BILL ANALYSIS �
AB 2336
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Date of Hearing: May 6, 2014
ASSEMBLY COMMITTEE ON HEALTH
Richard Pan, Chair
AB 2336 (Grove) - As Amended: May 1, 2014
SUBJECT : Abortion: gender selection.
SUMMARY : Prohibits a person from performing, or attempting to
perform an abortion if they know the pregnant woman is seeking
the abortion on account of the gender of the unborn child.
Specifically, this bill :
1)Prohibits a person from intentionally performing or attempting
to perform an abortion with the knowledge that the pregnant
woman is seeking the abortion on account of the gender of the
unborn child.
2)Allows any of the following to maintain an action against a
person who performs an abortion as described in 1) above:
a) The person upon whom the abortion was performed,
regardless of that person's age;
b) The father of the unborn child who was the subject of
the abortion that was performed; or,
c) If the person upon whom the abortion was performed is a
minor, a parent, legal guardian, or grandparent of the
person.
3)Specifies that no person will be stopped from recovery in such
an action on the ground that either the plaintiff or the
person upon whom the abortion was performed gave consent to
the abortion.
4)Allows, if a judgment is rendered in favor of a plaintiff in
any action subject to the provisions of this bill, the person
may recover $10,000 in punitive damages and treble actual
damages, and specifies that the court will also award
reasonable attorney's fees in favor of the plaintiff against
the defendant.
5)Specifies that if judgment is rendered in favor of the
defendant and the court finds that the suit was frivolous and
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brought in bad faith, the court may award reasonable
attorney's fees in favor of the defendant against the
plaintiff.
6)Allows for a cause of action for injunctive relief to be
maintained against any person who knowingly violates these
provisions by the female upon whom an abortion was performed
or attempted to be performed, by a person who is the spouse,
parent, sibling, or guardian of, or a current or former
licensed health care provider of, the female upon whom an
abortion was performed or attempted to be performed.
7)Provides that a person who knowingly violates the terms of an
injunction issued in accordance with these provisions is
subject to civil contempt and will be fined $10,000 for the
first violation, $50,000 for the second, $100,000 for the
third violation, and for each succeeding violation, an amount
in excess of $100,000 determined by the court to be sufficient
to deter future violations.
8)Specifies that no fine may be assessed against the woman on
whom an abortion is performed or attempted.
9)Specifies that any pleading filed pursuant to these provisions
will ensure that the identity of any woman upon whom an
abortion is performed or attempted is not publicly disclosed,
unless she gives her written consent.
10)Provides that the provisions of this bill are severable and
if any provision or its application is held invalid, that
invalidity will not affect other provisions that can be given
effect without the invalid provision.
EXISTING LAW 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.
FISCAL EFFECT : None
COMMENTS :
1)PURPOSE OF THIS BILL . According to the author, current law
does nothing to protect unborn baby girls from being aborted
simply because they are girls and undeniable statistics prove
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that this is not only happening in other countries, but
happening in California, as well.
2)BACKGROUND .
a) Sex ratios. The sex ratio is a common measure used to
describe the balance between males and females in the
population. It is defined as the number of males per 100
females. A sex ratio of exactly 100 would indicate an
equal number of males and females, with a sex ratio under
100 indicating a greater number of females. Worldwide,
there are 107 boy babies born for every 100 girl babies.
This skewed ratio is partly due to sex-selective abortion
in countries such as China and India where males are more
desired. But even discounting those factors, the
completely natural male-to-female sex ratio still hovers
around 105:100, meaning that women are inherently more
likely to give birth to boys. Several factors influence
whether a sperm containing a "Y" sex chromosome or one
containing an "X" chromosome will be first to fertilize an
egg, including parental ages, their environmental exposure,
stress, the stage in the mother's ovulation cycle, and even
whether she has had children previously.
b) Sex ratios at birth in the United States. In the U.S.
in 2010, according to Census data, there were 96.7 males
born per 100 females, an increase from 2000 when the sex
ratio was 96.3 males per 100 females, resulting from an
increase in male births in the last decade. This ratio
still demonstrates more female births than male. Data from
the Central Intelligence Agency world fact book regarding
sex ratios by country in 2013 indicate that the U.S. lower
male to female birth ratio is a statistically normal
variant.
c) Genetic and prenatal testing. In a published article by
the Practice Committee of the Society for Assisted
Reproductive Technology titled Preimplantation Genetic
Testing, it is demonstrated that in vitro fertilization
(IVF), preimplantation genetic diagnosis can be used as a
test to determine if a mutation was transmitted to the
embryo when either one or both parents carried a genetic
mutation. In non-IVF pregnancies, noninvasive prenatal
testing provides many DNA sequences found in the Y
Chromosome and is commonly used to determine the sex of the
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fetus. Moreover, this type of testing screens for
chromosomal abnormalities in the developing fetus and can
provide information on trisomy 21 (Down syndrome) and
trisomy 18 (Edwards syndrome) both of which are genetic
disorders.
According to a Committee Opinion by the American College of
Obstetricians and Gynecologists on sex selection, when
parents desire to determine the sex of their fetus through
medical means, they do so primarily with the intention to
detect the risk of a genetic disorder. For example, if the
woman knows the sex of the embryo/fetus, she will be able
to assess if she should be worried about a hemophilia risk
and seek appropriate counseling. When the fetus is a girl,
the female fetus is an asymptomatic carrier of the genetic
disorder and will be unaffected. In the case that a
prospective mother, who carries a gene for hemophilia,
finds out that the fetus/embryo is a male, she may choose
to abort the fetus or not transfer the embryo given that
males have a 50% risk of having the disease. There are
many other sex-linked (genetic) diseases, and medical
techniques used to determine the sex of a fetus are meant
to minimize sex-linked diseases, which disproportionately
affect boys.
3)SUPPORT . Concerned Women for America of California (CWAC)
writes in support of this bill that, according to a 2011 study
published by John Wiley & Sons, the ratio of male to female
live births in the U.S. exceeds the normal biological
variation among several immigrant groups, particularly
Chinese, Asian Indians, and Koreans. CWAC further asserts
that this affirms the findings of a 2008 study by Douglas
Almond and Lena Edlund that examined results of the 2000 U.S.
Census with regard to the male biased sex ratios among these
three people groups, and that the authors found:
This male bias is particularly evident for third
children: If there was no previous son, sons
outnumbered daughters by 50%. By contrast, the sex
ratios of eldest and younger children with an older
brother were both within the range of the biologically
normal, as were White offspring sex ratios
(irrespective of the elder siblings' sex). We
interpret the found deviation in favor of sons to be
evidence of sex section, most likely at the prenatal
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stage.
The California Catholic Conference (CCC) supports this bill
because they believe abortion is the taking of a nascent human
life, and they are deeply saddened that California has such
permissive abortion laws. CCC further argues that as a result
of recent technology, the easy availability of ultrasound
imaging, and cultural proclivities, millions of baby girls
have been aborted resulting in an estimated 160 million girls
missing worldwide.
Life Priority Network (LPN) writes in support of this bill
that sex-selection abortions are unnecessary for sustaining
the life or health of the mother and end a human life as a
personal preference, and quite possibly not that of the
mother. LPN further states in support that apart from its
inhumane aspect, sex-selection abortion tends to imbalance the
normal male/female ratio of live births and the resultant
societal ramifications have been recognized in China and India
where sex-selection abortions are now illegal.
4)OPPOSITION . The American Congress of Obstetricians and
Gynecologists, District IX California (ACOG), opposes this
bill and states that while their clinical guidance is clearly
in opposition to sex-selective abortions, as physicians
dedicated to providing the highest quality care to women, open
and honest communication between doctors and patients is
crucial. ACOG further states that this bill will chill
communications between doctors and patients. Doctors because
they might hear something that could be construed in hindsight
to have given them knowledge and patients because they fear
that conversations with her doctors would not remain private.
ACOG argues that a physician's exercise of clinical judgment
is already subject to peer review processes and state
licensing boards and given this bill's unwarranted intrusion
into the clinical exam room, they are strongly opposed.
The National Asian Pacific American Women's Forum opposes this
bill and writes that it stereotypes Asian American and Pacific
Islander (AAPI) women and would place an unfair burden on AAPI
women that other women do not have to face-increased scrutiny
around their motives for seeking abortion care. The National
Asian Pacific American Women's Forum further states that this
scrutiny exploits racial stereotypes and encourages racial
profiling by encouraging doctors to assume an AAPI woman is
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seeking an abortion because of the sex of her fetus, and that
threatening providers with criminal and civil penalties also
has a chilling effect; it can mean providers are less likely
to serve women in the AAPI community.
Planned Parenthood Affiliates of California (PPAC) oppose this
bill, writing that PPAC condemns abortion motivated by race
and gender bias and urges leaders to challenge the underlying
conditions that lead to these beliefs and practice. PPAC
argues that this bill is written in a way that is unworkable
and intrudes on the health provider/patient relationship,
turning doctors into detectives who must question a patient's
rationale for seeking care.
NARAL Pro-Choice California writes in opposition that every
woman has the right to make her own individual decisions about
her reproductive health, including preventing unintended
pregnancies, bearing healthy children, and choosing legal
abortion. NARAL also argues that those choices are personal
decisions and should be left to a woman and whoever she
chooses to discuss the matter with, whether that be her
parents, other trusted family or friends, or just her health
care provider.
5)RELATED LEGISLATION . ACA 5 (Grove) would have prohibited,
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. ACA 5 failed passage in the Health Committee
with a vote of 5-12 on January 14, 2014.
6)POLICY COMMENT . As currently drafted the definition of an
attempt to perform an abortion reads in part as, "to do or
omit to do anything that, under the circumstances as the actor
believes them to be, is an act or omission constituting a
substantial step in a course of conduct planned to culminate
in an abortion." There is no reference in either the
definition of abortion, or attempt to perform an abortion, to
sex-selective abortion. The definitions appear to be overly
broad. There is a danger that a health care provider involved
in performing a lawful abortion would be libel for civil or
criminal penalties even if there was no intent or effort to
conduct a sex-selective abortion.
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7)DOUBLE REFERRAL . This bill has been double-referred. Should
this bill pass out of this Committee, it will be referred to
the Assembly Committee on Judiciary.
REGISTERED SUPPORT / OPPOSITION :
Support
California Catholic Conference, Inc.
Capitol Resource Institute
Coalition for Women and Children
Concerned Women for America of California
Life Priority Network
One individual
Opposition
American Civil Liberties Union of California
American Congress of Obstetricians and Gynecologists, District
IX California
California Medical Association
California Primary Care Association
NARAL Pro-Choice California
National Asian Pacific American Women's Forum
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 of Santa Barbara, Ventura and San Luis Obispo
Counties, Inc.
Planned Parenthood of the Pacific Southwest
Planned Parenthood Pasadena and San Gabriel Valley
Six Rivers Planned Parenthood
Analysis Prepared by : Lara Flynn / HEALTH / (916) 319-2097