November 25, 2009
Pursuant to Elections Code Section 9005, we have
reviewed the proposed initiative (A.G. File No. 09‑0060) 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.
Background
In 1953, a state law was enacted that allowed
minors to receive, without parental consent or notification, the same
types of medical care for a pregnancy that are available to an
adult. Based on this law and later legal developments related to
abortion, minors were able to obtain abortions without parental consent
or notification.
In 1987, the Legislature amended this law to
require minors to obtain the consent of either a parent or a court
before obtaining an abortion. However, due to legal challenges, the law
was never implemented, and the California Supreme Court ultimately
struck it down in 1997. Consequently, minors in the state currently
receive abortion services to the same extent as adults. This includes
minors in various state health care programs, such as the Medi-Cal
health care program for low-income individuals.
Proposal
Notification Requirements
This measure amends the Constitution to require,
with certain exceptions, a physician (or his or her representative) to
notify the parent or legal guardian at least 48 hours before
performing an abortion involving that minor. (This measure does not
require a physician or a minor to obtain the consent of a parent or
guardian.) This measure applies only to cases involving an "unemancipated"
minor. The measure identifies an unemancipated minor as being a female
under the age of 18 who has not entered into a valid marriage, is not on
active duty in the armed services of the United States, and has not been
declared free from her parents' or guardians' custody and control under
state law.
A physician could provide the required
notification in either of the following two ways:
Personal
Notification. Written
notice could be provided to the parent or guardian personally—for
example, when a parent accompanied the minor to an office examination.
Mail Notification. Written notice
to a parent or guardian could be sent by certified mail so long as a
return receipt was requested by the physician and delivery of the notice
was restricted to the parent or guardian who must be notified. An
additional copy of the written notice would have to be sent at the same
time to the parent or guardian by first-class mail. Under this method,
notification would be presumed to have occurred as of noon on the second
day after the written notice was postmarked.
Exceptions to Notification Requirements
The measure provides the following exceptions to
the parental notification requirements:
Medical Emergencies. The
notification requirements would not apply if the physician certifies in
the minor's medical record that the abortion is necessary to prevent the
mother's death or that a delay would "create serious risk of substantial
and irreversible impairment of a major bodily function."
Waivers Approved by Parent or Guardian.
A minor's parent or guardian could waive the notification requirements
and the waiting period by completing and signing a written waiver form
for the physician. The parent or guardian must specify on this form that
the waiver would be valid either (1) for 30 days, (2) until a specified
date, or (3) until the minor's 18th birthday. The form would need to be
notarized unless the parent or guardian delivered it personally to the
physician.
Abuse Documented by a Notarized Statement.
Notification to a parent or guardian by the physician would not be
required if the minor is the victim of physical or sexual abuse
committed by one or both of her parents and the abuse is documented by a
signed and notarized statement. The statement must be made by (1) a
person who is at least 21 years of age with personal knowledge of the
abuse and is a grandparent, stepparent, foster parent, sibling of a
parent, or sibling or half-sibling of the minor, or (2) a law
enforcement officer or agent of a public child protective agency who has
investigated the abuse of the minor. In addition, the measure requires
the physician to retain the notarized statement with the minor's medical
records.
Waivers Approved by Courts. The
pregnant minor could ask a juvenile court to waive the notification
requirements. A court could do so if it finds that the minor is
sufficiently mature and well-informed to decide whether to have an
abortion or that notification would not be in the minor's best interest.
If the waiver request is denied, the minor could appeal that decision to
an appellate court.
A minor seeking a waiver would not have to pay
court fees, would be provided other assistance in the case by the court,
and would be entitled to an attorney appointed by the court. The
identity of the minor would be kept confidential. The court would
generally have to hear and issue a ruling within three business days of
receiving the waiver request. The appellate court would generally have
to hear and decide any appeal within four business days.
The measure also requires that, in any case in
which the court finds evidence of physical or sexual abuse, the court
must refer the evidence to the appropriate law enforcement or public
child protection agency.
State Reporting Requirements
Physicians are required by this measure to file a
form reporting certain information to the state Department of Public
Health (DPH) within one month after performing an abortion on a minor.
The reporting form would include the date and facility where the
abortion was performed, the minor's month and year of birth, and certain
other information about the minor and the circumstances under which the
abortion was performed. The forms that physicians would file would not
identify the minor or any parent or guardian by name.
Based on these forms, the department would compile certain statistical
information relating to abortions performed on minors in an annual
report that would be available to the public.
The courts are required by the measure to report
annually to the state Judicial Council the number of petitions filed and
granted or denied. The reports would be publicly available. The measure
also requires the Judicial Council to prescribe a manner of reporting
that ensures the confidentiality of any minor who files a petition.
Penalties
Any person who performs an abortion on a minor
and who fails to comply with the provisions of the measure would be
liable for damages in a civil action brought by the minor, her legal
representative, or by a parent or guardian wrongfully denied
notification. The measure would require such a legal action to commence
within four years of the minor's 18th birthday or later, under specified
circumstances; however, no new legal action may commence more than 12
years after the abortion occurred. Any person, other than the minor or
her physician, who knowingly provides false information that notice of
an abortion has been provided to a parent or guardian would be guilty of
a misdemeanor punishable by a fine.
Relief From Coercion
The measure allows a minor to seek help from the
juvenile court if anyone attempts to coerce her to have an abortion. A
court would be required to consider such cases quickly and could take
whatever action it found necessary to prevent coercion.
Fiscal Effects
The fiscal effects of this measure on state
government would depend mainly upon how these new requirements affect
the behavior of minors regarding abortion and childbearing. Studies of
similar laws in other states suggest that the effect of this measure on
the birthrate for California minors would be limited, if any. If it were
to increase the birthrate for California minors, the net cost to the
state would probably not exceed several million dollars annually for
health and social services programs, the courts, and state
administration combined. We discuss the potential major fiscal effects
of the measure below.
Savings and Costs for State Health Care Programs
Studies of other states with laws similar to the
one proposed in this measure suggest that it could result in a reduction
in the number of abortions obtained by minors within California. Most of
these studies however, did not measure the number of cases in which a
minor left that state to obtain an abortion elsewhere as a consequence
of such a new law. Thus, a reduction in abortions performed in
California might be offset to an unknown extent by an increase in the
number of out-of-state abortions obtained by California minors. Some
minors might also avoid pregnancy as a result of this measure, thereby
reducing the number of abortions for this group. If, for either reason,
this measure reduces the overall number of minors obtaining abortions in
California, it is also likely that fewer abortions would be performed
under the Medi-Cal Program and other state health care programs that
provide medical services for minors. This would result in unknown state
savings for these programs.
This measure could also result in some unknown
additional costs for state health care programs. If this measure results
in a decrease in minors' abortions and an increase in the birthrate of
children in low-income families eligible for publicly funded health
care, the state would incur additional costs. These could include costs
for medical services provided during pregnancy, delivery, and ongoing
care.
The net fiscal effect, if any, of these or other
related cost and savings factors would probably not exceed costs of a
few million dollars annually to the state. These costs would not be
significant compared to total state spending for programs that provide
health care services. The Medi-Cal Program alone is estimated to cost
the state $10.9 billion in 2009‑10.
State Health Agency Administrative Costs
The state would incur first-year costs of up to
$350,000 to develop the new forms needed to implement this measure,
establish the physician reporting system, and prepare the initial annual
report containing statistical information on abortions obtained by
minors. The ongoing state costs to implement this measure could be as
much as $150,000 annually.
Juvenile and Appellate Court Administrative Costs
The measure would result in increased state costs
for the courts, primarily as a result of the provisions allowing minors
to request a court waiver of the notification requirements. The
magnitude of these costs is unknown, but could reach several million
dollars annually, depending primarily on the number of minors that
sought waivers. These costs would not be significant compared to total
state expenditures for the courts, which are estimated to be
$1.9 billion in 2009‑10.
Social Services Program Costs
If this measure discourages some minors from
obtaining abortions and increases the birthrate among low-income minors,
expenditures for cash assistance and services to needy families would
increase under the California Work Opportunity and Responsibility to
Kids (CalWORKs) program. The magnitude of these costs, if any, would
probably not exceed a few million dollars annually. The CalWORKs program
is supported with both state and federal funds, but because all CalWORKs
federal funds are capped, these additional costs would probably be borne
by the state. These costs would not be significant compared to total
state spending for CalWORKs, which is estimated to cost about
$5.9 billion in state and federal funds in 2009‑10. Under these
circumstances, there could also be a minor increase in child welfare and
foster care costs for the state and counties.
Summary of Fiscal Effects
This measure would have the following fiscal
effect:
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