California Legislature—2013–14 Regular Session

Assembly Constitutional Amendment No. 5

Introduced by Assembly Member Grove

January 28, 2013

Assembly Constitutional Amendment No. 5—A resolution to propose to the people of the State of California an amendment to the Constitution of the State, by adding Section 32 to Article I thereof, relating to abortion.

LEGISLATIVE COUNSEL’S DIGEST

ACA 5, as introduced, Grove. Abortion: parental notification.

The California Constitution establishes a right of privacy. Existing statutory law, the Reproductive Privacy Act, contains provisions regulating abortions, including a requirement that the procedure be performed by a physician and surgeon. The act prohibits the state from denying or interfering with a woman’s right to choose or obtain an abortion prior to viability of the fetus, or if the abortion is necessary to protect the life or health of the woman.

This measure, which would be known as the Parental Notification, Child and Teen Safety, Stop Predators Act, would prohibit a physician and surgeon from performing an abortion on an unemancipated minor, as defined, unless the physician and surgeon or his or her agent has delivered written notice to the parent of the unemancipated minor, or until a waiver of that notice has been received from the parent or issued by a court pursuant to a prescribed process. The measure would require the physician and surgeon performing an abortion on an unemancipated minor to report specified information to State Department of Public Health and would require the department to compile an annual statistical report with that information. The measure would impose civil and criminal liability for violation of this measure, as specified.

Vote: ²⁄₃. Appropriation: no. Fiscal committee: yes. State-mandated local program: no.

Resolved by the Assembly, the Senate concurring, That the
Legislature of the State of California at its 2013-14 Regular
Session, commencing on the third day of December 2012,
two-thirds of the membership of each house concurring, hereby
proposes to the people of the State of California, that the
Constitution of the State be amended as follows:

First--  

This act shall be known and may be cited as the Parental
Notification, Child and Teen Safety, and Stop Predators Act.

Second--  

The people of the State of California find and declare
that they have a compelling interest in both of the following:

(a) Protecting minors from the known risks of secret abortions,
including the danger of not obtaining prompt care for health- and
life-threatening complications when a minor’s parent is unaware
that she has undergone a secret abortion.

(b) Preventing sexual predators from using secret abortions to
conceal the sexual exploitation of minors.

Third--  

That Section 32 is added to Article I thereof, to read:

SEC. 32.  

(a) For purposes of this section, the following
definitions shall apply:

(1) “Abortion” means the use of any means to terminate the
pregnancy of an unemancipated minor known to be pregnant,
except for the purpose of producing a live birth. “Abortion” shall
not include the use of any contraceptive drug or device.

(2) “Medical emergency” means a condition that, on the basis
of the physician’s good-faith clinical judgment, so complicates
the medical condition of a pregnant unemancipated minor as to
necessitate the immediate abortion of her pregnancy to avert her
death or for which a delay will create serious risk of substantial
and irreversible impairment of a major bodily function.

(3) “Notice” means a written notification, signed and dated by
a physician or his or her agent, informing the parent of an
unemancipated minor that she has requested an abortion.

(4) “Parent” means a person who, at the time notice or waiver
is required under this section, is a parent if both parents have legal
custody, the parent or person having legal custody, or the legal
guardian of an unemancipated minor.

(5) “Physician” means a person authorized under the statutes
and regulations of the State of California to perform an abortion
upon an unemancipated minor.

(6) “Unemancipated minor” means a female under 18 years of
age who has not entered into a valid marriage, is not on active duty
with the Armed Services of the United States, or has not received
a declaration of emancipation under state law. For the purposes of
this section, pregnancy does not emancipate a female under the
age of 18 years.

(b) Notwithstanding any provision of this Constitution to the
contrary, and except as provided in subdivision (d), (e), or (f), a
physician shall not perform an abortion on an unemancipated minor
until after the physician or the physician’s agent has delivered
written notice, as provided in subdivision (c), or has received a
copy of a waiver of parental notice from the court as authorized
in subdivision (g). A copy of a notice or waiver shall be retained
with the unemancipated minor’s medical records. The physician
or the physician’s agent shall inform the unemancipated minor
that her parent may receive notice as provided for in this section.

(c) The written notice shall be delivered by the physician or the
physician’s agent to the parent, either personally or by certified
mail addressed to the parent at the parent’s last known address
with return receipt requested and restricted delivery to the
addressee. If notice is provided by certified mail, a copy of the
written notice shall also be sent at the same time by first-class mail
to the parent. Notice by mail may be presumed to have been
delivered under this subdivision at noon of the second day after
the written notice sent by certified mail was postmarked, not
counting any days on which regular mail delivery does not take
place. A form for the notice shall be prescribed by the State
Department of Public Health. The notice form shall be bilingual,
in English and Spanish, and also available in English and each of
the other languages in which California Official Voter Information
Guides are published.

(d) Notice of an unemancipated minor’s intent to obtain an
abortion may be waived by her parent. The waiver must be in
writing on a form prescribed by the State Department of Public
Health, signed by a parent, dated, and notarized. The parent shall
specify on the form that the waiver is valid for 30 days, or until a
specified date, or until the minor’s 18th birthday. The written
waiver need not be notarized if the parent personally delivers it to
the physician or the physician’s agent. The form shall include the
following statement: “WARNING. It is a crime to knowingly
provide false information to a physician or a physician’s agent for
the purpose of inducing a physician or a physician’s agent to
believe that a waiver of notice has been provided by a parent or
guardian.” The waiver form shall be bilingual, in English and
Spanish, and shall also be available in English and each of the
other languages in which California Official Voter Information
Guides are published. For each abortion performed on an
unemancipated minor, the physician or the physician’s agent must
receive a separate original written waiver that shall be retained
with the unemancipated minor’s medical records.

(e) Notice shall not be required under this section if the
unemancipated minor is the victim of physical or sexual abuse
committed by one or both of the minor’s parents and the abuse is
documented by a signed and notarized statement by (1) a person
at least 21 years of age who has personal knowledge of the abuse
and who is a grandparent, stepparent, foster parent, sibling of a
parent, or sibling or half-sibling of the unemancipated minor, or
(2) a law enforcement officer or agent of a public child protective
agency who has investigated the abuse of the unemancipated minor.
The physician shall retain the signed and notarized statement with
the unemancipated minor’s medical records.

(f) Notice shall not be required under this section if the attending
physician certifies in the unemancipated minor’s medical records
the medical indications supporting the physician’s good-faith
clinical judgment that the abortion is necessary due to a medical
emergency.

(g) (1) Notice shall not be required under this section if a waiver
of parental notice is authorized under this subdivision. If the
pregnant unemancipated minor elects not to permit notice to be
given to a parent, she may file a petition with the juvenile court.
No filing fee shall be required for filing a petition. If an
unemancipated minor seeks to file a petition, the court shall assist
the unemancipated minor or person designated by the
unemancipated minor in preparing the documents required. The
petition shall set forth with specificity the unemancipated minor’s
reasons for the request. The unemancipated minor shall appear
personally in the proceedings in juvenile court and may appear on
her own behalf or with counsel of her own choosing. The court
shall, however, advise her that she has a right to court-appointed
counsel upon request. The hearing shall be held by 5 p.m. on the
second court day after filing the petition unless extended at the
written request of the unemancipated minor or her counsel. The
unemancipated minor shall be notified of the date, time, and place
of the hearing on the petition. Judgment shall be entered within
one court day of submission of the matter. The judge shall order
a record of the evidence to be maintained, including the judge’s
written factual findings and legal conclusions supporting the
decision. The court shall ensure that the minor’s identity is kept
confidential and that all court proceedings are sealed.

(2) (A) If the judge finds, by clear and convincing evidence,
that the unemancipated minor is both sufficiently mature and
well-informed to decide whether to have an abortion, the judge
shall authorize a waiver of parental notice.

(B) If the judge finds, by clear and convincing evidence, that
parental notice is not in the best interests of the unemancipated
minor, the judge shall authorize a waiver of parental notice. If the
finding that parental notice is not in the best interests of the minor
is based on evidence of physical or sexual abuse, the court shall
ensure that the evidence is brought to the attention of the
appropriate law enforcement or public child protective agency.

(C) If the judge does not make a finding specified in
subparagraph (A) or (B), the judge shall deny the petition.

(3) If the judge fails to rule within the time period specified in
paragraph (1) and no extension was requested and granted, the
petition shall be deemed granted and a waiver of parental notice
is authorized.

(4) The unemancipated minor may appeal the denial of her
petition by the juvenile court at any time after the entry of
judgment. The Judicial Council shall prescribe, by rule, the practice
and procedure on appeal and the time and manner in which a record
on appeal shall be prepared and filed and may prescribe forms for
these proceedings. These procedures shall require that the hearing
shall be held within three court days of filing the notice of appeal.
The unemancipated minor shall be notified of the date, time, and
place of the hearing. The appellate court shall ensure that the
unemancipated minor’s identity is kept confidential and that all
court proceedings are sealed. No filing fee shall be required for
filing an appeal. Judgment on appeal shall be entered within one
court day of submission of the matter.

(5) The Judicial Council shall prescribe, by rule, the practice
and procedure for petitions for waiver of parental notification,
hearings, and entry of judgment as it deems necessary, and may
prescribe forms for these proceedings. Each court shall provide
annually to the Judicial Council, in a manner to be prescribed by
the Judicial Council to ensure confidentiality of the unemancipated
minors who have filed petitions, a report of the number of petitions
filed, the number of petitions granted under subparagraphs (A)
and (B) of paragraph (2), deemed granted under paragraph (3),
denied under subparagraph (C) of paragraph (2), and granted or
denied under paragraph (4). These reports shall be publicly
available, unless the Judicial Council determines that the data
contained in individual reports should be aggregated by county
before being made available to the public, in order to preserve the
confidentiality of the unemancipated minors who have filed
petitions.

(h) The State Department of Public Health shall prescribe forms
for the reporting of abortions performed on unemancipated minors
by physicians. The report forms shall not identify the
unemancipated minor or her parents by name or request any other
information by which the unemancipated minor or her parents
might be identified. The forms shall include the date of the
procedure, the unemancipated minor’s month and year of birth,
the duration of the pregnancy, the type of abortion procedure, the
numbers of the unemancipated minor’s previous abortions and
deliveries, if known, and the facility where the abortion was
performed. The forms shall also indicate whether notice was given
pursuant to subdivision (c) or was not required or waived pursuant
to subdivision (d), (e), (f), or (g), delineated by subdivision.

(i) A physician who performs an abortion on an unemancipated
minor shall, within one month, file a dated and signed report
concerning that abortion with the State Department of Public
Health on forms prescribed pursuant to subdivision (h). The identity
of the physician shall be kept confidential and shall not be subject
to disclosure under the California Public Records Act (Chapter
3.5 (commencing with Section 6250) of Division 7 of Title 1 of
the Government Code) or any successor to that act.

(j) A claim shall not be paid by the Medi-Cal program or any
other program paid for or subsidized by the State of California for
any medical services relating to the provision of an abortion to a
minor under 18 years of age at the time of the abortion, unless the
claim for payment is accompanied by a copy of the report filed
with the State Department of Public Health pursuant to subdivision
(i), or proof that the minor was not unemancipated.

(k) The State Department of Public Health shall compile an
annual statistical report from the information submitted pursuant
to subdivision (i). The annual report shall not include the identity
of a physician who filed a report required by subdivision (i). The
compilation shall include statistical information on the numbers
of abortions by month and by county where performed, the minors’
ages, the duration of the pregnancies, the types of abortion
procedures, the numbers of prior abortions or deliveries, where
known, and the numbers of abortions performed for which notice
was given pursuant to subdivision (c) or was not required or waived
pursuant to subdivision (d), (e), (f), or (g), delineated by
subdivision. The annual statistical report shall be made available
to county public health officials, members of the Legislature, the
Governor, and the public.

(l) A person who performs an abortion on an unemancipated
minor and in so doing knowingly or negligently fails to comply
with this section shall be liable for damages in a civil action
brought by the unemancipated minor, her legal representative, or
by a parent wrongfully denied notification. The time for
commencement of the action shall be within four years of the date
the unemancipated minor attains majority or four years of the date
a parent wrongfully denied notification discovers or reasonably
should have discovered the failure to comply with this section,
whichever period expires later. However, an action may not be
commenced more than 12 years after the abortion occurred. A
person shall not be liable under this section if he or she establishes,
by written or documentary evidence, that he or she relied upon
evidence sufficient to convince a careful and prudent person that
the representations of the unemancipated minor or other persons
regarding information necessary to comply with this section were
bona fide and true. At any time prior to the rendering of a final
judgment in an action brought under this subdivision, the plaintiff
may elect to recover, in lieu of actual damages, an award of
statutory damages in the amount of ten thousand dollars ($10,000).
In addition to any damages awarded under this subdivision, the
plaintiff shall be entitled to an award of reasonable attorney fees.
This section shall not abrogate, limit, or restrict the common law
rights of parents, or any right to relief under any theory of liability
that any person or any state or local agency may have under any
statute or common law for injury or damage, including any legal,
equitable, or administrative remedy under federal or state law,
against a party, with respect to injury to an unemancipated minor
from an abortion.

(m) Other than an unemancipated minor who is the patient of
a physician, or the physician or the physician’s agent, any person
who knowingly provides false information to a physician or a
physician’s agent for the purpose of inducing the physician or the
physician’s agent to believe that notice has been or will be
delivered to a parent pursuant to this section, or that a waiver of
notice has been obtained, or that an unemancipated minor is the
victim of physical or sexual abuse, or that an unemancipated minor
patient is not an unemancipated minor, is guilty of a misdemeanor
punishable by a fine of up to ten thousand dollars ($10,000).

(n) Notwithstanding any notice or waivers of notice, except
where the particular circumstances of a medical emergency or the
minor’s own lack of legal mental capacity precludes obtaining her
informed consent, a physician shall not perform or induce an
abortion upon an unemancipated minor except with the informed
consent of the unemancipated minor herself.

(o) Notwithstanding any notice or waivers of notice, an
unemancipated minor who is being coerced through force, threat
of force, or threatened or actual deprivation of food or shelter to
consent to undergo an abortion may apply to the juvenile court for
relief. The court shall give the matter expedited consideration and
grant this relief as may be necessary to prevent the coercion.

(p) Except for the rights, duties, privileges, conditions, and
limitations specifically provided for in this section, this section
shall not be construed to grant, secure, or deny any other rights,
duties, privileges, conditions, and limitations relating to abortion
or the funding thereof.

Fourth--  

If one or more provisions, subdivisions, sentences,
clauses, phrases, or words of this section, or the application thereof,
to any person or circumstance is found to be unconstitutional or
invalid, the same is hereby declared to be severable and the balance
of this section shall remain effective, notwithstanding the
unconstitutionality or invalidity. Each provision, subdivision,
sentence, clause, phrase, or word of this section would have been
approved by voters irrespective of the fact that one or more
provisions, subdivisions, sentences, clauses, phrases, or words
might be declared unconstitutional or invalid.

Fifth--  

This act shall become operative 90 days after the election
in which it is approved. The Judicial Council and the State
Department of Public Health shall, within these 90 days, prescribe
rules, practices, and procedures and prepare and make available
any required forms.