[Congressional Bills 108th Congress]
[From the U.S. Government Publishing Office]
[S. 1104 Placed on Calendar Senate (PCS)]






                                                       Calendar No. 114
108th CONGRESS
  1st Session
                                S. 1104

    To amend title 10, United States Code, to provide for parental 
involvement in abortions of dependent children of members of the Armed 
                                Forces.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                              May 22, 2003

 Mr. Brownback introduced the following bill; which was read the first 
                                  time

                              May 23, 2003

            Read the second time and placed on the calendar

_______________________________________________________________________

                                 A BILL


 
    To amend title 10, United States Code, to provide for parental 
involvement in abortions of dependent children of members of the Armed 
                                Forces.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

SECTION 1. PROTECTION OF CHILDREN AND PARENTAL INVOLVEMENT IN THE 
              PERFORMANCE OF ABORTIONS FOR DEPENDENT CHILDREN OF 
              MEMBERS OF THE ARMED FORCES.

    Section 1093 of title 10, United States Code, is amended by adding 
at the end the following new subsections:
    ``(c) Parental Notice.--(1) A physician may not use facilities of 
the Department of Defense to perform an abortion on a pregnant 
unemancipated minor who is a child of a member of the armed forces 
unless--
            ``(A) the physician gives at least 48 hours actual notice, 
        in person or by telephone, of the physician's intent to perform 
        the abortion to--
                    ``(i) the member of the armed forces, or another 
                parent of the minor, if the minor has no managing 
                conservator or guardian; or
                    ``(ii) a court-appointed managing conservator or 
                guardian;
            ``(B) the judge of an appropriate district court of the 
        United States issues an order authorizing the minor to consent 
        to the abortion as provided by subsection (d) or (e);
            ``(C) the appropriate district court of the United States 
        by its inaction constructively authorizes the minor to consent 
        to the abortion as provided by subsection (d) or (e); or
            ``(D) the physician performing the abortion--
                    ``(i) concludes that on the basis of the 
                physician's good faith clinical judgment, a condition 
                exists that complicates the medical condition of the 
                minor and necessitates the immediate abortion of her 
                pregnancy to avert her death or to avoid a serious risk 
                of substantial and irreversible impairment of a major 
                bodily function; and
                    ``(ii) certifies in writing to the appropriate 
                medical official of the Department of Defense, and in 
                the patient's medical record, the medical indications 
                supporting the physician's judgment that the 
                circumstances described by clause (i) exist.
    ``(2) If a person to whom notice may be given under paragraph 
(1)(A) cannot be notified after a reasonable effort, a physician may 
perform an abortion if the physician gives 48 hours constructive 
notice, by certified mail, restricted delivery, sent to the last known 
address, to the person to whom notice may be given under that 
paragraph. The period under this paragraph begins when the notice is 
mailed. If the person required to be notified is not notified within 
the 48-hour period, the abortion may proceed even if the notice by mail 
is not received.
    ``(3) The requirement that 48 hours actual notice be provided under 
this subsection may be waived by an affidavit of--
            ``(A) the member of the armed forces concerned, or another 
        parent of the minor, if the minor has no managing conservator 
        or guardian; or
            ``(B) a court-appointed managing conservator or guardian.
    ``(4) A physician may execute for inclusion in the minor's medical 
record an affidavit stating that, according to the best information and 
belief of the physician, notice or constructive notice has been 
provided as required by this subsection. Execution of an affidavit 
under this paragraph creates a presumption that the requirements of 
this subsection have been satisfied.
    ``(5) A certification required by paragraph (1)(D) is confidential 
and privileged and is not subject to disclosure, discovery, subpoena, 
or other legal process. Personal or identifying information about the 
minor, including her name, address, or social security number, may not 
be included in a certification under paragraph (1)(D). The physician 
must keep the medical records on the minor in compliance with 
regulations prescribed by the Secretary of Defense.
    ``(6) A physician who intentionally performs an abortion on a 
pregnant unemancipated minor in violation of this subsection commits an 
offense punishable by a fine not to exceed $10,000.
    ``(7) It is a defense to prosecution under this subsection that the 
minor falsely represented her age or identity to the physician to be at 
least 18 years of age by displaying an apparently valid governmental 
record of identification such that a reasonable person under similar 
circumstances would have relied on the representation. The defense does 
not apply if the physician is shown to have had independent knowledge 
of the minor's actual age or identity or failed to use due diligence in 
determining the minor's age or identity.
    ``(d) Judicial Approval.--(1) A pregnant unemancipated minor who is 
a child of a member of the armed forces and who wishes to have an 
abortion using facilities of the Department of Defense without 
notification to the member of the armed forces, another parent, her 
managing conservator, or her guardian may file an application for a 
court order authorizing the minor to consent to the performance of an 
abortion without notification to either of her parents or a managing 
conservator or guardian.
    ``(2) Any application under this subsection may be filed in any 
appropriate district court of the United States. In the case of a minor 
who elects not to travel to the United States in pursuit of an order 
authorizing the abortion, the court may conduct the proceedings in the 
case of such application by telephone.
    ``(3) An application under this subsection shall be made under oath 
and include--
            ``(A) a statement that the minor is pregnant;
            ``(B) a statement that the minor is unmarried, is under 18 
        years of age, and has not had her disabilities removed;
            ``(C) a statement that the minor wishes to have an abortion 
        without the notification of either of her parents or a managing 
        conservator or guardian; and
            ``(D) a statement as to whether the minor has retained an 
        attorney and, if she has retained an attorney, the name, 
        address, and telephone number of her attorney.
    ``(4) The court shall appoint a guardian ad litem for the minor. If 
the minor has not retained an attorney, the court shall appoint an 
attorney to represent the minor. If the guardian ad litem is an 
attorney, the court may appoint the guardian ad litem to serve as the 
minor's attorney.
    ``(5) The court may appoint to serve as guardian ad litem for a 
minor--
            ``(A) a psychiatrist or an individual licensed or certified 
        as a psychologist;
            ``(B) a member of the clergy;
            ``(C) a grandparent or an adult brother, sister, aunt, or 
        uncle of the minor; or
            ``(D) another appropriate person selected by the court.
    ``(6) The court shall determine within 48 hours after the 
application is filed whether the minor is mature and sufficiently well-
informed to make the decision to have an abortion performed without 
notification to either of her parents or a managing conservator or 
guardian, whether notification would not be in the best interest of the 
minor, or whether notification may lead to physical, sexual, or 
emotional abuse of the minor. If the court finds that the minor is 
mature and sufficiently well informed, that notification would not be 
in the minor's best interest, or that notification may lead to 
physical, sexual, or emotional abuse of the minor, the court shall 
enter an order authorizing the minor to consent to the performance of 
the abortion without notification to either of her parents or a 
managing conservator or guardian and shall execute the required forms.
    ``(7) If the court fails to rule on the application within the 
period specified in paragraph (6), the application shall be deemed to 
be granted and the physician may perform the abortion as if the court 
had issued an order authorizing the minor to consent to the performance 
of the abortion without notification under subsection (c).
    ``(8) If the court finds that the minor does not meet the 
requirements of paragraph (6), the court may not authorize the minor to 
consent to an abortion without the notification authorized under 
subsection (c)(1).
    ``(9) The court may not notify a parent, managing conservator, or 
guardian that the minor is pregnant or that the minor wants to have an 
abortion. The court proceedings shall be conducted in a manner that 
protects the anonymity of the minor. The application and all other 
court documents pertaining to the proceedings are confidential and 
privileged and are not subject to disclosure, discovery, subpoena, or 
other legal process. The minor may file the application using a 
pseudonym or using only her initials.
    ``(10) An order of the court issued under this subsection is 
confidential and privileged and is not subject to disclosure, 
discovery, subpoena, or other legal process. The order may not be 
released to any person but the pregnant minor, the pregnant minor's 
guardian ad litem, the pregnant minor's attorney, another person 
designated to receive the order by the minor, or a governmental agency 
or attorney in a criminal or administrative action seeking to assert or 
protect the interest of the minor.
    ``(11) A filing fee is not required of and court costs may not be 
assessed against a minor filing an application under this subsection.
    ``(e) Appeal.--(1) A minor whose application under subsection (d) 
is denied may appeal to the court of appeals of the United States 
having jurisdiction of the district court of the United States that 
denied the application. If the court of appeals fails to rule on the 
appeal within 48 hours after the appeal is filed, the appeal shall be 
deemed to be granted and the physician may perform the abortion using 
facilities of the Department of Defense as if the court had issued an 
order authorizing the minor to consent to the performance of the 
abortion using facilities of the Department of Defense without 
notification under subsection (c). Proceedings under this subsection 
shall be given precedence over other pending matters to the extent 
necessary to assure that the court reaches a decision promptly.
    ``(2) A ruling of the court of appeals under this subsection is 
confidential and privileged and is not subject to disclosure, 
discovery, subpoena, or other legal process. The ruling may not be 
released to any person but the pregnant minor, the pregnant minor's 
guardian ad litem, the pregnant minor's attorney, another person 
designated to receive the ruling by the minor, or a governmental agency 
or attorney in a criminal or administrative action seeking to assert or 
protect the interest of the minor.
    ``(3) A filing fee is not required of and court costs may not be 
assessed against a minor filing an appeal under this subsection.
    ``(f) Definitions.--In this section:
            ``(1) The term `abortion' means the use of any means at a 
        medical facility of the Department of Defense to terminate the 
        pregnancy of a female known by an attending physician to be 
        pregnant, with the intention that the termination of the 
        pregnancy by those means will with reasonable likelihood cause 
        the death of the fetus. The term applies only to an 
        unemancipated minor known by an attending physician to be 
        pregnant and may not be construed to limit a minor's access to 
        contraceptives.
            ``(2) The term `appropriate district court of the United 
        States' means--
                    ``(A) with respect to a proposed abortion at a 
                particular Department of Defense medical facility in 
                the United States or its territories, the district 
                court of the United States having proper venue in 
                relation to that facility; or
                    ``(B) if the minor is seeking an abortion at a 
                particular Department of Defense facility outside the 
                United States or its territories--
                            ``(i) if the minor elects to travel to the 
                        United States in pursuit of an order 
                        authorizing the abortion, the district court of 
                        the United States having proper venue in the 
                        district in which the minor first arrives from 
                        outside the United States; or
                            ``(ii) if the minor elects not to travel to 
                        the United States in pursuit of an order 
                        authorizing the abortion, the district court of 
                        the United States for the district in which the 
                        minor last resided.
            ``(3) The term `fetus' means an individual human organism 
        from fertilization until birth.
            ``(4) The term `guardian' means a court-appointed guardian 
        of the person of the minor.
            ``(5) The term `physician' means an individual licensed to 
        practice medicine.
            ``(6) The term `unemancipated minor' includes a minor who 
        is not a member of the armed forces and who--
                    ``(A) is unmarried; and
                    ``(B) has not had any disabilities of minority 
                removed.''.




                                                       Calendar No. 114

108th CONGRESS

  1st Session

                                S. 1104

_______________________________________________________________________

                                 A BILL

    To amend title 10, United States Code, to provide for parental 
involvement in abortions of dependent children of members of the Armed 
                                Forces.

_______________________________________________________________________

                              May 23, 2003

            Read the second time and placed on the calendar