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An Outline for Legislation Prepared by
David C. Reardon, Ph.D.
PO Box 7348
Springfield, IL 62791
(217) 546-9522
Parental Consent & Judicial Bypass Regarding Birth Control
Prescriptions for Minors
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In general, the bill would require consent from at least one custodial
parent or legal guardian before birth control could be provided to a minor.
Preferably, proof of parental consent would require that the parent accompany
the daughter to the physician's or family planning agency's office to participate
in the counseling, risk disclosure, and alternatives discussion. The interests
of the minor would additionally be protected by judicial bypass procedures
as described below. When judicial bypass waiving parental consent requirements
is sought and granted, additional safeguards to protect the minor's health,
well being, and legal rights would be in force as described below.
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Prior to seeking a hearing for judicial bypass, {{{These steps are not
required by the statute when the minor is accompanied to the physician's
or family planning office by their custodial parent or legal guardian,
though they may be required by common law or other health regulations or
statutes.}}}
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The physician or agency advising the minor shall
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Test for venereal disease
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Test for pregnancy
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Provide a complete psycho-social evaluation of the minor
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Provide directive abstinence counseling
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Screen for indications that the minor is the victim of criminal sexual
misconduct.
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Screen for indications that the minor is the victim of child abuse.
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If, after completing the above required steps, there is reason to believe
that the child is a victim of sexual misconduct, this shall be reported
to law enforcement officials and the Department of Children and Family
Services.
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If, after completing the above required steps, there is reason to believe
that the child is a victim of child abuse this shall be reported for further
investigation by the Department of Children and Family Services.
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If, after completing the above required steps, the physician or agency
advising the minor reaches the conclusion that (1) the minor will not practice
abstinence and (2) there is a reasonable basis to conclude that the minor
may be the victim of child abuse in the event her parents learned that
she was sexually active, the physician or agency may seek permission from
an appropriate court, as provided below, to prescribe the use of birth
control if, in the attending physician's reasonable medical judgement,
this is course of action is in the minor's best interests.
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Prior to the court hearing requesting judicial bypass,
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The physician or agency advising the minor shall obtain the medical
records of the girl's family physician in order to evaluate her medical
history and determine if she has any risk factors or health conditions
that would indicate that the birth control method that is recommended is
contraindicated or would require special considerations that must be explained
to the patient.
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The physician or agency advising the minor shall prepare a medical recommendation
for the minor that reflects the safest, most effective, and least costly
birth control options available to the minor.
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The physician or agency advising the minor shall disclose to the minor
any general risks associated with the recommended birth control option(s)
and their relative failure rates with regard to similar minors and any
additional information relevant to women matching her particular psycho-social,
health profile.
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In the event judicial bypass is granted waiving the requirement for
parental consent:
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The physician or agency prescribing birth control shall be required
to transmit complete records of screening, counseling, and the birth control
recommendation to the family physician so the family physician will be
aware of the abortion which may prove relevant if the patient later experiences
physical or psychological problems. This record shall be appropriately
flagged in the transmitted documents so the family physician is notified
that this information is private and should not be disclosed to the minor's
parents or guardians except when necessary in treating any subsequent medical
condition.
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When the physician or agency advising the minor prescribes a birth control
method a prescription drug, each prescription shall provide the drug for
only three months. Before renewing the prescription, the minor shall be
required to obtain additional abstinence counseling and a venereal disease
testing. If the minor refuses to practice abstinence, the prescription
may be renewed for an additional three month period. Judicial bypass is
not required once it has previously been granted. This requirement for
counseling and screening every three months prior to receiving a birth
control pill prescription shall remain in effect until the patient is no
longer a minor.
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If there was any failure to comply with all provisions of this act,
and if a minor who obtained birth control from a physician or agency without
consent of his or her parents contracts a venereal disease, suffers any
physical complications, or becomes pregnant, the physician or agency prescribing
the birth control may be held liable for all costs related to medical treatment,
child support, and legal expenses, including attorneys fees.
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Procedures for Judicial Bypass Hearings
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MAIN POINT: Hearings should have an adversarial structure. Judges should
not be put in the position of trying to challenge the assertion that (1)
the patient is mature and well informed or (2) that informing parents,
who are not part of the proceeding, is not in the best interests of the
minor. They should hear evidence on both sides of these positions and come
to a decision based on the evidence presented.
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The court shall provide two court-appointed counsels to represent the
minor at no cost to the minor. One counsel shall represent the position
that the best interests of the minor are best served by allowing the minor
to obtain birth control without the consent of her parents. The other counsel
shall represent the position that the best interests of the minor are best
served by rejecting the request for birth control absent parental consent
and that the recommended birth control plan does not provide the safest
and most effective alternative to the patient. When possible, counsel from
each side shall be chosen from a pool of volunteers willing to represent
each position with preference given to those volunteers with the most experience
in representing that side.
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The court shall allow counsel representing each position to cross examine
the minor seeking birth control and the physician or agency recommending
a birth control plan.
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Counsel representing the position that the request for birth control
should not be granted shall be allowed to provide witnesses who will substantiate
that conclusion.
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The court shall provide permission for a minor to obtain birth control
prescriptions, devices or training when the preponderance of evidence supports
the conclusion that:
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Parental consent or notification would pose a serious threat to the
physical or emotional health of the minor;
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The appropriate child welfare agencies and law enforcement officials
have been notified to investigate and prosecute any abuse that may be occurring;
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The minor will not practice abstinence; and
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One or more of the recommended birth control options is safe and effective
for the minor.
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If the determination is made to provide permission for a minor to obtain
birth control prescriptions, devices or training, the court shall limit
or direct the choice between options that may be pursued in a manner that
the court determines will best protect the minor's physical health. The
effectiveness of the birth control method shall be considered as secondary
to the risk of any other adverse physical complication that are related
to a birth control method itself. If more than one birth control option
has no health risks, then the minor shall be allowed to act on the recommendation
for the most effective of the equally safe alternatives.
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Under no circumstances shall permission be granted to sterilize a minor.
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Recommendations for long term hormonal implants, such as Norplant, shall
be rejected unless there is compelling evidence that this is the only method
available to the patient that is reasonably safe.
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