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2013 CA ACA 5
Author: Grove
Version: Amended
Version Date: 01/07/2014

AMENDED IN ASSEMBLY January 07, 2014

CALIFORNIA LEGISLATURE--2013-2014 REGULAR SESSION

ACA

No. 5

Introduced by Assembly Member Grove

January 28, 2013

(Coauthors: Assembly Members Dahle, Donnelly, Beth Gaines, Hagman, Jones, Melendez, and Wagner)

(Coauthors: Senators Anderson, Knight, and Nielsen)

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 Required: TWO THIRDS

Appropriation: NO

Fiscal Committee:: YES

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.


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