WGLA Initiatives Nov 2006 Prop 85 Full Extract


Proposition 85			00.00 10/05

Full Extract

Submitted as: "Parents' Right to Know and Child Protection Initiative."

Type: Amendment to the State Constitution
Subject: Requires parental permission for minors to have an abortion
Submitter: Paul E. Laubacher

Supporting Organization:
	Name:	Yes on 85 1703 India Street San Diego CA 92101
	Email: see site
	Web Site: www.yeson85.net
	Phone: 866.828.8355

Opposing Organization:
	Name:	A Project of Planned Parenthood Affiliates of California 555 Capitol Mall, Suite 510 Sacramento CA 95814
	Email: info at noon85.com
	Web Site: www.noon85.com
	Phone: 916.669.4802

Section 1

[Provides a title, "Parents' Right to Know and Child Protection Initiative".

Section 2

[Declares Findings and Purpose]

Section 3

To Article 1 of the State Constitution, adds Section 32.

Section 32 (a) Provides definition of terms.

Section 32 (b) Specifically contrary to Article 1, Section 1, or any other law to the contrary, barring a medical emergency, a doctor shall not perform an abortion upon an unemancipated minor until: written notice given in person has been provided to a parent or guardian, in accord with (c) below, AND a reflection period of at least 48 hours has elapsed after the notice was provided, or the doctor can presume that written notice has been given to a parent or guardian, in accord with (d) below, AND a reflection period of at least 48 hours has elapsed after the notice was provided, or the doctor has received a written waiver allowing the abortion, in accord with (e), or the doctor has received a copy of a waiver of notification from a court, in accord with (h) or (i) or (j). The doctor must inform the minor that her parent may receive notice, and must keep a copy of the notice or waiver in the minor's medical records.

Section 32 (c) The written notice must be delivered to the parent personally by the doctor or doctor's agent, unless delivered by mail as described in (d). The Department of Health Services shall design the form to be used for the notice, and provide it in English and Spanish, and "each of the other languages in which California Official Voter Information Guides are published."

Section 32 (d) A written notice may be delivered by certified mail addressed to the parent at the parent's last known address with return receipt requested and delivery restricted to the addressee. At the same time, a copy of the written notice shall also be sent by first class mail to the parent or guardian. Notice can be presumed to have been delivered no sooner than noon of the second day after the notice sent by certified mail was postmarked, not counting days on which mail delivery does riot take place.

Section 32 (e) The parent may waive notice. The waiver must be in writing, on a form to be designed by the Department of Health Services, and signed, dated and notarized. Notarization is not required if the parent delivers it in person to the doctor. The parent may set the term of the waiver, to be 30 days, or until a specific date, or until the minor's 18th birthday. The form is required to contain the text "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 available in English and Spanish, and "each of the other languages in which California Official Voter Information Guides are published." The doctor must keep the original of the waiver with the minor's medical records.

Section 32 (f) A notice need not be sent if the doctor certifies that the abortion was necessary due to a medical emergency. Medical emergency was defined in (a) as "a condition which, on the basis of the physician's 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."

Section 32 (g) A notice need not be sent if the minor prefers to file a petition with the juvenile court, and the report is waived in accord with (h) or (i) or (j). The minor will be assisted in the preparation of the necessary documents, and no filing fee will be charged. The minor must appear personally in court, on her own behalf or with counsel of her own choosing, or with court appointed council. The court will assign a "guardian ad litem" [A person appointed by the court to look out for the best interests of the child during the course of legal proceedings.] The minor's identity will be kept confidential, and court proceedings will be sealed. Hearing of the petition must occur by 5 p.m. on the second day after filing, unless extended by the written request of the minor, the guardian ad litem, or her own counsel. If the guardian ad litem requests an extension, that extension is limited to one day unless the minor or her council agree to a longer extension. Judgment must be entered within one court day.

Section 32 (h) (1) If the judge finds that the minor is sufficiently mature and informed to decide to have an abortion, the judge shall authorize a waiver of notice.
Section 32 (h) (2) If the judge finds that notice to the parent is not in the minor's best interests, the judge shall authorize a waiver of notice. If this finding is based upon evidence of physical, sexual, or emotional abuse, this evidence must be brought to the attention of the county child protective agency.
Section 32 (h) (3) If the judge finds neither of the above, then the petition must be denied.

Section 32 (i) If the judge fails to rule within the time period required by (g) and no extension was asked for, the petition must be considered granted.

Section 32 (j) The minor has the right to appeal the judge's decision, per a process to be created by the Judicial Council. The appeal hearing must be held within three days of the filing of the appeal, and judgment must be rendered within one day. No filing fee will be assessed, the minor's identity will be kept confidential, and court proceedings will be sealed.

Section 32 (k) The Judicial Council shall define the practice and procedure for petitions for waiver of parental notification, hearings, and entry of judgment as it thinks necessary and may design forms for such proceedings. Each court must provide an annual report to the Judicial Council in a way that ensures confidentiality for the unemancipated minors. The report must include the number of petitions filed, the number of petitions granted under (h)(1) or (h)(2), the number considered granted under subdivision (i), the number denied under subdivision (h)(3), and the number granted and denied under subdivision (j). These reports are to be publicly available.

Section 32 (l) The Department of Health Services shall provide forms for the reporting of abortions performed on minors. The form is to contain no information by which the minor might be identified. The form must include the date of the procedure and the minor's month and year of birth, the duration of the pregnancy, the type of abortion procedure, the numbers of the minor's previous abortions and deliveries if known, and the facility where the abortion was performed. The form must also show whether the abortion was performed after personal delivery of a notice, as in (c); or was an abortion performed after presumed delivery of a notice by mail, as in (d); or was an abortion performed after receiving a waiver of notice, as in (e); or was an abortion performed without notice, as in (f); or was an abortion performed after receiving a judicial waiver of notice, as in subdivisions (h), (i), or (j).

Section 32 (m) Physicians who perform abortions on minors must file the report concerning it within one month, to the Department of Health Services on the form described in (l). The identity of the physician "shall be kept confidential and shall not be subject to disclosure under the California Public Records Act".

Section 32 (n) The Department of Health Services shall compile an annual report based on the information specified in subdivision (l). The report must include statistical information on the numbers of abortions by month and county, the minors' ages, the duration of the pregnancies, the types of abortion procedures, and the numbers of prior abortions or deliveries where known. The report must also include the numbers of abortions performed after personal delivery of a notice, as in (c); the numbers of abortions performed after presumed delivery of a notice by mail, as in (d); the numbers of abortions performed after a waiver of notice, as in (e); the numbers of abortions performed without notice, as in (f); and the numbers of abortions performed after any judicial waivers, as in (h), (i), or (j). The annual statistical report shall be made available to county public health officials, members of the legislature, the governor, and the public.

Section 32 (o) Any person who performs an abortion on a minor and in so doing knowingly or negligently fails to comply with the provisions of this Section shall be liable for damages in a civil action brought by the minor, her legal representative, or by a parent or guardian wrongfully denied notification. There will be no liability if the person can demonstrate with written proof that the documentation required by this Section was provided.

Section 32 (p) Providing false information under this Section is a misdemeanor punishable by a fine of up to $1000.

Section 32 (q) Regardless of the notices and waivers described above, except in the case of a medical emergency or when her own mental capacity precludes obtaining her consent, a doctor shall not perform an abortion on a minor without her consent.

Section 32 (r) Regardless of the notices and waivers described above, a minor who is being coerced, by force, threat of force, or threatened or actual deprivation of food and shelter, to undergo an abortion may apply to the juvenile court for relief. The court must give the matter expedited consideration and grant such relief as may be necessary to prevent the coercion.

Section 32 (s) This Section shall not take effect until 90 days after the election in which it is approved. During that 90 days, the Judicial Council will create the procedures and forms necessary to make (k) work. The Department of Health shall use the same 90 days to create the forms necessary to support (c), (e) and (l).

Section 32 (t) The various parts of this Section are declared severable.

Section 32 (u) The modifications to law created by this Section are to apply only to the situations described in this Section.

[Back to All Initiatives]