California Voters Again Face Parental Notification Measure

Proposition 85, the “Waiting Period and Parental Notification” initiative, would require physicians to notify a parent or guardian and then wait at least 48 hours before performing an abortion for an unmarried minor girl. The proposed amendment to the California Constitution would allow exceptions for “emancipated” minors and cases of emergency and permit pregnant girls to seek parental or judicial waivers.

If that sounds familiar, it’s because the measure is for the most part a reprise of Proposition 73, a ballot initiative of much the same name defeated in last November’s Special Election by 53% of voters.

In a ballot argument opposing Proposition 85, Jack Lewin, CEO of the California Medical Association; Robert L. Black, 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.”

Proponents Regroup After 2005 Defeat

“We were, of course, disappointed,” recalls Albin Rhomberg, a retired Sacramento physicist who served as principal spokesman for last year’s unsuccessful campaign and is spokesperson for the Proposition 85 campaign. But he points out that all eight ballot measures were turned back last Nov. 8, and that Proposition 73 failed by only 5.6%, when five initiatives on the ballot had been voted down by up to 30% of voters. In fact, the measure won in 33 of California’s 58 counties, Rhomberg notes.

“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 Gov. Arnold Schwarzenegger (R) 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.

Details of the Measure

The principal author of both Propositions 73 and 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. Like California, 41 states have passed parental involvement laws; eight of them, including California, also have seen those laws permanently or temporarily blocked by judicial orders.

Proposition 85 would require that physicians 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 Rhomberg.

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 also would have the right to appeal an adverse ruling and receive a final judgment within another four days.

Passage of Proposition 85 would place new reporting obligations on physicians who perform abortions for minors, including the date and facility where abortions are performed and the minor’s month and year of birth. DHS would compile the data and use it as the basis for a report that would publicly available.

The measure also would establish monetary penalties for violations or noncompliance and would allow a minor to go to court if she is being coerced to undergo an abortion.

Differences Between Propositions 73 and 85

Although Proposition 85 is largely a word-for-word reprise of Proposition 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 Proposition 73 language has been included in the California Civil Code since 1872. Nevertheless, he and Proposition 85 proponents defined abortion in Proposition 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 Proposition 73 could have put political pressure on judges, especially in conservative areas.

Proposition 85 eliminates the judge-by-judge listing mandate. Instead, it is done by county. But Steve Smith of the campaign to defeat Proposition 85, says, “In a rural county, whether you name judges or not, everybody’s still going to know what’s going on.”

Finally, says Rhomberg, Proposition 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—Proposition 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.

Changed Political Terrain

The battle over Proposition 85 will be waged with slightly different tactics than those employed in 2005, both sides agree.

Proposition 85 proponents predict that a high turnout in November will favor their side and cite the findings of a 2002 Zogby International poll in which 71% of Californians favored parental notification.

However, a more recent poll by Field Research in early August 2006, found that 52% of voters were familiar with Proposition 85, that 45% would vote against it and that 44% would vote in favor. Eleven percent of voters were undecided.

Steve Smith of the Dewey Square Group, the Washington, D.C.-based Democratic consulting firm running the campaign to defeat Proposition 85, questions whether the larger voter turnout Rhomberg is hoping for will occur. He points to the June primary, when participation was the lowest in California history. “It’s not clear we’ll have more voters in November, and what kind of voters they’ll be is anybody’s guess,” he says. “I would hate to pin my strategy on who will vote and who will not vote.”

Another initiative on the ballot, Proposition 83, might exert some unpredictable synergism, notes Kathy Kneer, head of Planned Parenthood California. The measure 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. Convicted sex offenders would have to wear a Global Positioning System monitor for life under the measure.

Supporters of Proposition 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.”

Proposition 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 such as MySpace.

Proposition 85 backers are committed to a more direct approach. Rhomberg says, “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.”

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