Note: The Background, Proposal, and Fiscal Effect sections are taken from the LWVCEF In Depth publication, based in part on the Legislative Analyst’s Office analysis included in the Secretary of State’s official Voter Information Guide.

BACKGROUND

Parental Involvement Laws. Thirty-five states currently require parental notification, or sometimes parental consent, before a minor can obtain an abortion. In 2003, a New Hampshire law required health care providers to notify a parent at least 48 hours before providing an abortion to a minor; it contained no exception for circumstances in which the delay would seriously threaten a young woman’s health. An appeals court ruled the law unconstitutional for failing to provide a medical emergency exception. The case was appealed to the U.S. Supreme Court. In Ayotte v. Planned Parenthood of Northern New England, 546 U.S. 320 (2006), the Supreme Court held unanimously that the statute was unconstitutional as applied to minors for whom an emergency abortion would be necessary to avert serious damage to their health. This ruling established a minimum standard for health exceptions.

Parental Involvement Laws in California. Currently, minors in California have the right to abortion services to the same extent as adults, with no requirement for parental consent or notification. In 1987, the Legislature passed a law to require minors to obtain parental consent or court consent before obtaining an abortion. The law was never implemented due to legal challenges, and ten years later it was struck down by the California Supreme Court in American Academy of Pediatrics v. Lungren, 16 Cal.4th 307 (1997). The court held that the 1987 law violated the California Constitution’s guarantee of the right to privacy.  This right is explicitly stated in Article I of the California Constitution.

California voters have defeated parental notification ballot initiatives twice in recent years, Proposition 73 in 2005 and Proposition 85 in 2006. Both measures would have amended the California Constitution to require that the parent or guardian of an unemancipated minor must receive notification at least 48 hours prior to the minor receiving an abortion. Both measures had a basic exception for a medical emergency, and both contained a judicial bypass procedure.

THE PROPOSAL

Proposition 4 would amend the California Constitution to require a physician to notify the parent or legal guardian of a pregnant, unemancipated minor at least 48 hours before performing an abortion involving that minor. The measure requires notification, but does not require the parent or guardian’s consent to the abortion. An unemancipated minor is defined as a female under the age of 18 who has not entered into a valid marriage, is not on active duty in the armed services, and has not been declared legally free from her parents’ or guardians’ custody and control.

Notification Method. The notification by the physician must be in writing. The written notification can be made (1) in person, such as when a parent accompanies the minor to a medical appointment, or (2) by mail. Mail notification must be by certified mail, return receipt requested, with delivery of the notice restricted to the parent/guardian and with an additional copy of the notice sent to the parent/guardian by first class mail. Notification by mail is presumed to have occurred as of noon on the second day after the notice was postmarked.

Exceptions to Notification Requirements. Proposition 4 provides several exceptions to the notification requirements, as follows:

Medical emergency. Notification is not required if the physician certifies in the minor’s medical record that an abortion is necessary to prevent the mother’s death or that a delay would create serious risk of substantial and irreversible impairment of a major bodily function.

Parental waiver. The minor’s parent/guardian may waive the notification requirements and waiting period by providing a signed waiver form to the physician. The form must specify how long the waiver would be valid (30 days, until a specified date, or until the minor’s 18th birthday). The form must be notarized unless personally delivered by the parent/guardian to the physician.

Notice to adult family member. (The addition of this alternative is the only significant difference between this measure and Proposition 85 of 2006.) The physician may notify an adult family member instead of the parent, based on a written statement from the minor that (1) she fears abuse from that parent, and (2) her fear is based on a pattern of such abuse. The manner of notice by the physician must be consistent with that required for parental notice. The 48-hour waiting period would begin after the physician has notified the family member and has made a written report of suspected child abuse to a law enforcement or child protection agency. (Note: A physician is already required, under California law, to report suspected child abuse.)

Court waiver (“judicial bypass”). The minor may petition a juvenile court to issue a waiver of parental notification. She would not have to pay court fees, would receive assistance in filing the petition and would be entitled to a court appointed lawyer. The minor’s identity would be kept confidential, and court records would be sealed. A court would have to find either that the minor is sufficiently mature and well-informed to decide whether to have an abortion, or that parental notification would not be in her best interest. The court must rule within three business days after the petition is filed. If the waiver petition is denied, the minor can appeal that decision to an appellate court; the appeal must be decided within four business days.

Consent of the Minor. The physician would be required to obtain the consent of the minor herself before performing an abortion, unless a medical emergency precludes obtaining it.

Recordkeeping and Reporting Requirements. This measure requires physicians to file a form with the state Department of Health Services (DHS) within one month after performing an abortion on an unemancipated minor. The form must contain specified information about the minor, the facility where the abortion was performed and the circumstances under which it was performed, but would not identify the minor or any parent or guardian by name.

In addition, the physician must maintain certain records pertaining to abortions performed on unemancipated minors, including a written statement about any determination of a physical emergency necessitating lack of parental notification, a copy of the notice to a parent or guardian, a copy of a waiver of notification received from a parent or guardian, and records relating to notification to a family member and the related report of abuse.

Based on the forms filed by the physicians as described above, the DHS must compile statistical information about abortions performed on minors in an annual report that would be available to the public.

The courts must report to the Judicial Council the number of petitions filed, and granted or denied. The manner of reporting must ensure the confidentiality of the minor and the identity of the physician.

Penalties. A physician who fails to comply with the provisions of this measure would be liable for damages in a civil action. Such an action could be brought by the minor, her representative, or by a parent who had not received the required notification. The civil action must commence within four years of the minor’s 18th birthday or within four years after the parent discovers the wrongful denial, whichever is later.

Any person, other than the minor or her physician, who knowingly provides false information that notice of an abortion was provided to a parent or guardian would be guilty of a misdemeanor punishable by a fine of up to $2,000.

Coercion. If a minor believes that she is being coerced into having an abortion, she may seek help from the juvenile court, which could then grant such relief as may be necessary to prevent coercion.

Effective Date. This measure would not take effect until 90 days after adoption by the voters. During that time the Judicial Council would prescribe rules and procedures for the judicial waiver, and would prepare the necessary forms. During these 90 days, the Department of Health Services would prepare forms for parental notification, the parent’s waiver, and the physician’s statistical reports.

Severability. The measure contains a severability clause that provides that if any part of this measure is found to be invalid or unconstitutional, the rest of the measure would remain in effect.

FISCAL EFFECT

The fiscal effects of this measure would depend on how it affects the behavior of minors regarding abortion and childbearing. The state’s birthrate may increase if minors have fewer abortions, or it may decline if they avoid pregnancy or seek abortions out of state. However, studies of similar laws in other states suggest the impact on the birthrate for California minors would be limited, if any.

Social Services and Health Care Programs: If a decrease in abortions results in increased births among low income minors, state cash assistance and services to needy families under programs like CalWORKS would increase. There could also be minor increases in child welfare and foster care costs. The total additional social services costs would probably not exceed a few million dollars annually.

Similarly, if a decrease in abortions results in increased births in low income families receiving publicly funded health care under state programs like Medi-Cal, there would be additional costs to the state for medical services associated with pregnancy and delivery. However, there may be savings to the state resulting from fewer minors obtaining abortions in California that are covered by Medi-Cal or state health care programs. The net fiscal effect of these costs and savings would probably not exceed a few million dollars annually.

Since the state spends billions of dollars annually for health care programs and social services, these anticipated additional net costs resulting from Proposition 4 are comparatively small.

Juvenile and Appellate Courts: Administrative costs to the courts would increase as a result of minors’ requests for court-ordered waivers. The costs are unknown but could reach several million dollars annually, depending on the number of minors seeking waivers.

State Health Agency: Administrative costs of up to $350,000 in the first year are anticipated in order to develop new forms, establish the physician reporting system and prepare the initial statistical report. Ongoing costs could be up to $150,000 annually.

LEAGUE POSITIONS AND DISCUSSION

LWVUS position on Public Policy on Reproductive Choices: The League of Women Voters of the United States believes that public policy in a pluralistic society must affirm the constitutional right of privacy of the individual to make reproductive choices.

Discussion

Effective League opposition to Proposition 4, while based on our position on Public Policy on Reproductive Choices, must also take into account the knowledge that voters approach the notification issue from the point of view of a parent. Campaign materials are designed to educate voters about the link between being a good parent and opposing parental notification. Effective messages in opposition to Proposition 4 address issues such as government intrusion into personal family situations; the inability of government to force families to communicate; safety concerns for teens; the impracticality of making a teen take her case before a judge to obtain a waiver; and the gravity of amending the state constitution.

The rebuttal to the supporters’ argument was signed by Kathy Kneer, President, Planned Parenthood Affiliates of California; Dr. Raquel Arias, Associate Dean, Obstetrics and Gynecology (Keck School of Medicine) University of Southern California; and Dr. Jeannie Conry, Chair, American College of Obstetricians and Gynecologists, District IX.

The rebuttal to the opponents’ argument was signed by Mary L. Davenport, M.D., Fellow, American College of Obstetricians and Gynecologists; Thomas Murphy Goodwin, M.D., FAAP, FACOG, Professor of Obstetrics and Gynecology, Keck School of Medicine, University of Southern California; and The Honorable Rod Pacheco, J.D., District Attorney, Riverside County.

Others opposing Proposition 4 include American Association of University Women—CA Online Branch, California Teachers Association, California Church IMPACT, National Council of Jewish Women, ACLU of Northern California, ACLU of Southern California, California National Organization for Women, NARAL Pro-Choice California, National Asian Pacific American Women's Forum, National Women's Political Caucus of California, Los Angeles City Council, and Assembly Speaker Emeritus Fabian Nuñez.

RESOURCES

Linda Craig, LWVC Advocacy Director, legislation@lwvc.org

Trudy Schafer, LWVC Senior Director for Program
1107 9th Street, Suite 300, Sacramento 95814
916 442.7215, tschafer@lwvc.org

Maggie Young, LWVC Advocacy Assistant
916 442.7215, Fax 916 442.7362, myoung@lwvc.org

www.NOonProp4.org, Campaign for Teen Safety—No on 4
555 Capitol Mall, Suite 510, Sacramento 95814, 916 804.4456

Bixby Center for Reproductive Health Research & Policy, University of California, San Francisco, Adolescents & Parental Notification for Abortion: What Can California Learn from the Experience of Other States?, Updated September 2006, http://bixbycenter.ucsf.edu/publications/files/ParentalNotification_2006Aug.pdf.
This brief reviews the characteristics of adolescents having abortions; research on parent-daughter communication about abortion decisions and on the effect of parental involvement requirements on abortion rates; and laws in other states that impose such requirements. According to the brief, research “suggests that parental notification can have the negative consequence of putting adolescents’ health at risk by delaying and otherwise complicating access to care.”

SUMMARY POINTS

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