CHAPTER 238

FORMERLY

HOUSE BILL NO. 179

AS AMENDED BY

HOUSE AMENDMENT NOS. 1, 8, 10 & 11 AND

SENATE AMENDMENT NO. 2

AN ACT TO AMEND CHAPTER 17, TITLE 24, AND CHAPTER 9, TITLE 10 OF THE DELAWARE CODE RELATING TO NOTICE OF ABORTIONS PERFORMED ON MINORS.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF DELAWARE:

Section. 1. Amend Chapter 17, Title 24, Delaware Code by striking the heading for subchapter VIII, which reads "Uniform Anatomical Gift Act", and by inserting a new subchapter to read:

"Subchapter VIII. Parental Notice of Abortion Act.

§ 1780. Short Title.

This Act shall be known and may be cited as the Parental Notice of Abortion Act. § 1781. Legislative Purpose and Findings.

(a) The Legislature of the State of Delaware finds as fact that:

(i) immature minors often lack the ability to make fully informed choices that take into account both immediate and long-range consequences;

(i) the physical, emotional, and psychological consequences of teen pregnancy are serious and can be lasting, particularly when the patient is immature;

(i) the capacity to become pregnant and the capacity for mature judgment concerning how to choose among the alternatives for managing that pregnancy are not necessarily related;

(ii) parents ordinarily possess information essential to enable a physician to exercise his or her best medical judgment concerning the child;

(ii) parents who are aware that their minor daughter has had an abortion can ensure that she receives adequate medical attention after the abortion;

(iii) parental consultation is usually desirable and in the best interest of their minor children and parents ordinarily act in the best interest of their minor children; and

(iv) parental involvement legislation enacted in other states has been shown to have significant impact in reducing abortion, birth and pregnancy rates among minors.

(b) It is the intent of the Legislature of the State of Delaware in enacting this parental notice provision to further the important and compelling State interests of:

(i) protecting minors against their own immaturity;

(ii) fostering the family structure and preserving it as a viable social unit;

(iii) protecting the rights of parents to rear children who are members of their household; and

(iv) protecting the health and safety of minor children. § 1782. Definitions.

For purposes of this Act, the following definitions will apply.

(a) 'Minor' means a female person under the age of 16.

(b) 'Emancipated minor' means any minor female who is or has been married or has, by court order or otherwise, been freed from the care, custody, and control of her parents or any other legal guardian.

(c) 'Abortion' means the use of any instrument, medicine, drug, or any other substance or device to terminate the pregnancy of a woman known to be pregnant, with an intention 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.

(d) 'Medical emergency' means that condition which, on the basis of the physician or other medically authorized person's good faith clinical judgment, so complicates the medical condition of the pregnant minor as to necessitate the immediate abortion of her pregnancy to avert her death or for which delay will create serious risk of substantial and irreversible impairment of a major bodily function.

(e) 'Coercion' means restraining or dominating the choice of a minor female by force, threat of force, or deprivation of food and shelter.

(a) 'Licensed mental health professional' means a person licensed under the Division of Professional Regulation of the State of Delaware as a:

(i) psychiatrist;

(ii) psychologist; or

(iii) licensed professional counselor of mental health. § 1783. Notice Required.

No physician or other medically authorized person shall perform an abortion upon an unemancipated minor until complying with the following notification provisions:

(a) No physician or other medically authorized person shall perform an abortion upon an unemancipated minor unless the physician, medically authorized person, or an agent of the physician or of the medically authorized person has given at least 24 hours actual notice to one or both parents (either custodial or non-custodial), a grandparent, a licensed mental health professional (who shall not be an employee or under contract to an abortion provider except employees or contractors of an acute care hospital) or to the legal guardian of the pregnant minor of the intention to perform the abortion, or unless the physician, medically authorized person, or an agent of the physician or of the medically authorized person has received a written statement or oral communication from another physician or medically authorized person, hereinafter called the 'referring physician or medically authorized person,' certifying that the referring physician or medically authorized person has given such notice. If the person contacted pursuant to this subsection is not the parent or guardian, the person so contacted must explain to the minor the options available to her include adoption, abortion and full-term pregnancy, and must agree that it is in the best interest of the minor that a waiver of the parental notice requirement be granted. Any licensed mental health professional so contacted shall certify that he or she has performed an assessment of the specific factors and circumstances of the minor subject to the evaluation

including but not limited to the age and family circumstances of the minor and the long-term and short-term consequences to the minor of termination or continuation of the pregnancy.

(i) No physician or other abortion provider shall charge a referral fee to a person authorized under this section to receive notice; nor shall a person authorized under this section to receive notice charge a referral fee to a physician or other abortion provider.

(ii) Nothing in this section shall affect the obligations of a person pursuant to other provisions of this Code to report instances of child abuse to the appropriate government agencies.

(b) A minor may petition the Family Court (Tote) of any county of this State for a waiver of the notice requirement of this section pursuant to the procedures of §1784 of this Chapter. A physician who has received a copy of a court order granting a waiver application under §1784 of this Chapter shall not, at any time, give notice of the minor's abortion to any person without the minor's written permission.

§ 1784. Application for waiver of parental notice requirement; grounds; timeliness of decision; notice of decision; appeals; costs.

(a) The Court shall consider waiving the notice requirement of § 1783 of this Chapter upon the proper application of a minor. The application shall be in writing, signed by the minor, and verified by her oath or affirmation before a person authorized to perform notarial acts. It shall designate: (i) the minor's name and residence address; (ii) a mailing address where the Court's order may be sent and a telephone number where messages for the minor may be left;

(iii) that the minor is pregnant; (iv) that the minor desires to obtain an abortion; (v) each person for whom the notice requirement is sought to be waived; and (vi) the particular facts and circumstances which indicate that the minor is mature and well-informed enough to make the abortion decision on her own and/or that it is in the best interest of the minor that notification pursuant to § 1783 of this Chapter be waived.

(b) The Court, by a judge, shall grant the written application for a waiver if the facts recited in the application establish that the minor is mature and well-informed enough to make the abortion decision on her own or that it is in the best interest of the minor that notification pursuant to § 1783 of this Chapter be waived. The Court shall presume that married parents not separated and grandparents are complete confidants, such that, on application to waive the notice requirement as to either, grounds to waive the notice requirement as to one parent or grandparent shall constitute grounds to waive the notice requirement as to the spouse thereof.

(c) If the Court fails to rule within five calendar days of the time of the filing of the written application, the application shall be deemed granted; in which case, on the sixth day, the Court shall issue an order stating that the application is deemed granted.

(d) The Court shall mail three copies of any order to the mailing address identified in the application on the day the order issues, shall attempt to notify the minor by telephone on the day the order issues, and if so requested, shall make copies of the order available at Court chambers for the minor.

(e) An expedited appeal to the Supreme Court shall be available to any minor whose petition is denied by a judge of the Family Court. Notice of intent to appeal shall be given within two days of the receipt of actual notice of the denial of the petition. The Supreme Court shall advise the minor that she has a right to court-appointed counsel and shall provide her with such counsel upon request, at no cost to the minor, The Supreme Court shall expedite proceedings to the extent necessary and appropriate under the circumstances. The Supreme Court shall notify the minor of its decision consistent with subsection (d) of this section.

(I) No court shall assess any fee or cost upon a minor for any proceeding under

this section.

(g) Each court shall provide by rule for the confidentiality of proceedings under this subchapter, but shall continue to initiate investigations into any allegations of past abuse where otherwise appropriate, without disclosing that an application under this subchapter was the source of the information prompting the investigation.

§ 1785. Short form of affidavit and application for waiver of parental notice requirement.

The following shall be sufficient form of affidavit and application for waiver of parental notice requirement under this subchapter:

IN THE FAMILY COURT OF THE STATE OF DELAWARE IN AND FOR (NAME OF COUNTY) COUNTY

IN THE MATTER OF:

(NAME OF MINOR APPLICANT), }

STATE OF DELAWARE AFFIDAVIT AND

APPLICATION FOR

WAIVER OF NOTICE OF ABORTION

SS.

COUNTY

BE IT REMEMBERED that on this day of A.D. before me, (name

of person authorized to perform notarial acts), personally appeared (name of minor applicant/affiant) who, being by me duly sworn or affirmed, depose and say:

(I) That the minor applicant resides at (minor's address);

(2) That the Court may send its order to (mailing address designated by applicant minor) and leave telephone messages for the applicant minor at (phone number designated by applicant minor);

(3) That the minor applicant is pregnant;

(4) That the minor applicant desires to obtain an abortion;

(5) That the minor applicant desires that the Court waive the notice requirement of 24 Del. C, § 1783;

(6) That the minor applicant believes that she is mature and well-informed enough to make the abortion decision on her own and/or it would be in her best interest that a waiver of notice be granted because (state reasons why mature and well-informed enough and/or waiver of notice is in best interest based upon the applicant's age and family circumstances and the long-term and short-term consequences to the applicant of termination or continuation of the pregnancy).

WHEREFORE, this minor applicant intends to submit this affidavit and application for waiver of notice of abortion to the Family Court, and pray that an order be issued waiving the notification requirement of 24 Pei C, § 1783 as to the following persons: (identify each such person).

Minor applicant/affiant

SWORN TO or affirmed and subscribed before me by the minor applicant/affiant this day

of , A.D.

(Notary)"

§ 1786. Coercion Prohibited.

No parent, guardian, or other person shall coerce a minor to undergo an abortion or to continue a pregnancy. Any minor who is threatened with such coercion may apply to a court of competent jurisdiction for relief. The court shall provide the minor with counsel, give the matter expedited consideration, and grant such relief as may be necessary to prevent such coercion. Should a minor be denied the financial support of her parents or legal guardian by reason of her refusal to undergo abortion or to continue a pregnancy, she shall be considered emancipated for purposes of eligibility for assistance benefits.

§ 1787. Medical Emergency Exception.

The requirements of § 1783, § 1784 and § 1786 of this Act shall not apply when, in the best medical judgment of the physician or other medically authorized person, based on the facts of the case, a medical emergency exists that so complicates the pregnancy as to require an immediate abortion.

§ 1788. Counseling to affected persons.

The Division of Child Mental Health Services, Department of Services for Children, Youth and Their Families, shall offer counseling and support to any minor who is pregnant and is considering filing or has filed an application under this subchapter, if the minor requests such services. Notwithstanding any contrary statute, no notification of the request for or provision of such services to the minor shall be provided to any person, nor shall the consent of any person thereto be required.

§ 1789. Penalty and Criminal Jurisdiction.

(a) Any person who intentionally performs an abortion with knowledge that, or with reckless disregard as to whether, the person upon whom the abortion has been performed is an unemancipated minor, and who intentionally or knowingly fails to conform to any requirement of this Act, shall be guilty of a class A misdemeanor.

(b) The Superior Court shall have exclusive jurisdiction of violations of this section.

§ 1790. Notice and avoidance of liability.

In any prosecution pursuant to § 1789 of this chapter, the State shall prove beyond a reasonable doubt that the physician (or other medically authorized person) who performed the abortion did not have a good faith belief on his or her part that actual notice was given by such physician (or other medically authorized person), his or her agent, or the referring physician or another medically authorized person to a person listed in § 1783(a) of this chapter as qualified to receive notice. In any civil case, the plaintiff must prove the absence of such a good faith belief by clear and convincing evidence.

§ 1791. Civil Damages Available.

Failure to give notice pursuant to the requirements of this Act is prima facie evidence of interference with family relations in appropriate civil actions. The law of this State shall not be construed to preclude the award of punitive damages in any civil action relevant to violations of this Act. Nothing in this Act shall be construed to limit the common law rights of parents."

Section 2. Amend § 921, Chapter 9, Title 10, Delaware Code, by adding a new paragraph to read as follows:

Section 3. Severability.

If any provision, word, phrase, or clause of this Act or the application thereof to any person or circumstance shall be held invalid, such invalidity shall not affect the provisions, words, phrases, clauses, or application of this Act which can be given effect without the invalid provision, word, phrase, clause, or application, and to that end the provisions, words, phrases, and clauses of this Act are declared to be severable.

Section 4. This Act takes effect 90 days after it becomes law.

Approved July 17, 1995