Bill Text: CA ACA5 | 2013-2014 | Regular Session | Amended
Bill Title: Abortion: parental notification.
Spectrum: Partisan Bill (Republican 11-0)
Status: (Introduced - Dead) 2014-02-18 - From committee without further action pursuant to Joint Rule 62(a). [ACA5 Detail]
Download: California-2013-ACA5-Amended.html
BILL NUMBER: ACA 5 AMENDED
BILL TEXT
AMENDED IN ASSEMBLY JANUARY 7, 2014
INTRODUCED BY Assembly Member Grove
( Coauthors: Assembly Members
Dahle, Donnelly, Beth Gaines,
Hagman, Jones, Melendez, and Wagner
)
( Coauthors: Senators
Anderson, Knight, and Nielsen )
JANUARY 28, 2013
A resolution to propose to the people of the State of California
an amendment to the Constitution of the State, by adding Section 32
to Article I thereof, relating to abortion.
LEGISLATIVE COUNSEL'S DIGEST
ACA 5, as amended, Grove. Abortion: parental notification.
The California Constitution establishes a right of privacy.
Existing statutory law, the Reproductive Privacy Act, contains
provisions regulating abortions, including a requirement that the
procedure be performed by a physician and surgeon. The act prohibits
the state from denying or interfering with a woman's right to choose
or obtain an abortion prior to viability of the fetus, or if the
abortion is necessary to protect the life or health of the woman.
This measure, which would be known as the Parental Notification,
Child and Teen Safety, Stop Predators Act, would prohibit a physician
and surgeon from performing an abortion on an unemancipated minor,
as defined, unless the physician and surgeon or his or her agent has
delivered written notice to the parent of the unemancipated minor, or
until a waiver of that notice has been received from the parent or
issued by a court pursuant to a prescribed process. The measure would
require the physician and surgeon performing an abortion on an
unemancipated minor to report specified information to State
Department of Public Health and would require the department to
compile an annual statistical report with that information. The
measure would impose civil and criminal liability for violation of
this measure, as specified.
Vote: 2/3. Appropriation: no. Fiscal committee: yes.
State-mandated local program: no.
Resolved by the Assembly, the Senate concurring, That the
Legislature of the State of California at its 2013-14 Regular
Session, commencing on the third day of December 2012, two-thirds of
the membership of each house concurring, hereby proposes to the
people of the State of California, that the Constitution of the State
be amended as follows:
First-- This act shall be known and may be cited as the Parental
Notification, Child and Teen Safety, and Stop Predators Act.
Second-- The people of the State of California find and declare
that they have a compelling interest in both of the following:
(a) Protecting minors from the known risks of secret abortions,
including the danger of not obtaining prompt care for health- and
life-threatening complications when a minor's parent is unaware that
she has undergone a secret abortion.
(b) Preventing sexual predators from using secret abortions to
conceal the sexual exploitation of minors.
Third-- That Section 32 is added to Article I thereof, to read:
SEC. 32. (a) For purposes of this section, the following
definitions shall apply:
(1) "Abortion" means 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.
(2) "Medical emergency" means a condition that, on the basis of
the physician's good-faith good faith
clinical judgment, so complicates the medical condition of a pregnant
unemancipated minor as to necessitate the immediate abortion of her
pregnancy to avert her death or for which a delay will create serious
risk of substantial and irreversible impairment of a major bodily
function.
(3) "Notice" means a written notification, signed and dated by a
physician or his or her agent, informing the parent of an
unemancipated minor that she has requested an abortion.
(4) "Parent" means a person who, at the time notice or waiver is
required under this section, is a parent if both parents have legal
custody, the parent or person having legal custody, or the legal
guardian of an unemancipated minor.
(5) "Physician" means a person authorized under the statutes and
regulations of the State of California to perform an abortion upon an
unemancipated minor.
(6) "Unemancipated minor" means a female under 18 years of age who
has not entered into a valid marriage, is not on active duty with
the Armed Services of the United States, or has not received a
declaration of emancipation under state law. For the purposes of this
section, pregnancy does not emancipate a female under the
age of 18 years of age .
(b) Notwithstanding any provision of this Constitution to the
contrary, and except as provided in subdivision (d), (e), or (f), a
physician shall not perform an abortion on an unemancipated minor
until after the physician or the physician's agent has delivered
written notice, as provided in subdivision (c), or has received a
copy of a waiver of parental notice from the court , as
authorized in subdivision (g). A copy of a notice or waiver shall be
retained with the unemancipated minor's medical records. The
physician or the physician's agent shall inform the unemancipated
minor that her parent may receive notice as provided for in this
section.
(c) The written notice shall be delivered by the physician or the
physician's agent to the parent, either personally or by certified
mail addressed to the parent at the parent's last known address with
return receipt requested and restricted delivery to the addressee. If
notice is provided by certified mail, a copy of the written notice
shall also be sent at the same time by first-class mail to the
parent. Notice by mail may be presumed to have been delivered under
this subdivision at noon of the second day after the written notice
sent by certified mail was postmarked, not counting any days on which
regular mail delivery does not take place. A form for the notice
shall be prescribed by the State Department of Public Health. The
notice form shall be bilingual, in English and Spanish, and also
available in English and each of the other languages in which
California Official Voter Information Guides are published.
(d) Notice of an unemancipated minor's intent to obtain an
abortion may be waived by her parent. The waiver must be in writing
on a form prescribed by the State Department of Public Health, signed
by a parent, dated, and notarized. The parent shall specify on the
form that the waiver is valid for 30 days, or until a specified date,
or until the minor's 18th birthday. The written waiver need not be
notarized if the parent personally delivers it to the physician or
the physician's agent. The form shall include the following
statement: "WARNING. It is a crime to knowingly provide false
information to a physician or a physician's agent for the purpose of
inducing a physician or a physician's agent to believe that a waiver
of notice has been provided by a parent or guardian." The waiver form
shall be bilingual, in English and Spanish, and shall also be
available in English and each of the other languages in which
California Official Voter Information Guides are published. For each
abortion performed on an unemancipated minor, the physician or the
physician's agent must receive a separate original written waiver
that shall be retained with the unemancipated minor's medical
records.
(e) Notice shall not be required under this section if the
unemancipated minor is the victim of physical or sexual abuse
committed by one or both of the minor's parents and the abuse is
documented by a signed and notarized statement by (1) a person at
least 21 years of age who has personal knowledge of the abuse and who
is a grandparent, stepparent, foster parent, sibling of a parent, or
sibling or half-sibling half sibling
of the unemancipated minor, or (2) a law enforcement officer or agent
of a public child protective agency who has investigated the abuse
of the unemancipated minor. The physician shall retain the signed and
notarized statement with the unemancipated minor's medical records.
(f) Notice shall not be required under this section if the
attending physician certifies in the unemancipated minor's medical
records the medical indications supporting the physician's
good-faith good faith clinical judgment that the
abortion is necessary due to a medical emergency.
(g) (1) Notice shall not be required under this section if a
waiver of parental notice is authorized under this subdivision. If
the pregnant unemancipated minor elects not to permit notice to be
given to a parent, she may file a petition with the juvenile court.
No filing fee shall be required for filing a petition. If an
unemancipated minor seeks to file a petition, the court shall assist
the unemancipated minor or person designated by the unemancipated
minor in preparing the documents required. The petition shall set
forth with specificity the unemancipated minor's reasons for the
request. The unemancipated minor shall appear personally in the
proceedings in juvenile court and may appear on her own behalf or
with counsel of her own choosing. The court shall, however, advise
her that she has a right to court-appointed counsel upon request. The
hearing shall be held by 5 p.m. on the second court day after filing
the petition unless extended at the written request of the
unemancipated minor or her counsel. The unemancipated minor shall be
notified of the date, time, and place of the hearing on the petition.
Judgment shall be entered within one court day of submission of the
matter. The judge shall order a record of the evidence to be
maintained, including the judge's written factual findings and legal
conclusions supporting the decision. The court shall ensure that the
minor's identity is kept confidential and that all court proceedings
are sealed.
(2) (A) If the judge finds, by clear and convincing evidence, that
the unemancipated minor is both sufficiently mature and
well-informed to decide whether to have an abortion, the judge shall
authorize a waiver of parental notice.
(B) If the judge finds, by clear and convincing evidence, that
parental notice is not in the best interests of the unemancipated
minor, the judge shall authorize a waiver of parental notice. If the
finding that parental notice is not in the best interests of the
minor is based on evidence of physical or sexual abuse, the court
shall ensure that the evidence is brought to the attention of the
appropriate law enforcement or public child protective agency.
(C) If the judge does not make a finding specified in subparagraph
(A) or (B), the judge shall deny the petition.
(3) If the judge fails to rule within the time period specified in
paragraph (1) and no extension was requested and granted, the
petition shall be deemed granted and a waiver of parental notice is
authorized.
(4) The unemancipated minor may appeal the denial of her petition
by the juvenile court at any time after the entry of judgment. The
Judicial Council shall prescribe, by rule, the practice and procedure
on appeal and the time and manner in which a record on appeal shall
be prepared and filed and may prescribe forms for these proceedings.
These procedures shall require that the hearing shall be held within
three court days of filing the notice of appeal. The unemancipated
minor shall be notified of the date, time, and place of the hearing.
The appellate court shall ensure that the unemancipated minor's
identity is kept confidential and that all court proceedings are
sealed. No filing fee shall be required for filing an appeal.
Judgment on appeal shall be entered within one court day of
submission of the matter.
(5) The Judicial Council shall prescribe, by rule, the practice
and procedure for petitions for waiver of parental notification,
hearings, and entry of judgment as it deems necessary, and may
prescribe forms for these proceedings. Each court shall provide
annually to the Judicial Council, in a manner to be prescribed by the
Judicial Council to ensure confidentiality of the unemancipated
minors who have filed petitions, a report of the number of petitions
filed, the number of petitions granted under subparagraphs (A) and
(B) of paragraph (2), deemed granted under paragraph (3), denied
under subparagraph (C) of paragraph (2), and granted or denied under
paragraph (4). These reports shall be publicly available, unless the
Judicial Council determines that the data contained in individual
reports should be aggregated by county before being made available to
the public, in order to preserve the confidentiality of the
unemancipated minors who have filed petitions.
(h) The State Department of Public Health shall prescribe forms
for the reporting of abortions performed on unemancipated minors by
physicians. The report forms shall not identify the unemancipated
minor or her parents by name or request any other information by
which the unemancipated minor or her parents might be identified. The
forms shall include the date of the procedure, the unemancipated
minor's month and year of birth, the duration of the pregnancy, the
type of abortion procedure, the numbers of the unemancipated minor's
previous abortions and deliveries, if known, and the facility where
the abortion was performed. The forms shall also indicate whether
notice was given pursuant to subdivision (c) or was not required or
waived pursuant to subdivision (d), (e), (f), or (g), delineated by
subdivision.
(i) A physician who performs an abortion on an unemancipated minor
shall, within one month, file a dated and signed report concerning
that abortion with the State Department of Public Health on forms
prescribed pursuant to subdivision (h). The identity of the physician
shall be kept confidential and shall not be subject to disclosure
under the California Public Records Act (Chapter 3.5 (commencing with
Section 6250) of Division 7 of Title 1 of the Government Code) or
any successor to that act.
(j) A claim shall not be paid by the Medi-Cal program or any other
program paid for or subsidized by the State of California for any
medical services relating to the provision of an abortion to a minor
under 18 years of age at the time of the abortion, unless the claim
for payment is accompanied by a copy of the report filed with the
State Department of Public Health pursuant to subdivision (i), or
proof that the minor was not unemancipated.
(k) The State Department of Public Health shall compile an annual
statistical report from the information submitted pursuant to
subdivision (i). The annual report shall not include the identity of
a physician who filed a report required by subdivision (i). The
compilation shall include statistical information on the numbers of
abortions by month and by county where performed, the minors' ages,
the duration of the pregnancies, the types of abortion procedures,
the numbers of prior abortions or deliveries, where known, and the
numbers of abortions performed for which notice was given pursuant to
subdivision (c) or was not required or waived pursuant to
subdivision (d), (e), (f), or (g), delineated by subdivision. The
annual statistical report shall be made available to county public
health officials, members of the Legislature, the Governor, and the
public.
(l) A person who performs an abortion on an unemancipated minor
and in so doing knowingly or negligently fails to comply with this
section shall be liable for damages in a civil action brought by the
unemancipated minor, her legal representative, or by a parent
wrongfully denied notification. The time for commencement of the
action shall be within four years of the date the unemancipated minor
attains majority or four years of the date a parent wrongfully
denied notification discovers or reasonably should have discovered
the failure to comply with this section, whichever period expires
later. However, an action may not be commenced more than 12 years
after the abortion occurred. A person shall not be liable under this
section if he or she establishes, by written or documentary evidence,
that he or she relied upon evidence sufficient to convince a careful
and prudent person that the representations of the unemancipated
minor or other persons regarding information necessary to comply with
this section were bona fide and true. At any time prior to the
rendering of a final judgment in an action brought under this
subdivision, the plaintiff may elect to recover, in lieu of actual
damages, an award of statutory damages in the amount of ten thousand
dollars ($10,000). In addition to any damages awarded under this
subdivision, the plaintiff shall be entitled to an award of
reasonable attorney fees. This section shall not abrogate, limit, or
restrict the common law rights of parents, or any right to relief
under any theory of liability that any person or any state or local
agency may have under any statute or common law for injury or damage,
including any legal, equitable, or administrative remedy under
federal or state law, against a party, with respect to injury to an
unemancipated minor from an abortion.
(m) Other than an unemancipated minor who is the patient of a
physician, or the physician or the physician's agent, any person who
knowingly provides false information to a physician or a physician's
agent for the purpose of inducing the physician or the physician's
agent to believe that notice has been or will be delivered to a
parent pursuant to this section, or that a waiver of notice has been
obtained, or that an unemancipated minor is the victim of physical or
sexual abuse, or that an unemancipated minor patient is not an
unemancipated minor, is guilty of a misdemeanor punishable by a fine
of up to ten thousand dollars ($10,000).
(n) Notwithstanding any notice or waivers of notice, except where
the particular circumstances of a medical emergency or the minor's
own lack of legal mental capacity precludes obtaining her informed
consent, a physician shall not perform or induce an abortion upon an
unemancipated minor except with the informed consent of the
unemancipated minor herself.
(o) Notwithstanding any notice or waivers of notice, an
unemancipated minor who is being coerced through force, threat of
force, or threatened or actual deprivation of food or shelter to
consent to undergo an abortion may apply to the juvenile court for
relief. The court shall give the matter expedited consideration and
grant this relief as may be necessary to prevent the coercion.
(p) Except for the rights, duties, privileges, conditions, and
limitations specifically provided for in this section, this section
shall not be construed to grant, secure, or deny any other rights,
duties, privileges, conditions, and limitations relating to abortion
or the funding thereof.
Fourth-- If one or more provisions, subdivisions, sentences,
clauses, phrases, or words of this section, or the application
thereof, to any person or circumstance is found to be
unconstitutional or invalid, the same is hereby declared to be
severable and the balance of this section shall remain effective,
notwithstanding the unconstitutionality or invalidity. Each
provision, subdivision, sentence, clause, phrase, or word of this
section would have been approved by voters irrespective of the fact
that one or more provisions, subdivisions, sentences, clauses,
phrases, or words might be declared unconstitutional or invalid.
Fifth-- This act shall become operative 90 days after the election
in which it is approved. The Judicial Council and the State
Department of Public Health shall, within these 90 days, prescribe
rules, practices, and procedures and prepare and make available any
required forms.
