H*3122 Session 108 (1989-1990)
H*3122(Rat #0374, Act #0341 of 1990) General Bill, By Hayes, D.M. Beasley,
J.D. Cole, K.S. Corbett, R.S. Corning, Davenport, P.W. Derrick, Fair,
J.G. Felder, Haskins, T.E. Huff, J.R. Klapman, Koon, Lanford, Littlejohn,
Martin, W.S. McCain, J.T. McElveen, A.C. McGinnis, J. Rama, C.L. Sturkie,
C.C. Wells and D.A. Wright
A Bill to amend the Code of Laws of South Carolina, 1976, by adding Sections
44-41-31 through 44-41-37 so as to provide requirements that must be followed
before performing an abortion on a minor and to permit a minor to petition the
circuit or family court for an order granting her the right to obtain an
abortion without the consent required in Section 44-41-31, to provide
procedures for the filing of the petition, to require the court to enter a
written order stating findings of fact and conclusions of law in support of
its decision, to provide that if the father of a child born after the denial
of a petition is identified by adjudication he shall share in the expenses of
the delivery and rearing of the child as determined by the court, to provide a
right of appeal by a minor to the Supreme Court on a decision rendered
pursuant to Section 44-41-33, to provide that failure to obtain required
consent constitutes prima facie evidence of interference with family relations
in an appropriate civil action, to provide a penalty for a person who
intentionally performs an abortion with knowledge that, or reckless disregard
as to whether, the person upon whom the abortion is to be performed is an
unemancipated minor, and who intentionally or knowingly fails to conform to
any requirement in Sections 44-41-10 through 44-41-36, and to provide that a
physician or other professional person or agency counseling or discussing with
a minor the question of her obtaining an abortion shall fully inform her of
the procedures she must follow under the law to obtain an abortion without the
consent required in Section 44-41-31; to amend Section 44-41-10, relating to
definitions used regarding the regulation of the performance of an abortion,
so as to define "minor", "emancipated minor", and "in loco parentis", and
redefine "abortion"; to amend Section 44-41-30, relating to persons from whom
consent is required to perform an abortion, so as to provide that consent is
required before the performance of an abortion from a pregnant woman in every
case and in the case of a minor it must be obtained pursuant to the provisions
of Section 44-41-31, provide for the obtaining of consent of a woman who is
under adjudication of mental incompetence, and provide for the waiver of
consent under certain circumstances; and to amend Section 44-41-60, relating
to the reporting of abortions, so as to provide that the form on which the
abortion is reported must indicate from whom consent was obtained or
circumstances waiving consent.-amended title
01/10/89 House Introduced and read first time HJ-57
01/10/89 House Referred to Committee on Judiciary HJ-57
02/07/89 House Committee report: Favorable with amendment
Judiciary HJ-4
02/14/89 House Debate adjourned until Tuesday, February 21, 1989 HJ-33
02/21/89 House Debate adjourned until Tuesday, February 28, 1989 HJ-16
02/28/89 House Debate adjourned until Wednesday, March 1, 1989 HJ-18
03/01/89 House Objection by Rep. Glover, Fant & McBride HJ-20
04/20/89 House Objection withdrawn by Rep. Glover HJ-48
04/20/89 House Objection by Rep. Faber HJ-48
04/20/89 House Objection withdrawn by Rep. Faber HJ-49
04/20/89 House Objection by Rep. Corning HJ-49
05/17/89 House Special order, set for 2:00 p.m. Wed. 5/17/89
(Under H 4070) HJ-26
05/17/89 House Amended HJ-67
05/17/89 House Debate interrupted HJ-81
05/18/89 House Amended HJ-39
05/18/89 House Read second time HJ-63
05/22/89 House Read third time and sent to Senate HJ-61
05/23/89 Senate Introduced and read first time SJ-51
05/23/89 Senate Referred to Committee on Medical Affairs SJ-51
05/31/89 Senate Recalled from Committee on Medical Affairs SJ-3
01/30/90 Senate Special order SJ-28
01/31/90 Senate Carried over in special order status until
Thursday, February 8 SJ-30
02/08/90 Senate Amended SJ-42
02/08/90 Senate Read second time SJ-49
02/08/90 Senate Ordered to third reading with notice of
amendments SJ-49
02/08/90 Senate Special order SJ-49
02/13/90 Senate Amended SJ-35
02/13/90 Senate Debate interrupted SJ-48
02/14/90 Senate Amended SJ-10
02/14/90 Senate Read third time and returned to House with
amendments SJ-21
02/21/90 House Concurred in Senate amendment and enrolled HJ-53
02/22/90 Ratified R 374
02/28/90 Signed By Governor
02/28/90 Effective date 05/29/90
02/28/90 Act No. 341
02/28/90 See act for exception to or explanation of
effective date
03/07/90 Copies available
(A341, R374, H3122)
AN ACT TO AMEND THE CODE OF LAWS OF SOUTH CAROLINA, 1976, BY ADDING
SECTIONS 44-41-31 THROUGH 44-41-37 SO AS TO PROVIDE REQUIREMENTS THAT
MUST BE FOLLOWED BEFORE PERFORMING AN ABORTION ON A MINOR AND TO
PERMIT A MINOR TO PETITION THE CIRCUIT OR FAMILY COURT FOR AN ORDER
GRANTING HER THE RIGHT TO OBTAIN AN ABORTION WITHOUT THE CONSENT
REQUIRED IN SECTION 44-41-31, TO PROVIDE PROCEDURES FOR THE FILING OF
THE PETITION, TO REQUIRE THE COURT TO ENTER A WRITTEN ORDER STATING
FINDINGS OF FACT AND CONCLUSIONS OF LAW IN SUPPORT OF ITS DECISION, TO
PROVIDE THAT IF THE FATHER OF A CHILD BORN AFTER THE DENIAL OF A
PETITION IS IDENTIFIED BY ADJUDICATION HE SHALL SHARE IN THE EXPENSES
OF THE DELIVERY AND REARING OF THE CHILD AS DETERMINED BY THE COURT,
TO PROVIDE A RIGHT OF APPEAL BY A MINOR TO THE SUPREME COURT ON A
DECISION RENDERED PURSUANT TO SECTION 44-41-33, TO PROVIDE THAT
FAILURE TO OBTAIN REQUIRED CONSENT CONSTITUTES PRIMA FACIE EVIDENCE OF
INTERFERENCE WITH FAMILY RELATIONS IN AN APPROPRIATE CIVIL ACTION, TO
PROVIDE A PENALTY FOR A PERSON WHO INTENTIONALLY PERFORMS AN ABORTION
WITH KNOWLEDGE THAT, OR RECKLESS DISREGARD AS TO WHETHER, THE PERSON
UPON WHOM THE ABORTION IS TO BE PERFORMED IS AN UNEMANCIPATED MINOR,
AND WHO INTENTIONALLY OR KNOWINGLY FAILS TO CONFORM TO ANY REQUIREMENT
IN SECTIONS 44-41-10 THROUGH 44-41-36, AND TO PROVIDE THAT A PHYSICIAN
OR OTHER PROFESSIONAL PERSON OR AGENCY COUNSELING OR DISCUSSING WITH A
MINOR THE QUESTION OF HER OBTAINING AN ABORTION SHALL FULLY INFORM HER
OF THE PROCEDURES SHE MUST FOLLOW UNDER THE LAW TO OBTAIN AN ABORTION
WITHOUT THE CONSENT REQUIRED IN SECTION 44-41-31; TO AMEND SECTION
44-41-10, RELATING TO DEFINITIONS USED REGARDING THE REGULATION OF THE
PERFORMANCE OF AN ABORTION, SO AS TO DEFINE "MINOR",
"EMANCIPATED MINOR", AND "IN LOCO PARENTIS", AND
REDEFINE "ABORTION"; TO AMEND SECTION 44-41-30, RELATING TO
PERSONS FROM WHOM CONSENT IS REQUIRED TO PERFORM AN ABORTION, SO AS TO
PROVIDE THAT CONSENT IS REQUIRED BEFORE THE PERFORMANCE OF AN ABORTION
FROM A PREGNANT WOMAN IN EVERY CASE AND IN THE CASE OF A MINOR IT MUST
BE OBTAINED PURSUANT TO THE PROVISIONS OF SECTION 44-41-31, PROVIDE
FOR THE OBTAINING OF CONSENT OF A WOMAN WHO IS UNDER ADJUDICATION OF
MENTAL INCOMPETENCE, AND PROVIDE FOR THE WAIVER OF CONSENT UNDER
CERTAIN CIRCUMSTANCES; AND TO AMEND SECTION 44-41-60, RELATING TO THE
REPORTING OF ABORTIONS, SO AS TO PROVIDE THAT THE FORM ON WHICH THE
ABORTION IS REPORTED MUST INDICATE FROM WHOM CONSENT WAS OBTAINED OR
CIRCUMSTANCES WAIVING CONSENT.
Whereas, the General Assembly finds that there exists an important and
compelling state interest in protecting minors against their own
immaturity, fostering the family structure and preserving it as a
viable social unit, and protecting the rights of parents to rear
children who are members of their household; and
Whereas, the General Assembly finds that immature minors often lack
the ability to make fully informed choices that take account of both
immediate and long-range consequences. The medical, emotional, and
psychological consequences of abortion are serious and can be lasting,
particularly when the patient is immature. The capacity to become
pregnant and the capacity for mature judgment concerning the wisdom of
an abortion are not related necessarily. Parents ordinarily possess
information essential to a physician's exercise of his best medical
judgment concerning the child; and parents who are aware that their
minor daughter has had an abortion may better ensure that she receives
adequate medical attention after the abortion; and
Whereas, the General Assembly further finds that parental consultation
usually is desirable and in the best interests of the minor. Now,
therefore,
Be it enacted by the General Assembly of the State of South Carolina:
Abortions, consent for, by minors
SECTION 1. Chapter 41, Title 44, of the 1976 Code is amended by
adding:
"Section 44-41-31. (A) No person may perform an abortion
upon a minor unless consent is obtained in accordance with one of the
following provisions:
(1) the attending physician or his agent or the referring
physician or his agent has secured the informed written consent,
signed and witnessed, of the pregnant minor and:
(a) one parent of the minor; or
(b) a legal guardian of the minor; or
(c) a grandparent of the minor; or
(d) any person who has been standing in loco parentis
to the minor for a period not less than sixty days;
(2) the minor is emancipated and the attending physician
or his agent has received the informed signed written consent of the
minor; or
(3) the attending physician or his agent has obtained the
informed signed written consent of the minor and has received the
order of the court obtained by the minor pursuant to this chapter.
(B) If a parent or legal guardian refuses to give the informed
written consent for the minor's abortion and there has been a judicial
finding of refusal of consent, and the minor has a child or children
as a result of that pregnancy, the duty imposed by law of supporting
the child or children extends to the minor and jointly and severally
to the refusing parent or legal guardian and the natural father until
the minor reaches the age of eighteen years or is emancipated.
(C) Any person standing in loco parentis and who consents to the
abortion of the minor as permitted in subsection (A)(1) of this
section shall sign an affidavit indicating the nature and length of
his or her relationship with the minor. The affidavit must state the
penalties for wilfully or knowingly making a false representation.
Anyone who knowingly or wilfully makes a false representation in the
affidavit shall be guilty of a misdemeanor and, upon conviction, must
be fined not more than three thousand dollars or imprisoned for not
more than one year.
Section 44-41-32. Every minor has the right to petition the
court for an order granting her the right to obtain an abortion
without the consent required in Section 44-41-31(1). In seeking this
relief the following procedures apply:
(1) The minor may prepare and file a petition in either the
circuit or family court. The petition may be filed in the name of
Jane Doe to protect the anonymity of the minor.
(2) The Adoption and Birth Parent Services Division of the
Department of Social Services, upon request of the minor, must provide
assistance to the minor in preparing and filing the petition.
Preparation and filing of the petition must be completed within
forty-eight hours after the request. The Department of Social
Services shall promulgate regulations establishing the procedures to
be followed in providing this assistance.
(3) Upon the filing of the petition, the court shall appoint a
guardian ad litem for the minor, taking into consideration the
preference of the minor. The minor may participate in court
proceedings on her own behalf, but the court shall advise her that she
has a right to court-appointed counsel and shall provide her with
counsel upon her request.
(4) All proceedings pursuant to this section must be given
precedence over other matters pending before the court.
(5) The court shall hold a hearing and rule on the merits of the
petition within seventy-two hours of the filing of the petition. This
time may be extended upon the request of the minor. The court shall
consider the emotional development, maturity, intellect, and
understanding of the minor; the nature and possible consequences of
the abortion and of the alternatives to the abortion; and other
evidence that the court may find useful in determining whether the
minor should be granted the right on her own behalf to consent to the
abortion or whether the abortion is in the best interest of the minor.
Section 44-41-33. (A) The court shall enter a written order
stating findings of fact and conclusions of law in support of its
decision to:
(1) grant the minor the right on her own behalf to consent
to the abortion if the court finds that the minor is mature and
well-informed enough to make the abortion decision on her own;
(2) grant consent for the abortion if the court finds that
the performance of the abortion would be in the minor's best interest;
or
(3) deny the petition if the court finds that the minor is
immature and that performance of the abortion would not be in the
minor's best interest. If the father of the child born after the
denial of the petition is identified by adjudication, he shall share
in the expenses of the delivery and rearing of the child as determined
by the court. Orders issued under this item shall specify that the
minor shall have the right to counseling services, appropriate
prenatal care, delivery, neonatal, and post-natal care, the cost of
which may be paid by the State. Additionally, the State shall have
subrogation rights against the father for payments made by the State
on behalf of the child.
(B) The court shall immediately issue a written order to the
minor, her guardian ad litem, attorney, or other person designated by
the minor to receive notice on her behalf.
Section 44-41-34. (A) A minor has the right to appeal to the
Supreme Court a decision rendered pursuant to Section 44-41-33. She
is entitled to an anonymous and expeditious appellate review which
takes precedence over other matters pending before the court.
(B) A minor who declares she has insufficient funds to pursue
the procedures provided in this section or in Section 44-41-32 must
not be required to pay the costs associated with these procedures.
(C) The notice of intent to appeal must be filed with the court
issuing the order described in Section 44-41-33 within seventy-two
hours from the date the order is received. The record on appeal must
be completed and the appeal must be perfected within ten days from the
filing of the notice of intent to appeal. These filing requirements
are not considered jurisdictional and may be extended by the Supreme
Court upon request of the minor for good cause shown.
(D) All hearings conducted under Sections 44-41-32 and 44-41-34
must be closed to the public. All records related to these sections
and Section 44-41-33 are not open to public examination and must be
sealed by the court.
(E) The Supreme Court shall adopt rules governing the
administration of the courts or practice and procedure before such
courts necessary to carry out the provisions of Sections 44-41-32,
44-41-33, and 44-41-34.
Section 44-41-35. Failure to obtain required consent constitutes
prima facie evidence of interference with family relations in
appropriate civil actions. The law of this State does not preclude
the award of exemplary damages in an appropriate civil action relevant
to violations concerning a minor. Nothing in this chapter may be
construed to limit the common law rights of parents.
Section 44-41-36. (A) A person who intentionally performs an
abortion with knowledge that, or with reckless disregard as to
whether, the person upon whom the abortion is to be performed is an
unemancipated minor, and who intentionally or knowingly fails to
conform to any requirement in Sections 44-41-10 through 44-41-36 is
guilty of a misdemeanor and, upon conviction, must be fined not less
than two thousand dollars nor more than ten thousand dollars or
imprisoned for not more than three years, or both. No part of the
minimum fine may be suspended. For conviction of a third or subsequent
offense, the sentence must be imprisonment for not less than sixty
days nor more than three years, none of which may be suspended.
(B) A physician or any person employed or connected with a
physician, hospital, or health care facility performing abortions who
acts in good faith is justified in relying on the representations of
the unemancipated minor or of any other person providing the
information required under this chapter. A physician or other person
who furnishes professional services related to an act authorized or
required by this chapter and who relies upon the information furnished
pursuant to this chapter may not be held to have violated any criminal
law or to be civilly liable for the reliance, provided that the
physician or other person acted in good faith.
Section 44-41-37. A physician or other professional person or
agency counseling or discussing with a minor the question of her
obtaining an abortion shall fully inform her of the procedures she
must follow under law to obtain an abortion without the consent
required in Section 44-41-31(1).
The Adoption and Birth Parent Services Division of the Department
of Social Services shall develop and distribute brochures to health
and education professionals for use in counseling pregnant minors.
This brochure shall include the following:
(1) how to access her local health department for prenatal care;
(2) how to access her local Adoption and Birth Parent Services
Division of the Department of Social Services or any private not for
profit adoption service;
(3) the parental consent requirement as outlined in this bill;
(4) the judicial by-pass procedure as referred in Sections
44-41-32, 44-41-33, and 44-41-34; and
(5) how to access her local mental health center for counseling
services."
Definitions
SECTION 2. Section 44-41-10 of the 1976 Code is amended by
adding:
"(m) 'Minor' means a female under the age of seventeen.
(n) 'Emancipated minor' means a minor who is or has been married
or has by court order been freed from the care, custody, and control
of her parents.
(o) 'In loco parentis' means any person over the age of eighteen
who has placed himself or herself in the position of a lawful parent
by assuming obligations which are incidental to the parental
relationship and has so served for a period of sixty days."
Definition
SECTION 3. Section 44-41-10(a) of the 1976 Code is amended to
read:
"(a) 'Abortion' means the use of an instrument, medicine,
drug, or other substance or device with intent to terminate the
pregnancy of a woman known to be pregnant for reasons 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."
Consent required before abortion performed
SECTION 4. Section 44-41-30 of the 1976 Code is amended to read:
"Section 44-41-30. (A) Consent is required before the
performance of an abortion from the pregnant woman in every case and
in the case of a minor, it must be obtained pursuant to the provisions
of Section 44-41-31.
(B) In the case of a woman who is under adjudication of mental
incompetency by a court of competent jurisdiction, consent must be
obtained from her spouse or a legal guardian if she is married; if she
is not married, from one parent or a legal guardian.
(C) Notwithstanding the consent required in subsections (A) and
(B) consent must be waived if:
(1) a physician determines that a medical emergency exists
involving the life of or grave physical injury to the pregnant woman;
or
(2) the pregnancy is the result of incest.
(D) In cases of incest the physician performing the abortion
shall report the alleged incest to the local county department of
social services or to a law enforcement agency in the county where the
child resides or is found. Failure to report is a violation
punishable under the child abuse laws of this State.
(E) Nothing in this section permits a physician to perform an
abortion without first obtaining the consent of the pregnant woman if
she is capable of giving consent."
Reporting of abortion
SECTION 5. Section 44-41-60 of the 1976 Code is amended to read:
"Section 44-41-60. Any abortion performed in this State must
be reported by the performing physician on the standard form for
reporting abortions to the state registrar, Department of Health and
Environmental Control, within seven days after the abortion is
performed provided that the name of the patient may not be reported on
the form or otherwise disclosed to the state registrar. The form must
indicate from whom consent was obtained or circumstances waiving
consent."
Severability clause
SECTION 6. If a provision of this act or the application of it to
a person or circumstance is held invalid, this invalidity does not
affect the provisions or application of this act which can be given
effect without the invalid provision or application, and the
provisions of this act are declared to be severable.
Time effective
SECTION 7. This act takes effect ninety days after approval by
the Governor.
Approved the 28th day of February, 1990.
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