Amended in Assembly January 7, 2014

California Legislature—2013–14 Regular Session

Assembly Constitutional AmendmentNo. 5


Introduced by Assembly Member Grove

begin insert

(Coauthors: Assembly Members Dahle, Donnelly, Beth Gaines, Hagman, Jones, Melendez, and Wagner)

end insert
begin insert

(Coauthors: Senators Anderson, Knight, and Nielsen)

end insert

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 amended, 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: 23. Appropriation: no. Fiscal committee: yes. State-mandated local program: no.

P2    1Resolved by the Assembly, the Senate concurring, That the
2Legislature of the State of California at its 2013-14 Regular
3Session, commencing on the third day of December 2012,
4two-thirds of the membership of each house concurring, hereby
5proposes to the people of the State of California, that the
6Constitution of the State be amended as follows:

7

First--  

This act shall be known and may be cited as the Parental
8Notification, Child and Teen Safety, and Stop Predators Act.

9

Second--  

The people of the State of California find and declare
10that they have a compelling interest in both of the following:

11(a) Protecting minors from the known risks of secret abortions,
12including the danger of not obtaining prompt care for health- and
13life-threatening complications when a minor’s parent is unaware
14that she has undergone a secret abortion.

15(b) Preventing sexual predators from using secret abortions to
16conceal the sexual exploitation of minors.

17

Third--  

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

18

SEC. 32.  

(a) For purposes of this section, the following
19definitions shall apply:

20(1) “Abortion” means the use of any means to terminate the
21pregnancy of an unemancipated minor known to be pregnant,
22except for the purpose of producing a live birth. “Abortion” shall
23not include the use of any contraceptive drug or device.

24(2) “Medical emergency” means a condition that, on the basis
25of the physician’sbegin delete good-faithend deletebegin insert good faithend insert clinical judgment, so
26 complicates the medical condition of a pregnant unemancipated
27minor as to necessitate the immediate abortion of her pregnancy
28to avert her death or for which a delay will create serious risk of
29substantial and irreversible impairment of a major bodily function.

30(3) “Notice” means a written notification, signed and dated by
31a physician or his or her agent, informing the parent of an
32unemancipated minor that she has requested an abortion.

P3    1(4) “Parent” means a person who, at the time notice or waiver
2is required under this section, is a parent if both parents have legal
3custody, the parent or person having legal custody, or the legal
4guardian of an unemancipated minor.

5(5) “Physician” means a person authorized under the statutes
6and regulations of the State of California to perform an abortion
7upon an unemancipated minor.

8(6) “Unemancipated minor” means a female under 18 years of
9age who has not entered into a valid marriage, is not on active duty
10with the Armed Services of the United States, or has not received
11a declaration of emancipation under state law. For the purposes of
12this section, pregnancy does not emancipate a female underbegin delete the
13age ofend delete
18 yearsbegin insert of ageend insert.

14(b) Notwithstanding any provision of this Constitution to the
15contrary, and except as provided in subdivision (d), (e), or (f), a
16physician shall not perform an abortion on an unemancipated minor
17until after the physician or the physician’s agent has delivered
18written notice, as provided in subdivision (c), or has received a
19copy of a waiver of parental notice from the courtbegin insert,end insert as authorized
20in subdivision (g). A copy of a notice or waiver shall be retained
21with the unemancipated minor’s medical records. The physician
22or the physician’s agent shall inform the unemancipated minor
23that her parent may receive notice as provided for in this section.

24(c) The written notice shall be delivered by the physician or the
25physician’s agent to the parent, either personally or by certified
26mail addressed to the parent at the parent’s last known address
27with return receipt requested and restricted delivery to the
28addressee. If notice is provided by certified mail, a copy of the
29written notice shall also be sent at the same time by first-class mail
30to the parent. Notice by mail may be presumed to have been
31delivered under this subdivision at noon of the second day after
32the written notice sent by certified mail was postmarked, not
33counting any days on which regular mail delivery does not take
34place. A form for the notice shall be prescribed by the State
35Department of Public Health. The notice form shall be bilingual,
36in English and Spanish, and also available in English and each of
37the other languages in which California Official Voter Information
38Guides are published.

39(d) Notice of an unemancipated minor’s intent to obtain an
40abortion may be waived by her parent. The waiver must be in
P4    1 writing on a form prescribed by the State Department of Public
2Health, signed by a parent, dated, and notarized. The parent shall
3specify on the form that the waiver is valid for 30 days, or until a
4specified date, or until the minor’s 18th birthday. The written
5waiver need not be notarized if the parent personally delivers it to
6the physician or the physician’s agent. The form shall include the
7following statement: “WARNING. It is a crime to knowingly
8provide false information to a physician or a physician’s agent for
9the purpose of inducing a physician or a physician’s agent to
10believe that a waiver of notice has been provided by a parent or
11guardian.” The waiver form shall be bilingual, in English and
12Spanish, and shall also be available in English and each of the
13other languages in which California Official Voter Information
14Guides are published. For each abortion performed on an
15unemancipated minor, the physician or the physician’s agent must
16receive a separate original written waiver that shall be retained
17with the unemancipated minor’s medical records.

18(e) Notice shall not be required under this section if the
19unemancipated minor is the victim of physical or sexual abuse
20committed by one or both of the minor’s parents and the abuse is
21documented by a signed and notarized statement by (1) a person
22at least 21 years of age who has personal knowledge of the abuse
23and who is a grandparent, stepparent, foster parent, sibling of a
24parent, or sibling orbegin delete half-siblingend deletebegin insert half siblingend insert of the unemancipated
25minor, or (2) a law enforcement officer or agent of a public child
26 protective agency who has investigated the abuse of the
27unemancipated minor. The physician shall retain the signed and
28notarized statement with the unemancipated minor’s medical
29records.

30(f) Notice shall not be required under this section if the attending
31physician certifies in the unemancipated minor’s medical records
32the medical indications supporting the physician’sbegin delete good-faithend deletebegin insert good
33faithend insert
clinical judgment that the abortion is necessary due to a
34medical emergency.

35(g) (1) Notice shall not be required under this section if a waiver
36of parental notice is authorized under this subdivision. If the
37pregnant unemancipated minor elects not to permit notice to be
38given to a parent, she may file a petition with the juvenile court.
39No filing fee shall be required for filing a petition. If an
40unemancipated minor seeks to file a petition, the court shall assist
P5    1the unemancipated minor or person designated by the
2unemancipated minor in preparing the documents required. The
3petition shall set forth with specificity the unemancipated minor’s
4reasons for the request. The unemancipated minor shall appear
5personally in the proceedings in juvenile court and may appear on
6her own behalf or with counsel of her own choosing. The court
7shall, however, advise her that she has a right to court-appointed
8counsel upon request. The hearing shall be held by 5 p.m. on the
9second court day after filing the petition unless extended at the
10written request of the unemancipated minor or her counsel. The
11unemancipated minor shall be notified of the date, time, and place
12of the hearing on the petition. Judgment shall be entered within
13one court day of submission of the matter. The judge shall order
14a record of the evidence to be maintained, including the judge’s
15written factual findings and legal conclusions supporting the
16decision. The court shall ensure that the minor’s identity is kept
17confidential and that all court proceedings are sealed.

18(2) (A) If the judge finds, by clear and convincing evidence,
19that the unemancipated minor is both sufficiently mature and
20well-informed to decide whether to have an abortion, the judge
21shall authorize a waiver of parental notice.

22(B) If the judge finds, by clear and convincing evidence, that
23parental notice is not in the best interests of the unemancipated
24minor, the judge shall authorize a waiver of parental notice. If the
25finding that parental notice is not in the best interests of the minor
26is based on evidence of physical or sexual abuse, the court shall
27ensure that the evidence is brought to the attention of the
28appropriate law enforcement or public child protective agency.

29(C) If the judge does not make a finding specified in
30subparagraph (A) or (B), the judge shall deny the petition.

31(3) If the judge fails to rule within the time period specified in
32paragraph (1) and no extension was requested and granted, the
33petition shall be deemed granted and a waiver of parental notice
34is authorized.

35(4) The unemancipated minor may appeal the denial of her
36petition by the juvenile court at any time after the entry of
37judgment. The Judicial Council shall prescribe, by rule, the practice
38and procedure on appeal and the time and manner in which a record
39on appeal shall be prepared and filed and may prescribe forms for
40these proceedings. These procedures shall require that the hearing
P6    1shall be held within three court days of filing the notice of appeal.
2The unemancipated minor shall be notified of the date, time, and
3place of the hearing. The appellate court shall ensure that the
4unemancipated minor’s identity is kept confidential and that all
5court proceedings are sealed. No filing fee shall be required for
6filing an appeal. Judgment on appeal shall be entered within one
7court day of submission of the matter.

8(5) The Judicial Council shall prescribe, by rule, the practice
9and procedure for petitions for waiver of parental notification,
10hearings, and entry of judgment as it deems necessary, and may
11prescribe forms for these proceedings. Each court shall provide
12annually to the Judicial Council, in a manner to be prescribed by
13the Judicial Council to ensure confidentiality of the unemancipated
14minors who have filed petitions, a report of the number of petitions
15filed, the number of petitions granted under subparagraphs (A)
16and (B) of paragraph (2), deemed granted under paragraph (3),
17denied under subparagraph (C) of paragraph (2), and granted or
18denied under paragraph (4). These reports shall be publicly
19available, unless the Judicial Council determines that the data
20contained in individual reports should be aggregated by county
21before being made available to the public, in order to preserve the
22confidentiality of the unemancipated minors who have filed
23petitions.

24(h) The State Department of Public Health shall prescribe forms
25 for the reporting of abortions performed on unemancipated minors
26by physicians. The report forms shall not identify the
27unemancipated minor or her parents by name or request any other
28information by which the unemancipated minor or her parents
29might be identified. The forms shall include the date of the
30procedure, the unemancipated minor’s month and year of birth,
31the duration of the pregnancy, the type of abortion procedure, the
32numbers of the unemancipated minor’s previous abortions and
33deliveries, if known, and the facility where the abortion was
34performed. The forms shall also indicate whether notice was given
35pursuant to subdivision (c) or was not required or waived pursuant
36to subdivision (d), (e), (f), or (g), delineated by subdivision.

37(i) A physician who performs an abortion on an unemancipated
38minor shall, within one month, file a dated and signed report
39concerning that abortion with the State Department of Public
40Health on forms prescribed pursuant to subdivision (h). The identity
P7    1of the physician shall be kept confidential and shall not be subject
2to disclosure under the California Public Records Act (Chapter
33.5 (commencing with Section 6250) of Division 7 of Title 1 of
4the Government Code) or any successor to that act.

5(j) A claim shall not be paid by the Medi-Cal program or any
6other program paid for or subsidized by the State of California for
7any medical services relating to the provision of an abortion to a
8minor under 18 years of age at the time of the abortion, unless the
9claim for payment is accompanied by a copy of the report filed
10with the State Department of Public Health pursuant to subdivision
11(i), or proof that the minor was not unemancipated.

12(k) The State Department of Public Health shall compile an
13annual statistical report from the information submitted pursuant
14to subdivision (i). The annual report shall not include the identity
15of a physician who filed a report required by subdivision (i). The
16compilation shall include statistical information on the numbers
17of abortions by month and by county where performed, the minors’
18ages, the duration of the pregnancies, the types of abortion
19procedures, the numbers of prior abortions or deliveries, where
20known, and the numbers of abortions performed for which notice
21was given pursuant to subdivision (c) or was not required or waived
22pursuant to subdivision (d), (e), (f), or (g), delineated by
23subdivision. The annual statistical report shall be made available
24to county public health officials, members of the Legislature, the
25Governor, and the public.

26(l) A person who performs an abortion on an unemancipated
27minor and in so doing knowingly or negligently fails to comply
28with this section shall be liable for damages in a civil action
29brought by the unemancipated minor, her legal representative, or
30by a parent wrongfully denied notification. The time for
31commencement of the action shall be within four years of the date
32the unemancipated minor attains majority or four years of the date
33a parent wrongfully denied notification discovers or reasonably
34should have discovered the failure to comply with this section,
35whichever period expires later. However, an action may not be
36commenced more than 12 years after the abortion occurred. A
37person shall not be liable under this section if he or she establishes,
38by written or documentary evidence, that he or she relied upon
39evidence sufficient to convince a careful and prudent person that
40the representations of the unemancipated minor or other persons
P8    1regarding information necessary to comply with this section were
2bona fide and true. At any time prior to the rendering of a final
3judgment in an action brought under this subdivision, the plaintiff
4may elect to recover, in lieu of actual damages, an award of
5statutory damages in the amount of ten thousand dollars ($10,000).
6In addition to any damages awarded under this subdivision, the
7plaintiff shall be entitled to an award of reasonable attorney fees.
8This section shall not abrogate, limit, or restrict the common law
9rights of parents, or any right to relief under any theory of liability
10that any person or any state or local agency may have under any
11statute or common law for injury or damage, including any legal,
12equitable, or administrative remedy under federal or state law,
13against a party, with respect to injury to an unemancipated minor
14from an abortion.

15(m) Other than an unemancipated minor who is the patient of
16a physician, or the physician or the physician’s agent, any person
17who knowingly provides false information to a physician or a
18physician’s agent for the purpose of inducing the physician or the
19physician’s agent to believe that notice has been or will be
20delivered to a parent pursuant to this section, or that a waiver of
21notice has been obtained, or that an unemancipated minor is the
22victim of physical or sexual abuse, or that an unemancipated minor
23patient is not an unemancipated minor, is guilty of a misdemeanor
24punishable by a fine of up to ten thousand dollars ($10,000).

25(n) Notwithstanding any notice or waivers of notice, except
26where the particular circumstances of a medical emergency or the
27minor’s own lack of legal mental capacity precludes obtaining her
28informed consent, a physician shall not perform or induce an
29abortion upon an unemancipated minor except with the informed
30consent of the unemancipated minor herself.

31(o) Notwithstanding any notice or waivers of notice, an
32unemancipated minor who is being coerced through force, threat
33of force, or threatened or actual deprivation of food or shelter to
34consent to undergo an abortion may apply to the juvenile court for
35relief. The court shall give the matter expedited consideration and
36grant this relief as may be necessary to prevent the coercion.

37(p) Except for the rights, duties, privileges, conditions, and
38limitations specifically provided for in this section, this section
39shall not be construed to grant, secure, or deny any other rights,
P9    1duties, privileges, conditions, and limitations relating to abortion
2or the funding thereof.

3

Fourth--  

If one or more provisions, subdivisions, sentences,
4clauses, phrases, or words of this section, or the application thereof,
5to any person or circumstance is found to be unconstitutional or
6invalid, the same is hereby declared to be severable and the balance
7of this section shall remain effective, notwithstanding the
8unconstitutionality or invalidity. Each provision, subdivision,
9sentence, clause, phrase, or word of this section would have been
10approved by voters irrespective of the fact that one or more
11provisions, subdivisions, sentences, clauses, phrases, or words
12might be declared unconstitutional or invalid.

13

Fifth--  

This act shall become operative 90 days after the election
14in which it is approved. The Judicial Council and the State
15Department of Public Health shall, within these 90 days, prescribe
16rules, practices, and procedures and prepare and make available
17any required forms.



O

    98