BILL ANALYSIS Ó
AB 768
Page 1
CONCURRENCE IN SENATE AMENDMENTS
AB 768 (Gatto and Ma)
As Amended August 15, 2011
2/3 vote. Urgency
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|ASSEMBLY: | |(May 26, 2011) |SENATE: |37-0 |(August 30, 2011) |
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(vote not relevant)
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|COMMITTEE VOTE: |9-0 |(August 31, 2011) |RECOMMENDATION: |concur |
|(L. GOV.) | | | | |
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Original Committee Reference: NAT. RES.
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
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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 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 : 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
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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 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.
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."
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.
Opponents of the San Francisco male circumcision ban filed suit in
Superior Court, seeking the removal of the measure from the
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November ballot. The American Civil Liberties Union 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)
According to the author, "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 this bill 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 provisions of this bill to determine if the local
initiative was a preemption of state law.
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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.
Analysis Prepared by : Katie Kolitsos / L. GOV. / (916) 319-3958
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