GENERAL ASSEMBLY OF NORTH CAROLINA
SESSION 1995
Second Edition Engrossed 5/8/95
Senate Judiciary II/Election Laws Committee Substitute Adopted 6/29/95
Short Title: Parental Consent/Abortion. (Public)
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AN ACT TO REQUIRE CONSENT FOR AN UNEMANCIPATED MINOR'S ABORTION.
The General Assembly of North Carolina enacts:
Section 1. Article 1A of Chapter 90 of the General Statutes is amended by designating all the existing language as "Part 1.", and by adding a new Part to read:
"Part 2. Consent for Minor's Abortion.
"§ 90-21.6. Definitions.
As used in this Part, unless the context clearly requires otherwise, the term:
(1) 'Abortion' means the intentional interruption of a pregnancy by the application of external agents, whether chemical or physical, or the ingestion of chemical agents, with an intention other than to produce a live birth or to remove a dead fetus.
(2) 'Adult family member' means a person who is 21 years of age or older who is the parent, grandparent, or aunt or uncle of the minor and is related to the minor by blood, marriage, or adoption.
(3) 'Clergy' or 'member of the clergy' means a person certified under Article 26 of Chapter 90 of the General Statutes as a practicing pastoral counselor, or who is an ordained member of the clergy of the congregation of which the minor is a member.
(4) 'Unemancipated minor' or 'minor' means any person under the age of 16 who is not emancipated.
"§ 90-21.7. Consent required.
No physician licensed to practice medicine in North Carolina may knowingly perform an abortion upon an unemancipated minor unless:
(1) The attending physician has secured the informed written consent of the minor in accordance with G.S. 90-21.8 and the minor, under all the surrounding circumstances, is mentally and physically competent to give consent; and
(2) The minor has received information and counseling from and the written consent of a member of the clergy; or
(3) The attending physician has received and will make part of the minor's medical record the informed written consent of at least one of the minor's parents or guardian, or other adult family member; or
(4) The district court issues an order under G.S. 90-21.10 granting to the minor:
a. Majority rights for the sole purpose of consenting to the abortion, or
b. Consent to the abortion.
"§ 90-21.8. Informed consent; disallowance of recovery.
(a) To ensure that consent for an abortion is informed, the attending physician shall:
(1) Inform the minor in a manner which, in the physician's professional judgment, is not misleading and which will be understood by the patient, of at least the following:
a. In the physician's best judgment, the minor is pregnant;
b. The number of weeks of duration of the pregnancy; and
c. The particular risks associated with the minor's pregnancy, the abortion procedure that will be performed, and the risks involved with that procedure; and
(2) Determine whether the minor is, under all the surrounding circumstances, mentally and physically competent to give consent.
(b) No recovery may be allowed against any physician upon the grounds that the abortion was rendered without the informed consent of the minor when:
(1) The physician, in obtaining the minor's consent, acted in accordance with the standards of practice among members of the same health care profession with similar training and experience situated in the same or similar communities; or
(2) The physician has received and acted in good faith on the written consent to the abortion given by the minor to a member of the clergy.
"§ 90-21.9. Presumption of validity of informed written consent; rebuttal.
An informed consent which is evidenced in writing and signed by the minor and a member of the clergy, or by the minor's parent, guardian, or adult family member, shall be presumed to be a valid informed consent. This presumption may be subject to rebuttal only upon proof that the informed consent was obtained through fraud, deception, or coercion.
"§ 90-21.10. Court order concerning consent to abortion.
(a) The district court may issue an order for the purpose of consenting to the abortion by the minor under the following circumstances and procedures:
(1) The minor or the minor's guardian ad litem may file a petition with the district court. If requested by the minor or the minor's guardian ad litem, the court shall assist in preparing the petition. The petition shall set forth:
a. The initials of the minor;
b. The age of the minor;
c. That the minor has been fully informed of the risks and consequences of the abortion; and
d. That the minor is of sound mind and has sufficient intellectual capacity to consent to the abortion.
The petition may also request that if the court does not grant the minor majority rights for the purpose of consent to the abortion, then the court should find that the abortion is in the best interest of the minor and give judicial consent to the abortion.
(2) A petition filed under this section is a confidential record and shall not be open for general public inspection.
(3) A hearing on the merits of the petition shall be held as soon as possible within five days of the filing of the petition. If the minor is unable to afford counsel and the court finds it necessary that the minor be represented, then the court may appoint counsel at least 24 hours before the time of the hearing. At the hearing, the court shall hear evidence relating to:
a. The emotional development, maturity, intellect, and understanding of the minor; and
b. Any other evidence that the court may find useful in determining whether the minor should be granted majority rights for the purposes of consenting to the abortion or whether the abortion is in the best interest of the minor.
The court shall conduct the hearing in private with only the minor, interested parties as determined by the court, and necessary court officers or personnel present. The record of the hearing is a confidential record and shall not be open for general public inspection.
(b) In the order, the court shall for good cause:
(1) Grant the petition for majority rights for the sole purpose of consenting to the abortion; or
(2) Find the abortion to be in the best interest of the minor and give judicial consent to the abortion, setting forth the grounds for the finding; or
(3) Deny the petition only if the court finds that the minor is not mature enough to make her own decision and that the abortion is not in her best interest.
The order shall be confidential and not open to general public inspection, except that the physician whose services are requested to perform the abortion shall be provided with a copy of the order.
(c) The minor may appeal an order issued in accordance with this section. The appeal shall be a de novo hearing in superior court and the provisions of G.S. 90-21.10(a)(3) and (b) shall apply. The notice of appeal shall be filed within 24 hours from the date of issuance of the district court order. The de novo hearing shall be held as soon as possible within five days of the filing of the notice of appeal. The record of the de novo hearing is a confidential record and shall not be open for general public inspection. The Chief Justice of the North Carolina Supreme Court shall adopt rules necessary to implement this subsection.
"§ 90-21.10.1. Immunity.
If an abortion is performed lawfully pursuant to this Part, then the informed consent of a member of the clergy, an adult family member, or the informed consent of the minor pursuant to a court order of majority rights or judicial consent, shall bar an action by a parent or guardian of the minor against the adult family member or member of the clergy who consented in good faith and in accordance with this Part, and against the physician who performed the abortion, except that this immunity shall not extend to actions filed against the physician for medical malpractice pursuant to Article 1B of this Chapter.
"§ 90-21.10.2. Abortion performed against minor's will.
No abortion may be performed on any minor against her will except pursuant to a court order finding that the abortion is necessary to preserve the life of the minor.
"§ 90-21.10.3. Medical emergency exception.
The requirements of parental consent prescribed by G.S. 90-21.7 shall not apply when, in the best medical judgment of the physician based on the facts of the case before the physician, a medical emergency exists that so complicates the pregnancy as to require an immediate abortion, or when the conditions prescribed by G.S. 90-21.1 are met.
"§ 90-21.10.4. Violation; penalties.
Any person who knowingly performs or aids in the performance of an abortion in violation of this Part shall be guilty of a Class 1 misdemeanor."
Sec. 2. G.S. 7A-523(a) is amended by adding a subdivision to read:
"(8) Proceedings involving consent for an abortion on an unemancipated minor pursuant to Article 1A, Part 2 of Chapter 90 of the General Statutes."
Sec. 3. G.S. 7A-451(a) is amended by adding a subdivision to read:
"(16) A proceeding involving consent for an abortion on an unemancipated minor pursuant to Article 1A, Part 2 of Chapter 90 of the General Statutes. G.S. 7A-450.1, 7A-450.2, and 7A-450.3 shall not apply to this proceeding."
Sec. 4. Notwithstanding any other State or local law to the contrary, no State or local government agency or entity shall deny eligibility for financial assistance under Aid to Families with Dependent Children to any infant or child on the basis that the mother of the infant or child was an unemancipated minor when the infant or child was born.
Sec. 5. This act becomes effective October 1, 1995.