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Contents © 2004
by Jim Holman.
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Do Words Matter?

Fatal Flaws in Parental Notification Initiative

In early February, California Catholic bishops and diocesan staff employed by the California bishops may promote an initiative requiring parental notification before an abortion can be performed on a minor daughter. Good news? Not really.

According to a January 13 memo sent by Ed Hurlbutt, chairman of the Central California Right to Life, to his volunteers, "The current text of the Parental Notification Initiative is so seriously flawed that we recommend that signature gathering be postponed until a suitable version is available." (See complete memo below.)

What are these flaws?

1.) In the Catholic bishops' "Backgrounder" on the initiative, on several diocesan websites, and on the website promoting the Parental Notification Initiative (PNI), it states that the initiative will require that a parent receive notice at least 48 hours before an abortion can be performed on a minor daughter. This is not true. The way the flawed PNI text is written, a girl can be at the abortionist's office while the abortionist sends a messenger to a parent. As soon as the written notice is delivered, the abortionist can immediately perform an abortion on the girl, without the parent having any chance to contact the daughter. [See detail here.]

2.) Because of another blunder, this version of the parental notification initiative will likely end up wiping out a good parental-consent law on the books (Section 123450 of the Health and Safety Code) but blocked by a California supreme court injunction. If the governor appointed some good justices to the California supreme court, this good law could go into effect. There is no reason to sacrifice it because of a legal blunder in writing the text of the initiative. Pro-life Californians worked hard for years to pass this parental consent law.

3.) The text of the Parental Notification Initiative claims that it doesn't grant or deny any abortion rights -- which is clearly false, since at present girls under 18 have a legal right to get abortions without any parental notification, and the PNI would deny that right. This contradiction is an open invitation for ACLU attorneys to ask a judge to knock the initiative off the ballot because the text could deceive voters. This could happen after all the work and expense of gathering 800,000 signatures of voters.

This is not a far-fetched possibility. This happened in December, 2003, when the California Chamber of Commerce and others spent $1.5 million dollars to get 600,000 signatures for a referendum of Senate Bill 2 on the March 2 primary election ballot. Only days before the deadline for ballot preparation, Sacramento superior court judge Lloyd Connolly, a former liberal Democrat assemblyman, knocked their referendum off the ballot because he said some detail of the Title and Summary of their referendum (which had been prepared as legally required by the office of Democrat Attorney General Bill Lockyer) might confuse voters.

After consulting with the national authority on parental involvement laws -- Professor Teresa Collett, of the St. Thomas University School of Law in Minneapolis -- and with the help of Catherine Wynne Short, a graduate of the prestigious UC Berkeley Boalt Hall law school who has written many appellate briefs for the Life Legal Foundation, and after further consultation with other experts, some of the coalition working for parental notification filed a new, corrected text in early December, which corrects the fatal flaws of the PNI text.

These members who filed the corrected text pleaded with the other members of the coalition, including the Catholic bishops' bureaucrats, not to proceed with the flawed initiative. These pleas have been rejected with evasions: "a judge (very likely sympathetic to Planned Parenthood or the ACLU) can sort this out," or "these defects might be taken care of by some future initiatives," or "these flaws are just lawyers' differences of opinions," or "it's too late to fix these problems."

Life Legal Defense Foundation attorney Catherine Short confided in a December 22 email: "when I read that original PNI abortion-neutral clause [the self-contradictory clause about not granting or denying abortion rights] to a lawyer friend [an Ivy League University law school graduate with years of experience in federal court pro-life appeals] at a public-interest law firm, his immediate reaction was: 'Whoa, doesn't that just undo everything you are trying to do?'"

Ed Hurlbutt concluded his memo with the clear advice: "Despite the disappointment of postponing a vote for 16 more months, we recommend that signature-gathering efforts await an effective text."

Please contact your diocese's bishop and Family Life/Respect Life staff and plead that support be given to a good parental notification initiative and not to the fatally flawed PNI now in circulation.

For further information, e-mail Tell a Parent at LifeOnTheBallot@cox.net, telephone toll-free: (866)-828-8355 or (866) 866-TELL, or visit: www.Tell-a-Parent.org or www.LifeontheBallot.org.

THE WHOLE MEMO

January 13, 2004

To: Right to Life of Central California (RLCC) Activists and Signature Gathering Volunteers for the Parental Notification Initiative

From: Ed Hurlbutt, RLCC President
Rob Pennington, Executive Director RLCC Fresno/Madera
April Kesterson, Executive Director Tulare-Kings Right to Life
Linda Haslow, Executive Director, RLCC Kern/Inyo

Re: Serious Flaws in "Parental Notification Initiative" now being circulated

As most of you know, RLCC began last July to organize signature gatherers for a statewide initiative requiring parental notification before a minor girl can get an abortion. We mailed to thousands of individuals and hundreds of churches and conducted numerous training sessions for signature gatherers.

Unfortunately, the text of the Initiative that emerged from committee efforts and is now being circulated is so seriously flawed that we recommend that signature gathering be postponed until a suitable version is available. The current text has three major flaws.

1. The initiative requires no waiting period after parents are actually notified. Still worse, if notice is given by mail, the initiative fails to include the fullest legal protection that parents even know - that is, even have received the letter - before an abortion is performed.

The initiative provides for two means of delivering written notice to parents:

a) By the abortionist or his/her agent. However, when this method is used, the initiative only requires that an abortion not be performed "until written notice has been delivered".

* That means, for example, that a girl can already be at the abortion clinic when the abortionist's agent delivers the notice in person. The agent can then call the abortion clinic (by cell phone) to say notice has been delivered - and the abortion can begin.

b) By certified letter. In this case, the initiative requires no abortion be performed until "at least 48 hours after written notice has been delivered...." However, that 48-hour timetable presumes next-day receipt of the letter by parents! As the initiative states: "The 48 hour period for notice . . . shall begin at noon on the next day on which regular mail delivery takes place following the day on which the mailings are posted."

* This means, in other words, that the abortionist could mail the letter Friday afternoon and do the abortion Monday afternoon - regardless of whether the parents have even received the notice.

* For working parents not at home during the workday, the initiative's requirement that the abortionist send a certified letter "with return receipt requested and restricted delivery to the addressee" actually means that several days, even a week or two, may pass before they take delivery of the letter. Because of the way the postal system works - requiring the addressee to go to a post office during office hours to pick up such mail if the original delivery attempt fails - it could take several weeks, or even never get delivered at all. Meanwhile, the abortion could already have been legally performed days or weeks before. The initiative fails to use the legal means already in place in other states to give parents in this position - the majority of parents! - more time to even receive the letter.

Provisions for a 48-hour reflection period or "family communication" period after notice has been personally delivered (by the abortionist or his/her agent) are already in place in several states, and have been upheld by federal courts. Provisions for a 48-hour reflection period after a three-day period for presumed delivery by certified letter are also now in effect in several states, and have been upheld by federal courts. States with such 48 hour family communication periods in effect include Texas, Nebraska, Minnesota, Iowa, and Arkansas.

2. The Initiative needlessly removes from the California legal code the state's 1988 law requiring parental consent before minor girls get abortions.

The initiative authors used the exact same section number of the Health and Safety code - "Section 123450 of the Health and Safety Code" - as the existing parental consent law for this Initiative's parental notice requirements. Because of the way this provision is worded, the initiative will over-write the existing parental consent law with a (very defective) parental notification law.

* There is absolutely no need to remove the consent law -- passed by dint of California pro-life organizations and individuals investing enormous effort and resources -- from the books in order to enact the notification law.

* Indeed, although the consent law is currently enjoined from enforcement by a state Supreme Court decision, if the court should someday reverse that decision, parental consent would automatically go back into effect.

3. The Initiative's two constitutional provisions explicitly contradict each other. This blatant contradiction will almost certainly lead to an (almost certainly successful) lawsuit to strike the Initiative from the ballot.

The initiative first says: "Notwithstanding Article 1, Section 1, or any other provision of this constitution, except in a medical emergency requiring immediate medical attention, or when a waiver of notification has been obtained pursuant to state law, no abortion shall be performed upon an unemancipated minor until the physician has first provided notice to one of her parents or to her legal guardian according to state law."

Then, second, it immediately adds: "Nothing in this Section shall be construed to grant, secure, or deny any right relating to abortion or the funding thereof."

* This is a blatant contradiction. Requiring parental notice precisely limits, curtails, in fact ends the current state constitutional right - as explicitly defined by the state supreme court - of minor girls to get abortions without parental involvement.

* The whole reason an initiative is necessary - as opposed to simply introducing a bill in the legislature - is that we are dealing with a state constitutional right, and only the voters in a general election can change the state constitution.

* Hence, the claim that "Nothing in this Section shall be construed to grant, secure or deny any right relating to abortion" is factually false. This false statement will be more than enough reason for a state court to strike down the initiative - on numerous grounds, including for example, denial of voters' rights not to be deceived by the text of an initiative.

* Most ironically, such court action is likely only after we have gone to the trouble and expense of collecting the needed 600,000 valid signatures. That is, the initiative will simply be removed from the ballot.

Consequently, as leaders of Right to Life of Central California we recommend that you do not gather signatures for the current initiative. Despite our own major effort over several months to organize and train volunteer signature gatherers, and despite the disappointment of having to postpone a vote for 16 more months -- from the November 2004 election to the March 2006 vote -- we recommend that signature-gathering efforts await an effective text.

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