Parents’ Right to Know Makes Bid for Ballot

Coming to the June 2006 ballot: the Parents’ Right to Know initiative, a proposed amendment to the state constitution requiring doctors to give 48-hours’ notice to a parent or guardian before performing an abortion on a minor.

Proponents need to gather 598,000 valid signatures from registered California voters by mid-April 2005 in order to qualify the initiative for the ballot. If they do so, California will have the chance to join the thirty states that have parental involvement laws. Based on the experience of these other states, California’s own Legislative Analyst’s Office estimated that the reduction in teen abortions could be up to 25 per cent. Better still, the reduction in the number of teen abortions is accompanied by a similarly striking reduction in teen pregnancies.

Once upon a time, in 1987, the California legislature passed a parental consent law, but it was immediately challenged by abortion proponents and providers who managed to keep it from taking effect. After an extremely prolonged journey through state trial and appellate courts, it was ultimately found unconstitutional by the California Supreme Court in 1997, based in part on trial court “findings” that, e.g., having an abortion not only wasn’t harmful but actually could be beneficial to a minor. Since that time, pro-life and pro-family advocates have realized that any change in the law would have to come through the initiative process, by a constitutional amendment that would be beyond the reach of the state courts to tamper with.

The Parents’ Right to Know initiative is the product of years of work and collaboration among individuals knowledgeable in various fields, including parental involvement laws, California constitutional law, and the actual workings of the abortion industry. One of these individuals is Teresa Stanton Collett, a law professor at the University of St. Thomas in Minneapolis and expert in parental consent laws. Professor Collett helped draft language ensuring the initiative is in compliance with federal constitutional requirements. For example, under the federal constitution as interpreted by the U.S. Supreme Court, parental involvement laws must provide for a judicial bypass, i.e., a procedure by which a minor can seek a court order waiving the requirement of the law, based on evidence of her maturity or best interests. The law must also protect the minor’s privacy, not unduly delay the abortion procedure, and provide for medical emergencies. Failure to comply with federal constitutional strictures in any of these areas will result in a law being struck down.

Also of concern in drafting the initiative were political realities: how will Planned Parenthood twist the initiative to scare people into voting against it? Will they try to scare people into thinking that doctors will flee California or that minors will end up in jail? Although a substantial majority of the general public favors requiring parental notice for minors to obtain abortions, that majority can become a minority if the particular proposal is vulnerable to attack as unfair, expensive, or unduly punitive.

In order to head off these sorts of attacks, the Parents’ Right to Know initiative provides for civil rather than criminal penalties against noncompliant doctors. Doctors who intentionally or negligently fail to comply with the law can be sued by any injured party, including the parents of the minor or the minor herself. In this way, no doctor can feel safe to ignore the law because he happens to do business in a liberal jurisdiction where the prosecutors are unlikely to pursue these types of cases; he’s just as apt to be sued in San Francisco as in Fresno. The statutory penalties and mandatory attorney fees provide a substantial incentive for doctors to obey the law. Although careful to make the initiative both legally sound and politically viable, the proponents also gave thoughtful consideration to ensuring the law is effective. For example, the initiative provides for a 48-hour reflection period after delivery or presumed delivery of notice before the abortion can be performed. (Notice may be delivered either in person or by both registered and regular first-class mail, the latter combination to ensure both certainty and speed of delivery.) This reflection period ensures that parents have a realistic opportunity to consult with their daughter and explore her options before she makes an irrevocable decision. The 48-hour period may be waived by a parent (another concession to political realities.)

The Parents’ Right to Know initiative also provides for penalties for fraud and protections against coercion. The fraud penalties evolved out of the same concerns that motivated the federal Child Custody Protection Act, namely that unrelated adults have been known to assist minors in evading laws requiring parental notice or consent. Such adults include the mother of the minor’s boyfriend, the boyfriend himself, or a teacher or counselor. Under the provisions of the Parents’ Right to Know initiative, any person who knowingly provides false information to a physician or physician’s agent for the purpose of inducing the physician to believe that the law has been complied with or need not be complied with (i.e., that the minor is in fact not an unemancipated minor) is guilty of a misdemeanor.

The most obvious way for a minor to attempt to evade the law would be by providing a fraudulent parental waiver. For this reason, the initiative requires that the waiver either be personally delivered by the parent or guardian or be notarized. Moreover, the waiver forms will include a printed warning about the criminal penalty for fraud. The combination of these provisions ensures that the minor cannot sign her own waiver form, that the person who does so will have to present him or herself either in the clinic or to a notary, and that he or she will be aware of the criminal liability for misrepresentation.

Parents’ Right to Know also specifies that the minor herself must consent to the abortion. Thus, the mere fact that a parent arrives at the clinic with the minor and authorizes the abortion does not absolve the doctor of the necessity of obtaining the consent of the minor herself. It also provides a remedy for minors who may be coerced to consent to an abortion, by her parents or others. We at LLDF are well aware of the unfortunate frequency of minors being pressured to have abortions. By specifically providing for recourse to the juvenile court in this situation, the initiative will help overcome the reluctance of some judges to get involved and provide assistance to minors at risk. The initiative concludes with a provision preventing it from being construed to “grant, secure, or deny” any other right relating to abortion. Thus, no court will be able to hold that by approving this initiative, the people of California intended to create or recognize a right to abortion in the state constitution.

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[As of January 3rd, 255,644 signatures had been gathered—Ed.]