JD, McGeorge School of Law, University of the Pacific
to be conferred May, 2006
B.A., Political Science, Women's Studies, Humboldt State University, 2003
JD, McGeorge School of Law, University of the Pacific
to be conferred May, 2006
B.A., Theatre, Magna Cum Laude, University of Southern California, 2001
Copyright © 2005 by University of the McGeorge School of Law
Proposition 73, the Waiting Period and Parental Notification Before Termination of a Minor’s Pregnancy, is an Initiative Constitutional Amendment. California Official Voter Information Guide, Text of Proposed Laws, Proposition 73 (Secretary of State, 2005) < http://www.ss.ca.gov/elections/bp_nov05/voter_info_pdf/entire73.pdf> (accessed August 28, 2005). Proposition 73 would create a 32nd section to Article 1 of the California Constitution. It requires physicians to provide a parent or legal guardian with written notification at least 48 hours before performing an abortion for an unemancipated minor. Notification may be delivered in person or sent by both first class and certified mail. If there has been no response within the 48 hour waiting period, the abortion may be performed.
Proposition 73 contains a judicial bypass option, through which a pregnant minor may petition the court to waive the parental notification requirement. If the court finds the minor is sufficiently mature to make such a decision without the guidance of her parents, the court may waive the requirement. Alternatively, if the court decides notification is not in the minor’s best interest, the requirement may be waived. Proposition 73.
Proposition 73 is viewed by supporters as a means for parents to assist their daughters in a life altering choice. It will “restore Californian’s right to counsel and care for their young daughters before – and after – an abortion.” Proposition73 < http://www.ss.ca.gov/elections/bp_nov05/voter_info_pdf/entire73.pdf> (accessed August 28, 2005).
Opponents of Proposition 73 say that teen safety supersedes parents’ rightful desire to know about their child’s pregnancy and possible abortion. If the government attempts to mandate communication, “scared, pregnant teenagers ... may resort to unsafe, illegal abortions.” Id. This law will not keep teenagers safe, but will put them in further danger. Id. Furthermore, mandating notification infringes upon privacy rights protected in the California Constitution. David Ollier Webber, Proposition 73 Parental Notification: Facts & Analysis, < http://www.healthvote2004.org/73/background.php?pid=73&sid=1> (accessed September 9, 2005).
A. Current Law
California law has permitted unmarried minors to receive pregnancy related hospital, medical, and surgical care without parental knowledge since 1953. Id. Married minors and those serving in the military have been exempt from parental approval for any medical service since 1961. Emancipated minors over the age of 15 received this same exemption in 1968. The following years marked the passage of medical emancipation statutes, exempting minors over the age of 12 from parental consent requirements when seeking care for sexually transmitted diseases, rape, sexual assault and other specified conditions. Id. In upholding these regulations, the California Supreme Court has acknowledged that parental notification is not always in the minor’s best interest, and that requiring notification could lead to minors failing to seek medical care, thereby harming themselves and ultimately society. Id.
2. Roe v. Wade and AB 2274
In 1973, the United States Supreme Court declared abortion an implicit privacy right protected by the U.S. Constitution. Id. Because Article 1 of the California Constitution contains an explicit privacy right, reproductive measures have been protected even more stringently under the California Constitution. Although California legislators once voted to decrease abortion funding from the Medi-Cal program, a California court declared this measure unconstitutional. Comm. to Defend Reprod. Rights v. Myers, 29 Cal.3d 252, 297 (1981) [“Myers”].
In 1987, the California Legislature passed Assembly Bill 2274 (AB 2274), which required unemancipated minors to obtain the consent of one parent or guardian before receiving an abortion. Although passed in 1987, AB 2274 was never enacted as it was “stayed by the lower courts pending determination of its validity.” Am. Acad. of Pediatrics v. Lungren, 66 Cal. Rptr. 2d 210, 213 (1997) [“Lungren”]. AB 2274 permitted a judicial bypass option for those minors who petitioned the juvenile court and demonstrated sufficient maturity to make this decision on their own. Although AB 2274 was signed into law, it was declared unconstitutional by the California Supreme Court. Id . at 244. The court found AB 2274 violated the California Constitution’s explicit privacy right, as a pregnant minor has a “protected privacy interest under the California Constitution in making the decision” whether to terminate her pregnancy. Id. at 229.
Accordingly, California does not presently have a parental notification requirement. Under current state law an unemancipated minor may receive an abortion without her parent’s knowledge or consent.
B. The Proposed Change
1. Parental Notice and Judicial Bypass
Proposition 73 proposes a 32nd section to Article 1 of the California Constitution. This section would require physicians to provide written notice to the parent or legal guardian of a minor at least 48 hours prior to performing an abortion. Proposition 73, § 32(b). This notice requirement may be waived in the event of a medical emergency, or if the minor chooses to avail herself of the judicial bypass option. Id. at § 32(f-g). Through this option, the minor may petition the juvenile court for a hearing. If the judge determines that the minor is of sufficient maturity to make this decision independently, or if the judge determines that parental notification is not in the minor’s best interest, then waiver may be granted. Id. at § 32 (h)(1). All judicial proceedings will be conducted in a timely manner, consistent with “U.S. Supreme Court rulings on parental notification laws in other states.” David Ollier Webber, Proposition 73 Parental Notification: Facts & Analysis, < http://www.healthvote2004.org/73/background.php?pid=73&sid=1> (accessed September 9, 2005). All proceedings and representation will be held at no cost to the minor, who will also have the right to appeal an unfavorable ruling in another timely proceeding. Proposition 73, § 32(j).
Currently 33 states require parental involvement for a minor to receive an abortion, and many of these states include a judicial bypass option similar to that proposed by Proposition 73. California State Senate Republican Caucus, Briefing Report: Parental Notification,. Twelve states waive the notification requirement in cases of neglect or abuse, while 10 states (including California) have at one time overturned parental notification laws which violated their state constitutions, though these same laws may have survived analysis under the federal constitution. Id. Minnesota’s parental notification law contains a judicial bypass option whereby a minor first meets with an abortion counselor who puts the minor in touch with the Guardian Ad Litem. The Guardian Ad Litem handles the scheduling of a court date and assists the minor in talking with the judge. The judge then decides whether it is in the minor’s best interest to proceed with an abortion. If permission is granted the judge signs a waiver of parental notification, and the abortion may occur. Birds and Bees, Judicial Bypass,. Proposition 73’s proposed bypass option appears similar to this Minnesota law, with the minor having access to counsel and judicial proceedings at no cost to the minor. Proposition 73, § 32(g).
Different states have enforced judicial bypass laws in different manners. Minnesota state courts grant a majority of requests for waiver of parental notification, and one Massachusetts study showed that only nine of four hundred and seventy seven abortion requests were denied. Planned Parenthood, Teenagers, Abortion, and Government Intrusion Laws, < http://www.plannedparenthood.org/pp2/portal/files/portal/medicalinfo/abortion/fact-teenagers-abortion-intrusion.xml> (accessed September 12, 2005).
Meanwhile, an Ohio report found “the percentage of waivers denied ranged from 100 percent to 2 percent, depending on the county in which the petition was filed.” Id. This suggests that a minor’s access to or denial of a waiver can be arbitrary. If the Ohio study is indicative, it may go so far as to suggest that a minor’s ability to receive a fair and unbiased hearing as to her reproductive rights varies on a county-to-county basis. It remains to be seen how California courts will treat the judicial bypass option, if Proposition 73 passes this November.
Proposition 73 would insert definitions into the California Constitution, defining abortion, medical emergency, notice, parent or guardian, unemancipated minor and physician. These definitions would be integrated as a part of Article 1, Section 32 of the California Constitution. “Abortion” would be defined as “the use of any means to terminate the pregnancy of an unemancipated minor female known to be pregnant with knowledge that the termination with those means will, with reasonable likelihood, cause the death of the unborn child, a child conceived but not yet born.” Proposition 73,
§ 32(a)(1). A “medical emergency” would be defined as a condition which “so complicates the medical condition of a pregnant unemancipated minor as to necessitate the immediate abortion of her pregnancy to avert death or for which a delay will create serious risk of substantial and irreversible impairment of a major bodily function.” Id. at § 32(a)(2). “Notice” would be defined as “written notification, signed and dated by a physician or his agent and addressed to a parent or guardian, informing the parent or guardian that the unemancipated minor is pregnant and that she has requested an abortion.” Id. at § 32(a)(3). “Parent or guardian” would be defined as “either parent if both parents have legal custody, or the parent or person having legal custody, or the legal guardian of a minor.” Id. at § 32(a)(4). And an “unemancipated minor” would be defined as “a female under the age of 18 years who has not entered into a valid marriage and is not on active duty with the armed services of the United States and has not received a declaration of emancipation under state law.” Id . at § 32(a)(5).
3. Reporting Requirement
Proposition 73 would require physicians to report certain information to the state Department of Health Services within one month after performing an abortion on a minor. Proposition 73, § 32(m). Information to be reported would include the physician’s identity, date and location of the abortion, the minor’s month and year of birth, and other information about the circumstances surrounding abortion procedure. Id. at § 32(l). The minor would not be identified by name. Department of Health Services would compile this information in an annual report that would be available for the public. Id. at § 32(n).
Opponents and proponents of Proposition 73 have expressed concerns regarding the language and drafting of the proposition. To begin, proponents suggest the title itself will be misleading to voters. Meanwhile, opponents disagree with the proposition’s definition of “abortion,” and argue that parental notification laws have already been declared unconstitutional by the California Supreme Court, with such laws violating the privacy rights of young women. NARAL Pro-Choice California, Facts Sheets: What’s Proposition 73 All About?,. These concerns will be addressed below.
B. Appropriateness of Title
Proponents of Proposition 73 have expressed discontent with the ballot label assigned to the proposition by the Attorney General: Waiting Period and Parental Notification Before Termination of Minor’s Pregnancy. “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.” David Ollier Webber, Proposition 73 Parental Notification: Facts & Analysis, < http://www.healthvote2004.org/73/background.php?pid=73&sid=1> (accessed September 9, 2005). Proponents argue that the phrase “waiting period” is misleading, as the initiative focuses on parental notification, with the waiting period being a matter of secondary concern. Id. This type of misnomer may confuse voters who rely on the ballot label to inform them of the nature of a proposition. While voters who have read the full text of the proposition will understand the relationship between the waiting period and parental notification, those who read only the ballot label may not fully understand what Proposition 73 will do if passed. However, in August the Sacramento Superior Court held that the ballot label assignment was appropriate, noting that the proponents had failed to clearly demonstrate that the language was incorrect. Laubacher v. McPherson, Case No. 05CS01151, August 15, 2005. Presiding Judge Raymond Cadei noted, “We are not here to convince the court that one person’s way of saying it is better than someone else’s,” and upheld the ballot label and brief description drafted by the attorney general and legislative analyst’s office. Steve Lawrence, Mixed Ruling on Ballot, < http://www.recordnet.com/apps/pbcs.dll/article?AID=/20050812/NEWS03/508120333/1006> (accessed September 10, 2005). In spite of this seemingly conclusive ruling, “both sides are preparing” for the eventuality of further legal challenges. David Ollier Webber, Proposition 73 Parental Notification: Facts & Analysis, < http://www.healthvote2004.org/73/background.php?pid=73&sid=1> (accessed September 9, 2005).
C. Defining Abortion
Proposition 73 contains a definition for “abortion,” defining the procedure as “the use of any means to terminate the pregnancy of an unemancipated minor female known to be pregnant with knowledge that the termination with those means will, with reasonable likelihood, cause the death of the unborn child, a child conceived but not yet born.” Proposition 73, § 32(a)(1). Opponents of Proposition 73 contest this definition of “abortion,” arguing that its use of the language “unborn child” could have far reaching consequences. David Ollier Webber, Proposition 73 Parental Notification: Facts & Analysis, < http://www.healthvote2004.org/73/background.php?pid=73&sid=1> (accessed September 9, 2005). Because Proposition 73 is a Constitutional Amendment initiative, if passed the above definition of “abortion” would become a part of the California Constitution, and may have authority in future reproductive rights lawsuits. Opponents assert that this definition is the terminology favored by abortion opponents over more scientific descriptions like embryo and fetus, and assert that a neutral definition would be more appropriate for the Constitution. Id. The definition further defines “unborn child” as “a child conceived but not yet born.” Proposition 73, § 32(a)(1). Opponents emphasize this definition has “nothing to do with parental notification and could have far-reaching consequences.” Campaign for Teen Safety, Frequently Asked Questions,. On its face, the definition appears to limit itself to the text of Proposition 73, qualifying the definition as applying “for purposes of this section.” Id. If this statement proves effective, it could isolate the definition from criticism by effectively distinguishing it from the definition of abortion in other contexts. However, opponents fear that insertion of this definition into the California Constitution will establish a precedent for defining abortion in a manner favored by abortion opponents, when a neutral definition may be more appropriate. If Proposition 73 passes, it is likely that opponents will continue the challenge of this language via judicial proceedings. David Ollier Webber, Proposition 73 Parental Notification: Facts & Analysis, <http://www.healthvote2004.org/73/background.php?pid=73&sid=1> (accessed September 9, 2005).
D. History of Parental Notification Requirements
Proposition 73 bears striking resemblance to another parental notification law which was deemed unconstitutional by the Supreme Court of California. Lungren, 66 Cal. Rptr. 2d 210. Opponents argue that where the drafting of this proposition bears such resemblance, this initiative is a waste of voter time and resources, as it will ultimately meet the same fate as the prior proposal. However, if Proposition 73 passes it will alter the privacy rights currently in existence under the California Constitution, and thereby will not be controlled by the decision in Lungren, as any California court will be faced with interpretation of a new Constitutional section.
2. Privacy Rights in California
The California Constitution contains an explicit right to privacy. Article 1 Section 1 of the California Constitution establishes, “All people are by nature free and independent and have inalienable rights. Among these are ... pursuing and obtaining safety, happiness, and privacy.” Cal. Const. art I, §1. California’s Supreme Court has “long interpreted this privacy clause as protecting reproductive freedom more expansively than the federal constitution does.” Marcia Henry, California High Court Rejects Parental Consent for Abortion Law. In short, historically a lawsuit involving reproductive freedom has been less likely to survive a challenge under the California Constitution than it has under the federal constitution, based on the California Court’s long standing precedent of protecting citizen’s privacy rights as enunciated in Article 1 of the California Constitution. Myers, 29 Cal.3d at 297. Proposition 73 could alter the privacy protections afforded to minors under the California Constitution.
3. History of Minor’s Abortion Rights: 1953 – AB 2274
Although California’s voters are free to amend their Constitution as they see fit, California courts have rejected legislation of the type proposed in Proposition 73. However as Proposition 73 is a constitutional amendment and not another legislative enactment, the precedents discussed below do not have binding effect on the proposition. The following discussion is provided for context, even though the passage of Proposition 73 could fundamentally alter the landscape of reproductive rights for minors in California.
Section 34.5 of the California Civil Code was adopted in 1953, authorizing minors to consent to pregnancy related care. When §34.5 was enacted access to abortions was limited, regardless of the female’s age. As time went on and access to abortion procedures increased, the California Supreme Court specifically permitted minor females to give their own informed consent to abortions. Ballard v. Andersen, 4 Cal. 3d 873 (1971). And in 1973, the United States Supreme Court granted abortion access for adult and minor females. Roe v. Wade, 410 U.S. 179 (1973).
In 1987 the California Assembly enacted AB 2274, which was never enforced because its application was stayed by the lower courts pending its validity. Lungren, 66 Cal. Rptr. 2d at 213. Had it been enforced, AB 2274 would have added language to Civil Code §34.5 stating “that section shall not be construed to authorize a minor ... to receive an abortion without the consent of a parent or guardian other than as provided in §25958 of the Health and Safety Code.” David Ollier Webber, Proposition 73 Parental Notification: Facts & Analysis, < http://www.healthvote2004.org/73/background.php?pid=73&sid=1> (accessed September 9, 2005). Thus, in the absence of a medical emergency or judicial waiver, abortion would have been prohibited for minors absent parental consent. The United States Supreme Court has upheld a similar mandatory parental involvement requirement with a bypass option. Bellotti v. Baird, 443 U.S.622 (1979) [”Bellotti”]. The California Supreme Court, however, has consistently interpreted the privacy clause of California’s Constitution to protect reproductive freedom more expansively than would the federal constitution. David Ollier Webber, Proposition 73 Parental Notification: Facts & Analysis, < http://www.healthvote2004.org/73/background.php?pid=73&sid=1> (accessed September 9, 2005).
AB 2274 was never enforced, as it was found to violate minor’s privacy rights and accordingly was declared unconstitutional. Lungren, 66 Cal. Rptr. 2d at 210. The trial court noted that State interests in protecting minors from harm and fostering the parent-child relationship were compelling, but concluded that the bill did not further these interests and was counterproductive to some of those goals. Id. at 219. The California Supreme Court affirmed, holding that “a minor who is pregnant has a protected privacy interest under the California Constitution in making the decision whether to continue or terminate her own pregnancy – and this interest is intruded upon by AB 2274.” Id. at 229.
4. Precedent and Proposition 73
Opponents of Proposition 73 stress that the Lungren opinion should be of interest to voters because of the similarities between AB 2274 and Proposition 73. Both contain a parental notification requirement and judicial bypass waiver. Both infringe upon the existing privacy rights of minors seeking an abortion. Opponents suggest that the tenets set forth in Proposition 73 have already been declared unconstitutional in the Lungren case, and Proposition 73 is an attempt to circumvent the judicial process by seeking to amend the California Constitution in what has been declared an unconstitutional manner. NARAL Pro-Choice California, Facts Sheets: What’s Proposition 73 All About?, (accessed September 9, 2005). An amendment to the California Constitution would qualify the right to privacy relied upon in Lungren by changing the concept of privacy rights utilized by the Lungren court. Accordingly, the new amendment would render the Lungren decision moot, as the amendment would change the law applying to privacy cases of this nature. Id. Thus, a challenge under the U.S. Constitution would have to be the basis for invalidation based on a violation of the right to privacy. And, as AB 2274 was specifically struck down under the California Constitution’s more stringent privacy right, a violation at the federal level is unlikely. If the voters elect to pass an amendment to the California Constitution limiting the privacy rights of minors who seek abortions, the voters may do so regardless of any drafting similarities to a bill struck down under prior California constitutional law.
A. U.S. Constitution
The basis for challenging state statutes which require notification or consent of parents before a minor may seek an abortion is Planned Parenthood of Central Missouri v. Danforth, 428 U.S. 52 (1976) [“Danforth”]. In that case, U.S. Supreme Court explained that a state cannot enact parental consent legislation that effectively gives parents absolute veto power over their daughter’s choice whether or not to terminate her pregnancy. Id. at 56. According to Danforth, parental consent laws must not be inflexible, but must give a minor some ability to navigate through the choice of whether or not to have an abortion with input, but not mandates, from parents and health care providers. Id. State statutes such as Proposition 73 have been challenged on a variety of specific features of the individual statutes. Challenges have been based on: implementing mandatory waiting periods, Danforth, 428 U.S. at 52; requiring consent in lieu of only notification, Bellotti, 443 U.S. at 622 (1979); and a failure to include a judicial bypass in the parental notification law for the health and safety of the minor, Planned Parenthood of Northern New England v. Heed, 296 F. Supp. 2d 59 (2003). Proposition 73 does impose a waiting period, requires parental notification but not consent, and does provide a judicial bypass option.
1. Waiting period
Proposition 73 would require a 48 hour waiting period after a parent or guardian is notified before a minor can obtain an abortion procedure. Proposition 73 § 32(b). Such waiting periods between the time of notification and the time an abortion can be performed have been upheld when such as an adequate judicial bypass procedure is written into the law. William H. Danne, Jr., JD, Validity, Construction and Application of States Requiring Parental Notification of or Consent to Minor’s Abortion, 77 A.L.R.5th 1 (2005).
Proposition 73 allows for an exception to the 48 hour waiting period when a parental waiver of the proscribed waiting period is given. Proposition 73 §32. The proposition also allows a physician to perform abortions on a minor without the waiting period in the case of medical emergencies without obtaining such a waiver. Id. A similar statute in Minnesota was found by the US Supreme Court to be constitutional. See Hodgson v. Minnesota, 497 U.S. 417 (1990) [“Hodgson”]. That statute required, with few exceptions, that no abortion be performed on a person under the age of 18 until at least 48 hours after both of her parents had been notified. Id. at 417. Bifurcating the issues of dual parental consent and the mandatory waiting period, the Court held that the waiting period imposed by the statute protected the state’s interest in the welfare of a pregnant minor while not placing an absolute obstacle before a minor seeking an abortion. Id. at 418. In that case, the court stated that, “a requirement that a minor wait 48 hours after notifying a single parent of her intention to get an abortion would reasonably further the legitimate state interest in ensuring that the minor's decision is knowing and intelligent.” Id. at 448. The Court also stated that the brief waiting period provided the parent the opportunity to consult with his or her spouse and a family physician, and that it permitted the parent to inquire into the competency of the doctor performing the abortion, discuss the religious or moral implications of the abortion decision, and to provide the daughter needed guidance and counsel in evaluating the impact of the decision on her future. Id. at 449. The language of proposition 73 provides for similar exceptions to the waiting period as the statute challenged in Hodgson, therefore this constitutional challenge will likely be unsuccessful.
2. Notification/ consent
In 1987, the California Legislature passed AB 2274 which required that a minor receive parental consent to obtain an abortion. As discussed at length above, this law was later held unconstitutional by the California Supreme Court. See Lundgren, 66 Cal.Rptr. 2d 210. Proposition 73 would require parental notification before a minor may obtain an abortion. Parental consent is not mandated by Proposition 73. Legislative Analyst’s Office Proposition 73, Background, http://www.lao.ca.gov/ballot/2005/73_11_2005.htm (accessed August 26, 2005). The division between notification and consent has been recognized by state courts considering statutes similar to Proposition 73. Courts have consistently held that requiring notification (with a judicial bypass option) does not carry the same potential for arbitrary parental veto power over a minor’s choice to obtain an abortion that statutes requiring consent do. See Bellotti, 443 U.S. 622; H.L. v. Matheson, 450 U.S. 398 (1981) [“H.L.”]; Hodgson, 497 U.S. 417 (Opinions of Justices Kennedy and Stevens).
According to those courts, a State reasonably may determine that parental consultation often is desirable and in the best interest of the minor. H.L., 450 U.S. at 409. In Danforth, the Court stated:
There can be little doubt that the State furthers a constitutionally permissible end by encouraging an unmarried pregnant minor to seek the help and advice of her parents in making the very important decision whether or not to bear a child. That is a grave decision, and a girl of tender years, under emotional stress, may be ill-equipped to make it without mature advice and emotional support. It seems unlikely that she will obtain adequate counsel and support from the attending physician at an abortion clinic, where abortions for pregnant minors frequently take place. 428 U.S. at 90 (concurring opinion).
Likely because Proposition 73 requires parental notification in lieu of parental consent and allows for a judicial bypass, a federal constitutional challenge on this basis will not be successful.
Proposition 73 requires the notification of only one parent. Proposition 73, §32. In Hodgson, the Court struck down the portion of the Minnesota statute that required the notification of both parents. 497 U.S. 417. The two parent notification requirement of the Minnesota statute was mandatory unless, inter alia, the woman declared that she was a victim of parental abuse or neglect, in which event notice of her declaration was to be given to the proper authorities. The statute further provided that, the two-parent notice requirement was effective unless a court of competent jurisdiction ordered the abortion to proceed without notice upon proof by the minor that she was "mature and capable of giving informed consent" or that an abortion without notice to both parents would be in her best interest. Id. at 418. The Court found that the two-parent notice requirement was unduly burdensome on the minor and that the state had no legitimate interest in questioning the judgment of the first parent. Further, the Court found that the two-parent notification requirement had particularly harmful effects on both the minor and the custodial parent when the parents were divorced or separated. Id at. 419. Because Proposition 73 requires the notification of only one parent, challenges such as the one made in Hodgson cannot be raised.
3. Judicial bypass/ exceptions
Proposition 73 allows for several exceptions to the parental notification requirement. According to the legislative analysts, the following are the exceptions provided for in Proposition 73: medical emergencies, parental waiver of the waiting period and waivers approved by the courts. Legislative Analyst’s Office Proposition 73, Proposal, (accessed August 26, 2005).
Medical emergency exceptions have been discussed by courts in reference to other states’ laws similar to Proposition 73. In New Hampshire, a federal district court found that the New Hampshire Parental Notification Prior to Abortion Act was unconstitutional as a violation of the minor’s fundamental right to life and liberty because it did not include an exception to the notification requirement to protect a pregnant minor’s health and only provided for an emergency waiver where the minor’s life was in danger. Planned Parenthood of Northern New England, 296 F. Supp. 2d 59, 65 (2003). In contrast, Proposition 73 does include such an exception when the health of the minor is at stake. Proposition 73 §32(q), (a)(2). Proposition 73 allows for an exception when the abortion is necessary to prevent the mother’s death or when a delay would create serious risk of substantial and irreversible impairment of a major bodily function.” Legislative Analyst’s Office Proposition 73, Proposal, (accessed August 26, 2005). This exception will likely survive a federal due process constitutional challenge because it provides for emergency abortions when the minors health is at stake as required by the court in Planned Parenthood of Northern New England. A health exception is required at any stage of a pregnancy because "a State may promote but not endanger a woman's health when it regulates the methods of abortion.” Id. at 65(citing Planned Parenthood v. Casey, 505 U.S. 833, 879 (1992)).
When waivers have been written into laws similar to Proposition 73 allowing courts to grant waivers when they find that parental notification would not be in the best interest of the minor, challenges based on the inadequacy of those waivers have been unsuccessful. Lambert v. Wilklund, 520 US 292 (1997) [“Lambert”]. This “best interest of the minor” test has been held as sufficient to satisfy constitutional standards by the U.S. Supreme Court. Id. at 299. Proposition 73 allows for a court approved waiver if the minor can prove to the court that she is sufficiently mature and well-informed to decide whether or not to have an abortion or that notification would not be in the minor’s best interest. Legislative Analyst’s Office Proposition 73, Proposal, (accessed August 26, 2005). On its face, therefore, Proposition 73 meets the standard laid out in Lambert.
According to the text of Proposition 73 a minor seeking a waiver would not have to
pay court fees and would be appointed a temporary guardian and be provided any other
assistance including the services of an attorney appointed by the court. The court
would have to hear and issue a ruling within three business days of receiving the
request. If the request was denied then the minor would have the right to an expedited
appeals process. The text of the Proposition states that the appellate court would
generally have to hear and decide any appeals within four business days. Legislative
Analyst’s Office Proposition 73, Proposal, (accessed August 26, 2005). Under existing case law regarding laws similar to Proposition
73 it appears that the court approved waiver serves as a sufficient judicial bypass.
See Bellotti, 443 U.S. 622; Lambert, 520 U.S. 292; Ohio v. Akron Center for Reproductive Health, 497 U.S. 502 (1990) [“ Akron”]. In Bellotti the Supreme Court struck down a statute requiring a minor to obtain the consent of
both parents before having an abortion, subject to a judicial bypass provision, because
the judicial bypass provision was too restrictive, unconstitutionally burdening a
minor's right to an abortion. Bellotti, 443 U.S. at 655-656. (Stevens, J., concurring in judgment). The Court's principal
opinion explained that a constitutional parental consent statute must contain a bypass
provision that meets four criteria: (I) allow the minor to bypass the consent requirement
if she establishes that she is mature enough and well enough informed to make the
abortion decision independently; (ii) allow the minor to bypass the consent requirement
if she establishes that the abortion would be in her best interests; (iii) ensure
the minor's anonymity; and (iv) provide for expeditious bypass procedures. Id. at 643-644; see also Akron, 497 U.S. at 511-513 (restating the four requirements).
Proposition 73's judicial bypass procedure, on its face, appears to meet with the requirements of Bellotti. Legislative Analyst’s Office Proposition 73, Proposal, (accessed August 26, 2005). Therefore based on current precedent, challenges to the inadequacy of the judicial bypass option will not likely be successful.
B. State Constitution
As discussed at length above, in 1987 Assembly Bill 2274 (AB 2274), was passed by the California legislature. AB 2274 required unemancipated minors to obtain consent of a parent or guardian before they could obtain an abortion. If a minor was able to show sufficient maturity a judicial bypass option was available. The bill was signed into law by then Governor Pete Wilson. Ten years later AB 2274 was found to be unconstitutional under the California state constitution’s explicit right to privacy. Lungren, 66 Cal.Rptr. 2d 210.
Proposition 73, if passed, will amend the California Constitution, thus avoiding the problems faced by AB 2274. Challenges under the California Constitution are unlikely. Though an argument could be made that Proposition 73 is in conflict with the California Constitution’s guarantee of the right to privacy, courts are required to construe the two constitutional provisions in a way to avoid conflict if at all possible. In case of conflict, the constitutional provision which is more specific and which is adopted most recently prevails. Serrano v. Priest, 5 Cal.3d 584 (1971). Proposition 73 would likely be found more specific than the state constitutional right of privacy and would have also been most recently added to the state constitutional, thus trumping any challenges based on a state conditional right to privacy.
A. Proponents of Proposition 73
After the California Supreme Court struck down a statute passed by the state legislature which required a minor to either obtain the consent of a parent or a court before obtaining an abortion, minors in California had the same access to abortions as adults. Lungren, 66 Cal.Rptr. 2d 210 (1997). Proponents of Proposition 73 are attempting to change the current state of the law by amending the California Constitution.
Those who support Proposition 73 assert that their main concern is the health of teenage girls. Proponents claim that minors require assistance when making major medical decisions. Yes on Proposition 73, Reasons Why Parents Need to Know, (Accessed on August 26, 2005). Further they claim that the mandatory 48-hour waiting period will work to ensure that parents or guardians of minor girls will have an opportunity to consider the minor woman’s choice to obtain an abortion and to explore alternatives if they so desire. Id.
Proponents claim that laws such as Proposition 73 do not prevent minors from receiving abortions. Instead they assert that parental notification is necessary to ensure that the choices made by young women seeking abortions are well informed and the consequences completely thought out and aided with parental guidance. They claim they are following other states that have implemented such laws. Id.
Proponents also claim that laws like Proposition 73 will help deter sexual abuse and statutory rape by not allowing “secret abortions” to be available to cover up the evidence of those crimes. They claim they are following more than 30 other states have implemented laws like Proposition 73. They assert that many times, after such laws pass, there have been substantial reductions in pregnancies and abortions among minors. Id.
B. Opponents of Proposition 73
Opponents state that requiring a minor woman to notify a parent or guardian prior to receiving an abortion does nothing to promote teen safety or open communication among families. Opponents of 73 claim that in most cases minor women will consult with their parents when deciding whether or not to seek an abortion but that some young women do not because they cannot do so safely. Opponents claim that laws such as Proposition 73 only result in postponing medical care and risking health complications for these most vulnerable teens thus putting their health and lives in jeopardy. Planned Parenthood of California, Protect California Teens, <http://www.ppaction.org/campaign/NoOn73/explanation> (accessed on August 26, 2005).
Opponents point to statistics which show that California’s teen pregnancy rate has fallen over 41 percent in the past decade. They assert that this drop can be credited to educating teens about responsible sexual behavior and contraceptive use. <http://www.ppaction.org/campaign/NoOn73/explanation> (accessed on August 26, 2005) (citing: Adolescents and Parental Notification for Abortion, a brief published by The Bixby Center for Reproductive Health and Policy, ).
Opponents state that California Courts may not be prepared to handle judicial bypass requests from adolescents. Looking to statistics from states that have parental notification laws with judicial bypass requirements opponents claim that this can result in undue delay in obtaining an abortion making the procedure more complicated. Helena Silverstien & Leanne Speitel, “Honey, I Have No Idea”: Court Readiness to Handle Petitions to Waive Parental Consent for Abortion, 88 Iowa L.Rev. 75 (2002). Though abortions are safe medical procedures in the U.S., the risk of complications increases if the abortion is delayed into the second trimester. For example, opponents point to Mississippi, where a judicial bypass to the parental notification requirement to obtain an abortion is available. In that state adolescents who obtained an abortion after that state’s parental consent requirement took place were 10-20 percent more likely to do so in the second trimester. <http://www.ppaction.org/campaign/NoOn73/explanation> (accessed on August 26, 2005) (citing, Adolescents and Parental Notification for Abortion, a brief published by The Bixby Center for Reproductive Health and Policy, ). They point to statistics found when comparing states that have parental notification laws (Minnesota) and those without (Wisconsin) finding that the adolescents involve their parents in the decision whether or not to have an abortion at similar rates (65.3 percent and 62.1 percent respectively). Id.
They point to the mandated reporting of these procedures to the government as a further invasion of the state into private family matters. Opponents also claim that the passage of Proposition 73 will result in more self-induced and unregulated abortions putting the lives of young women greatly at risk. Opponents state that the most important factor in the choice of whether or not to terminate a pregnancy is the safety of the minor female. Planned Parenthood of California, Protect California Teens, <http://www.ppaction.org/campaign/NoOn73/explanation> (accessed on August 26, 2005) (citing, Adolescents and Parental Notification for Abortion, a brief published by The Bixby Center for Reproductive Health and Policy, ).
Proposition 73 will appear on the November 2005 ballot in an attempt to notify parents prior to performance of an abortion on a minor. If approved by a majority of the voters, the initiative will amend Article 1 of the California Constitution, by adding section 32. The amendment will require parental notification and a 48 hour wait period before an unemancipated minor may receive an abortion. Opponents fear this law will create greater danger for teens, who may seek illegal abortions rather than confront their parents with their decision. Supporters believe this law will enable parents to be aware of a major decision facing their daughters, as well as counsel their daughters during this difficult time. Legal challenges may result from language in the title and the text of the proposition, should Proposition 73 pass on November 8.