Prop. 73: A Medical, Consitutional Nightmare

October 27, 2005 by Margaret Crosby, The Daily Journal

The California Constitution protects freedom of speech, guarantees religious liberty, outlaws racial discrimination - and includes eight pages of details on how to restrict a teenager's access to abortion?

It will if Proposition 73 passes.

Not only does the insidious initiative on the Nov. 8 special election ballot place harmful burdens on teenagers, the medical profession and the juvenile justice system, but it also has frightening ramifications for abortion rights in general.

First, it would require doctors to deliver a state-scripted notification to parents whose teenage daughters (younger than 18) want to end their pregnancies. After parents receive the notice, doctors would have to wait 48 hours until performing the abortion, unless a parent personally delivers a government waiver form to the doctor's office or sends over a notarized form allowing for the abortion to be performed sooner.

Teenagers who choose not to notify their parents of plans to terminate a pregnancy must appear before a juvenile court judge and prove, by clear and convincing evidence, that they are mature enough to choose to have an abortion, or that an abortion without parental notification is in their best interest.

Moreover, the amendment would require judges to report the details of every teenage abortion case they hear to the Judicial Council as a matter of public record, and doctors to report the details of teenage abortions to the government. Doctors who mistakenly treat adolescents without complying with the proper notification procedure - say, for example, the teen gave a wrong address - can be hauled into court by anti-abortion legal groups and face a statutory penalty of $10,000 plus attorney fees.

Also troubling in the proposition is the language defining abortion as causing "the death of the unborn child, a child conceived but not yet born."

None of this belongs in our Constitution which, as it stands, extends strong privacy rights to all women seeking an abortion, including minors.

Indeed, Proposition 73 - bankrolled by wealthy anti-abortion advocates - is an effort to trump the conclusion of the California Supreme Court, affirming the San Francisco Superior Court and First District Court of Appeal, that mandatory parental involvement laws for abortion are dangerous and unconstitutional. American Academy of Pediatrics v. Lungren, 16 Cal. 4th 307 (1997).

In that case, a distinguished coalition of health-care providers challenged a 1987 law requiring minors to obtain parental consent or a court order for abortion. The American Academy of Pediatrics, the California Medical Association, the American College of Obstetricians and Gynecologists and Planned Parenthood argued that while parental involvement laws may sound benign on paper, in the real world they damage parent-child communication and place teenagers in jeopardy.

Thirty witnesses testified about experiences other states have had with parental notice laws. According to the state Supreme Court, the evidence "overwhelmingly" showed that mandating parental involvement "would not serve ... but rather would impede the state's interests in protecting the health of minors and enhancing the parent-child relationship."

The evidence also showed that without a notification law on the books, about 60 percent of pregnant teenagers consult a parent before having an abortion. That percentage rises to more than 90 percent for pregnant teens under 14. With notification laws on the books, the numbers remain unchanged. This tells us what we know: government simply cannot mandate good family communication, a process that must start long before a daughter is pregnant.

Clearly, teenagers who cannot talk to their parents about pregnancy and abortion are unlikely to do so just because a law is passed. They may not want to break the news for very good reasons: the family is in crisis; the parents would force the teen to have the baby or react violently; a relative impregnated the teen.

Parental involvement laws do not transform abusive, dysfunctional families into stable and supportive ones. They simply place more burdens on pregnant adolescents at a difficult time in their lives.

Think about it. Does it make sense to send scared pregnant teenagers to court to discuss the most intimate details of their lives with a judge? Even in states where the bypass system is efficient, the process is a stressful, humiliating procedure that delays teenagers' access to abortion. The proportion of second-trimester abortions for minors actually increases in states with parental involvement laws.

In some states, the court bypass system doesn't work. For example, a study of Pennsylvania's system found that clerks gave teenagers accurate information in only eight of 60 counties. Some minors received unsolicited lectures from court clerks while others got reactions such as, "Honey, I have no idea. You'll have to go to the Yellow Pages to hire a lawyer." Or there are judges who point-blank refuse to hear abortion cases. And even where the system works well, there are delays.

Thus, pregnant teenagers who cannot bear to confront parents or judges frequently travel out of state for abortions. They take lonely journeys, hopping on Greyhound buses or hitchhiking, and return home after the abortion. Some teen-agers turn to self-induced or illegal abortions. Some die. It is hardly surprising, then, that the California courts looking at the consequences of parental involvement laws have concluded that they harm rather than help teenagers and their families.

And there are other likely consequences of the initiative that ought to be of serious concern to lawyers and judges.

First, California's already overburdened juvenile court system would be forced to hear thousands of teenage abortion cases. The initiative requires the courts to appoint lawyers and guardians ad litem, to hear cases within three court days, to decide them within one court day, to create records and draft findings for appeal, and for appellate courts to hear and decide these cases within three days.

How can the courts accommodate all of these expedited cases? With dozens of different languages spoken in California, how can they ensure translators are available? The Juvenile Court Judges of California has weighed in on the issue, saying that Proposition 73 will add to the problems of a court system already struggling to meet the needs of troubled families.

Second, the initiative would allow anti-abortion activists to target judges. Proposition 73 requires every county to report the number of minor abortion petitions each judge has heard, granted and denied, and specifies that these reports are to be a matter of public record. This will undoubtedly result in a scorecard on every judge who is willing to hear these cases. In other states, many judges recuse themselves from teenage abortion cases. This shrinks the pool of judges who must hear these sensitive, expedited cases.

Thus, it is not too far-fetched to envision anti-abortion picketing outside the courthouse, or elections where campaign mailers inform voters that "Judge Smith has allowed an average of 35 secret underage abortions a month."

Third, it is ludicrous to map out all the details of the notification regulations, right down to the postal methods (two envelopes, one by certified mail, restricted delivery, return receipt requested and first class mail) in the California Constitution. No matter how cumbersome and traumatic the procedure - and it will be - the measure can be modified only by another initiative.

Moreover, if the entire statute is dumped into the California Constitution, we will be stuck with language granting new constitutional recognition to embryos. Proposition 73 defines abortion as causing "the death of the unborn child, a child conceived but not yet born." Compare that with California's Health & Safety Code Section 123464, which defines abortion as "any medical treatment intended to induce the termination of a pregnancy except for the purpose of producing a live birth."

Calling an embryo a child not only clears the path for more abortion challenges, but it could also influence or interfere with future court decisions in cases involving biotechnology and reproductive medicine, such as embryonic stem cell research.

To override the American Academy of Pediatrics ruling, proponents of Proposition 73 need only add a simple line to the Constitution authorizing the Legislature to enact a parental involvement law. That is what happened in Florida after its Supreme Court struck down a parental consent statute. The details were thrashed out in the legislative process.

You might recall the campaign against Chief Justice Ronald George (attacking the "madness of King George") and Associate Justice Ming Chin following their votes against a parental consent law in the American Academy of Pediatrics case. Voters overwhelmingly rejected that attack on judicial independence. Hopefully, voters will do the same with Proposition 73 for the sake of teen health, the court system and the privacy rights protected by our Constitution.

Margaret Crosby, a staff attorney for the ACLU of Northern California, represented the plaintiffs in American Academy of Pediatrics v. Lungren.