BILL ANALYSIS
AB 1427
Page 1
Date of Hearing: April 26, 2005
Counsel: Kimberly Horiuchi
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Mark Leno, Chair
AB 1427 (Mountjoy) - As Introduced: February 22, 2005
SUMMARY : Requires a physician or surgeon performing an
abortion on a minor to retain sufficient tissue of the aborted
fetus to permit DNA testing for the purposes of determining
paternity and providing potential evidence in sex crimes cases.
Specifically, this bill :
1)States that any physician or surgeon performing an abortion on
a minor shall retain sufficient tissue from the aborted fetus
to permit DNA testing to determine paternity.
2)States that the tissue shall be preserved, along with
sufficient documentation to adequately identify the tissue and
establish a chain of custody, for a period of four years.
3)States that the extracted DNA shall be made available upon
court order for the purpose of determining paternity and
establishing the guilt and innocence of the accused in any
criminal action regarding sexual crimes relating to the
aborted pregnancy.
EXISTING LAW :
1)States that it is unlawful for any person to use any aborted
product of human conception, other than fetal remains, for any
type of scientific or laboratory research or for any other
kind of experimentation or study, except to protect or
preserve the life and health of the fetus. "Fetal remains," as
used in this section, is defined as a lifeless product of
conception regardless of the duration of pregnancy. A fetus
shall not be deemed to be lifeless for the purposes of this
section unless there is an absence of a discernible heartbeat.
[Health and Safety Code Section 123440(a).]
2)States that at the conclusion of any scientific or laboratory
research or any other kind of experimentation or study upon
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fetal remains, the fetal remains shall be promptly interred or
disposed of by incineration. Storage of the fetal remains
prior to the completion of the research, experimentation, or
study shall be in a place not open to the public, and the
method of storage shall prevent any deterioration of the fetal
remains that would create a health hazard. Nothing in this
section shall apply to public or private educational
institutions. Violation of this section is a misdemeanor.
[Health and Safety Code Section 123445(a) and (b).]
3)Requires that any mandated reporter who has knowledge of or
observes a child and in his or her professional capacity or
within the scope of his or her employment whom he or she knows
or reasonably suspects has been the victim of child abuse
shall report that information immediately to specified law
enforcement or child protection agencies. [Penal Code Section
1166(a).]
4)Requires that reports of suspected child abuse or neglect
shall be made by a mandated reporter to any police or
sheriff's department, a county probation department if
designated by the county to receive mandated reports, or the
county welfare department. (Penal Code Section 11165.9.)
5)Provides that any mandated reporter who fails to report an
instance of known or reasonably suspected child abuse or
neglect as required is guilty of a misdemeanor, punishable by
up to six months in the county jail; by a fine of $1,000; or
by both imprisonment and fine. [Penal Code Section 11166(b).]
6)Provides that an unmarried minor may give consent to the
furnishing of hospital or medical care related to the
prevention and treatment of pregnancy, and that the consent of
the parent or parents of such minor shall not be necessary to
authorize such care. (Civil Code Section 34.5.)
FISCAL EFFECT : Unknown
COMMENTS :
1)Author's Statement : According to the author, "Anyone who
reads newspapers or watches television news is aware of all
too frequent reports of older men, including those in
positions of trust including even teachers, coaches, clergy,
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and youth leaders, who have been sexually involved with minors
and have impregnated minors. Many other cases involve older
minors and young men who impregnate minors.
"Simply put, California's ready availability of abortions,
without any knowledge or consent of parents or guardians,
provides a convenient way for men who rape and sexually abuse
minors to cover up their crimes by coercing, intimidating, and
manipulating the minor to undergo an abortion and thus 'get
rid of the evidence' of their sexual abuse, which would be
revealed and forensically provable by a DNA paternity test of
the child conceived as a consequence of their criminal or
statutory rape of the minor.
"My bill will help protect minors from such abuse and provide a
deterrence against it by ensuring that pressuring the minor to
undergo an abortion will not 'get rid of the evidence' because
those who perform abortions on minors will be required to keep
a tissue sample which will be available to child protection
and law enforcement agencies as a possible proof of the guilt
or innocence of a person who may be suspected or charged with
criminal or statutory rape or sexual abuse of a minor.
"Society has a very serious obligation to protect vulnerable
minor girls from criminal and statutory rape and sexual abuse
and the continuation of such rapes and abuse. I would point
out that it is already good medical practice to preserve and
submit tissue samples from abortions to a pathology laboratory
to test whether they contain fetal and or placental pregnancy
tissue.
"If there is no fetal or placental tissue in the sample removed
and examined by the pathology laboratory, this is an
indication of a possibly life threatening ectopic or tubal
pregnancy, of which the mother needs to be promptly informed.
This is a reasonable measure to help protect minors and to
provide a deterrence to criminal and statutory rape and sexual
abuse of minors and the subsequent attempts to coerce,
intimidate, and pressure the minor to undergo an abortion in
order to 'get rid of the evidence' of such rapes and sexual
abuse."
2)Current Law Requires Physicians to Report Evidence of Sexual
Assault : Under the Child Abuse and Neglect Reporting Act
(CANRA), physicians, nurses and other health care
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professionals who have knowledge of or observe a child and in
his or her professional capacity or within the scope of his or
her employment whom he or she knows or reasonably suspects has
been the victim of child abuse shall report that information
immediately to specified law enforcement or child protection
agencies. [Penal Code Section 11166(a).] If a physician or
health practitioner determines that a minor has been sexually
assaulted or abused, he or she must report that to the
appropriate agency. This bill assumes that women under the
age of 18 who have an abortion have been the victim of sexual
assault or abuse rather than becoming pregnant from lawful
sexual intercourse. Moreover, it assumes the minor does not
know the identity of the father.
It is the rightful determination of the medical practitioner to
decide if the pregnancy was the result of assaultive conduct.
In the case of Planned Parenthood Affiliates v. Van de Kamp
(1986) 181 Cal. App. 3d 181, petitioners challenged an
Attorney General opinion that CANRA imposed on health care
professionals and others a duty to report any sexual activity
of a minor under the age of 14. Petitioners claimed that the
law violated the constitutional right to privacy of the minor
and placed professionals in circumstances in which they would
be forced to choose between compliance with the law and
fidelity to their ethical duties to preserve patients'
confidential medical histories. The Court of Appeal ruled in
favor of the petitioners holding that the legislative intent
of CANRA was to leave the distinction between abusive and
non-abusive sexual relations to the judgment of those
professionals who deal with children and who, by virtue of
their training and experience, are particularly well suited to
such judgments. Finally, the court held that the Attorney
General's opinion violated constitutional rights to sexual and
information privacy.
3)Privacy Rights of Minors Receiving an Abortion : In American
Academy of Pediatrics vs. Lungren , the California Supreme
Court stated, "Minors as well as adults are persons under the
California Constitution who are entitled to the protection
provided by constitutional rights. Furthermore, the
California Constitution specifically declares that all people
are by nature free and independent and have inalienable
rights, including enjoying and defending life and liberty,
acquiring, possessing, and protecting property, and privacy.
Significantly, the constitutional right of privacy afforded by
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this provision is intended to apply to every Californian,
including every man, woman, and child in the state".
[ American Academy of Pediatrics vs. Lungren (1997) 16 Cal.4th
307.] The Court also held that minors have a constitutionally
protected privacy right to have an abortion. ( Lungren , at
337,) This bill would require doctors performing abortions to
save and store fetal tissue to perform tests, as specified.
This essentially requires the medical practitioner to notify
whoever is holding the tissue of the abortive fetus, the
identity of the minor and, of course, that minor had an
abortion despite the fact that the abortion may not be the
result of abusive conduct.
Statutory provisions that intrude or impinge upon such a
fundamental autonomy privacy interest properly must be
evaluated under the compelling interest standard, i.e., the
government must demonstrate a compelling state interest which
justifies the intrusion and which cannot be served by
alternative means less intrusive on fundamental rights.
[ Lungren , at 341; White vs. Davis (1975) 13 Cal. 3d 557, 572.]
This bill would likely fail constitutional scrutiny because
it is impinging on a constitutionally protected right without
showing either a compelling state interest or that less
intrusive alternatives are not available. In this case, if a
crime has been committed, physicians must report those
injuries. This statute is simply unnecessary.
4)Obtaining Evidence in Sexual Assault Cases : If it is
determined that a sexual assault did in fact occur, a health
practitioner is bound by law to report such assault to law
enforcement. Those who do not are guilty of a misdemeanor and
punished by six months in the county jail and a $1,000 fine.
At that point, an investigation will ensue and properly
obtained evidence may be gathered against the offender. Fetal
remains are not the only way to make a case against the
defendant in a sexual assault prosecution. Physical evidence
can be obtained; and if proper evidentiary procedures are
followed, DNA testing may be performed during a pregnancy to
determine paternity.
5)Storing the Fetal Tissue : This bill requires that aborted
fetal tissue be collected from all women under the age of 18
receiving an abortion and stored for a period of four years.
Although California does not provide statistics on the number
of teenagers receiving abortions to the Center for Disease
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Control, Planned Parenthood estimates that of the national
average of teen pregnancies ending in abortion is roughly 35%.
23% of all abortions performed in the United States are
performed on women under the age of 20. The total number of
abortion in this age group is about 307,000. (Planned
Parenthood Statistics regarding pregnancy and childbearing
among teens, available at www.ppacca.org ). According to the
National Center for Health Statistics, Division of Vital
Statistics at the Center for Disease Control, there were
50,222 teenage births in California in 2001(available at
www.staehealthfacts.org ). Although this number of abortions
being performed is a national average, this bill would require
storing fetal tissue for all abortions performed on women
under the age of 18 in the State of California for a period of
four years. That could be thousands of samples and an
enormous cost. This bill provides no direction as to where
these samples will be stored and who will bear the costs.
6)Right of Mother to Determine Use of Fetal Tissue : A woman has
a right to decide how fetal tissue from her abortion is
treated. A woman's property right in controlling the eventual
disposition of her abortus is derived from her right to use,
enjoy, and determine the disposition of her own body.
[Jonathan Hersey, "Enigma of the Unborn Mother: Legal and
Ethical Considerations of Aborted Fetal Ovarian Tissue and Ova
Transplantations", 43 UCLA L. Rev. 159, 197. See Moore vs.
Regents of the University of California (1990) 793 P.2d 479,
496.] Not only does the mother have a privacy interest in
protecting information from whoever would be storing the
information but also in how the fetal tissue is used.
7)Arguments in Support : The Capital Resource Institute states
"This bill seeks to protect young girls against sexual
exploitation, which often results in unwanted pregnancies and
abortion. This bill will supply evidence to crack down on
criminals who perpetrate such crimes as statutory rape and
incest. This will, consequently, protect young girls from
subsequent, repeated sexual exploitation."
8)Arguments in Opposition :
a) The American College of Obstetricians and Gynecologists
states, "This bill would require physicians keep a sample
of aborted tissue from minors (in sufficient amounts to
enable a DNA test be administered) in the expectation that
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some day that tissue could be used in the prosecution of
the male responsible for the pregnancy. The physician
would need to preserve the tissue in manner that would
legally ensure the 'chain of custody' of the tissue for a
period of four years. The theory is that the tissue would
be ordered by the court to be given to the relevant
parties, such as a district attorney, for use in a case
against the man alleged to be responsible for the
pregnancy. In discussions with the California District
Attorneys Association, there did not appear to be a need
for this bill. They have been able to get a court order to
obtain needed medical samples, and could not recall an
instance of where needed tissue had been inadvertently
destroyed due to lack of advance knowledge of the need for
the tissue. In light of this, we have not progressed
further in our analysis as to problems with the logistics
of the bill, including maintenance and the costs of
maintenance of the tissue. We believe this bill is
unnecessary and problematic; therefore, we must oppose this
bill."
b) Planned Parenthood states, "Planned Parenthood believes
this bill is unnecessary, overly burdensome, and a
continuing effort to harass providers who provide access to
safe, legal abortion services."
c) California Family Health Council, Inc. states, "No
evidence has been provided that a need for this bill
exists. Additionally, there are major problems for
physicians, hospitals and clinics regarding proper storage
of tissue, maintenance of records, regarding tissue and
patients, and the cost of such a large and elaborate
system."
d) California Attorneys for Criminal Justice (CACJ) states,
"CACJ opposes this bill for several reasons. First, we
believe this bill is not necessary as surgeons and
physicians, as we understand it, are under an ethical
obligation to report instances of sexual assault or rape
under existing law and rules of ethical conduct. Secondly,
this bill by including all minor females under 18 years of
age might have the effect off those females from accessing
safe and legal medical care because of fear of mandatory
reporting. For example, a 17-year-old-female, in a loving
relationship with her 18-year-old boyfriend, who then
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becomes pregnant may seek some 'back alley' method to
terminate her pregnancy out of fear that her boyfriend will
be prosecuted if she has a medically safe abortion
performed by a licensed physician or surgeon. Lastly, as
this bill is currently written, there is no adequate
provision on how the creation of this tissue/DNA storage
base will be stored, for how long and by whom. This bill
does not even provide for how much tissue/DNA will be, at
some date (if at all), properly destroyed."
e) California Medical Association states, "Physicians are
already required by statute to report any case of suspected
child abuse to law enforcement. Mandatory reporting by a
physician is itself a highly controversial issue in the
medical community; many physicians believe it is a
violation of long-established medical ethics to put the
public's desire to deter crime above the patient's right to
a confidential relationship with a physician. Given the
controversy over mandatory reporting, going even farther
and forcing physicians to collect evidence on behalf of
criminal investigators without regard to the best interest
of the patient, or the physician's professional judgment,
is universally opposed by the medical community. Worse.
There appears to be no need for this intrusion into
physician/patient confidentiality. CMA is unaware of any
established law enforcement agency that believes this bill
is necessary to help deter or prosecute sexual abuse of a
minor. CMA respects your desire to protect young women
from the devastating consequences of sexual abuse.
Nonetheless, CMA believes that his bill will do more harm
than good by deterring a young woman from seeking
professional medical help when she needs it most."
REGISTERED SUPPORT / OPPOSITION :
Support
Capital Resource Institute
Eagle Forum of Sacramento
Traditional Values Coalition
Opposition
American Association of University Women
American Civil Liberties Union
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American College of Obstetricians and Gynecologists
California Attorneys for Criminal Justice
California Family Health Council, Inc.
California Medical Association
Planned Parenthood
Planned Parenthood of Santa Barbara, San Bernardino, Orange,
Ventura and
San Luis Obispo Counties
Analysis Prepared by : Kimberly Horiuchi / PUB. S. / (916)
319-3744