Tina E. Poley
JD, McGeorge School of Law, University of the Pacific
to be conferred May, 2008
B.S., Northern Arizona University, 2005
Copyright © 2006 by University of the McGeorge School of Law
Proposition 85, Waiting Period and Parental Notification Before Termination of Minor’s Pregnancy, is an Initiative Constitutional Amendment. It requires abortion providers to notify at least one parent in writing that their minor child is seeking an abortion. Notification may be delivered in person, or by first class certified mail. After notification, 48 hours must pass before the abortion is performed.
Parental notification and the waiting period can be waived by either the parents themselves or by the court through a judicial bypass. If the minor is found to be mature enough to make her own decisions, or if waiving notification would be in her best interest, the waiver is granted. If the waiver is denied, the minor can appeal the decision.
Proponents of Proposition 85 believe it will foster communication between parents and children about the decision to have an abortion. Since many young girls are impregnated by older men, parental involvement may help put a stop to such inappropriate relationships.
Opponents of Proposition 85 argue that the safety of minors is more important than parental notification. Teens who fear telling their parents may resort to illegal abortions, crossing state lines to obtain an abortion, or delaying an abortion until the second trimester when procedures are more risky. Opponents also feel Proposition 85 infringes on minors’ express right to privacy under the California Constitution.
A. Current Law
1. Legal Foundations
Since 1953, minors have been able to access the same prenatal care as adults without parental oversight. David Ollier Weber, Background: Proposition 85, http://www.healthvote.org/index.php/site/article/C36/85_background (accessed September 14, 2006). This includes all hospital, medical, and surgical care related to pregnancy. Id. Abortion services fall under the access to care. In 1961, certain minors were exempted from obtaining parental consent for all kinds of medical care. Id. Specifically, minors who were married or serving active duty in the military did not need parental consent. Id. Emancipated minors over the age of 15 were added to the exemption in 1968. Id. Over the next decade, minors over the age of 12 were allowed access, without parental knowledge, to medical care related to rape, sexual assault, sexually transmitted infections, drug and alcohol problems, and some mental health treatments. Id. The California Supreme Court justified these allowances, saying that when minors are reluctant to inform their parents of the need for medical care, the minor may risk not seeking care at all, “to the detriment of themselves, their families, and society.” American Academy of Pediatrics v. Lungren, 16 Cal. 4th 307, 316 (1997).
2. Roe v. Wade and AB 2274
In 1973, the U.S. Supreme Court asserted that abortion is an implicit privacy right protected by the U.S. Constitution. Roe v. Wade, 410 U.S. 113 (1973). State legislators tried to undercut the decision by reducing funding for abortions through the Medi-Cal program for low income women. Weber, supra, http://www.healthvote.org/index.php/site/article/C36/85_background. The court declared this measure invalid under California’s own constitution, which contains an express right to privacy. Comm. to Defend Reprod. Rights v. Myers, 29 Cal. 3d 252, 285 (1981).
The state legislature passed Assembly Bill 2274 in 1987 in an attempt to undo the original 1953 legislation granting minors access to prenatal care without parental consent. Weber, supra, http://www.healthvote.org/index.php/site/article/C36/85_background. AB 2274 required unemancipated minors to obtain parental consent before receiving an abortion. Id. If consent was refused, or if a girl feared her parents’ reaction, she could use the judicial bypass option and prove to a judge that she was mature and could make her own decisions. Id.
The bill was never implemented because it was challenged immediately and an injunction was issued pending the outcome. Id. The lower courts found the law to be unconstitutional, and the California Supreme Court eventually affirmed that AB 2274 was, in fact, unconstitutional. Lungren, 16 Cal. 4th at 359. Chief Justice George concluded “that a minor who is pregnant has a protected privacy interest under the California Constitution in making the decision [to have an abortion].” Id. at 337.
B. The Proposed Change
1. Parental Notice and Judicial Bypass
Proposition 85 would amend the California Constitution by adding Section 32 to Article 1. Proposition 85, §3, Waiting Period and Parental Notification Before Termination of Minor’s Pregnancy, (2006), www.ss.ca.gov/elections/vig_06/general_06/pdf/proposition_85/entire_prop85.pdf (accessed October 24, 2006). This section would require an abortion provider to notify at least one parent or guardian of a minor seeking an abortion and then wait 48 hours before performing the abortion. Id. at §3(b). Consent of a parent is not required. Notice can be given in the form of personal written notification or written notification by certified mail. Id. In the case of a medical emergency that would “create serious risk of substantial and irreversible impairment of a major bodily function,” notification and waiting period requirements would not apply. Id. at §3(a)(2).
A parent or guardian can waive notification by giving the abortion provider a written waiver which must be notarized unless personally delivered to the physician. Id. at §3(e). The waiver must state that it is valid for either 30 days, until a specified date, or until the minor turns 18. Id.
The court can also waive parental notification. Id. at §3(g). A minor can ask the juvenile court to waive notification based on a minor’s maturity or if notification would not be in the minor’s best interest. Id. The minor could appeal if the request is denied. Id. at §3(j). The minor would not have to pay court fees and would be appointed a guardian and counsel. Id. at §3(g). The minor’s identity would be kept confidential and the record sealed. Id. A decision would be issued within 3 days of the request. Id. An appeal would be decided within 3 days of its filing. Id. at §3(j). If the court finds any evidence of abuse, it must report it to Child Protective Services. Id. at §3(h)(2).
2. Reporting Requirement
The outcome of judicial waiver requests will be compiled anonymously by county every year, and the data will be made public. Id. at §3(k). Abortion providers must provide information to the Department of Health Services (DHS) within one month of performing an abortion on a minor. Id. at §3(m). Information collected includes the date and facility where the abortion took place, the month and year of the minor’s birth, how many abortions and pregnancies the minor has had previously, the length of the pregnancy, and the type of procedure used. Id. at §3(l). DHS would then compile the information and make it available to the public. Id. at §3(n).
A. Proposition 73
Proposition 85 is almost identical to last year’s failed Proposition 73. Weber, supra, http://www.healthvote.org/index.php/site/article/C36/85_background. The proponents of both propositions changed some of the language with the hope that voters would be more likely to pass it into law this election cycle. Id. The biggest change is to the definition of abortion. Id. In Proposition 73, abortion was 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.” Id. Opponents disliked the political language that would become part of the California Constitution, and could be used as authority in future lawsuits. Id. The concern was the definition of the term “unborn child” which opponents feared might give personhood to a fetus. Id. The definition has been changed in Proposition 85 to now define abortion 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. ‘Abortion’ shall not include the use of any contraceptive drug or device.” Proposition 85 at §3(a)(1).
Also, Proposition 85 has different reporting requirements than Proposition 73. Proposition 73 required the granting and denial of judicial waivers to be tallied annually and reported under each judge. Weber, supra, http://www.healthvote.org/index.php/site/article/C36/85_background. Opponents feared reporting in this manner would subject judges to harassment and political pressure, especially in rural areas. Id. Proposition 85 compiles information by county, not by individual judge. Id. Opponents claim that in rural counties, where the number of judges is fewer, the same potential problems still exist. Id. Proposition 85 also adds another statistic to the report that abortion providers must submit to DHS. The report would now include the number of previous pregnancies and abortions a minor has had. Proposition 85 at §3(l). Opponents to Proposition 85 assert that voters already defeated this initiative last year and that the changes are not enough for Proposition 85 to pass. Weber, supra, http://www.healthvote.org/index.php/site/article/C36/ 85_background.
B. History of Parental Notification
1. Privacy Rights in California
Article 1 of the California Constitution specifically lays out a right to privacy. “All people are by nature free and independent and have inalienable rights. Among these are enjoying and defending life and liberty, acquiring, possessing, and protecting property, and pursuing and obtaining safety, happiness, and privacy.” Cal. Const. art. 1, § 1. California courts have established that “the state constitutional right of privacy is broader and more protective of privacy than the federal constitutional right of privacy as interpreted by the federal courts.” Lungren, 16 Cal. 4th at 326. A law that infringes on reproductive rights is less likely to pass muster under California’s Constitution than under the U.S. Constitution. Weber, supra, http://www.healthvote.org/ index.php/site/article/C36/85_background. Proposition 85, as an amendment to the state constitution, might change the right to privacy as applied to minors.
2. Precedent and Proposition 85
The requirements of Proposition 85 are very similar to AB 2274, which was deemed unconstitutional by the California Supreme Court. Id. Proposition 85 is a constitutional amendment, however, and not a statute. Proposition 85. This means that Lungren is not binding on a court if Proposition 85 is enacted and subsequently challenged. The concepts of privacy relied upon in Lungren would be altered by Proposition 85 itself. Any challenge would have to be under the U.S. Constitution and not the state constitution. AB 2274 was found unconstitutional based on California’s Constitution, making it likely to have passed federal muster. Weber, supra, http://www.healthvote.org/index.php/site/article/C36/85_background. Further, the United States Supreme Court has found that other parental notification laws with judicial bypass options do not violate the implied right of privacy. Bellotti v. Baird, 443 U.S. 622 (1979). The drafting similarities between Proposition 85 and AB 2274 will likely be of no importance.
A. US Constitution
1. Waiting Period
Proposition 85 requires a 48 hour waiting period beginning after at least one parent or guardian has been notified. Proposition 85. There are exceptions for a medical emergency or if a parent or guardian waives the waiting period. Id. A similar statute was passed in Minnesota and found by the U.S. Supreme Court to be constitutional. Hodgson v. Minnesota, 497 U.S. 417 (1990). A waiting period is not an absolute obstacle for a minor seeking an abortion. Id. at 418. It does, however, further a state interest of protecting the welfare of a pregnant minor. Id. It is likely that the waiting period requirement of Proposition 85 is constitutional.
2. Notification and Consent
Proposition 85 requires the parents of a minor be notified before the minor can obtain an abortion. Proposition 85 at §3(b). Parental consent, which will not be required by the new law, would arguably carry a greater risk of arbitrary refusal and would more likely be an absolute obstacle preventing an abortion. Parental consent is more likely to be found unconstitutional. H.L. v. Matheson, 450 U.S. 398 (1981). Notification, on the other hand, allows a minor to exercise a right to abortion while still encouraging communication between parents and pregnant minors. In H.L., the court found that states have an interest in promoting parental consultation when a minor wishes to have an abortion. Id. at 409. A minor who does not want to have her parents notified also has the option of getting a court waiver through the judicial bypass process. Proposition 85 at §3(g). For these reasons, it is likely that the parental notification requirement of Proposition 85 is constitutional.
3. Judicial Bypass Exception
Proposition 85 allows a minor to request that a court waive the parental notification requirement. Id. A minor has to prove to the court that she is either mature enough to understand the gravity of her decisions or that notifying her parents would not be in her best interests. Id. This language is similar to a statute passed in Montana, which also allowed a court to bypass notification if it found that notifying parents would not be in the minor's best interests. Lambert v. Wilklund, 520 U.S. 292 (1997). In that case, the Supreme Court held that the requirement for a minor to show that parental notification is not in her best interests was constitutional. Id. The judicial bypass option in Proposition 85 is likely constitutional because it is almost identical to the language used in the Montana statue. Additionally, Proposition 85 is likely not an undue burden on a minor because of all the assistance written into the initiative. A minor choosing this option would not have to pay court fees, would have counsel appointed, and will have a decision within 3 days. Proposition 85 at §3(g). Finally, the court proceedings would be confidential. Id. It is likely that the judicial bypass exception is constitutional.
B. State Constitution
1. Constitutional Amendment
Proposition 85 classifies itself as a constitutional amendment. As such, it would avoid the constitutional problems faced by AB 2274 because it would change the constitution itself. A challenge might be brought asserting that in amending the Constitution, the express right to privacy and Proposition 85 would be in conflict. A court is required, however, to try and harmonize any potential conflicts in the California Constitution if possible. Serrano v. Priest, 5 Cal.3d 584 (1971). Recent additions to the Constitution usually prevail, as do more specific amendments. Id. Proposition 85 is both recent and specific, and would likely supersede the express right to privacy. A court would likely find that as an amendment, Proposition 85 is constitutional under the California Constitution.
Florida recently enacted a parental notification law very similar to Proposition 85. NARAL Pro-Choice America, Who Decides? Florida: Restrictions on Young Women’s Access to Abortion, http://www.prochoiceamerica.org/choice-action-center/in_your_state/who-decides/state-profiles/florida.html?templateName=lawdetails&issueID=6&ssumID=2525 (accessed October 7, 2006). Previously, in 2003, a parental notification law was found to violate a minor’s right to privacy guaranteed in the Florida Constitution. Id. In response, a resolution was passed by the legislature to amend the constitution so that parental notification would not be a violation of privacy. Id. The amendment was made a ballot initiative and approved by the voters in 2004. Id. The legislature then passed a parental notification law that went into effect in July 2005. Id. It was challenged in federal court, but in February 2006, a judge upheld the law as constitutional. Id. Since the Florida Constitution had been amended to allow the legislature to pass such a bill, the constitutional issue no longer existed. Id. If Proposition 85 passes and is subsequently challenged on the basis of privacy, a court will likely come to the same conclusion that the Florida court did; amending the California Constitution avoids a conflict with a constitutional right to privacy.
2. Constitutional Revision
Certain changes to the state constitution go beyond the limits of an amendment and are considered constitutional revisions. John Howard, Part-time Legislature: Can it be Done by Initiative?, 2004 California Journal, http://www.capitoljournal.com/news/features/_H.o.w.a.r.d./ (accessed October 24, 2006). A proposition might be found to be a revision if it effects a qualitative or quantitative change in the exercise of power. Id. “A revision changes the substantive balance of power between the branches.” Id. The voter initiative process is not available for constitutional revisions. Id. A revision can only be effected if the legislature convenes a constitutional convention or if the legislature by a two-thirds vote in both houses places the measure on the ballot. Cal. Const. art. XVIII, §§ 1, 2. Once the people have also approved it, the constitution can then be revised. Id. A voter initiative found to be a revision is unconstitutional and inoperative. Raven v. Deukmejian, 52 Cal.3d 336 (1990).
The California Supreme Court has struck down a voter approved proposition after finding it a revision and not an amendment. Id. Proposition 115 attempted to limit California criminal defendants to only the constitutional rights provided in federal courts. Id. at 352. The California Supreme Court found this to have a qualitative effect on the judicial branch. Id. The judicial power of interpretation would be removed from California courts and vested in the U.S. Supreme Court. Id. The change in constitutionally given powers qualified as a revision and could not be law with only voter approval. Id.
There is a possibility that like Proposition 115, Proposition 85 also has a substantial effect on constitutionally granted powers. Proposition 85 would alter the California Constitution’s explicit right to privacy by restricting teen privacy when seeking an abortion. A court might find that like Raven, the effect of the proposition is to limit state rights to those that are federal rights. A court might also find that the change to the California Constitution removes power from the state judiciary to decide privacy rights in relation to abortion. In that case, Proposition 85 would be an improper revision to the California Constitution.
It is unclear how a court would handle the issue of constitutional revision, since this type of claim is not commonly brought. Historically, the court has shown it is willing to strike down a voter initiative when it crosses the line from an amendment to a revision, however, the makeup of the court has changed in the past 16 years since the Raven decision. Howard, 2004 California Journal, supra, http://www.capitoljournal.com/news/features/_H.o.w.a.r.d./. Proposition 85 may or may not survive a challenge based on the Raven theory.
A. Proponents of Proposition 85
Proponents of Proposition 85 desire to amend the state constitution to prevent minors from having an abortion without their parents’ knowledge. They say that parents should be involved in their daughters’ lives and helping to make life altering decisions. Weber, supra, http://www.healthvote.org/index.php/site/article/C36/85_background. Parents are in the best position to give medical history to avoid complications and, should complications arise, are in the best position to obtain prompt medical care for their daughter. Yes on 85, Yes on Proposition 85, http://www.yeson85.net/calif-needs.aspx (accessed September 15, 2006). Also, proponents feel it will reduce and expose child sexual abuse because men who impregnate minor girls cannot hide their abuse by encouraging the girl to have a secret abortion. Id. Parents who are aware of inappropriate relationships between their daughters and older men are more likely to step in and prevent the relationship from continuing. Id.
Proponents also claim that the 48 hour waiting period will allow young girls and their parents to reconsider their decision to have an abortion and possibly explore other options. Id. Many other states have parental notification or consent laws, and proponents assert that the pregnancy and abortion rates have decreased among minors as a result of the parental involvement laws. Id. Virginia’s abortion rate among minors decreased by 25% and Pennsylvania’s teen pregnancy rate decreased by 18% after the passage of parental involvement laws. Id. Finally, it is estimated that California’s own abortion rate will drop by up to 25% if Proposition 85 passes. Id.
B. Opponents of Proposition 85
Opponents of Proposition 85 insist that the initiative will not make girls any safer. Campaign for Teen Safety, No on Prop. 85, http://www.noon85.com (accessed October 7, 2006). They say that a law cannot force families to communicate nor expose all older men having relationships with young girls. Id. Besides, most teenagers do tell their parents before getting an abortion, and the ones that do not have good reasons. Id. Studies comparing the abortion rates of Minnesota, which requires notification of both parents, and Wisconsin, which does not require any notification, found that the number of teenagers that spoke with their parents did not increase where parental notification was required. Editorial, Abortion notification measure fails to ensure teenagers’ safety, The Desert Sun (Oct. 2, 2006)
Opponents believe the measure is just another way to hinder access to abortion under the pretense of safety. Campaign for Teen Safety, supra, http://www.noon85.com. Further, the current teen pregnancy rate in California has fallen for the thirteenth straight year in a row, suggesting that parental notification laws are not necessary to reduce pregnancy and abortion. Editorial Board, No on Proposition 85, The Sacramento Bee, B6 (Sept. 12, 2006). Finally, the change in abortions performed after parental notification laws are enacted is negligible according to the New York Times. Andrew Lehren and John Leland, Scant Drop Seen in Abortion Rate if Parents are Told, N.Y. Times (Mar. 6, 2006). In Tennessee, the abortion rate actually increased when a parental consent law went into effect and dropped when the law was suspended by the courts. Id.
If approved by a majority of voters, Proposition 85 will amend Article 1 of the state constitution to include section 32. Section 32 would require parental notification and a 48 hour waiting period before a minor is allowed to have an abortion. Supporters believe this initiative will help parents to be informed of their daughter’s medical history and allow parents to help counsel their daughter during this time. It is also hoped that this measure will expose child abuse and prevent minors from being preyed upon by older men. Opponents are concerned that this initiative will not make girls safer but instead less safe. Girls may cross state lines to get an abortion or seek an illegal one. Some girls living in dangerous situations may face abusive reactions from parents. Should it pass, legal challenges to Proposition 85 might be brought, but likely will not prevail on claims of federal unconstitutionality. Claims of state unconstitutionality might be upheld depending on whether Proposition 85 is deemed a constitutional amendment, as intended, or a constitutional revision.