November 15, 2011
Pursuant to Elections
Code Section 9005, we have reviewed the proposed initiative
(A.G. File No. 11‑0048) 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 deliver a written notice to the parent or
legal guardian 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.
Requirements for Reimbursement of Physician Services
A physician who
provides abortion-related medical services to a minor would not be
reimbursed by the Medi-Cal Program or any other program paid for or
subsidized by the state unless the claim for payment is accompanied by
(1) a copy of the report that must be filed with DPH, or (2) proof that
the minor was emancipated.
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. To the extent that minors are aware of this measure, some might
also avoid pregnancy, 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 $14.7 billion in 2011‑12.
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 $4 billion in 2011‑12.
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
typically not be significant compared to total state spending for
CalWORKs, which is estimated to cost about $5.4 billion in state and
federal funds in 2011‑12. 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:
ยท
Potential unknown net state costs of
several million dollars annually for health and social services
programs, court administration, and state health agency administration
combined.
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