KRS 311.732: Performance of abortion upon a minor -- Definitions -- Notice --

Consent requirement -- Petition in District or Circuit Court -- Hearing --

Report -- Medical emergencies.

(1) For purposes of this section the following definitions shall apply:

(a) "Minor" means any person under the age of eighteen (18);

(b) "Emancipated minor" means any minor who is or has been married or

has by court order or otherwise been freed from the care, custody, and

control of her parents; and

(c) "Abortion" means the use of any instrument, medicine, drug, or any other

substance or device with intent to terminate the pregnancy of a woman

known to be pregnant with intent 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.

(2) No person shall perform an abortion upon a minor unless:

(a) The attending physician has secured the informed written consent of the

minor and one (1) parent or legal guardian with joint or physical custody

and the consenting parent or legal guardian of the minor has made a

reasonable attempt to notify any other parent with joint or physical

custody at least forty-eight (48) hours prior to providing the informed

written consent.

1. Notice shall not be required to be provided to any parent who has:

a. Previously been enjoined by a domestic violence order or

interpersonal protective order, regardless of whether or not the

person to be protected by the order was the minor; or

b. Been convicted of, or entered into a diversion program for, a

criminal offense against a victim who is a minor as defined in

KRS 17.500 or for a violent or sexual criminal offense under

KRS Chapter 506, 507, 507A, 508, 509, 510, 529, 530, or 531.

2. The informed written consent shall include:

a. A copy of the minor's government-issued identification, a copy

of the consenting parent's or legal guardian's

government-issued identification, and written documentation

including but not limited to a birth certificate, court-ordered

custodial paperwork, or tax return, establishing that he or she

is the lawful parent or legal guardian; and

b. The parent's or legal guardian's certification that he or she

consents to the abortion. The certification shall be in a signed,

dated, and notarized document that has been initialed on each

page and that contains the following statement, which shall

precede the signature of the parent or legal guardian: "I, (insert

name of parent or legal guardian), am the (select "parent" or

"legal guardian") of (insert name of minor) and give consent for

(insert name of attending physician) to perform an abortion on

her. Under penalties of perjury, I declare that I have read the

foregoing statement and that the facts stated in it are true."

3. The attending physician shall keep a copy of the informed written

consent in the medical file of the minor for five (5) years after the

minor reaches eighteen (18) years of age or for seven (7) years,

whichever is longer.

4. The attending physician securing the informed written consent from

a parent or legal guardian under this subsection shall execute for

inclusion in the medical record of the minor an affidavit stating: "I,

(insert name of attending physician), certify that, according to my

best information and belief, a reasonable person under similar

circumstances would rely on the information presented by both the

minor and her parent or legal guardian as sufficient evidence of

identity.";

(b) The minor is emancipated and the attending physician has received the

informed written consent of the minor; or

(c) The minor elects to petition any Circuit or District Court of the

Commonwealth pursuant to subsection (3) of this section and obtain an

order pursuant to subsection (4) of this section granting consent to the

abortion and the attending physician has received the informed written

consent of the minor.

(3) Every minor shall have the right to petition any Circuit or District Court of the

Commonwealth for an order granting the right to self-consent to an abortion

pursuant to the following procedures:

(a) The minor or her next friend may prepare and file a petition setting forth

the request of the minor for an order of consent to an abortion;

(b) The court shall ensure that the minor prepares or her next friend is given

assistance in preparing and filing the petition and shall ensure that the

minor's identity is kept anonymous;

(c) The minor may participate in proceedings in the court on her own behalf

or through her next friend and the court shall appoint a guardian ad litem

for her. The court shall advise her that she has a right to court-appointed

counsel and shall provide her with such counsel upon her request;

(d) All proceedings under this section shall be anonymous and shall be given

preference over other matters to ensure that the court may reach a

decision promptly, but in no case shall the court fail to rule within

seventy-two (72) hours of the time of application, provided that the

seventy-two (72) hour limitation may be extended at the request of the

minor; and

(e) The court shall hold a hearing on the merits of the petition before

reaching a decision. The court shall hear evidence at the hearing relating

to:

1. The minor's:

a. Age;

b. Emotional development and stability;

c. Maturity;

d. Intellect;

e. Credibility and demeanor as a witness;

f. Ability to accept responsibility;

g. Ability to assess both the current and future life-impacting

consequences of, and alternatives to, the abortion; and

h. Ability to understand and explain the medical risks of the

abortion and to apply that understanding to her decision; and

2. Whether there may be any undue influence by another on the

minor's decision to have an abortion.

(4) (a) If the court finds by:

1. Clear and convincing evidence that the minor is sufficiently mature

to decide whether to have an abortion;

2. Clear and convincing evidence that the requirements of this section

are not in the best interest of the minor; or

3. A preponderance of the evidence that the minor is the victim of child

abuse or sexual abuse inflicted by one (1) or both of her parents or

her legal guardian;

the court shall enter a written order, making specific factual findings and

legal conclusions supporting its decision to grant the petition for an

abortion.

(b) If the court does not make any of the findings specified in paragraph (a)

of this subsection, the court shall deny the petition.

(c) As used in this subsection, "best interest of the minor" shall not include

financial best interest, financial considerations, or the potential financial

impact on the minor or the minor's family if the minor does not have an

abortion.

(5) Any minor shall have the right of anonymous and expedited appeal to the

Court of Appeals, and that court shall give precedence over other pending

matters.

(6) All hearings under this section, including appeals, shall remain confidential and

closed to the public. The hearings shall be held in chambers or in a similarly

private and informal setting within the courthouse.

(7) No fees shall be required of any minor who declares she has no sufficient

funds to pursue the procedures provided by this section.

(8) (a) The Supreme Court is respectfully requested to promulgate any rules and

regulations it feels are necessary to ensure that proceedings under this

section are handled in an expeditious and anonymous manner.

(b) The Supreme Court, through the Administrative Office of the Courts, shall

report by February 1 of each year to the Legislative Research

Commission and the cabinet on the number of petitions filed under

subsection (3) of this section for the preceding year, and the timing and

manner of disposal of the petition by each court. For each approved

petition granting an abortion filed under subsection (3) of this section, the

specific court finding in subsection (4) of this section shall be included in

the report.

(9) (a) The requirements of subsections (2), (3), and (4) of this section shall not

apply when, in the best medical judgment of the physician based on the

facts of the case before him or her, a medical emergency exists that so

complicates the pregnancy as to require an immediate abortion.

(b) If a medical emergency exists, the physician shall make reasonable

attempts, whenever possible, and without endangering the minor, to

contact the parent or legal guardian of the minor, and may proceed, but

must document reasons for the medical necessity in the minor's medical

records.

(c) The physician shall inform the parent or legal guardian, in person or by

telephone, within twenty-four (24) hours of the abortion, including details

of the medical emergency that necessitated the abortion without the

parent's or legal guardian's consent. The physician shall also provide this

information in writing to the parent or legal guardian at his or her last

known address by first-class mail or by certified mail, return receipt

requested, with delivery restricted to the parent or legal guardian.

(10) A report indicating the basis for any medical judgment that warrants failure to

obtain consent pursuant to this section shall be filed with the Cabinet for Health

and Family Services on a form supplied by the cabinet. This report shall be

confidential.

(11) Failure to obtain consent pursuant to the requirements of this section is prima

facie evidence of failure to obtain informed consent and of interference with

family relations in appropriate civil actions. The law of this state shall not be

construed to preclude the award of exemplary damages in any appropriate civil

action relevant to violations of this section. Nothing in this section shall be

construed to limit the common-law rights of parents.

(12) A minor upon whom an abortion is performed is not guilty of violating this

section.