Idaho State Statutes - Idaho Attorney Directory

[EFFECTIVE UNTIL
PROCLAMATION IS FILED WITH THE SECRETARY OF STATE'S OFFICE]
(1) (a) No person shall knowingly cause or perform an abortion upon a
minor unless:
(i) The attending physician has secured the written informed
consent of the minor and the written informed consent of the minor's
parent; or
(ii) The minor is emancipated and the attending physician has
received written proof of emancipation and the minor's written
informed consent; or
(iii) The minor has been granted the right of self-consent to the
abortion by court order pursuant to paragraph (b) of this subsection
and the attending physician has received the minor's written informed
consent; or
(iv) A court has found that the causing or performing of the
abortion, despite the absence of informed consent of a parent, is in
the best interests of the minor and the court has issued an order,
pursuant to paragraph (b)(iv)2. of this subsection, granting
permission for the causing or performing of the abortion, and the
minor is having the abortion willingly, pursuant to paragraph (f) of
this subsection; or
(v) A medical emergency exists for the minor so urgent that there
is insufficient time for the physician to obtain the informed consent
of a parent or a court order and the attending physician certifies
such in the pregnant minor's medical records. In so certifying, the
attending physician must include the factual circumstances supporting
his professional judgment that a medical emergency existed and the
grounds for the determination that there was insufficient time to
obtain the informed consent of a parent or a court order. Immediately
after an abortion pursuant to this paragraph, the physician shall,
with due diligence, attempt to provide a parent of an unemancipated
minor actual notification of the medical emergency. If the parent
cannot be immediately contacted for such actual notification, the
physician shall, with due diligence, attempt to provide actual
notification to a parent for an eight (8) hour period following the
causing or performing of the abortion and shall, until a parent
receives such notification, ensure that the minor's postabortion
medical needs are met. Notwithstanding the above, a physician shall,
within twenty-four (24) hours of causing or performing an abortion
pursuant to this paragraph, provide actual notification of the
medical emergency by:
1. Conferring with a parent or agent designated by the parent,
and providing any additional information needed for the minor's
proper care, and, as soon as practicable thereafter, securing
the parent's written acknowledgement of receipt of such
notification and information; or
2. Providing such actual notification in written form,
addressed to the parent at the usual place of abode of the
parent and delivered personally to the parent by the physician
or an agent with written acknowledgement of such receipt by the
parent returned to the physician; or
3. Providing such actual notification in written form and
mailing it by certified mail, addressed to the parent at the
usual place of abode of the parent with return receipt
requested and restricted delivery to the addressee so that a
postal employee can only deliver the notice to the authorized
addressee.
For the purposes of this section, "actual notification"
includes, but is not limited to, a statement that an abortion was
caused or performed, a description of the factual circumstances
supporting the physician's judgment that the medical emergency
existed and a statement of the grounds for the determination that
there was insufficient time to obtain the informed consent of a
parent or a court order.
If the physician causing or performing such abortion reasonably
believes that the minor is homeless or abandoned so that the parents
cannot be readily found or that the minor has suffered abuse or
neglect such that the minor's physical safety would be jeopardized if
a parent were notified that the abortion was caused or performed, the
physician shall, in lieu of notifying a parent as required above,
make a report to a law enforcement agency pursuant to section
16-1605, Idaho Code, and a petition shall be filed pursuant to
section 16-1610, Idaho Code, which petition shall include a reference
to this code section. Upon adjudication that the minor comes within
the purview of chapter 16, title 16, Idaho Code, either on the basis
of homelessness or abandonment such that no parent can be found, or
on the basis of abuse or neglect such that the minor's physical
safety would be in jeopardy if a parent were notified that the
abortion was performed, the court shall, as a part of the decree,
also order that the physician's duty to so notify a parent is
relieved. In any other event, unless the court enters a finding that
the best interests of the child require withholding notice to a
parent, the court shall order that a parent receive actual
notification of the medical emergency and the causing or performing
of the abortion.
(b) A proceeding for the right of a minor to self-consent to an abortion
pursuant to paragraph (a)(iii) of this subsection or for a court order
pursuant to paragraph (a)(iv) of this subsection, may be adjudicated by a
court as follows:
(i) The petition shall be filed in the county where the minor
resides or the county where the abortion is caused or performed. A
minor shall have the legal capacity to make and prosecute a petition
and appeal as set out herein. A guardian ad litem may assist the
minor in preparing her petition and other documents filed pursuant to
this section and may seek appointment as set forth below. A guardian
ad litem, whether prospective or appointed, must be an attorney
properly licensed in this state. The court shall ensure that the
minor is given assistance in filing the petition if the minor so
desires a guardian ad litem but no qualified guardian ad litem is
available.
(ii) The petition shall set forth:
1. The initials of the minor;
2. The age of the minor;
3. The name and address of each parent, guardian, or, if the
minor's parents are deceased or the minor is abandoned and no
guardian has been appointed, the name and address of any other
person standing in loco parentis of the minor;
4. That the minor has been fully informed of the risks and
consequences of the abortion procedure to be performed;
5. A claim that the minor is mature, of sound mind and has
sufficient intellectual capacity to consent to the abortion for
herself;
6. A claim that, if the court does not grant the minor the
right to self-consent to the abortion, the court should find
that causing or performing the abortion, despite the absence of
the consent of a parent, is in the best interest of the minor
and give judicial consent to the abortion; and
7. If so desired by the minor, a request that the court appoint
a guardian ad litem, or, alternatively, if no guardian ad litem
is requested, that the court should consider whether appointment
of a guardian ad litem for the minor is appropriate.
The petition shall be signed by the minor and, if she has
received assistance from a prospective guardian ad litem in preparing
the petition, by the guardian ad litem.
(iii) A hearing on the merits of the petition shall be held as soon
as practicable but in no event later than five (5) days from the
filing of the petition. The petition shall be heard by a district
judge on the record in a closed session of the court. The court shall
appoint a qualified guardian ad litem for the minor if one is
requested in the petition. If no qualified guardian ad litem is
available, the court may appoint some other person to act in the
capacity of a guardian ad litem, who shall act to fulfill the
purposes of this section and protect the confidentiality and other
rights of the minor.
At the hearing, the court shall, after establishing the identity
of the minor, hear evidence relating to the emotional development,
maturity, intellect and understanding of the minor; the nature of the
abortion procedure to be performed and the reasonably foreseeable
complications and risks to the minor from such procedure, including
those related to future childbearing; the available alternatives to
the abortion; the relationship between the minor and her parents; and
any other evidence that the court may find relevant in determining
whether the minor should be granted the right to self-consent to the
abortion or whether the court's consent to causing or performing of
the abortion, despite the absence of consent of a parent, is in the
best interests of the minor.
(iv) The order shall be entered as soon as practicable, but in no
event later than five (5) days after the conclusion of the hearing.
If, by clear and convincing evidence, the court finds the allegations
of the petition to be true and sufficient to establish good cause,
the court shall:
1. Find the minor sufficiently mature to decide whether to have
the abortion and grant the petition and give the minor the right
of self-consent to the abortion, setting forth the grounds for
so finding; or
2. Find the performance of the abortion, despite the absence of
the consent of a parent, is in the best interests of the minor
and give judicial consent to the abortion, setting forth the
grounds for so finding.
If the court does not find the allegations of the petition to be
true or if good cause does not appear from the evidence heard, the
court shall deny the petition, setting forth the grounds on which the
petition is denied.
If, in hearing the petition, the court becomes aware of
allegations which, if true, would constitute a violation of any
section of title 18, Idaho Code, by a person other than the
petitioner, or would bring a child within the purview of chapter 16,
title 16, Idaho Code, the court shall order, upon entry of final
judgment in the proceeding under this subsection, that an appropriate
investigation be initiated or an appropriate information, complaint
or petition be filed. Such allegations shall be forwarded by the
court with due consideration for the confidentiality of the
proceedings under this section. If, but for the requirements for
proof as set forth in this section, the minor would have been
privileged to withhold information given or evidence produced by her,
the answers given or evidence produced and any information directly
or indirectly derived from her answers may not be used against the
minor in any manner in a criminal case, except that she may
nevertheless be prosecuted or subjected to penalty or forfeiture for
any perjury, false swearing or contempt committed in answering or
failing to answer, or in producing or failing to produce, evidence as
required by the court.
(c) A notice of appeal from an order issued under the provisions of this
subsection shall be filed within two (2) days from the date of issuance of
the order. The record on appeal shall be completed and the appeal shall be
perfected as soon as practicable, but in no event later than five (5) days
from the filing of notice of appeal. Because time may be of the essence
regarding the performance of the abortion, appeals pursuant to this
subsection shall receive expedited appellate review.
(d) Except for the time for filing a notice of appeal, a court may
enlarge the times set forth pursuant to this subsection upon request of
the minor or upon other good cause appearing, with due consideration for
the expedited nature of these proceedings.
(e) No filing, appeal or other fees shall be charged for cases or appeals
brought pursuant to this section.
(f) If a minor desires an abortion, then she shall be orally informed of,
and, if possible, sign the written consent required by this act, in the
same manner as an adult person. No abortion shall be caused or performed
on any minor against her will, except that an abortion may be performed
against the will of a minor pursuant to court order if the abortion is
necessary to preserve the life of the minor.
(g) All records contained in court files of judicial proceedings arising
under the provisions of this subsection, and subsection (3) of this
section, shall be confidential and exempt from disclosure pursuant to
section 9-340G, Idaho Code. Dockets and other court records shall be
maintained and court proceedings undertaken so that the names of the
parties to actions brought pursuant to this section will not be disclosed
to the public.
(2) The administrative director of the courts shall compile statistics
for each county for each calendar year, accessible to the public, including:
(a) The total number of petitions filed pursuant to paragraph (b) of
subsection (1) of this section; and
(b) The number of such petitions filed where a guardian ad litem was
requested and the number where a guardian ad litem or other person acting
in such capacity was appointed; and
(c) The number of such petitions for which the right to self-consent was
granted; and
(d) The number of such petitions for which the court granted its informed
consent; and
(e) The number of such petitions which were denied; and
(f) For categories described in paragraphs (c), (d) and (e) of this
subsection, the number of appeals taken from the court's order in each
category; and
(g) For each of the categories set out in paragraph (f) of this
subsection, the number of cases for which the district court's order was
affirmed and the number of cases for which the district court's order was
reversed.
(3) In addition to any other cause of action arising from statute or
otherwise, any person injured by the causing or performing of an abortion on a
minor in violation of any of the requirements of paragraph (a) of subsection
(1) of this section, shall have a private right of action to recover all
damages sustained as a result of such violation, including reasonable
attorney's fees if judgment is rendered in favor of the plaintiff.
(4) Statistical records.
(a) The vital statistics unit of the department of health and welfare
shall, in addition to other information required pursuant to section
39-261, Idaho Code, require the complete and accurate reporting of
information relevant to each abortion performed upon a minor which shall
include, at a minimum, the following:
(i) Whether the abortion was performed following the physician's
receipt of:
1. The written informed consent of a parent and the minor; or
2. The written informed consent of an emancipated minor for
herself; or
3. The written informed consent of a minor for herself pursuant
to a court order granting the minor the right to self-consent;
or
4. The written informed consent of a court pursuant to an order
which includes a finding that the performance of the abortion,
despite the absence of the consent of a parent, is in the best
interests of the minor; or
5. The professional judgment of the attending physician that
the performance of the abortion was immediately necessary due to
a medical emergency and there was insufficient time to obtain
consent from a parent or a court order.
(ii) If the abortion was performed due to a medical emergency and
without consent from a parent or court order, the diagnosis upon
which the attending physician determined that the abortion was
immediately necessary due to a medical emergency.
(b) The knowing failure of the attending physician to perform any one (1)
or more of the acts required under this subsection is grounds for
discipline pursuant to section 54-1814(6), Idaho Code, and shall subject
the physician to assessment of a civil penalty of one hundred dollars
($100) for each month or portion thereof that each such failure continues,
payable to the center for vital statistics and health policy, but such
failure shall not constitute a criminal act.
(5) As used in this section:
(a) "Cause or perform an abortion" means to interrupt or terminate a
pregnancy by any surgical or nonsurgical procedure or to induce a
miscarriage upon a minor known to be pregnant.
(b) "Emancipated" means any minor who has been married or is in active
military service.
(c) (i) "Medical emergency" means a sudden and unexpected physical
condition which, in the reasonable medical judgment of any ordinarily
prudent physician acting under the circumstances and conditions then
existing, is abnormal and so complicates the medical condition of the
pregnant minor as to necessitate the immediate causing or performing of an
abortion:
1. To prevent her death; or
2. Because a delay in causing or performing an abortion will
create serious risk of immediate, substantial and irreversible
impairment of a major physical bodily function of the patient.
(ii) The term "medical emergency" does not include:
1. Any physical condition that would be expected to occur in
normal pregnancies of women of similar age, physical condition
and gestation; or
2. Any condition that is predominantly psychological or
psychiatric in nature.
(d) "Minor" means a woman less than eighteen (18) years of age.
(e) "Parent" means one (1) parent of the unemancipated minor, or a
guardian appointed pursuant to chapter 5, title 15, Idaho Code, if the
minor has one.
18-609A. CONSENT REQUIRED FOR ABORTIONS FOR MINORS. [EFFECTIVE UPON
FILING OF PROCLAMATION WITH THE SECRETARY OF STATE'S OFFICE]
(1) (a) No person shall cause or perform an abortion upon a minor unless:
(i) The attending physician has secured the written informed
consent of the minor and the written informed consent of the minor's
parent; or
(ii) The minor is emancipated and the attending physician has
received written proof of emancipation and the minor's written
informed consent; or
(iii) The minor has been granted the right of self-consent to the
abortion by court order pursuant to paragraph (b) of this subsection
and the attending physician has received the minor's written informed
consent; or
(iv) A court has found that the causing or performing of the
abortion, despite the absence of informed consent of a parent, is in
the best interests of the minor and the court has issued an order,
pursuant to paragraph (b)(iv)2. of this subsection, granting
permission for the causing or performing of the abortion, and the
minor is having the abortion willingly, pursuant to paragraph (f) of
this subsection; or
(v) A medical emergency exists for the minor so urgent that there
is insufficient time for the physician to obtain the informed consent
of a parent or a court order and the attending physician certifies
such in the pregnant minor's medical records. In so certifying, the
attending physician must include the factual circumstances supporting
his professional judgment that a medical emergency existed and the
grounds for the determination that there was insufficient time to
obtain the informed consent of a parent or a court order. Immediately
after an abortion pursuant to this paragraph, the physician shall,
with due diligence, attempt to provide a parent of an unemancipated
minor actual notification of the medical emergency. If the parent
cannot be immediately contacted for such actual notification, the
physician shall, with due diligence, attempt to provide actual
notification to a parent for an eight (8) hour period following the
causing or performing of the abortion and shall, until a parent
receives such notification, ensure that the minor's postabortion
medical needs are met. Notwithstanding the above, a physician shall,
within twenty-four (24) hours of causing or performing an abortion
pursuant to this paragraph, provide actual notification of the
medical emergency by:
1. Conferring with a parent or agent designated by the parent,
and providing any additional information needed for the minor's
proper care, and, as soon as practicable thereafter, securing
the parent's written acknowledgement of receipt of such
notification and information; or
2. Providing such actual notification in written form,
addressed to the parent at the usual place of abode of the
parent and delivered personally to the parent by the physician
or an agent with written acknowledgement of such receipt by the
parent returned to the physician; or
3. Providing such actual notification in written form and
mailing it by certified mail, addressed to the parent at the
usual place of abode of the parent with return receipt requested
and restricted delivery to the addressee so that a postal
employee can only deliver the notice to the authorized
addressee.
For the purposes of this section, "actual notification"
includes, but is not limited to, a statement that an abortion was
caused or performed, a description of the factual circumstances
supporting the physician's judgment that the medical emergency
existed and a statement of the grounds for the determination that
there was insufficient time to obtain the informed consent of a
parent or a court order.
If the physician causing or performing such abortion reasonably
believes that the minor is or will be homeless or abandoned so that
the parents cannot be readily found or that the minor has suffered or
will suffer abuse or neglect such that the minor's safety would be
jeopardized if a parent were notified that the abortion was caused or
performed, or reasonably believes that the best interests of the
child require that notification to a parent that the abortion was
caused or performed must be withheld, the physician shall, in lieu of
notifying a parent as required above, [05] [10] file a petition
pursuant to section 16-1605, Idaho Code. Upon adjudication that the
minor comes within the purview of chapter 16, title 16, Idaho Code,
or upon a finding that the best interests of the child require that a
parent not be notified, the court shall, in a manner which will
protect the confidentiality of the minor, order that the physician's
duty to so notify a parent is relieved. In any other event, unless
the court enters a finding that the best interests of the child
require withholding notice to a parent, the court shall order that a
parent receive actual notification of the medical emergency and the
causing or performing of the abortion.
(b) A proceeding for the right of a minor to self-consent to an abortion
pursuant to paragraph (a)(iii) of this subsection or for a court order
pursuant to paragraph (a)(iv) of this subsection, may be adjudicated by a
court as follows:
(i) The petition shall be filed in the county where the minor
resides or is present. For the limited purposes required to give
effect to this paragraph, a minor shall have the legal capacity to
make and prosecute a petition and appeal as set out herein. The minor
shall be notified that if she has no attorney one will be appointed
to assist her in preparing her petition and other documents filed
pursuant to this section and represent her interests before the
court. A guardian ad litem shall be appointed to seek the best
interests of the minor, investigate the circumstances of the minor
and make a report to the court at the hearing which may be submitted
into evidence. The guardian ad litem shall not take any action that
compromises the confidentiality of the minor regarding her decision
to obtain an abortion or the confidentiality of her decision to seek
an order from the court.
(ii) The petition shall set forth:
1. The initials of the minor;
2. The age of the minor;
3. The name and address of each parent, guardian, or, if the
minor's parents are deceased or the minor is abandoned and no
guardian has been appointed, the name and address of any other
person standing in loco parentis of the minor;
4. That the minor has been fully informed of the risks and
consequences of the abortion procedure to be performed;
5. A claim that the minor is mature, of sound mind and has
sufficient intellectual capacity to consent to the abortion for
herself; and
6. A claim that, if the court does not grant the minor the
right to self-consent to the abortion, the court should find
that causing or performing the abortion, despite the absence of
the consent of a parent, is in the best interest of the minor
and give judicial consent to the abortion.
(iii) A hearing on the merits of the petition shall be held as soon
as practicable but in no event later than five (5) days from the
filing of the petition. The petition shall be heard by a district
judge on the record in a closed session of the court. The court shall
appoint a qualified guardian ad litem for the minor if one has not
been appointed and shall appoint an attorney for the minor if she has
no attorney but desires one.
At the hearing, the court shall, after establishing the identity
of the minor, hear the report of the guardian ad litem and other
evidence relating to the emotional development, maturity, intellect
and understanding of the minor; the nature of the abortion procedure
to be performed and the reasonably foreseeable complications and
risks to the minor from such procedure, including those related to
future childbearing; the available alternatives to the abortion;
whether her sexual relations were forced or otherwise in violation of
Idaho law other than section 18-6101 1., Idaho Code; the relationship
between the minor and her parents; and any other evidence that the
court may find relevant in determining whether the minor should be
granted the right to self-consent to the abortion or whether the
court's consent to causing or performing of the abortion, despite the
absence of consent of a parent, is in the best interests of the
minor.
(iv) The order shall be entered as soon as practicable, but in no
event later than three (3) days after the conclusion of the hearing.
The court shall ensure that the order is served upon the minor
immediately after its entry. If, by clear and convincing evidence,
the court finds the allegations of the petition to be true and
sufficient to establish good cause, the court shall:
1. Find the minor sufficiently mature to decide whether to have
the abortion and grant the petition and give the minor the right
of self-consent to the abortion, setting forth the grounds for
so finding; or
2. Find the performance of the abortion, despite the absence of
the consent of a parent, is in the best interests of the minor
and give judicial consent to the abortion, setting forth the
grounds for so finding.
If the court does not find the allegations of the petition to be
true or if good cause does not appear from the evidence heard, the
court shall deny the petition, setting forth the grounds on which the
petition is denied.
If, in investigating the circumstances of the minor, the
guardian ad litem becomes aware of allegations which, if true, would
constitute a violation of any section of title 18, Idaho Code, except
section 18-6101 1., Idaho Code, or would bring the minor within the
purview of chapter 16, title 16, Idaho Code, on grounds other than a
violation of section 18-6101 1., Idaho Code, such allegations shall
be reported by the guardian ad litem to law enforcement or to the
appropriate prosecuting attorney. If, but for the requirements for
proof as set forth in this section, the minor would have been
privileged to withhold information given or evidence produced by her,
the answers given or evidence produced and any information directly
or indirectly derived from her answers may not be used against the
minor in any manner in a criminal case, except that she may
nevertheless be prosecuted or subjected to penalty or forfeiture for
any perjury, false swearing or contempt committed in answering or
failing to answer, or in producing or failing to produce, evidence as
required by the court.
(c) A notice of appeal from an order issued under the provisions of this
subsection shall be filed within five (5) days from service upon the minor
and shall be given expedited consideration and decided as soon as
practicable, but in no event more than five (5) days after filing the
notice of appeal.
(d) Weekends and holidays shall not be counted in calculating the time
limits required by this section.
(e) No filing, appeal or other fees shall be charged for cases or appeals
brought pursuant to this section.
(f) If a minor desires an abortion, then she shall be orally informed of,
and, if possible, sign the written consent required by this act, in the
same manner as an adult person. No abortion shall be caused or performed
on any minor against her will, except that an abortion may be performed
against the will of a minor pursuant to court order if the abortion is
necessary to preserve the life of the minor.
(g) All records contained in court files of judicial proceedings arising
under the provisions of this subsection, and subsection (3) of this
section, shall be confidential and exempt from disclosure pursuant to
section 9-340G, Idaho Code. Dockets and other court records shall be
maintained and court proceedings undertaken so that the names of the
parties to actions brought pursuant to this section will not be disclosed
to the public.
(2) The administrative director of the courts shall compile statistics
for each county for each calendar year, accessible to the public, including:
(a) The total number of petitions filed pursuant to paragraph (b) of
subsection (1) of this section; and
(b) The number of such petitions filed where a guardian ad litem was
requested and the number where a guardian ad litem or other person acting
in such capacity was appointed; and
(c) The number of petitions where counsel appeared for the minor without
court appointment; and
(d) The number of petitions where counsel was requested by the minor and
number where counsel was appointed by the court; and
(e) The number of such petitions for which the right to self-consent was
granted; and
(f) The number of such petitions for which the court granted its informed
consent; and
(g) The number of such petitions which were denied; and
(h) The number of such petitions which were withdrawn by the minor; and
(i) For categories described in paragraphs (c), (f) and (g) of this
subsection, the number of appeals taken from the court's order in each
category; and
(j) For each of the categories set out in paragraph (i) of this
subsection, the number of cases for which the district court's order was
affirmed and the number of cases for which the district court's order was
reversed; and
(k) The county of residence of the minor for each petition; and
(l) The time between the filing of the petition and hearing of each
petition; and
(m) The time between the hearing and the decision by the court for each
petition; and
(n) The time between the decision and filing a notice of appeal for each
case, if any; and
(o) The time of extension granted by the court in each case, if any.
(3) In addition to any other cause of action arising from statute or
otherwise, any person injured by the causing or performing of an abortion on a
minor in violation of any of the requirements of paragraph (a) of subsection
(1) of this section, shall have a private right of action to recover all
damages sustained as a result of such violation, including reasonable
attorney's fees if judgment is rendered in favor of the plaintiff.
(4) Statistical records.
(a) The vital statistics unit of the department of health and welfare
shall, in addition to other information required pursuant to section
39-261, Idaho Code, require the complete and accurate reporting of
information relevant to each abortion performed upon a minor which shall
include, at a minimum, the following:
(i) Whether the abortion was performed following the physician's
receipt of:
1. The written informed consent of a parent and the minor; or
2. The written informed consent of an emancipated minor for
herself; or
3. The written informed consent of a minor for herself pursuant
to a court order granting the minor the right to self-consent;
or
4. The written informed consent of a court pursuant to an order
which includes a finding that the performance of the abortion,
despite the absence of the consent of a parent, is in the best
interests of the minor; or
5. The professional judgment of the attending physician that
the performance of the abortion was immediately necessary due to
a medical emergency and there was insufficient time to obtain
consent from a parent or a court order.
(ii) If the abortion was performed due to a medical emergency and
without consent from a parent or court order, the diagnosis upon
which the attending physician determined that the abortion was
immediately necessary due to a medical emergency.
(b) The knowing failure of the attending physician to perform any one (1)
or more of the acts required under this subsection is grounds for
discipline pursuant to section 54-1814(6), Idaho Code, and shall subject
the physician to assessment of a civil penalty of one hundred dollars
($100) for each month or portion thereof that each such failure continues,
payable to the center for vital statistics and health policy, but such
failure shall not constitute a criminal act.

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