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 proposition amends the California
Constitution to require, with certain exceptions,
a physician (or his or her representative) to notify the parent or legal guardian of a pregnant minor
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
proposition 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 would provide the required
notification in either of the following two ways:
Personal Written 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. A parent or guardian could be
sent a written notice 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 mailed.
Exceptions to Notification Requirements
The measure provides the following exceptions
to the 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.
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 appointed a temporary
guardian and 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 proposition also requires that, in any case
in which the court finds evidence of physical,
sexual, or emotional abuse, the court must refer the
evidence to the county child protection agency.
State Reporting Requirements
Physicians are required by this proposition to file
a form reporting certain information to the state
Department of Health Services (DHS) within one
month after performing an abortion on a minor. The
DHS 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,
DHS 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.
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. This 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, further reducing the
number of abortions for this group. If, for either
reason, this proposition 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, deliveries, and follow-up 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 $13.8
billion in 2006–07.
State Health Agency Administrative Costs
The DHS would incur first-year state 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 for DHS 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 $2 billion in 2006–07.
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 billion in state and federal funds in
2006–07. Under these circumstances, there could
also be a minor increase in child welfare and foster
care costs for the state and counties.
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