HealthVote2005: Proposition 73

On the ballot the proposed amendment to the California Constitution is described as: Waiting Period and Parental Notification Before Termination of Minor’s Pregnancy. Its proponents refer to it as Parents’ Right To Know and Child Protection. Its opponents have organized under the banner Campaign for Teen Safety.

Both sides for this ballot measure have their horror stories and poignant protagonists. One invokes the image of a distraught mother, unaware that her 13-year-old daughter is five months pregnant, who learns second-hand that the girl has left school one afternoon to undergo an abortion the mother would have discouraged; the other side offers a desperate daughter, also just 13, shot to death by her father — who’d raped her — when he discovers she secretly arranged an abortion.

Wrenching scenarios like these, subject to impassioned debate and interpretation according to one’s ethical viewpoint, animate proponents and opponents of Proposition 73.

What is Proposition 73?

Proposition 73 would require physicians to 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 alone — in writing, either delivered directly if the parent is present or sent by both first class and certified mail, with return receipt requested — and the two-day “reflection period” are all that are necessary. If there is no response, the abortion may be performed. Or, a parent may consent to the procedure and waive the waiting period by signing a notarized form.

In any case, says Albin Rhomberg, a retired physicist who serves as spokesperson for the “more or less ad hoc” coalition supporting Proposition 73, the mandated delay is designed to be brief enough to satisfy U.S. Supreme Court rulings on parental notification laws in other states.

Should the pregnant minor fear her parents’ response or should she insist on undergoing the abortion against their objections, the amendment would provide her with a free, confidential juvenile court hearing, free legal representation, and a judgment within three business days. She would also have the right to appeal an adverse ruling and receive a final judgment within another four days.

Polling results have given Proposition 73’s proponents hope for passage of the measure.

One recent poll on the issue, by Field Research in June 2005, asked 955 randomly chosen adult Californians how they would vote for an initiative like Proposition 73, using almost the same wording that will appear on the ballot with no other explanation. Forty-eight percent said they’d be for it, 42% said they’d be against it, and 10% were undecided.

“Republicans, conservatives, Christians and voters who are not college graduates are very much in favor of the parental notification of the teen abortion initiative,” Field analysts concluded. “On the other hand, Democrats, liberals, moderates, college graduates, those under age 50, and voters affiliated with non-Christian religions or with no religious preference are opposed.”

Proponents’ Arguments

About one in four pregnancies in California is terminated by an induced abortion, according to the Alan Guttmacher Institute, which compiles statistics on the procedure nationwide. California, however, is one of three states without an official abortion reporting system. Therefore most recent figures available are estimates. These indicate that of 236,060 abortions performed in the year 2000 in California, 16,730 were for girls under the age of 18.

On their Web page and in their initiative campaign, Proposition 73 proponents declare that “it is reasonable to expect a minimum of 20,000 fewer abortions during the first year following passage of the initiative.” However, there is little research to substantiate such claims, despite 18 states having laws mandating parental consent for a minor’s abortion and another 16 having a notification requirement.

Testifying before Congress last March, Teresa Collett — principal author of Proposition 73, a law professor at the University of St. Thomas School of Law in Minneapolis and a frequent witness before state and federal legislative committees on behalf of parental involvement laws — cited Texas data showing that abortions for minors fell by 20% in the year after that state implemented a parental notification act (in 2000). When Mississippi adopted a parental consent law in 1993, abortions among minors dropped 3%. At the same time, the ratio of minors to adults who sought abortions out of state rose by a third, and the ratio of minors to adults who obtained an abortion after the first trimester increased by 19%.

“Twenty thousand less [abortions] might be a little on the high side,” concedes Albin Rhomberg. “I don’t think there are any good predictions, because there isn’t any [reliable] data.”

Passage of Proposition 73 would place new reporting obligations on physicians who perform abortions for minors, and would require the state to compile and publish the data annually. It would establish monetary penalties for violations or noncompliance. And it would allow a minor to go to court to circumvent any coercion to abort.

“We think this is a common-sense thing,” summarizes Rhomberg, “even if it doesn’t cut down abortions at all. One of the most desirable results is the reduction of teenage pregnancies. [Parental notification] is a natural deterrent to promiscuous behavior… a kind of birth control.”

Opponents’ Arguments

Officials of the Campaign for Teen Safety — the No on 73 effort — dismiss such assertions. They point out that the pregnancy rate for teenagers has fallen steadily in California without any parental involvement laws, dropping 31% among minors ages 15 to 17 between 1996 and 2000, according to AGI statistics. And the abortion rate for this age group has declined in tandem, shrinking by 30% over the same period. These declines, opponents to Proposition 73 say, are a consequence of “teaching teenagers about responsibility, abstinence, and birth control.”

The Campaign for Teen Safety bills itself as “A Project of Planned Parenthood Affiliates of California” and lists 29 major medical, health care, civil liberties, and women’s organizations as allies. The campaign is being managed by the Dewey Square Group, a public affairs firm specializing in grassroots politics.

No on 73 advocates agree that pregnant minors should talk with their parents and point out that most minors do. According to a 1992 study published by AGI and acknowledged by both sides of the debate, three out of five unmarried minors — and nine out of 10 under the age of 15 — who had abortions in states without parental involvement laws discussed the decision beforehand with at least one parent. The rest, say Proposition 73 opponents, often had very good reasons not to.

It is these young minors whose well-being is jeopardized by a requirement that their parents be notified before an abortion can be induced, opponents maintain. Of the minor girls in the 1992 study who chose not to inform their parents before going through with the procedure, almost one in four said they were afraid they’d be kicked out of the house if they did, one in 12 said they feared they’d be beaten, and one in seven said they had parents who were alcoholics or drug abusers.

“Mandatory notification laws make scared, pregnant teens who can’t go to their parents do scary things,” argue Proposition 73 opponents. “If, in desperation, teenagers turn to illegal, self-induced or back-alley abortions, many will suffer serious injuries and some will die.”

A court hearing is not a viable alternative for many of them, according to Dewey Square’s Dawn Wilcox.

As the U.S. Supreme Court acknowledged in 1990 in Hodgson v. Minnesota, “The court experience produced fear, tension, anxiety and shame among minors …” Neither the Minnesota judges who ruled on bypass petitions in that state between 1981 and 1986 nor the parents who accompanied their daughters to court “identified any positive effects of the law.”

Furthermore, although every state with an operative parental involvement law except Utah includes a judicial bypass option “on paper,” studies in Alabama, Pennsylvania and Texas have shown that it is “often unavailable in practice,” notes National Center for Youth Law attorney Rebecca Gudeman, based in Oakland.

Opponents of Proposition 73 worry about more subtle aspects of the proposed amendment, too.

For example, it would insert in the state’s constitution a definition of abortion as causing “the death of an unborn child.” That is terminology favored by abortion opponents over more scientific descriptions like embryo and fetus.

The reporting requirements of the measure are also of concern to Proposition 73 opponents, especially a mandate that the state Judicial Council maintain a public record, by judge, of the number of notification waiver petitions requested and granted. Sacramento Bee columnist Peter Schrag notes that this “could subject judges to considerable pressure from [election] challengers and right-to-life groups, particularly in conservative areas.”

For their part, suggests Gudeman, No on 73 forces can be expected to devise a legal challenge should Proposition 73 pass. “Both sides are preparing for that eventuality,” she says.

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