Background: Proposition 85
Prop. 85 would require physicians to notify parents or a guardian and then wait at least 48 hours before performing an abortion for a minor girl. The proposed amendment to the California Constitution would allow exceptions for “emancipated” minors and cases of emergency, and pregnant girls could seek parental or judicial waivers.
If the measure sounds familiar, it is for the most part a reprise of Prop. 73, which was defeated in last November’s Special Election by 53 percent of voters.
Proponents regroup after failure of Prop. 73
“We were, of course, disappointed,” recalls Albin Rhomberg, a retired Sacramento physicist who served as principal spokesman for last year’s unsuccessful campaign. But he points out that all eight ballot measures were turned back last November 8, and that Prop. 73 failed by only 5.6 percent, when five initiatives on the ballot had been voted down by up to 30 percent of voters. In fact, Rhomberg notes, the measure won in 33 of California’s 58 counties (see 2005 voter turnout by county).
“The problem was that the turnout was so skewed,” says Rhomberg. “Republicans had made very little get-out-the-vote effort.”
Political observers agree that Election Day was characterized by widespread apathy; only half of all registered California voters went to the polls. Many interest groups urged an across-the-board “No” vote as a rebuke to Governor Arnold Schwarzenegger for having called the costly and divisive special election in the first place.
“It would be pretty hard to produce that turnout when you have a full ballot,” Rhomberg says.
A full ballot is exactly what the upcoming November 2006 general election will present to voters. In addition to races for a Senate seat, 53 Congressional slots, state offices from the governorship on down and a full slate of local issues, voters will see 13 ballot measures, including four proposed tax increases and five new bond issues.
Overall, argues Rhomberg, “that’s pretty much of a liberal menu. It’s not an agenda anyone anticipates ‘liberals’ are going to be encouraging people not to turn out for, or to vote ‘No’ on.”
Prop. 85 proponents predict that a high turnout in November will favor their side. They cite the findings of a 2002 Zogby International poll in which 71 percent of Californians favored parental notification. A more recent poll, however, by Field Research Corp. in early August 2006, found that just over half of voters were familiar with Prop. 85 (52 percent), that 45 percent would vote against it, and that 44 percent would vote in favor. Eleven percent of voters were undecided.
Prop. 73 backers spent some $1.86 million on campaign activities such as gathering signatures and publicizing their arguments (see Prop. 73 MoneyWatch). Their message reads, in part: “…A mother or father would want to be at least notified before any invasive surgical or medical procedure is performed by an unknown doctor on their minor child; it’s just common sense and good public health policy to protect the health and safety of young girls….”
To qualify for the November 2006 ballot, a new initiative petition had to be signed by at least 657,916 registered voters. As in the past, two of parental notification’s strongest supporters provided the bulk of the funding: James Holman, a San Diego magazine and Roman Catholic diocesan newspaper publisher; and Don Sebastiani, a Sonoma winemaker and former Republican state legislator.
Holman put up $1.4 million in loans to underwrite a renewed campaign for this November. Sebastiani contributed $200,000. Petition circulators from Bader & Associates of Orange County gathered some 1 .2 million signatures—surpassing the 2004-2005 effort.
Parental notification background
Since 1953, unmarried minors in California have been authorized under state law to obtain—without their parents’ consent—all “hospital, medical and surgical care related to pregnancy,” including abortion.
In 1961, the state legislature exempted minors who are married or serving on active duty in the armed forces from the need to get parental approval for medical services of any kind. 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 children 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.
In a 1997 ruling, the California Supreme Court explained the rationale for these exemptions (American Academy of Pediatrics v. Lungren, 16 Cal 4th 307, 97 C.D.O.S. 6151). They 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, anti-abortion legislators in California tried repeatedly to cut funding for the procedure 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 was introduced requiring unemancipated minors to obtain the consent of at least one parent or guardian in order to receive an abortion. If she feared her parents might react violently, for example, or if they refused their consent, a pregnant girl could avail herself of a “judicial bypass” option. She would, however, have to convince a juvenile court judge that she was mature enough to make the decision independently.
Court decisions
After failing to pass in 1986, that bill (Assembly Bill 2247) passed during the 1987 legislative session and was signed into law. But a group of plaintiffs led by Northern California representatives of the American Academy of Pediatrics immediately mounted a court challenge. They argued that the law violated a girl’s right of privacy and equal protection guaranteed by the California Constitution. A superior court judge issued an injunction staying implementation of the law until the challenge was resolved.
Both the lower court and the appeals court sided with the plaintiffs as the injunction and the merits of the case were argued over the ensuing years. In 1996 the issue reached the state Supreme Court, which reversed the lower courts’ findings: A.B. 2247 did pass constitutional muster, they ruled 4-3. But the justices granted the plaintiffs the opportunity for a rehearing and allowed the injunction to remain in place.
Then, abruptly, the judicial ground shifted. Two of the four justices who had decided in favor of parental consent left the court and one of their replacements concurred with the minority justices in the previous ruling. That tipped the balance in their favor at the rehearing.
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 states. “Among these are enjoying and defending life and liberty, acquiring, possessing, and protecting property, and pursuing and obtaining safety, happiness, and privacy.”
Writing for the majority in their ruling on A.B. 2247, California Supreme Court Chief Justice Ronald George acknowledged that parents have the right in most situations to make medical decisions on behalf of their children. However, he added, “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.”
Therefore, by another 4-3 vote, the California Supreme Court declared that any law requiring minors to solicit parental or judicial approval for an abortion violates the state’s constitution.
Amend the Constitution
Parental notification proponents decided their only hope was to appeal directly to the state’s electorate and to seek an amendment to California’s Constitution. After several failed attempts, they qualified their proposed amendment through the initiative process for the November 2005 special election.
The principal author of that proposition (now reprised with some modifications as Prop. 85) is Teresa Stanton Collett, a professor at the University of St. Thomas School of Law in Minneapolis. A frequent expert witness before state and federal legislative committees on behalf of parental involvement laws, Collett crafted the measure to conform to precedents set by state and federal courts. Forty-one states, like California, have passed parental involvement laws; eight of them, like California, have seen those laws permanently or temporarily blocked by judicial orders.
Prop. 85 calls for the addition to the California 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 must be in writing, either delivered directly if the parent is present or sent by both first class and certified mail, with return receipt requested. If there is no response after two business days, then the notice is presumed to be delivered and a 48-hour “reflection period” begins—after which the abortion may be performed. Alternatively, a parent may consent to the procedure and waive the waiting period by signing a notarized form.
The mandated delay is designed to be brief enough to satisfy previous U.S. Supreme Court rulings, according to Albin Rhomberg, spokesperson for the Prop. 85 campaign. If the pregnant minor fears her parents’ response, or if they object to the abortion, 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.
Passage of Prop. 85 would also 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 if she is being coerced to abort.
Differences between Prop. 73 and Prop. 85
Although Prop. 85 is largely a word-for-word reprise of Prop. 73, there have been a few significant changes. In the earlier version, abortion was defined as “caus[ing] the death of an unborn child, a child conceived but not yet born.” Opponents objected to that wording as an attempt to endow an embryo or fetus with the status of a person within the state’s constitution.
Rhomberg of the Yes on 85 campaign denies that intent and notes that the Prop. 73 language has been included in the California Civil Code since 1872. Nevertheless, he and Prop. 85 proponents defined abortion in Prop. 85 as “the use of any means to terminate the pregnancy of an unemancipated minor known to be pregnant except for the purpose of producing a live birth.”
Opponents of 73 also focused concern on its requirement that the State Judicial Council make public an anonymous record of all the parental notification waivers sought and granted to pregnant minors by each juvenile court judge in each county each year. Critics worried that Prop. 73 could have put political pressure on judges, especially in conservative areas.
Prop. 85 eliminates the judge-by-judge listing mandate. Instead, it is done by county. But Steve Smith of the Dewey Square Group, the Washington, D.C.-based Democratic consulting firm running the campaign to defeat Prop. 85 (“No on 85.com for Real Teen Safety”), is concerned that “In a rural county, whether you name judges or not, everybody’s still going to know what’s going on.”
Finally, says Rhomberg, Prop. 85 provides for the fact that “some parents don’t really want to know if their daughter has an abortion.” So the measure now allows for parents to sign waivers in advance. If notarized, they remain valid for whatever period is specified, up to age 18.
Rhomberg notes that although anyone who presents a falsified waiver form to a doctor would be committing a crime—prominently labeled as such on the waiver form—Prop. 85 specifies that the “crime” is actually a misdemeanor carrying a maximum fine of $1,000. “We didn’t want any indication that anyone was going to go to jail,” Rhomberg explains.
Arguments about the effects of a parental notification law
California is one of three states that does not collect and report comprehensive abortion statistics. The Guttmacher Institute estimates that 236,060 women obtained abortions in California in 2000 (the Institute, a nonprofit organization focused on sexual and reproductive health issues, has been perceived by some as biased toward pro-choice positions). What can be quantified more certainly is the number of abortions paid for by the state’s Medi-Cal program: 90,040 in 2002. Of the 60 percent of those procedures for which even more precise data were available (53,905 fee-for-service abortions), girls under the age of 18 accounted for 7 percent (3,841 abortions).
Proponents state in their ballot argument 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.”
In testimony before Congress last year, Prop. 85 author Collett cited data showing that abortions for girls under 18 fell by 20 percent in the 12 months after Texas enacted a parental notification law in 2000. She told legislators that laws that require minors to involve their parents in abortion decisions confer two additional benefits:
- Underage girls receive better medical care, since parents, she suggested, can help a child choose the most qualified doctor and can fill in medical history that may help avoid complications; and
- Minor girls are protected against rapacious older men, because parents tend to act to discourage such relationships.
According to a recent New York Times analysis, however, in three of six states where parental involvement laws were adopted between 1995 and 2004, the percentage of pregnant teenagers who had abortions actually rose. In Texas, the abortion rate among minors was falling even faster in the years before passage of the law than in the years after. Despite the absence of any legal strictures in California, the abortion rate has declined steadily over the past decade and now stands at 31.2 abortions per 1,000 women of reproductive age—5 percent lower than in 1996.
The downturn has been especially dramatic among girls between the ages of 15 and 17. From 1996 to 2000, the abortion rate for that age group shrank by 30 percent, in tandem with a 31-percent drop in their pregnancy rate, according to the Guttmacher Institute. These reductions, Prop.85 opponents contend, can be attributed to “teaching teenagers about responsibility, abstinence, and birth control.”
Even opponents of Prop. 85 agree that pregnant minors and their parents ought to be talking with each other. And in fact, according to a 1992 study published by the Guttmacher Institute, three out of five unmarried minors (and nine out of ten girls under the age of 15) who had abortions in states without parental involvement laws discussed the decision beforehand with at least one parent.
Opponents say that the rest of the pregnant girls often had good reasons not to talk to their parents. Of the minor girls in the 1992 study who chose not to inform their parents before going through with an abortion, almost one in four said they were afraid they would be kicked out of the house if they revealed their situation; one in 12 said they feared they would be beaten because it had happened before; and one in seven said they had parents who were alcoholics or drug abusers.
A court hearing is not a realistic alternative for many of them, according to attorney Rebecca Gudeman of the National Center for Youth Law, in Oakland. Although all 34 states with parental involvement laws include a judicial bypass option “on paper,” she points out, studies in Alabama, Pennsylvania, and Texas have shown that it is “often unavailable in practice.”
Moreover, as the U.S. Supreme Court acknowledged in a 1990 decision (Hodgson v. Minnesota 497 U.S. 417), “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.”
Opponents’ strategies
“It really is déjà vu,” says Steve Smith, a consultant for Prop. 85 opponents, who are reprising their role in the successful effort against Prop. 73.
Opponents spent $5.5 million to defeat Prop. 73 (see Prop. 73 MoneyWatch) The largest donors were Planned Parenthood Affiliates of California and its local chapters, the American Civil Liberties Union, the state Democratic Party and many of its candidates, and NARAL Pro-Choice America. The same organizations have lined up against Prop. 85, together with previous opponents including the California Medical Association; the California Nurses Association; regional chapters of the American Academy of Pediatrics, the American College of Obstetricians and Gynecologists, and the California Academy of Family Physicians; the California Family Health Council; California NOW; and the League of Women Voters.
In a ballot argument opposing Prop. 85, Jack Lewin, M.D., CEO of the California Medical Association; Robert L. Black, M.D., board member of the American Academy of Pediatrics, California District; and Kathy Kneer, head of Planned Parenthood California contend that the measure would actually jeopardize the health and safety of the most vulnerable youths. They write: “In the real world, some California teenagers come from homes where they can’t talk to their parents, where there is violence, or where a family member has sexually abused them. Proposition 85 puts them in harm’s way or forces them to go to court…. Think about it. The teen is scared, pregnant, her family might be abusive. She doesn’t need a judge. She needs a counselor and good medical care—without delay.”
The sexual predators issue
Supporters of Prop. 85 “intend to make one issue clearer,” they say on the parentsright2know.org Web site: “Male predators who sexually exploit and impregnate vulnerable young girls can cover up their crimes when Planned Parenthood and others are able and willing to perform secret abortions paid for by Medi-Cal funds on minor daughters without notifying a parent or guardian or law enforcement and child protective authorities.”
On the www.yeson85.net Web site, parental notification proponents posted audio links to recorded telephone calls to 75 Planned Parenthood clinics and 18 other abortion centers throughout California; in each call, a girl who claims to be 13 years old seeks abortion information and confides that she’s pregnant, or thinks she is, by the 22-year-old boyfriend who she says will pay for the procedure.
A sexual relationship between a person under the age of 16 and a person over the age of 21 is not only statutory rape under California law; it is also an offense that requires health care providers as “mandated reporters” to alert law enforcement and child welfare authorities. Prop. 85 backers contend that the failure of abortion clinic telephone receptionists to try to coax out the anonymous teenage caller’s identity and to report the call is “shocking.”
Steve Smith, from No on 85, counters that “the doctors and nurses who work in Planned Parenthood clinics are mandated reporters and follow the law.” Had the caller actually kept the examination appointments she was offered by the clinic receptionists, he says, the outcome would have been different. “Those situations are reported.” Planned Parenthood’s Kneer says her organization will take legal action if the recordings are not removed from the Web site. “Our staff was just crushed by them,” she adds. “These are telephone receptionists, and it’s their job to get kids into health care.”
Youth attorney Gudeman notes that while health care professionals are legally bound to report a “reasonable suspicion” of sexual abuse, the guidelines for reporting statutory rape are actually quite complex. Moreover, health care providers are constrained by professional ethics and California’s Confidentiality of Medical Information Act from revealing a minor’s private health data, including pregnancy, with parents—even if a report has been filed. Finally, the identity of the mandated reporter also remains confidential. So, she asks, “How could [Prop. 85 organizers] know if a report was ever made?”
Changed political terrain
The battle over Prop. 85 will be waged with slightly different tactics than those employed in 2005, both sides agree. Certainly the terrain will have changed—although Smith questions whether the larger voter turnout Rhomberg is hoping for will occur.
Smith points to the June primary. Participation was the lowest in California history. “It’s not clear we’ll have more voters in November,” he says, “and what kind of voters they’ll be is anybody’s guess. I would hate to pin my strategy on who will vote and who will not vote.”
Another initiative on the ballot, Prop. 83, may exert some unpredictable synergism, notes Kneer. It addresses public fears of “sexually violent predators” and child molesters by proposing to increase their prison sentences and forbid them from residing within 2,000 feet of a school or park when they are released. They would also have to wear a Global Positioning System monitor for life.
Prop. 85 backers will echo this apprehension, stressing the threat posed to young girls by such people, and invoking the specter of men trolling the Internet for naive young posters to chat rooms and Web sites like MySpace.
Proponents will also point to a study of more than “46,000 pregnancies of school-age girls in California” that found “over two-thirds were impregnated by adult men whose mean age was 22.6 years.” However, Michael Males, the University of California-Santa Cruz sociologist who authored that study, identified poverty as by far the biggest factor inducing young girls to have sex with significantly older partners. “A distinct motivator for early childbearing,” he wrote, “is the fact that older, adult men provide incentive for impoverished teenage women from chaotic families to escape their difficult circumstances….”
Males concluded that “the best prevention strategy is to reduce the number of young women and men in circumstances from which escape through early parenthood is desirable.”
Prop. 85 backers are committed to more direct approach. Says Rhomberg, “If you have an issue and you want it to win, you’ve got to be prepared to put it on the ballot again and again and again.”
David Ollier Weber did the research and writing for this article.
