Waiting Period & Parental Notification: Facts & Analysis

Proposition 85 proposes to amend the California Constitution to forbid physicians from performing an abortion on anyone under the age of 18 until written notice has been delivered to her parent or legal guardian personally or by certified mail and a subsequent waiting period of at least 48 hours has elapsed.

The measure would not apply to pregnant girls who are married or serving on active duty in the armed forces, or those whom a court has declared emancipated. Parental notification would not be required if a physician documents and certifies in the minor’s medical record that the abortion is necessary due to a medical emergency. Parents or a guardian could also give the physician a signed and dated waiver of the waiting period on an official form to be designed by the state Department of Health Services. If not presented to the physician in person, the waiver form would have to be notarized.

A minor could also avoid the parental notification requirement by petitioning a juvenile court judge for a judicial waiver. A hearing would have to be held within two court days and a decision rendered within three additional days. The girl would have to offer clear and convincing evidence that she is mature enough to make the abortion decision alone, or that waiving parental notification is in her best interest. She could appeal an adverse decision by the judge. Hearings would be confidential and free, with representation by a court-appointed lawyer if requested.

Physicians would have to report details of every abortion they perform on a minor to the state Department of Health Services, and the agency would have to compile the statistics anonymously and publish an annual report.

The state Judicial Council would have to tally how many waiver petitions were received and granted by judges each year, county by county, and publish that information.

Doctors who fail to notify the parents or guardian could be sued for damages. At any time before a ruling by a judge, the parents or guardian could opt for a settlement payment of $10,000 plus attorney fees from the physician instead of receiving damages.

Anyone who gives false information to enable an ineligible minor to receive an abortion would be guilty of a misdemeanor punishable by a fine of up to $1,000.

No abortion could be performed on a minor without her consent, unless she is mentally incapable or experiencing a medical emergency. A minor who is being coerced to agree to an abortion could apply to the juvenile court for expedited relief.

Prop. 85 is a slightly revised version of Prop. 73, one of eight initiatives on the ballot in the November 8, 2005 special statewide election. Prop. 73 was defeated by a vote of 4,109,430 (53%) to 3,676,592 (47%).

A key difference between Props. 73 and 85 is that Prop. 73 would have defined an “unborn child” in the California Constitution as a “child conceived but not yet born.” This controversial language, which opponents feared might lead the way to making abortion illegal in California, does not appear in Prop. 85. Prop. 85 includes an option for parents or guardians to provide a waiver of the notification requirement in advance, valid for a period of either 30 days, until a specified date or until the minor’s 18th birthday. A Prop. 73 requirement that all judicial waivers of parental notification sought and granted be reported annually by named judges also does not appear in Prop. 85.

The Parents’ Right to Know and Child Protection/Yes on 85 campaign claims no formal organizational support as of August 18.

The California Catholic Conference, representing 11,000 Roman Catholic parishes in the state, endorsed Prop. 73 in 2005 and “will assist the campaign and educate our membership” about Prop. 85, according to communications director Carol Hogan.

Republican Governor Arnold Schwarzenegger endorsed Prop. 73 and his campaign spokesman said in late July 2006 that “the governor’s position on parental notification has not changed.”

Opponents include district, state, and local chapters of the American Academy of Pediatrics, the American Civil Liberties Union (of Northern and Southern California), the American College of Obstetricians and Gynecologists, the California Medical Association, the National Organization for Women, the California Nurses Association, Catholics for a Free Choice, the League of Women Voters, NARAL Pro-Choice, the National Association of Social Workers, Planned Parenthood Affiliates, and the AFL-CIO Executive Council.

Democratic gubernatorial candidate Phil Angelides opposed Prop. 73 and in July stated his opposition to Prop. 85 as well.

The major contributors to the signature drive were James Holman, a San Diego publisher ($1.4 million) and Don Sebastiani, a Sonoma winery owner and former California assemblyman ($200,000). 

Authors of the arguments in favor of the initiative are former California Supreme Court Justice William Clark; Mary Davenport, M.D., of El Sobrante, a fellow of the American College of Obstetricians; and Joseph R. Zanga, M.D., past president of the American Academy of Pediatrics and a professor and assistant dean at the Brody School of Medicine at East Carolina University in Greenville, N.C.

Authors of the arguments against the initiative are John C. “Jack” Lewin, M.D., a Sacramento family and public health physician and CEO of the California Medical Association; Monterey pediatrician Robert Black, M.D., representing the California District of the American Academy of Pediatrics; and Kathy Kneer, CEO of Planned Parenthood Affiliates of California.

Proponents assert that “parents and daughters in more than 30 other states have benefited for years from laws like Prop. 85. Many times, after such laws pass, there have been substantial reductions in pregnancies and abortions among minors.” Data to support this assertion are equivocal. (Of 34 states with operative “parental involvement” laws, 22 require a minor to obtain parental consent for an abortion, and two of them require the consent of both parents.)

California is one of three states that do not collect and report overall abortion statistics. In 2002, the latest year for which data are available, the state’s Medi-Cal program funded 90,040 abortions. Of the 60 percent of those procedures for which more precise data are available (53,905 fee-for-service abortions), girls under age 18 accounted for 7 percent (3,841 abortions); 207 abortions were provided to girls under 15.

Opponents of the measure note that California’s abortion rate has been falling steadily over the past decade without any new laws. Medi-Cal-funded abortions have dropped from a monthly average of ten per 1,000 fee-for-service eligible women in 1989 to six per month in 2002—a 40-percent reduction.

Prop. 85 opponents fear that some teenagers will delay medical care or turn to self-induced or illegal back-alley abortions. There are , however, no reliable data to quantify these effects.

According to the nonpartisan state Legislative Analyst’s office (LAO), “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. This reduction... might be offset to an unknown extent by an increase in the number of out-of-state abortions obtained by California minors.” Of the states that share a border with California, only Arizona has a parental involvement law in effect. Abortion is illegal in Mexico.

“Some minors might also avoid pregnancy as a result of this measure,” the LAO notes, although data on this effect are unclear. The birth rate among California teenagers fell to a record low in 2004, to 38.1 births for every 1,000 females between the ages of 15 and 19, according to the California Department of Health Services. The state’s teen birth rate fell for the 13th consecutive year, representing a 46.3 percent reduction from its peak in 1991.

The Legislative Analyst’s Office estimates that passage of Prop. 85 could result in net costs to the state that would “probably not exceed several million dollars annually for health and social services programs, the courts, and state administration combined.” None of these costs, the LAO notes, is significant compared to total state spending in those areas.

Although state programs like Medi-Cal that provide medical services to minors would realize “unknown” savings if fewer abortions were performed as a result of passage of this measure, the LAO explains, those savings would be offset if the measure resulted in more births to minors in low-income families eligible for publicly funded services during pregnancy; deliveries and infant care; and cash assistance and services to needy families.