Background: Legal & Practical Controversies Related to Parental Notification Law
Both sides for this ballot measure have their horror stories and poignant protagonists. One invokes the image of a distraught mother, unaware that her 13-year-old daughter is five months pregnant, who learns second-hand that the girl has left school one afternoon to undergo an abortion the mother would have discouraged; the other side offers a desperate daughter, also just 13, shot to death by her father—who’d raped her—when he discovers she has secretly arranged an abortion.
Wrenching scenarios like these, subject to impassioned debate and interpretation according to one’s ethical viewpoint, animate proponents and opponents of Proposition 73.
On the ballot the proposed amendment to the California Constitution is described as: Waiting Period and Parental Notification Before Termination of Minor’s Pregnancy. Its proponents refer to it as Parents’ Right To Know and Child Protection. Its opponents have organized under the banner Campaign for Teen Safety.
Background laws and rulings
Since 1953, unmarried minors in California have been authorized under state law to obtain all “hospital, medical, and surgical care related to pregnancy” without their parents’ knowledge or consent. Abortion falls into that category.
In 1961, the state legislature went further and exempted minors who are married or serving on active duty in the armed forces from the need to get parental approval for any medical service. The exemption was broadened in 1968 to include minors over the age of 15 who are living on their own and managing their own financial affairs. Specific “medical emancipation” statutes were passed in 1968, 1977, and 1978 permitting minors in California over the age of 12 to forgo parental consent when seeking medical care for: sexually transmitted diseases; rape; sexual assault; drug or alcohol problems; or mental health outpatient treatment.
The rationale, explained the California Supreme Court in 1997 (American Academy of Pediatrics v. Lungren, 16 Cal 4th 307, 97 C.D.O.S. 6151), is that these are all “circumstances in which a minor... may be reluctant, for a variety of reasons, to inform his or her parents of the situation or condition that has created the minor's need for... care, and in which, because of such reluctance, there is a substantial risk that minors would fail to seek medical care—‘to the detriment of themselves, their families and society.’”
Following the U.S. Supreme Court’s Roe v. Wade decision in 1973, which declared abortion an implicit privacy right protected by the U.S. Constitution, legislators in California repeatedly voted to cut abortion funding from the state’s Medi-Cal program for low-income women. State courts routinely overruled the measures as unconstitutional.
In 1986, the legislature took aim at the original 1953 statute. An amendment—Assembly bill 2274—was introduced requiring unemancipated minors to obtain the consent of at least one parent or guardian, or a court authorization, in order to receive an abortion. A pregnant minor could avail herself of the “judicial bypass” option if, for example, she feared her parents might react violently or if they refused their consent. She would, however, have to convince a juvenile court judge she was mature enough to make the decision independently. A.B. 2274 passed in the 1987 session and was signed into law by then-governor George Deukmejian.
California’s privacy test
But a group of plaintiffs led by local district representatives of the American Academy of Pediatrics immediately challenged the law, arguing that it violated the rights of privacy and equal protection guaranteed by the California Constitution.
In fact, unlike the U.S. Constitution, California’s charter contains an explicit guarantee of privacy. “All people are by nature free and independent and have inalienable rights,” its first article declares. “Among these are enjoying and defending life and liberty, acquiring, possessing, and protecting property, and pursuing and obtaining safety, happiness, and privacy.”
By 1996 the A.B. 2274 case had worked its way up to the state Supreme Court, which eventually ruled, by a 4-3 vote, that it was unconstitutional. Chief Justice Ronald George, writing for the majority, acknowledged that parents have the right in most situations to make medical decisions on behalf of their children—“to exercise a child’s privacy right on the child’s behalf (and in his or her interest).” However, he said, “because the decision whether to continue or terminate her pregnancy has such a substantial effect on a pregnant minor’s control over her personal bodily integrity, has such serious long-term consequences in determining her life choices, is so central to the preservation of her ability to define and adhere to her ultimate values regarding the meaning of human existence and life..., we conclude that a minor who is pregnant has a protected privacy interest under the California Constitution in making the decision....”
Moreover, he wrote, “A legislative measure that requires a woman to go to court, to reveal her condition to a judge, and to submit to a judicial determination of competency obviously imposes a substantially greater intrusion on privacy than one that permits a woman to obtain an abortion from a physician in the same manner as she may obtain other medical care. And the increased intrusion on autonomy [and] privacy imposed by a judicial authorization requirement may be even greater with regard to pregnant minors, because minors frequently may be too embarrassed or frightened to seek judicial authorization and may endanger their health or forfeit their right of choice rather than venture into an unfamiliar and intimidating court setting.”
Aiming for an amendment
In drafting Prop 73 as an amendment to the state constitution, its backers were recognizing political reality. The predominantly Democratic, “pro-choice” state legislature would be unlikely to pass any “pro-life” measure restricting access to abortion. (These are the labels generally preferred by the two sides to frame their own positions on the abortion issue.) Further, even if passed, any law requiring parents to play a role in a minor’s abortion decision would fail the California constitutional privacy test as applied by the sitting supreme court.
The measure was carefully constructed by principal author Teresa Stanton Collett, a law professor at the University of St. Thomas School of Law in Minneapolis and a frequent witness before state and federal legislative committees on behalf of parental involvement laws.
“We didn’t want to put in anything that was novel,” explains Albin Rhomberg, a retired physicist who serves as spokesman for the “more or less ad hoc” coalition supporting Proposition 73. “We even used language that directly quoted from federal court decisions.”
(The named sponsors of the initiative, Paul and Barbara Laubacher, are Sacramento hospital nurses whose two daughters give them a “vested interest” in the measure, Rhomberg explains. Another activist is Maria Guadalupe García, a Chula Vista mother of six who ran unsuccessfully on an anti-abortion platform as a Republican candidate for Congress in California’s 51 st district in 2002.)
What is Proposition 73?
Proposition 73 calls for the addition of a 32nd section to Article 1 of the state constitution. It would require physicians to notify a parent or legal guardian at least 48 hours before performing an abortion for anyone under 18. Exceptions would be permitted in medical emergencies, for emancipated minors, or by order of a court. Notification alone—in writing, either delivered directly if the parent is present or sent by both first class and certified mail, with return receipt requested—and the two-day “reflection period” are all that are necessary. If there is no response, the abortion may be performed. Or, a parent may consent to the procedure and waive the waiting period by signing a notarized form. In any case, says Rhomberg, the mandated delay is designed to be brief enough to satisfy U.S. Supreme Court rulings on parental notification laws in other states.
Should the pregnant minor fear her parents’ response, or should she insist on undergoing the abortion against their objections, the amendment would allow her to seek a free, confidential juvenile court hearing, free legal representation, and a judgment within three business days. She would also have the right to appeal an adverse ruling and receive a final judgment within another four days. These timely bypass options, too, are crafted to comply with federal court precedents, Rhomberg notes.
Polling results have given Prop 73’s proponents hope for passage of the measure. One poll they frequently cite, by the political consulting firm WirthlinWorldwide (since merged with Harris Interactive) in 2001, reported 81 percent of a national sample favored a parental notification requirement. In 2002, Zogby International queried Californians specifically and found 71 percent in favor. A more recent poll on the issue, by Field Research in June 2005, asked 955 randomly chosen adult Californians how they would vote for an initiative like Proposition 73, using almost the same wording that will appear on the ballot with no other explanation. Forty-eight percent said they’d be for it, 42 percent said they’d be against it, and 10 percent were undecided.
“Republicans, conservatives, Christians, and voters who are not college graduates are very much in favor of the parental notification of the teen abortion initiative,” Field analysts concluded. “On the other hand, Democrats, liberals, moderates, college graduates, those under age 50, and voters affiliated with non-Christian religions or with no religious preference are opposed.”
Funding
The largest contributor to Prop 73 has been James Holman, a father of seven who owns and publishes the alternative weekly San Diego Reader as well as Roman Catholic diocesan newspapers in San Diego, Los Angeles, and San Francisco. He funded an unsuccessful attempt to qualify a parental notification amendment for the ballot in 1999. In November 2003 he began contributing to the organization of a renewed petition drive, under the rubric “Life on the Ballot.” The eventual yield this time was almost twice as many signatures as the 598,105 required.
As of September 2005, Holman had provided some $785,420 to the Prop 73 campaign. Tom Monaghan, the Detroit-based founder of the Domino’s Pizza chain who has used his fortune to promote conservative Catholic projects—most recently the construction of a city in Florida where contraceptives will not be sold and Mass will be celebrated hourly around the clock at the central church—added $150,000. Sonoma wine scion Don Sebastiani, a conservative state assemblyman from 1981 to 1986, also chipped in $150,000.
Proponents’ arguments
About one in four pregnancies in California is terminated by an induced abortion, according to the Alan Guttmacher Institute (AGI), which compiles statistics on the procedure nationwide. California, however, is one of three states without an official abortion reporting system. Therefore most recent figures available are estimates. They indicate that of 236,060 abortions performed in the year 2000 in California, 16,730 were for girls under the age of 18.
On their Web page and in their initiative campaign, Prop 73 proponents declare, “it is reasonable to expect a minimum of 20,000 fewer abortions during the first year following passage of the initiative.” While 18 states have enacted laws mandating parental consent for a minor’s abortion, and another 16 have a notification requirement (laws in ten additional states have been permanently enjoined by the courts), there is little research to substantiate such claims.
Testifying before Congress last March, law professor Teresa Collett cited Texas data showing that abortions for minors fell by 20 percent in the year after that state implemented a parental notification act (in 2000). When Mississippi adopted a parental consent law in 1993, abortions among minors dropped 3 percent. At the same time, the ratio of minors to adults who sought abortions out of state rose by a third, and the ratio of minors to adults who obtained an abortion after the first trimester increased by 19 percent.
“Twenty thousand less [abortions] might be a little on the high side,” concedes Albin Rhomberg. “I don’t think there are any good predictions, because there isn’t any [reliable] data.”
Collett, in her Congressional testimony (which is reproduced on the “Yes on 73” Web site), proposes three major benefits of a parental notification requirement:
- Improved medical care for underage girls since, she argues, parents can help a child choose the most qualified doctor and fill in medical history that may help avoid complications.
- Increased protection of minor girls from older men who impregnate them. She cites a 1995 study that found that men over the age of 25 father more births among California school-age girls than do boys under age 18. Parents would tend to discourage such relationships, Collett suggests. And,
- Decreased adolescent pregnancy rates, based on findings from Minnesota, Indiana, and Texas. In each of those states, she reports, pregnancies among under-18s declined at least somewhat in the immediate wake of mandated parental notification.
Passage of Prop 73 would place new reporting obligations on physicians who perform abortions for minors, and would require the state to compile and publish the data annually. It would establish monetary penalties for violations or noncompliance. And it would allow a minor to go to court to circumvent any coercion to abort.
“We think this is a common-sense thing,” summarizes Rhomberg, “even if it doesn’t cut down abortions at all. One of the most desirable results is the reduction of teenage pregnancies. [Parental notification] is a natural deterrent to promiscuous behavior... a kind of birth control.”
Opponents’ arguments
Officials of the Campaign for Teen Safety—the No on 73 effort—dismiss such assertions. They point out that the pregnancy rate for teenagers has fallen steadily in California without any parental involvement laws—dropping 31 percent among minors age 15 to 17 between 1996 and 2000, according to AGI statistics. And the abortion rate for this age group has declined in tandem, shrinking by 30 percent over the same period. These declines, opponents to Prop 73 say, are a consequence of “teaching teenagers about responsibility, abstinence, and birth control.”
The Campaign for Teen Safety bills itself as “A Project of Planned Parenthood Affiliates of California” and lists 29 major medical, health care, civil liberties, and women’s organizations as allies. Among them are the plaintiffs in the suit that overturned A.B. 2247. The campaign is being managed by the Dewey Square Group, a public affairs firm specializing in grassroots politics.
Pregnant minors should talk with their parents, No on 73 advocates agree. And most do, they point out. According to a 1992 study published by AGI and acknowledged by both sides of the debate, three out of five unmarried minors (and nine out of ten under the age of 15) who had abortions in states without parental involvement laws discussed the decision beforehand with at least one parent. The rest, say Prop 73 opponents, often had very good reasons not to.
It is these young minors whose well-being is jeopardized by a requirement that their parents be notified before an abortion can be induced, opponents maintain. Of the minor girls in the 1992 study who chose not to inform their parents before going through with the procedure, almost one in four said they were afraid they’d be kicked out of the house if they did, one in 12 said they feared they’d be beaten because it had happened before, and one in seven said they had parents who were alcoholics or drug abusers.
“Mandatory notification laws make scared, pregnant teens who can’t go to their parents do scary things,” argue Proposition 73 opponents. “If, in desperation, teenagers turn to illegal, self-induced, or back-alley abortions many will suffer serious injuries and some will die.”
Nor is a court hearing a viable alternative for many of them, according to Dewey Square’s Dawn Wilcox. As the U.S. Supreme Court acknowledged in a 1990 decision (Hodgson v. Minnesota), “The court experience produced fear, tension, anxiety, and shame among minors...” Neither the Minnesota judges who ruled on bypass petitions in that state between 1981 and 1986 nor the parents who accompanied their daughters to court “identified any positive effects of the law.”
Furthermore, although every state with an operative parental involvement law except Utah includes a judicial bypass option “on paper,” studies in Alabama, Pennsylvania, and Texas have shown that it is “often unavailable in practice,” notes National Center for Youth Law attorney Rebecca Gudeman, based in Oakland.
Opponents of Prop 73 worry about more subtle aspects of the proposed amendment, too. For example, it would insert in the state’s constitution a definition of abortion as causing “the death of an unborn child.” That is terminology favored by abortion opponents over more scientific descriptions like embryo and fetus.
The reporting requirements of the measure are also of concern to the Prop 73 opponents, especially a mandate that the state Judicial Council maintain a public record, by judge, of the number of notification waiver petitions requested and granted. Sacramento Bee columnist Peter Schrag notes that this “could subject judges to considerable pressure from [election] challengers and right-to-life groups, particularly in conservative areas.”
Back to court
Almost before the ink was dry on the proposed voter information materials compiled by the Secretary of State, Yes on 73 campaigners filed suit in Sacramento challenging the ballot label assigned by the Attorney General. The wording, “Waiting Period and Parental Notification...” is misleading, they contend. The thrust of the initiative, Rhomberg explains, is the latter, not the former—“The waiting period is a secondary concern.”
Parents’ Right to Know advocates are also unhappy with the way fiscal effects of the measure if passed were expressed by the Legislative Analyst’s Office. They objected to language stating that “the net cost to the state would probably not exceed several million dollars annually for health and social services programs” (mostly dependent on how many abortions paid for by Medi-Cal were avoided and how many additional babies were born to young mothers eligible for publicly funded healthcare, the LAO explained). Proponents want the costs converted to pennies per dollar to emphasize their “insignificance” against the overall $13 billion 2005-06 Medi-Cal budget.
Finally, proponents took issue in the lawsuit with elements of the ballot arguments submitted by the Campaign for Teen Safety—for example, repetition of the term “teens” and “teenagers” to describe the pregnant minors, since some are younger. On August 11, a Superior Court judge ruled that opponents do not have to spell out the ages of potentially affected minors. The same ruling gave victories on various issues to both the proponents and opponents of Prop 73.
For their part, suggests Gudeman, No on 73 forces can be expected to devise a legal challenge should Proposition 73 pass. “Both sides are preparing for that eventuality,” she says.
“The trend in recent years,” agrees the LAO’s health section director, Dan Carson, “has been a legal free-for-all.”
David Ollier Weber did the reporting and writing for this article.
