BILL ANALYSIS �
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Date of Hearing: January 14, 2014
ASSEMBLY COMMITTEE ON HEALTH
Richard Pan, Chair
ACA 5 (Grove) - As Amended: January 7, 2014
SUBJECT : Abortion: parental notification.
SUMMARY : Prohibits, except in the case of an emergency, a
physician from performing an abortion on an unemancipated minor
unless the physician has notified one of her parents, or a judge
has granted the unemancipated minor a waiver of the notification
requirement. Specifically, this constitutional amendment :
1)Prohibits a physician from performing an abortion on an
unemancipated minor until after the physician or the
physician's agent has delivered written notice, either
personally or by certified and first class mail to the
parent's last known address. Requires the notice form
prescribed by the Department of Public Health (DPH) to be in
both English and Spanish and available in each of the other
languages in which the California Official Voter Information
Guides are published.
2)Allows a parent to waive the notice requirement in writing
with a notarized form prescribed by DPH. Provides that the
form need not be notarized if the parent personally delivers
it to the physician or the physician's agent. Requires the
form to contain 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."
3)Waives the parental notice 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: a) 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, b)
a law enforcement officer or agent of a public child
protective agency who has investigated the abuse of the
unemancipated minor.
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4)Waives the parental notification 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.
5)Allows an unemancipated minor who elects not to permit notice
to be given to a parent to file a petition with the juvenile
court for a waiver of the notice requirement. Prohibits the
minor being charged a filing fee and requires the minor to
appear personally in the proceedings in juvenile court.
Allows the minor to appear on her own behalf or with counsel
of her own choosing. Requires the court to advise the minor
that she has a right to court-appointed counsel.
6)Requires the court to keep the minor's identity confidential
and all court proceedings to be sealed.
7)Requires, 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, or that
the parental notice is not in the best interests of the minor
based on evidence of physical or sexual abuse, the judge to
authorize a waiver of parental notice. Requires, if the judge
does not make such a finding, that the petition be denied.
8)Requires evidence of physical or sexual abuse to be brought to
the attention of the appropriate law enforcement or public
child protective agency.
9)Requires the petition to be deemed granted and a waiver of
parental notice is authorized if the judge fails to rule
within one court day of submission of the matter and no
extension was requested or granted.
10)Authorizes an unemancipated minor to appeal the denial of her
petition and requires Judicial Council to prescribe, by rule,
the practice and procedure on appeal and the time and manner
in which a record on appeal is to be prepared and filed.
Requires the appeal hearing to be held within three court days
of the filing of the notice of appeal.
11)Requires DPH to create forms for the reporting of abortions
performed on unemancipated minors by physicians. Requires the
forms to include the date of the procedure, the minor's month
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and year of birth, the duration of the pregnancy, the type of
abortion procedure, the number of the minor's previous
abortions and deliveries, if known, and the facility where the
abortion was performed. Requires the form to indicate whether
notice was given or was waived. Prohibits the forms from
identifying the minor or her parents.
12)Requires a physician who performs an abortion on an
unemancipated minor to file a dated and signed report
concerning that abortion with DPH within one month. Requires
the identity of the physician to be kept confidential and
exempts disclosure under the California Public Records Act.
13)Prohibits any program paid for or subsidized by the State of
California from paying any claim for medical services relating
to the provision of an abortion to a minor under 18 years of
age unless the claim is accompanied by a copy of the report
filed with DPH or proof that the minor was not unemancipated.
14)Requires DPH to compile an annual statistical report from the
information submitted by physicians to DPH, including
information on the numbers of abortions by month and by county
where performed, the minors' ages, duration of the
pregnancies, types of abortion procedures, numbers of prior
abortions or deliveries if known, the number of abortions
performed for which notice was given, and the number of
abortions performed for which notice was not required or
waived. Requires the report to be made available to county
public health officials, members of the Legislature, the
Governor, and the public.
15)Requires a person who performs an abortion on an
unemancipated minor knowingly, or negligently fails to comply
with the provisions of this constitutional amendment, to be
liable for damages in a civil action. Allows an unemancipated
minor to bring action within four years of the date of
attaining her majority or her parent to bring action within
four years of the date they discover, or reasonably should
have discovered, they were not notified. Prohibits an action
from being commenced more than 12 years after the abortion
occurred.
16)Prohibits a person from being held liable if he or she
established that he or she relied upon evidence sufficient to
convince a careful and prudent person that the representation
of the unemancipated minor or other persons regarding the
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information necessary to comply with the notice requirements
were bona fide and true.
17)Allows the plaintiff in an action to elect to recover, in
lieu of actual damages, an award of statutory damages in the
amount of $10,000. Also allows the plaintiff to be awarded
reasonable attorney fees.
18)Provides that the actions and awards described in 15) and 17)
above do 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 state or local agency may have
under any statute or common law for injury or damage, with
respect to injury to an unemancipated minor from an abortion.
19)Provides that, other than an unemancipated minor, 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 them to believe that notice
has been or will be delivered to a parent, or that a waiver of
notice has been obtained, or that the unemancipated minor is
the victim of physical or sexual abuse, or that an
unemancipated minor is not an unemancipated minor, is guilty
of a misdemeanor punishable by a fine of up to $10,000.
20)Prohibits, with the exception of a medical emergency or the
minor's own lack of legal mental capacity precluding her from
giving informed consent, a physician to perform or induce an
abortion upon an unemancipated minor except with the informed
consent of the unemancipated minor herself.
21)Allows, 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, to apply to the
juvenile court for relief, and requires the court to give the
matter expedited consideration and grant relief as necessary
to prevent the coercion.
22)Clarifies that except for the rights, duties, privileges,
conditions, and limitations specifically provided for, this
Assembly Constitutional Amendment (ACA) shall not be construed
to grant, secure, or deny any other rights, duties,
privileges, conditions and limitations relating to abortion or
abortion funding.
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23)Contains a severability clause to ensure the remaining
provisions of this ACA become operative if one or more of the
provisions is deemed unconstitutional.
24)Provides that this ACA becomes operative 90 days after it is
approved.
25)Defines the following terms:
a) "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;
b) "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;
c) "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;
d) "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;
e) "Physician" means a person authorized under the statutes
and regulations of the State of California to perform an
abortion upon an unemancipated minor; and,
f) "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 of age.
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EXISTING LAW :
1)Grants a specific right of privacy under the California
Constitution and provides that the right to have an abortion
may not be infringed upon without a compelling state interest.
In American Academy of Pediatrics v. Lungren (1997) 16 Cal.
4th 307, the California Supreme Court held AB 2274 (Frazee),
Chapter 1237, Statutes of 1987, requiring physicians to obtain
written parental consent prior to performing an abortion, to
be contrary to the California Constitution's guarantee of an
inalienable right to privacy.
2)Allows a minor may consent to medical care or dental care if
all of the following conditions are satisfied:
a) The minor is 15 years of age or older;
b) The minor is living separate and apart from his/her
parents or guardians, whether with or without the consent
of a parent or guardian and regardless of the duration of
the separate residence;
c) The minor is managing his/her own financial affairs,
regardless of the source of the minor's income; and,
d) The parents or guardians are not liable for medical care
or dental care provided, as specified.
3)Specifically allows a minor to obtain various medical
procedures without parental consent, including mental health
and substance abuse treatment and medical care related to
sexual assault or to the diagnosis or treatment of any
infectious, contagious, or communicable disease, including a
sexually transmitted disease.
4)Requires parental consent for minors to receive body piercing
and tattoos.
FISCAL EFFECT : This constitutional amendment has not yet been
analyzed by a fiscal committee.
COMMENTS :
1)PURPOSE OF THIS ACA . According to the author, this ACA is
necessary because every day, adult men around the state and
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country are sexually abusing young girls, often times forcing
them to have an abortion without the knowledge of their
parents or law enforcement. The author states that more than
35 states currently have some version of a parental
notification requirement and while California is not one of
them, a majority of Californians favor such a law. The author
points to a 2009 survey by the Public Policy Institute of
California (PPIC) which states that, 68% of Californians favor
a state law requiring parental notification before a girl
under 18 can get an abortion, and that according to PPIC,
"majorities across party lines (55% Democrats, 66%
independents, 77% Republicans), regions, and ethnic and racial
groups favor a parental notification law. Latinos (81%) are
the most likely group (70% Asians, 68% blacks, 58% whites) to
support the idea." The author further states that it is the
responsibility and duty of elected legislators to pass laws
that protect the most vulnerable from those who would harm
them and this ACA will do just that.
In addition, the author states that Governor Brown recently
signed into law AB 154 (Atkins), Chapter 662, Statutes of
2013, and AB 980 (Pan), Chapter 663, Statutes of 2013,
allowing for non-physicians to perform abortions and lowering
building requirements for abortion facilities, respectively,
and it is of great concern that these new laws will be tested
upon minors without the knowledge of their parent or guardian.
The author asserts that since this ACA is a constitutional
amendment, it will not be subject to California Supreme Court
scrutiny as was AB 2274, the 1987 parental consent bill and it
will allow California voters to assist in stopping sexual
predators from exploiting the young and vulnerable girls of
California.
2)BACKGROUND . In 1987, AB 2274 required that physicians obtain
parental consent prior to performing an abortion on a minor.
AB 2274 was never enforced because the California lower courts
stayed its application pending determination of its validity.
Eventually the California Supreme Court in American Academy of
Pediatrics v. Lungren , determined that AB 2274 violated the
right of privacy guaranteed by Article I, Section I, of the
California Constitution.
This ACA differs from the original statute in that it would
amend the California Constitution and because it requires
parental notification, rather than parental consent.
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According to the Guttmacher Institute, as of December 1, 2013,
39 states require some type of parental involvement in a
minor's decision to have an abortion. Twenty-one states
require one or both parents to consent to the procedure, while
13 require that one or both parents be notified and five
states require both parental consent and notification.
According to the National Center for Health Statistics at the
Centers for Disease Control and Prevention 2012 data brief,
the U.S. teen birth rate declined 9% from 2009 to 2010,
reaching an historic low at 34.3 births per 1,000 women aged
15-19, and the rate dropped 44% from 1991 through 2010.
According to the DPH Maternal, Child and Adolescent Health
Division, Epidemiology, Assessment and Program Development
Branch, July 2013 report on California Teen Birth Rates, the
teen birth rate in California in 1999 was 48.5 per 1,000. The
teen birth rate in California in 2011 was 28.0 per 1,000.
This represents more than a 42% decrease.
According to National Vital Statistics Reports Vol. 56, No 15.
(2008) the U.S. pregnancy rate for 15 to 17 year olds declined
over 40% between 1990 and 2004, from 77 per 1,000 to 42 per
1,000 women. The birth rate declined as well: from 38 per
1,000 to 22 per 1,000 women aged 15 to 17. According to the
Guttmacher Institute, California's adolescent pregnancy rate
fell by 46% between 1992 and 2000: from 102 per 1,000 to 55
per 1,000 women ages 15 to 17, representing the second largest
decline in the country (after Hawaii), and during the same
time period, the estimated abortion rate in California for
young women ages 15 to 17 fell by 50%.
Several studies have attempted to measure the impact of parental
involvement laws on teen pregnancy, birth, and abortion rates,
with mixed conclusions. In Mississippi, the abortion rate
among minors did not significantly decline after the parental
consent law was implemented. A 2008 study of the Texas
parental notification law found that while the law was
associated with a decline in abortion rates among minors from
15 to 17 years of age, it was also associated with increased
birth rates and rates of abortion during the second trimester
among minors who were 17.50 to 17.74 years of age at the time
of conception.
3)SUPPORT . California Catholic Conference, Inc. supports this
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ACA stating that the legislature should uphold the rights of
parents to control decisions about the physical, mental and
spiritual health of their children, and that to place this
matter on the ballot for a vote of the people of California is
a responsible step for the legislature to take.
The Coalition for Women and Children supports this ACA,
writing that parental notification will give parents the
opportunity to supply abortion providers with the minor's
medical and health information and have an opportunity to
discuss and arrange adequate post-abortion care. Without
these opportunities for parent-physician consultation and
cooperation, the health of minors is put at serious risk.
Life Priority Network (LPN) supports this ACA stating that it
places the most immediate protection of a minor where it
belongs, with her parents. LPN states that parents are the
ones who should be involved in such a profound decision by
their child of whether to abort a pregnancy and there are many
actions of far less consequence that minors cannot take
without parental oversight.
4)OPPOSITION . The American Academy of Pediatrics opposes this
ACA writing that legislation mandating parental involvement
does not achieve the intended benefit of promoting family
communication, but it does increase the risk of harm to the
adolescent by delaying access to appropriate medical care.
The California Medical Association (CMA) opposes this ACA
stating that, while physicians generally prefer to involve
parents in the medical decisions of their teenage patients and
strive to do so whenever possible, there may be situations
where parental notice is not possible. CMA has consistently
opposed efforts to establish parental notice for abortion
because it limits access to important medical care. The
American Congress of Obstetricians and Gynecologists, District
IX, California opposes this ACA because it will be harmful to
teens, delaying access to abortion and resulting in more
second trimester abortions for teens that must navigate the
complex new system.
Planned Parenthood Affiliates of California (PPAC) opposes this
ACA, writing that one of Planned Parenthood's core beliefs is
that every woman and teen should be able to decide when and if
they will become a parent. PPAC also states that they believe
this ACA would delay access to abortion, resulting in more
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second trimester abortions for teens that must navigate the
complex new system, and further endanger teens from abusive
homes by significantly impeding their access to essential
medical services.
California Family Health Council opposes this ACA because it
would increase liability on doctors, allowing them to be sued
up to 12 years after the abortion is provided, exposing
doctors to liability far longer than the usual statute of
limitations for bringing a malpractice claim and would require
administratively burdensome reporting requirements on doctors
and the DPH.
The League of Women Voters of California is opposed to this
ACA, stating that the practical effect of it is to abridge a
minor's right of privacy and to delay any abortion beyond the
first trimester.
5)PREVIOUS LEGISLATION .
a) AB 154 permits a nurse practitioner, certified
nurse-midwife, or physician assistant, who completes
specified training and complies with specified standardized
procedures or protocols, to perform an abortion by
aspiration techniques during the first trimester of
pregnancy.
b) AB 980 requires the California Building Standards
Commission, in conjunction with the Office of Statewide
Health Planning and Development, to repeal certain
regulations and sections of the California Building
Standards Code that treat primary clinics differently
depending on whether the clinics provide abortion services.
c) ACA 5 (Wyman) of 2001 would have prohibited, except in
the case of an emergency, an abortion from being performed
on an unemancipated minor until the physician notified one
of her parents or her legal guardian, or a court permitted
waiver. ACA 5 failed passage in the Assembly Health
Committee.
d) ACA 23 (Briggs) of 2002 would have prohibited, except in
the case of an emergency, an abortion from being performed
on an unemancipated minor until the physician notified one
of her parents or her legal guardian, or a court permitted
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waiver. ACA 23 was never heard in committee.
e) AB 2274 required physicians to obtain written parental
consent prior to performing an abortion on a minor. AB
2274 was deemed unconstitutional.
6)BALLOT INITIATIVES . In recent years there have been three
attempts to pass initiatives on the subject of parental
notification of abortions. The most recent ballot initiative
was Proposition 4, or the Abortion Waiting Period and Parental
Notification Initiative. It was an initiative state
constitutional amendment on the 2008 California General
Election ballot and would have prohibited abortion for
unemancipated minors until 48 hours after a physician notified
a minor's parent, legal guardian or, if parental abuse had
been reported, an alternative adult family member.
Proposition 4 was rejected by voters on November 4, 2008.
Similar propositions failed in 2005 (Proposition 73) and 2006
(Proposition 85). Proponents are currently circulating a
substantially similar proposed initiative, Attorney General
File No. 13-0038, that would amend the California Constitution
to generally require physicians to notify a minor's parent or
guardian before performing an abortion on that minor, with
certain exceptions. According to the Legislative Analyst's
Office analysis of that proposed measure, it would have the
following fiscal effects:
a) State administrative costs of at least $ 1 million, and
potentially several million dollars, annually, and;
b) Uncertain net fiscal impact on state health and social
services programs, potentially in the millions of dollars
annually, to the extent the measure results in changes to
the abortions and/or birth rates in the state.
7)DOUBLE REFERRAL . If this ACA passes this committee, it will
be referred to the Assembly Judiciary Committee.
REGISTERED SUPPORT / OPPOSITION :
Support
California Catholic Conference, Inc.
California ProLife Council, Inc.
California Right to Life Committee, Inc.
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Capitol Resource Institute
Coalition for Women and Children
Concerned Women for America of California
Crusade for Life, Inc.
Life Legal Defense Foundation
Life Priority Network
Pregnancy & Family Resource Center
San Mateo Pro Life
Survivors of the Abortion Holocaust
University of Southern California Students for Life
Valley Baptist Church
Numerous individuals
Opposition
American Academy of Pediatrics
American Civil Liberties Union of California
American Congress of Obstetricians and Gynecologists, District
IX California
California Academy of Family Physicians
California Communities United Institute
California Family Health Council
California Medical Association
California Primary Care Association
League of Women Voters of California
National Association of Social Workers - California Chapter
NARAL Pro-Choice California
Planned Parenthood Advocacy Project, Los Angeles County
Planned Parenthood Affiliates of California
Planned Parenthood Mar Monte
Planned Parenthood of Orange and San Bernardino Counties
Planned Parenthood Pasadena and San Gabriel Valley
Planned Parenthood of Santa Barbara, Ventura and San Luis Obispo
Counties, Inc.
Planned Parenthood Shasta Pacific Action Fund
Planned Parenthood, Six Rivers
Analysis Prepared by : Lara Flynn / HEALTH / (916) 319-2097