Session of 1999
         
HOUSE BILL No. 2405
         
By Committee on Federal and State Affairs
          
2-10
          
  9             AN  ACT concerning abortion; relating to consent of a parent or guardian
10             prior to performance of an abortion; amending K.S.A. 1998 Supp. 65-
11             6701 and repealing the existing section; also repealing K.S.A. 65-6704
12             and K.S.A. 1998 Supp. 65-6705.
13      
14       Be it enacted by the Legislature of the State of Kansas:
15             Section  1. K.S.A. 1998 Supp. 65-6701 is hereby amended to read as
16       follows: 65-6701. As used in this act 65-6701 through 65-6715, 65-6721
17       and sections 2, 3 and 4, and amendments thereto:
18             (a) "Abortion" means the use of any means to intentionally terminate
19       a pregnancy except for the purpose of causing a live birth. Abortion does
20       not include: (1) The use of any drug or device that inhibits or prevents
21       ovulation, fertilization or the implantation of an embryo; or (2) disposition
22       of the product of in vitro fertilization prior to implantation.
23             (b) "Counselor" means a person who is: (1) Licensed to practice med-
24       icine and surgery; (2) licensed to practice psychology; (3) licensed to prac-
25       tice professional or practical nursing; (4) registered to practice profes-
26       sional counseling; (5) licensed as a social worker; (6) the holder of a
27       master's or doctor's degree from an accredited graduate school of social
28       work; (7) registered to practice marriage and family therapy; (8) a regis-
29       tered physician's assistant; or (9) a currently ordained member of the
30       clergy or religious authority of any religious denomination or society.
31       Counselor does not include the physician who performs or induces the
32       abortion or a physician or other person who assists in performing or in-
33       ducing the abortion.
34             (c) "Department" means the department of health and environment.
35             (d) "Fetus" means any individual human organism from fertilization
36       to birth.
37             (e) "Guardian" means a guardian or conservator appointed pursuant
38       to K.S.A. 58-3001 et seq., and amendments thereto.
39             (d) (f) "Gestational age" means the time that has elapsed since the
40       first day of the woman's last menstrual period.
41             (e) (g) "Medical emergency" means that condition which, on the basis
42       of the physician's good faith clinical judgment, so complicates the medical
43       condition of a pregnant woman as to necessitate the immediate abortion

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  1       of her pregnancy to avert her death or for which a delay will create serious
  2       risk of substantial and irreversible impairment of a major bodily function.
  3             (f) (h) "Minor" means a person less than 18 years of age.
  4             (i) "Parent" means one parent of the pregnant female minor or the
  5       guardian of such minor if one has been appointed.
  6             (g) (j) "Physician" means a person licensed to practice medicine and
  7       surgery in this state.
  8             (h) (k) "Pregnant" or "pregnancy" means that female reproductive
  9       condition of having a fetus in the mother's body.
10             (i) (l) "Qualified person" means an agent of the physician who is a
11       psychologist, licensed social worker, registered professional counselor,
12       registered nurse or physician.
13             (j) (m) "Unemancipated minor" means any minor who has never
14       been: (1) Married; or (2) freed, by court order or otherwise, from the
15       care, custody and control of the minor's parents.
16             (k) (n) "Viable" means that stage of gestation when, in the best med-
17       ical judgment of the attending physician, the fetus is capable of sustained
18       survival outside the uterus without the application of extraordinary med-
19       ical means fetal development when it is the physician's judgment accord-
20       ing to accepted obstetrical or neonatal standards of care and practice
21       applied by physicians in the same or similar circumstances that there is
22       a reasonable probability that the life of the child can be continued indef-
23       initely outside the mother's womb with natural or artificial life-supportive
24       measures.
25             New Sec.  2. (a) Except as provided by this section, no person know-
26       ingly shall perform an abortion upon an unemancipated minor or upon a
27       female for whom a guardian has been appointed pursuant to K.S.A. 58-
28       3001 et seq., and amendments thereto, because of a finding of incom-
29       petency, without the written consent of a parent or guardian if the preg-
30       nant female has one.
31             (b) No consent shall be required under this section if:
32             (1) The attending physician certifies that the abortion is necessary to
33       prevent the pregnant female's death and there is insufficient time to ob-
34       tain the required consent. Such certification shall be in writing and shall
35       be included in the medical records of the pregnant female; or
36             (2) if such a pregnant female chooses not to obtain consent of a parent
37       or guardian, a judge of the district court, upon petition or motion and
38       after an appropriate hearing, shall authorize a physician to perform the
39       abortion if the judge determines that the pregnant female is mature and
40       capable of giving informed consent to the proposed abortion. If the judge
41       determines that the pregnant female is not mature, or if the pregnant
42       female does not claim to be mature, the judge shall determine whether
43       the performance of an abortion without the consent of a parent or guard-

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  1       ian would be in the best interest of the pregnant female and shall au-
  2       thorize a physician to perform the abortion without such consent if the
  3       judge concludes that the abortion is in the best interests of the pregnant
  4       female.
  5             Such a pregnant female may participate in proceedings in the court on
  6       her own behalf, and the court may appoint a guardian ad litem for her.
  7       The court shall advise her that she has a right to court-appointed counsel
  8       and upon request shall appoint such counsel.
  9             Proceedings in the court under this section shall be confidential and
10       shall be given such precedence over other pending matters so that the
11       court may reach a decision promptly and without delay so as to serve the
12       best interests of the pregnant female. A judge who conducts proceedings
13       under this section shall make specific written factual findings and legal
14       conclusions supporting the decision and shall order a record of the evi-
15       dence to be maintained including the judge's own findings and
16       conclusions.
17             An expedited confidential appeal shall be available to any such pregnant
18       female for whom the court denies an order authorizing an abortion with-
19       out consent required by section 2, and amendments thereto. An order
20       authorizing an abortion without consent shall not be subject to appeal.
21       No filing fees shall be required of any such pregnant female at either the
22       trial or the appellate level. Access to the trial court for the purposes of
23       such a petition or motion, and access to the appellate courts for purposes
24       of making an appeal from denial of the same, shall be afforded such a
25       pregnant female 24 hours a day, seven days a week.
26             (c) Performance of an abortion in knowing or reckless violation of
27       this section shall be a misdemeanor and shall be grounds for a civil action
28       by a person wrongfully denied the right to consent. A person shall not be
29       held liable under this section if the person establishes by written evidence
30       that the person relied upon evidence sufficient to convince a careful and
31       prudent person that the representations of the pregnant female regarding
32       information necessary to comply with this section are bona fide and true,
33       or if the person has attempted with reasonable diligence to obtain con-
34       sent, but has been unable to do so.
35             New Sec.  3. (a) Within 90 days of the effective date of this act, the
36       secretary of the department of health and environment shall prepare a
37       reporting form for physicians which lists:
38             (1) The number of females upon whom the physician performed an
39       abortion with the written consent of a parent or guardian as required by
40       section 2, and amendments thereto;
41             (2) the number of females upon whom the physician performed an
42       abortion without obtaining the consent as required by section 2, and
43       amendments thereto, and of that number, the number who were eman-

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  1       cipated minors, and the number from whom each of the paragraphs of
  2       subsection (b) of section 2 were applicable;
  3             (3) the number of abortions performed upon unemancipated minors
  4       by the physician after receiving judicial authorization to do so without
  5       parental consent as required by section 2, and amendments thereto; and
  6             (4) the same information described in paragraphs (1) through (3) of
  7       this subsection with respect to females for whom a guardian has been
  8       appointed pursuant to K.S.A. 58-3001 et seq., and amendments thereto,
  9       because of finding of incompetency.
10             (b) The secretary shall ensure that copies of the reporting forms de-
11       scribed in subsection (a) together with a copy of this act are provided:
12             (1) Within 120 days after the effective date of this act, to all physicians
13       licensed to practice in this state;
14             (2) to each physician who subsequently becomes newly licensed to
15       practice in this state, at the same time as official notification to that phy-
16       sician that the physician is so licensed; and
17             (3) by December 1 of every year, other than the calendar year in
18       which forms are distributed in accordance with paragraph (1) of this sub-
19       section, to all physicians licensed to practice in this state.
20             (c) On or before February 28 of each year, each physician who ob-
21       tained, or whose agent obtained, the consent described in section 2, and
22       amendments thereto, and any physician who knowingly performed an
23       abortion during the previous calendar year upon an unemancipated minor
24       or upon a female for whom a guardian had been appointed pursuant to
25       K.S.A. 58-3001 et seq., and amendments thereto, because of a finding of
26       incompetency shall submit to the secretary a copy of the form described
27       in subsection (a) of this section, with the requested data entered accu-
28       rately and completely.
29             (d) Reports that are not submitted more than 30 days following the
30       due date shall be subject to a late fee of $500 for each additional thirty-
31       day period or portion of a thirty-day period they are overdue. Any phy-
32       sician required to report in accordance with this section who has not
33       submitted a report, or has submitted an incomplete report, more than
34       one year following the due date, in an action brought by the secretary,
35       may be directed by a court of competent jurisdiction to submit a complete
36       report within a period stated by court order or be subject to sanctions for
37       civil contempt.
38             (e) On or before June 30 of each year, the secretary shall issue a
39       public report providing statistics for the previous calendar year compiled
40       from all of the reports covering that year submitted in accordance with
41       this section for each of the items listed in subsection (a). The report also
42       shall include statistics which shall be obtained by the office of judicial
43       administrator giving the total number of petitions or motions filed under

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  1       paragraph (b)(2) of section 2, and amendments thereto, and of that num-
  2       ber: The number in which the court appointed a guardian ad litem, the
  3       number in which the court appointed counsel, the number in which the
  4       judge issued an order authorizing an abortion without consent, the num-
  5       ber in which the judge denied such an order, and of the last, the number
  6       of denials from which an appeal was filed, the number of such appeals
  7       that resulted in the denials being affirmed and the number of such ap-
  8       peals that resulted in reversals of such denials. Each report also shall
  9       provide the statistics for all previous calendar years for which such a
10       public statistical report was required to be issued or adjusted to reflect
11       any additional information from late or corrected reports. The secretary
12       shall take care to ensure that none of the information included in the
13       public reports could lead to the identification of any unemancipated mi-
14       nor or female for whom a guardian has been appointed.
15             (f) The secretary may establish by rules and regulations alternate
16       dates to the dates established by subsections (b)(3), (c) and (e) of this
17       section or consolidate the forms or reports to achieve administrative con-
18       venience or fiscal savings or to reduce the burden of reporting require-
19       ments, so long as reporting forms are sent to all physicians licensed in the
20       state at least once every year and the report described in subsection (e)
21       is issued at least once every year.
22             (g) If the secretary fails to issue the public report required by sub-
23       section (e) of this section, any group of 10 or more residents of this state
24       may seek an injunction in a court of competent jurisdiction against the
25       secretary requiring that a complete report be issued within a period stated
26       by court order. Failure to abide by such an injunction shall subject the
27       secretary to sanctions for civil contempt.
28             (h) If judgment is rendered in favor of the plaintiff in any action
29       authorized by this section, the court also shall render judgment for rea-
30       sonable attorney fees in favor of the plaintiff against the defendant. If
31       judgment is rendered in favor of the defendant and the court finds that
32       the plaintiff's suit was frivolous and brought in bad faith, the court also
33       shall render judgment for reasonable attorney fees in favor of the de-
34       fendant against the plaintiff.
35             New Sec.  4. If the court grants a petition or motion for waiver of
36       consent pursuant to section 2, and amendments thereto, the order au-
37       thorizing the abortion without such consent shall relieve the minor's par-
38       ents or legal guardian of financial responsibility for the costs of such abor-
39       tion and all costs related to any complications arising from such abortion. 
40       Sec.  5. K.S.A. 65-6704 and K.S.A. 1998 Supp. 65-6701 and 65-6705
41       are hereby repealed.
42        Sec.  6. This act shall take effect and be in force from and after its
43       publication in the statute book.