Submitted July 17, 2008
Waiting Period and Parental
Before Termination of Minor's Pregnancy.
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.
This measure amends the State 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 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 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 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
Notice to Adult Family Member and Report of Abuse.
The physician could notify an adult family member instead of notifying the
minor’s parent based on the minor’s written statement that (1) she fears
physical, sexual, or severe emotional abuse from a parent who would otherwise be
notified, and (2) that her fear is based on a pattern of such abuse of her by a
parent. The measure defines an adult family member as a person at least 21 years
of age who is the grandparent, stepparent, foster parent, aunt, uncle, sibling,
half-sibling, or first cousin of the minor. The manner of notice to an adult
family member must be consistent with that required for parental notice. In
addition, the measure requires the physician to make a written report of known
or suspected child abuse to the appropriate law enforcement or public child
protection agency. The physician would also be required to include with the
notice a letter informing the adult family member about the report of abuse.
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, sexual, or emotional abuse, the court must
refer the evidence to the appropriate law enforcement or public child protection
State Reporting Requirements
Physicians are required by this measure to file a form
reporting certain information to the state Department of Health Services (DHS)
within one month after performing an abortion on an unemancipated 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.
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. 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.
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
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, 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 $14.1 billion in 2007‑08.
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 $2.2 billion in 2007‑08.
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
$5.3 billion in state and federal funds in 2007‑08. 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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