BILL ANALYSIS Ó
AB 768
Page 1
Date of Hearing: August 31, 2011
ASSEMBLY COMMITTEE ON LOCAL GOVERNMENT
Cameron Smyth, Chair
AB 768 (Gatto) - As Amended: August 15, 2011
SUBJECT : Male circumcision.
SUMMARY : Precludes any city, county, or city and county from
prohibiting or restricting the practice of male circumcision, or
the exercise of parental authority to have a child circumcised.
The Senate amendments delete the Assembly version of this bill,
and instead:
1)Provide that no city or county, or city and county statute,
ordinance, regulation or any administrative action may
prohibit or restrict the practice of male circumcision, or the
exercise of a parent's authority to have a child circumcised.
2)Declare that the provision of the measure shall apply to
general law and charter cities, general law and charter
counties, and charter city and counties as part of a stated
need to have uniform application of laws affecting male
circumcision throughout the state.
3)Add an urgency clause, allowing this bill to take effect
immediately upon enactment.
EXISTING LAW :
1)Precludes a city or county from prohibiting a person or group
of persons, authorized by one of the agencies in the
Department of Consumer Affairs by a license, certificate, or
other such means to engage in a particular business, from
engaging in that business, occupation, or profession or any
portion thereof.
2)States that no city, county, or city and county shall prohibit
a healing arts professional licensed with the state from
engaging in any act or performing any procedure that falls
within the professionally recognized scope of practice of that
licensee.
3)States that resolutions, orders for the payment of money, and
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all ordinances require a recorded majority vote of the total
membership of the city council.
4)Provides, under the California Constitution, that a city may
make and enforce within its limits all local, police,
sanitary, and other ordinances and regulations not in conflict
with general laws.
5)Authorizes a legislative body to pass ordinances not in
conflict with the Constitution and laws of the state or the
United States.
6)States that any proposed ordinance may be submitted to the
legislative body of the city by a petition filed with the
elections official of the legislative body, in the manner
hereinafter prescribed, after being signed by not less than
the number of voters specified in this article.
7)Provides that if a majority of the voters voting on a proposed
ordinance vote in its favor, the ordinance shall become a
valid and binding ordinance of the city.
8)Provides that no ordinance that is either proposed by
initiative petition and adopted by the vote of the legislative
body of the city without submission to the voters, or adopted
by the voters, shall be repealed or amended except by a vote
of the people, unless provision is otherwise made in the
original ordinance.
AS PASSED BY THE ASSEMBLY , this bill dealt with air pollution.
COMMENTS :
1)The U.S. Constitution provides in part that Congress shall
make no law respecting an establishment of religion, or
prohibiting the free exercise thereof. The California
Constitution provides that free exercise and enjoyment of
religion without discrimination or preference are guaranteed.
Existing law also specifies that this liberty of conscience
does not excuse acts that are licentious or inconsistent with
the peace or safety of the state. Existing law also provides
that the Legislature shall make no law respecting an
establishment of religion. Existing case law recognizes that
the due process clause protects "a realm of personal liberty
which the government may not enter," including the right of
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parents to direct the upbringing of their children. Planned
Parenthood v. Casey (1992) 505 U.S. 833, 847. Existing case
law also holds that "the interest of parents in the care,
custody, and control of their children . . . is perhaps the
oldest of the fundamental liberty interests." Troxel v.
Granville (2000) 530 U.S. 57, 65.
2)According to a 2005 policy statement by the American
Association of Pediatrics (AAP) "the percentage of male
infants circumcised varies by geographic location, by
religious affiliation, and, to some extent, by socioeconomic
classification. Circumcision is uncommon in Asia, South
America, Central America, and most of Europe. In Canada, 48%
of males are circumcised. Some groups such as followers of the
Jewish and Islamic faiths practice circumcision for religious
and cultural reasons." The AAP has stated that circumcision
has both risks and benefits and further states that parents
should be given all the information available to make an
informed decision as to whether or not to circumcise their
sons.
The American Civil Liberties Union states that "a local ban or
criminalization of male circumcision interferes with a
parents' right to direct the medical treatment and the
religious upbringing of their children."
3)According to the author "there have been recent efforts by
some to enact local ordinances banning the very personal
parental choice of whether or not to circumcise their male
child. A local initiative in the City of San Francisco had
qualified for the ballot this November that would have banned
this otherwise legal practice." The initiative would have
banned the practice of male circumcision, comparing it with
female genital mutilation, which is prohibited by state and
federal statute. Specifically, the proposed San Francisco
measure would have made the practice of circumcision a
misdemeanor offense punishable by a fine of up to $1,000 or up
to one year in jail. The measure did not provide for
religious exemptions. Sufficient signatures were also
obtained in Santa Monica to place a similar measure on the
ballot, but that measure was later removed voluntarily.
4)Opponents of the San Francisco male circumcision ban filed
suit in Superior Court, seeking the removal of the measure
from the November ballot. The American Civil Liberties Union
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and the San Francisco City Attorney's Office both filed amicus
briefs in favor of removing the measure from the ballot. On
July 28, 2011, several weeks after the introduction of this
bill, a San Francisco Superior Court judge ruled in favor of
the male circumcision ban's opponents, removing the measure
from the November ballot. The judge's ruling states that "the
proposed ballot Initiative is expressly preempted by
California Business and Professions ÝCode] §460(b). The
evidence presented is overwhelmingly persuasive that
circumcision is a widely practiced medical procedure.
California Business and Professions Code §460(b) applies to
medical services provided by a wide range of health care
professionals. The statute speaks directly to the issue of
local regulation of medical procedures and leaves no room for
localities to regulate in this area. In fact, the legislative
history of §460(b) confirms that the legislature intended to
prevent cities and counties from regulating medical services
which is a matter Ýof] statewide concern. Because the
proposed ballot initiative attempts to regulate a medical
procedure, the proposed ordinance is expressly preempted."
(Jewish Community Relations Council of San Francisco, et al v.
John Arntz, in his official capacity as Director of Elections,
et al)
5)According to the author's office, "AB 768 seeks to nullify
such a ban on circumcision in the event a higher court puts
the San Francisco initiative back on the ballot and it passes
this coming November, by occupying the field at the state
level as it pertains to male circumcision. This measure would
further serve to deter anyone from trying to introduce a
similar initiative either in San Francisco or anywhere else in
the State, and would save money in legal costs by eliminating
the need for lawsuits challenging the constitutionality of
such measures if they are brought up in other localities."
Although AB 768 would prevent a local ordinance, regulation or
administrative action from prohibiting or restricting the
practice of male circumcision, or the exercise of a parent's
authority to have a child circumcised, there is nothing in the
measure that would prevent a group like the ballot proponents
in San Francisco from attempting to place an initiative on the
ballot. Individuals or groups are free to introduce
initiatives; it would only be if anyone challenged the actual
measure before it was voted on, or if it was passed by the
voters and became an ordinance, would a court use the
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provisions of AB 768 to determine if the local initiative was
a preemption of state law.
6)Support arguments : Proponents state that male circumcision
has health benefits, including a lower risk for HIV and HPV
infection, and that a local ban or criminalization interferes
with the parents' right to direct the medical treatment and
religious upbringing of their children. The California Medical
Association states that it is "generally concerned of any
local jurisdictions passing an ordinance that will interfere
with the practice of medicine."
Opposition arguments : Opponents of the bill argue that male
circumcision has the same harmful consequences for boys as
female genital mutilation performed for nonmedical purposes
does for girls. Female genital mutilation, which is
prohibited by state law, is found to constitute a major health
risk to women, with lifelong physical, psychological, and
human rights consequences.
REGISTERED SUPPORT / OPPOSITION :
Support
American Civil Liberties Union of CA
California Medical Association
Jewish Public Affairs Committee of California
Opposition
Doctors Opposing Circumcision
Analysis Prepared by : Katie Kolitsos / L. GOV. / (916)
319-3958