PARENTAL NOTIFICATION CONCERNING ABORTION
C.R.S. § 12-37.5-104. Notification concerning abortion.
(1) No abortion shall be performed upon an unemancipated minor until at least 48 hours after written notice of the pending abortion has been delivered in the following manner:
(a) The notice shall be addressed to the parent at the dwelling house or usual place of abode of the parent. Such notice shall be delivered to the parent by:
(I) The attending physician or member of the physician's immediate staff who is over the age of eighteen; or
(II) The sheriff of the county where the service of notice is made, or by his deputy; or
(III) Any other person over the age of eighteen years who is not related to the minor; or
(IV) A clergy member who is over the age of eighteen.
(b) Notice delivered by any person other than the attending physician shall be furnished to and delivered by such person in a sealed envelope marked "Personal and Confidential" and its content shall not in any manner be revealed to the person making such delivery.
(c) Whenever the parent of the minor includes two persons to be notified as provided in this article and such persons reside at the same dwelling house or place of abode, delivery to one such person shall constitute delivery to both, and the 48-hour period shall commence when delivery is made. Should such persons not reside together and delivery of notice can be made to each of them, notice shall be delivered to both parents, unless the minor shall request that only one parent be notified, which request shall be honored and shall be noted by the physician in the minor's medical record. Whenever the parties are separately served with notice, the 48-hour period shall commence upon delivery of the first notice.
(d) The person delivering such notice, if other than the physician, shall provide to the physician a written return of service at the earliest practical time, as follows:
(I) If served by the sheriff or his deputy, by his certificate with a statement as to date, place, and manner of service and the time such delivery was made.
(II) If by any other person, by his affidavit thereof with the same statement.
(III) Return of service shall be maintained by the physician.
(e) (I) In lieu of personal delivery of the notice, the same may be sent by postpaid certified mail, addressed to the parent at the usual place of abode of the parent, with return receipt requested and delivery restricted to the addressee. Delivery shall be conclusively presumed to occur and the 48-hour time period as provided in this article shall commence to run at 12:00 o'clock noon on the next day on which regular mail delivery takes place.
(II) Whenever the parent of the minor includes two persons to be notified as provided in this article and such persons reside at the same dwelling house or place of abode, notice addressed to one parent and mailed as provided in the foregoing subparagraph shall be deemed to be delivery of notice to both such persons. Should such persons not reside together and notice can be mailed to each of them, such notice shall be separately mailed to both parents unless the minor shall request that only one parent shall be notified, which request shall be honored and shall be noted by the physician in the minor's medical record.
(III) Proof of mailing and the delivery or attempted delivery shall be maintained by the physician.
(2) (a) Notwithstanding the provisions of subsection (1) of this section, if the minor is residing with a relative of the minor and not a parent, the written notice of the pending abortion shall be provided to either the relative of the minor or a parent.
(b) If a minor elects to provide notice to a person specified in paragraph (a) of this subsection (2), the notice shall be provided in accordance with the provisions of subsection (1) of this section.
(3) At the time the physician, licensed health care professional, or staff of the physician or licensed health care professional informs the minor that notice must be provided to the minor's parents prior to performing an abortion, the physician, licensed health care professional, or the staff of the physician or licensed health care professional must inform the minor under what circumstances the minor has the right to have only one parent notified.
Source: Initiated 98: Entire article added, effective upon proclamation of the Governor, December 30, 1998. L. 2003: (1)(a)(III) amended and (1)(a)(IV), (2), and (3) added, p. 2363, §§ 5, 3, 4, effective June 3.
Cross references: For the legislative declaration contained in the 2003 act amending subsection (1)(a)(III) and enacting subsections (1)(a)(IV), (2), and (3), see section 1 of chapter 355, Session Laws of Colorado 2003.
ANNOTATION
The provisions of the Parental Notification Act supersede § 19-1-104 (3) of the Children's Code with regard to the provision of notice to parents about abortions. Planned Parenthood of Rocky Mountains Servs. Corp. v. Owens, 287 F.3d 910 (10th Cir. 2002).
As a result, the Parental Notification Act must be held unconstitutional because it lacks a health exception to the parental notification requirement. Planned Parenthood of Rocky Mountains Servs. Corp. v. Owens, 287 F.3d 910 (10th Cir. 2002).
Applied in In re Doe, 166 P.3d 293 (Colo. App. 2007).
C.R.S. § 12-37.5-105. No notice required - when.
(1) No notice shall be required pursuant to this article if:
(a) The person or persons who may receive notice pursuant to section 12-37.5-104 (1) certify in writing that they have been notified; or
(a.5) The person whom the minor elects to notify pursuant to section 12-37.5-104 (2) certifies in writing that he or she has been notified; or
(b) The pregnant minor declares that she is a victim of child abuse or neglect by the acts or omissions of the person who would be entitled to notice, as such acts or omissions are defined in "The Child Protection Act of 1987", as set forth in title 19, article 3, of the Colorado Revised Statutes, and any amendments thereto, and the attending physician has reported such child abuse or neglect as required by the said act. When reporting such child abuse or neglect, the physician shall not reveal that he or she learned of the abuse or neglect as the result of the minor seeking an abortion.
(c) The attending physician certifies in the pregnant minor's medical record that a medical emergency exists and there is insufficient time to provide notice pursuant to section 12-37.5-104; or
(d) A valid court order is issued pursuant to section 12-37.5-107.
Source: Initiated 98: Entire article added, effective upon proclamation of the Governor, December 30, 1998. L. 2003: Entire section amended, p. 2364, § 6, effective June 3.
Cross references: For the legislative declaration contained in the 2003 act amending this section, see section 1 of chapter 355, Session Laws of Colorado 2003.
C.R.S. § 12-37.5-106. Penalties - damages - defenses.
(1) Any person who performs or attempts to perform an abortion in willful violation of this article:
(a) (Deleted by amendment, L. 2003, p. 2364, § 7, effective June 3, 2003.)
(b) Shall be liable for damages proximately caused thereby.
(2) It shall be an affirmative defense to any civil proceedings if the person establishes that:
(a) The person relied upon facts or information sufficient to convince a reasonable, careful and prudent person that the representations of the pregnant minor regarding information necessary to comply with this article were bona fide and true; or
(b) The abortion was performed to prevent the imminent death of the minor child and there was insufficient time to provide the required notice.
(3) Any person who counsels, advises, encourages or conspires to induce or persuade any pregnant minor to furnish any physician with false information, whether oral or written, concerning the minor's age, marital status, or any other fact or circumstance to induce or attempt to induce the physician to perform an abortion upon such minor without providing written notice as required by this article commits a class 5 felony and shall be punished as provided in section 18-1.3-401, C.R.S.
Source: Initiated 98: Entire article added, effective upon proclamation of the Governor, December 30, 1998. L. 2002: (1)(a) and (3) amended, p. 1479, § 79, effective October 1. L. 2003: (1) and IP(2) amended, p. 2364, § 7, effective June 3.
Cross references: For the legislative declaration contained in the 2002 act amending subsections (1)(a) and (3), see section 1 of chapter 318, Session Laws of Colorado 2002. For the legislative declaration contained in the 2003 act amending subsection (1) and the introductory portion to subsection (2), see section 1 of chapter 355, Session Laws of Colorado 2003.
C.R.S. § 12-37.5-107. Judicial bypass.
(1) (Deleted by amendment, L. 2003, p. 2364, § 8, effective June 3, 2003.)
(2) (a) If any pregnant minor elects not to allow the notification required pursuant to section 12-37.5-104, any judge of a court of competent jurisdiction shall, upon petition filed by or on behalf of such minor, enter an order dispensing with the notice requirements of this article if the judge determines that the giving of such notice will not be in the best interest of the minor, or if the court finds, by clear and convincing evidence, that the minor is sufficiently mature to decide whether to have an abortion. Any such order shall include specific factual findings and legal conclusions in support thereof and a certified copy of such order shall be provided to the attending physician of said minor and the provisions of section 12-37.5-104 (1) and section 12-37.5-106 shall not apply to the physician with respect to such minor.
(b) The court, in its discretion, may appoint a guardian ad litem for the minor and also an attorney if said minor is not represented by counsel.
(c) Court proceedings under this subsection (2) shall be confidential and shall be given precedence over other pending matters so that the court may reach a decision promptly without delay in order to serve the best interests of the minor. Court proceedings under this subsection (2) shall be heard and decided as soon as practicable but in no event later than four days after the petition is filed.
(d) Notwithstanding any other provision of law, an expedited confidential appeal to the court of appeals shall be available to a minor for whom the court denies an order dispensing with the notice requirements of this article. Any such appeal shall be heard and decided no later than five days after the appeal is filed. An order dispensing with the notice requirements of this article shall not be subject to appeal.
(e) Notwithstanding any provision of law to the contrary, the minor is not required to pay a filing fee related to an action or appeal filed pursuant to this subsection (2).
(f) If either the district court or the court of appeals fails to act within the time periods required by this subsection (2), the court in which the proceeding is pending shall immediately issue an order dispensing with the notice requirements of this article.
(g) The Colorado supreme court shall issue rules governing the judicial bypass procedure, including rules that ensure that the confidentiality of minors filing bypass petitions will be protected. The Colorado supreme court shall also promulgate a form petition that may be used to initiate a bypass proceeding. The Colorado supreme court shall promulgate the rules and form governing the judicial bypass procedure by August 1, 2003. Physicians shall not be required to comply with this article until forty-five days after the Colorado supreme court publishes final rules and a final form.
Source: Initiated 98: Entire article added, effective upon proclamation of the Governor, December 30, 1998. L. 2003: Entire section amended, p. 2364, § 8, effective June 3.
Cross references: For the legislative declaration contained in the 2003 act amending this section, see section 1 of chapter 355, Session Laws of Colorado 2003.
12-37.5-108. Limitations.
(1) This article shall in no way be construed so as to:
(a) Require any minor to submit to an abortion; or
(b) Prevent any minor from withdrawing her consent previously given to have an abortion; or
(c) Permit anything less than fully informed consent before submitting to an abortion.
(2) This article shall in no way be construed as either ratifying, granting or otherwise establishing an abortion right for minors independently of any other regulation, statute or court decision which may now or hereafter limit or abridge access to abortion by minors.
Source: Initiated 98: Entire article added, effective upon proclamation of the Governor, December 30, 1998.