the court may appoint the guardian ad litem to serve as the minor's attorney.

`(5) The court may appoint to serve as guardian ad litem for a minor--

`(A) a psychiatrist or an individual licensed or certified as a psychologist;

`(B) a member of the clergy;

`(C) a grandparent or an adult brother, sister, aunt, or uncle of the minor; or

`(D) another appropriate person selected by the court.

`(6) The court shall determine within 48 hours after the application is filed whether the minor is mature and sufficiently well-informed to make the decision to have an abortion performed without notification to either of her parents or a managing conservator or guardian, whether notification would not be in the best interest of the minor, or whether notification may lead to physical, sexual, or emotional abuse of the minor. If the court finds that the minor is mature and sufficiently well informed, that notification would not be in the minor's best interest, or that notification may lead to physical, sexual, or emotional abuse of the minor, the court shall enter an order authorizing the minor to consent to the performance of the abortion without notification to either of her parents or a managing conservator or guardian and shall execute the required forms.

`(7) If the court fails to rule on the application within the period specified in paragraph (6), the application shall be deemed to be granted and the physician may perform the abortion as if the court had issued an order authorizing the minor to consent to the performance of the abortion without notification under subsection (c).

`(8) If the court finds that the minor does not meet the requirements of paragraph (6), the court may not authorize the minor to consent to an abortion without the notification authorized under subsection (c)(1).

`(9) The court may not notify a parent, managing conservator, or guardian that the minor is pregnant or that the minor wants to have an abortion. The court proceedings shall be conducted in a manner that protects the anonymity of the minor. The application and all other court documents pertaining to the proceedings are confidential and privileged and are not subject to disclosure, discovery, subpoena, or other legal process. The minor may file the application using a pseudonym or using only her initials.

`(10) An order of the court issued under this subsection is confidential and privileged and is not subject to disclosure, discovery, subpoena, or other legal process. The order may not be released to any person but the pregnant minor, the pregnant minor's guardian ad litem, the pregnant minor's attorney, another person designated to receive the order by the minor, or a governmental agency or attorney in a criminal or administrative action seeking to assert or protect the interest of the minor.

`(11) A filing fee is not required of and court costs may not be assessed against a minor filing an application under this subsection.

`(e) APPEAL- (1) A minor whose application under subsection (d) is denied may appeal to the court of appeals of the United States having jurisdiction of the district court of the United States that denied the application. If the court of appeals fails to rule on the appeal within 48 hours after the appeal is filed, the appeal shall be deemed to be granted and the physician may perform the abortion using facilities of the Department of Defense as if the court had issued an order authorizing the minor to consent to the performance of the abortion using facilities of the Department of Defense without notification under subsection (c). Proceedings under this subsection shall be given precedence over other pending matters to the extent necessary to assure that the court reaches a decision promptly.

`(2) A ruling of the court of appeals under this subsection is confidential and privileged and is not subject to disclosure, discovery, subpoena, or other legal process. The ruling may not be released to any person but the pregnant minor, the pregnant minor's guardian ad litem, the pregnant minor's attorney, another person designated to receive the ruling by the minor, or a governmental agency or attorney in a criminal or administrative action seeking to assert or protect the interest of the minor.

`(3) A filing fee is not required of and court costs may not be assessed against a minor filing an appeal under this subsection.

`(f) DEFINITIONS- In this section:

`(1) The term `abortion' means the use of any means at a medical facility of the Department of Defense to terminate the pregnancy of a female known by an attending physician to be pregnant, with the intention that the termination of the pregnancy by those means will with reasonable likelihood cause the death of the fetus. The term applies only to an unemancipated minor known by an attending physician to be pregnant and may not be construed to limit a minor's access to contraceptives.

`(2) The term `appropriate district court of the United States' means--

`(A) with respect to a proposed abortion at a particular Department of Defense medical facility in the United States or its territories, the district court of the United States having proper venue in relation to that facility; or

`(B) if the minor is seeking an abortion at a particular Department of Defense facility outside the United States or its territories--

`(i) if the minor elects to travel to the United States in pursuit of an order authorizing the abortion, the district court of the United States having proper venue in the district in which the minor first arrives from outside the United States; or

`(ii) if the minor elects not to travel to the United States in pursuit of an order authorizing the abortion, the district court of the United States for the district in which the minor last resided.

`(3) The term `fetus' means an individual human organism from fertilization until birth.

`(4) The term `guardian' means a court-appointed guardian of the person of the minor.

`(5) The term `physician' means an individual licensed to practice medicine.

`(6) The term `unemancipated minor' includes a minor who is not a member of the armed forces and who--

`(A) is unmarried; and

`(B) has not had any disabilities of minority removed.'.

Calendar No. 114

To amend title 10, United States Code, to provide for parental involvement in abortions of dependent children of members of the Armed Forces.

May 23, 2003

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