8/5/2013 UNDERSTANDING THE ILLINOIS PARENTAL NOTICE OF ABORTION ACT OF 1995 Presented by: Lorie Chaiten, Reproductive Rights Project Director lchaiten@aclu-il.org Khadine Bennett, Staff Attorney & Legislative Counsel kbennett@aclu-il.org
2 750 ILCS 70 Fast Facts The Parental Notice of Abortion Act applies to pregnant minors and incompetent persons. The Act may apply even if the pregnant minor is a parent. Minor is defined as any person under 18 years of age who is not and has not been married, or who has not been emancipated under the Emancipation of Minors Act. For the purpose of this presentation, we will focus primarily on the how the Parental Notice of Abortion Act applies to pregnant minors. The Act goes into effect on August 15th.
3 750 ILCS 70/15 Sec. 15. Notice to adult family member No person shall knowingly perform an abortion upon a minor or upon an incompetent person unless the physician or his or her agent has given at least 48 hours actual notice to an adult family member of the pregnant minor or incompetent person of his or her intention to perform the abortion, unless that person or his or her agent has received a written statement by a referring physician certifying that the referring physician or his or her agent has given at least 48 hours notice to an adult family member of the pregnant minor or incompetent person. If actual notice is not possible after a reasonable effort, the physician or his or her agent must give 48 hours constructive notice.
4 What Is Notice? Notice just means informing The law does not require the adult family member to give the pregnant teen permission If an adult family member receives notice and they disagree with the pregnant minor s decision, she can still have the abortion.
5 750 ILCS 70/15 Who Can Be Notified Any adult family member over 21 as defined in the statute: A parent A grandparent A step-parent who lives in the minor s home A legal guardian Who Can Give Notice Physician Physician s agent
Who Is Entitled to Notice? Any adult family member over 21 as defined in the statute: A parent Only 1 parent needs to be notified The pregnant minor does not have to live with, or in the same state as, the parent A grandparent Only 1 grandparent needs to be notified The pregnant minor does not have to live with, or in the same state as, the grandparent A step-parent who lives in the minor s home Only 1 step-parent needs to be notified The pregnant minor must live with the step-parent A legal guardian Only 1 legal guardian needs to be notified The guardian must be a legally recognized guardian 6
7 Who Can Give Notice? Physician including, but not limited to: Abortion Provider Pediatrician Family Doctor Referring Physician Physician s agent including, but not limited to: Clinic Staff
How Does Notification Work? Actual Notice If the minor agrees to have an adult family member notified, the clinic or physician must give notice to the adult family member at least 48 hours before performing the abortion The clinic or physician must provide actual notice Constructive Notice If the clinic or physician cannot reach the adult family member after a reasonable effort they can provide constructive notice Constructive notice means notice by certified mail to the last known address of the person entitled to notice 8 Actual notice means giving of notice directly, in person or by phone Delivery of constructive notice is deemed to occur 48 hours after the certified notice is mailed
9 Required Waiting Period Between Notice And The Procedure Actual Notice Constructive Notice 48 hours (2 days - including weekends and holidays) Up to 120 hours (5 days - including weekends and holidays)
Actual Notice Required Waiting Period Between Notice And The Procedure Physician or agent notifies adult family member in person or by phone 10 48 hours later Physician can perform the procedure
11 Constructive Notice Required Waiting Period Between Notice And The Procedure Physician makes at least 3 attempts to reach the adult family member within 24 hours 24 hours later Physician sends notice via certified mail 48 hours later Notice via certified mail deemed delivered 48 hours later Physician can perform the procedure
12 750 ILCS 70/15 Sec. 20. Exceptions Notice shall not be required under this Act if: (1) the minor or incompetent person is accompanied by a person entitled to notice; or (2) notice is waived in writing by a person who is entitled to notice; or (3) the attending physician certifies in the patient's medical record that a medical emergency exists and there is insufficient time to provide the required notice; or
13 750 ILCS 70/15 (4) the minor declares in writing that she is a victim of sexual abuse, neglect, or physical abuse by an adult family member as defined in this Act. The attending physician must certify in the patient's medical record that he or she has received the written declaration of abuse or neglect. Any notification of public authorities of abuse that may be required under other laws of this State need not be made by the person performing the abortion until after the minor receives an abortion that otherwise complies with the requirements of this Act; or (5) notice is waived under Section 25 [Procedure for judicial waiver of notice].
14 750 ILCS 70/15 Notice Waived: Adult Family Member accompanies pregnant minor to the appointment with the physician or his or her agent. Any parent, grandparent, step-parent living in the home, or legal guardian can accompany the pregnant minor to the appointment with the physician or his or her agent. The adult family member must be over 21
750 ILCS 70/15 Notice Waived: Adult Family Member gives up their right to notice in writing. Any parent, grandparent, step-parent living in the home, or legal guardian can waive notice in writing The adult family member must be over 21 Sample Adult Family Member Notice Waiver Form: http://ilbypasscoordinationproject.org/wpcontent/uploads/2013/08/waiver.pdf 15 Anyone, other than an adult family member, who signs a waiver of notice is guilty of a Class C misdemeanor
750 ILCS 70/15 Notice Waived: Pregnant minor declares in writing that she is a victim of sexual or physical abuse or neglect by an adult family member. Any parent, grandparent, step-parent living in the home, or legal guardian can be the perpetrator of the abuse or neglect. The adult family member must be over 21 The minor does not have to live with the abusive or neglectful adult family member. The physician, or his or her agent, may be required to report the abuse or neglect to the Department of Children and Family Services AFTER her abortion procedure. 16
17 750 ILCS 70/15 Neglect is defined as the failure of an adult family member to supply a child with the necessary food, clothing, shelter, or medical care when reasonably able to do so, or failure to protect a child from conditions or actions that imminently and seriously endanger the child s physical or mental health when reasonably able to do so.
18 750 ILCS 70/15 Physical Abuse is defined as any physical injury intentionally inflicted by an adult family member on a child.
19 750 ILCS 70/15 Sexual abuse is defined as any sexual contact or sexual penetration as defined in Section 12-12 of the Criminal Code of 1961 that is prohibited by the criminal laws of the State of Illinois and committed against a minor by an adult family member.
750 ILCS 70/15 Notice Waived: The physician, or his or her agent, decides there is a medical emergency. 20
21 750 ILCS 70/15 Notice Waived: The Pregnant minor is married, divorced or widowed. Minors must be at least 16 and have consent from both parents to get married in Illinois
750 ILCS 70/15 Notice Waived: The pregnant minor is emancipated. 22 A minor is emancipated when a petition for emancipation has been approved by a judge because: the minor was at least 16 and could show that she was mature enough to manage her own affairs OR the minor is a homeless minor in Illinois and fully or mostly independent of her parents or guardian A pregnant minor seeking to use this exception should already be emancipated
750 ILCS 70/15 Notice Waived: The pregnant minor receives an order waiving the parental notice requirement after a successful judicial bypass hearing. A judicial bypass is when a judge gives an order that allows a pregnant minor to have an abortion without notifying an adult family member, because she can show that she is either sufficiently mature and well enough informed to decide intelligently whether to have an abortion OR that notification would not be in her best interests. 23
750 ILCS 70/25 General Information About the Judicial Bypass Process The process is available to Illinois residents and nonresidents as long as the pregnant minor has her procedure done in Illinois. While most minors involve their parents, guardians, or a trusted adult in their decision to end a pregnancy, some minors don t have that option available to them. The judicial bypass process seeks to protect those pregnant minors by offering them a free, fast & confidential alternative to notification of an adult family member. The minor does not have to pay for any fees or costs associated with the judicial bypass proceedings. 24
25 750 ILCS 70/25 Sec. 25. Procedure for judicial waiver of notice (a) The requirements and procedures under this Section are available to minors and incompetent persons whether or not they are residents of this State. (b) The minor or incompetent person may petition any circuit court for a waiver of the notice requirement and may participate in proceedings on her own behalf. The court shall appoint a guardian ad litem for her. Any guardian ad litem appointed under this Act shall act to maintain the confidentiality of the proceedings. The circuit court shall advise her that she has a right to court-appointed counsel and shall provide her with counsel upon her request.
26 750 ILCS 70/25 Sec. 25. Procedure for judicial waiver of notice (c) Court proceedings under this Section shall be confidential and shall ensure the anonymity of the minor or incompetent person. All court proceedings under this Section shall be sealed. The minor or incompetent person shall have the right to file her petition in the circuit court using a pseudonym or using solely her initials. All documents related to this petition shall be confidential and shall not be made available to the public. These proceedings shall be given precedence over other pending matters to the extent necessary to ensure that the court reaches a decision promptly. The court shall rule and issue written findings of fact and conclusions of law within 48 hours of the time that the petition is filed, except that the 48-hour limitation may be extended at the request of the minor or incompetent person. If the court fails to rule within the 48-hour period and an extension is not requested, then the petition shall be deemed to have been granted, and the notice requirement shall be waived.
27 750 ILCS 70/25 Sec. 25. Procedure for judicial waiver of notice (d) Notice shall be waived if the court finds by a preponderance of the evidence either: (1) that the minor or incompetent person is sufficiently mature and well enough informed to decide intelligently whether to have an abortion, or (2) that notification under Section 15 of this Act would not be in the best interests of the minor or incompetent person.
28 750 ILCS 70/25 Sec. 25. Procedure for judicial waiver of notice (e) A court that conducts proceedings under this Section shall issue written and specific factual findings and legal conclusions supporting its decision and shall order that a confidential record of the evidence and the judge's findings and conditions be maintained. (f) An expedited confidential appeal shall be available, as the Supreme Court provides by rule, to any minor or incompetent person to whom the circuit court denies a waiver of notice. An order authorizing an abortion without notice shall not be subject to appeal. (g) The Supreme Court is respectfully requested to promulgate any rules and regulations necessary to ensure that proceedings under this Act are handled in an expeditious and confidential manner. (h) No fees shall be required of any minor or incompetent person who avails herself of the procedures provided by this Section.
750 ILCS 70/25 Pregnant Minors Seeking a Waiver Of the Parental Notice Requirement Have a Right to 6 Things: 29 Free Lawyer No fees or costs associated with the proceedings Guardian Ad Litem Right to Appeal a Denial Confidentiality & Anonymity Fast Process
30 750 ILCS 70/25 Free Lawyer Pregnant minors seeking a waiver of the notice requirement are entitled to a free lawyer Some minors may choose to represent themselves pro se The Illinois Bypass Coordination Project has a network of free trained attorneys throughout the state available to represent pregnant minors seeking a judicial bypass
31 750 ILCS 70/25 Pregnant minors can connect with a Bypass Coordination Project attorney by: Reaching out to the Illinois Bypass Coordination Project Calling: 877.44.BYPASS (877.442.9727) Calling or texting:312.560.6607 Emailing: judicialbypass@aclu-il.org Visiting: www.ilbypasscoordinationproject.org Facebook: Illinois Bypass Coordination Project Clinic or Advocate referral Court referral
750 ILCS 70/25 Judicial Bypass Coordination Project Lawyer Referral 32 Pregnant minor calls the Project Hotline volunteer answers questions and gets basic info Pregnant minor is matched with Attorney in her area Attorney preps and represents pregnant minor throughout the legal proceedings
33 750 ILCS 70/25 Guardian Ad Litem The GAL is appointed by the judge to represent the rights and interests of the minor The pregnant minor can request that her attorney also serve as her guardian ad litem
34 750 ILCS 70/25 Confidentiality and Anonymity The pregnant minor can petition any circuit court She does not have to go to the court in her home county All proceedings must be confidential and sealed All filed documents must be kept confidential and will not be available to the public The minor may use a pseudonym or her initials there is no requirement that the minor use her real name The hearing must take place in an empty courtroom or in the judges chambers The hearing is non-adversarial (there is no one on the other side); intervenors, or participation by individuals not invited by the minor, is not permitted
750 ILCS 70/25 Fast Process The court is required to rule within 48 hours of filing the petition The Judge must decide whether the minor is sufficiently mature and well enough informed to decide intelligently whether to have an abortion OR that notification would not be in her best interests The judge must issue written and specific factual findings and legal conclusions If the court does not rule within 48 hours, the petition is deemed granted, and the minor can go forward with her procedure The 48 hour period does not include weekends and holidays Once the minor's petition is granted, she can get her procedure done immediately there is no waiting period 35
36 750 ILCS 70/25 Right to Appeal a Denial If the judge denies the minor s petition, she can appeal to the Appellate Court If the minor loses in Appellate Court, she can appeal to the Illinois Supreme Court
37 Some Ways To Show Maturity/Well-Informed: Understands how the abortion procedure works Is responsible in her home, school or work life Know about pregnancy options Mature and well enough informed Made all appointments with medical provider and attorney
38 Some Ways To Show Best Interest: will be kicked out Notification not in best interest Worried about safety Forced to carry pregnancy
750 ILCS 70/25 No Fees or Costs Associated with the Judicial Bypass Proceedings Pregnant minors do not have to pay for: Filing initial petition Filing appeal petitions Translation services Court reporter Transcription services Pregnant minors do have to pay for: Transportation costs to get to and from the court house The abortion procedure 39
40 750 ILCS 70/30 Sec. 30. Minor's consent to abortion A person may not perform an abortion on a minor without the minor's consent, except in a medical emergency.
41 750 ILCS 70/40 Sec. 40. Penalties (a) Any physician who willfully fails to provide notice as required under this Act before performing an abortion on a minor or an incompetent person shall be referred to the Illinois State Medical Disciplinary Board for action in accordance with Section 22 of the Medical Practice Act of 1987. (b) Any person, not authorized under this Act, who signs any waiver of notice for a minor or incompetent person seeking an abortion, is guilty of a Class C misdemeanor.
42 750 ILCS 70/45 Sec. 45. Immunity Any physician who, in good faith, provides notice in accordance with Section 15 or relies on an exception under Section 20 shall not be subject to any type of civil or criminal liability or discipline for unprofessional conduct for failure to give required notice
43 Compliance Resources Related to Notice Resources Available on the Judicial Bypass Coordination Project Website: www.ilbypasscoordinationproject.org Adult Family Member Notice Waiver Form: http://ilbypasscoordinationproject.org/wpcontent/uploads/2013/08/waiver.pdf Referring Physician Letter: http://ilbypasscoordinationproject.org/wpcontent/uploads/2013/07/referring-physician-letter1.pdf Pre-Attorney Meeting Questionnaire: http://ilbypasscoordinationproject.org/wpcontent/uploads/2013/07/for-minors-questions.pdf
44 The Judicial Bypass Coordination Project Lawyer referral for pregnant minors seeking an abortion without parental involvement Recruit and train volunteer attorneys to represent pregnant minors seeking to go through the judicial bypass process Recruit and train volunteers for the Judicial Bypass Coordination Project hotline Provides Information about the Illinois Parental Notice of Abortion Act of 1995 Youth guides and cards Respond to phone calls, texts and emails through the bypass coordination project Compliance workshops for medical providers throughout the state Informational workshops for youth-serving agencies and coalition partners
45 We Need YOU To Refer attorneys you trust to represent minors: email rmuniz@aclu-il.org Refer volunteers you trust to staff the hotline: email acarter@aclu-il.org Let us know of other organizations that would be interested in a presentation: email kbennett@aclu-il.org Distribute our youth cards, guides, and factsheets: email rmuniz@aclu-il.org Let us know if you have questions about the law: email lchaiten@aclu-il.org; kbennett@aclu-il.org; or rmuniz@aclu-il.org
46 Judicial Bypass Coordination Project Call: 877.44.BYPASS (877.442.9727) Call or Text:312.560.6607 Email: judicialbypass@aclu-il.org Website: www.ilbypasscoordinationproject.org Facebook: Illinois Bypass Coordination Project