October 27, 2005
Prop. 73: The Devil’s in the Details
When Californians go to the polls on Nov. 8, many will read Proposition 73 as a proposal to require that health care providers perform the seemingly logical task of informing parents before performing abortions on underage girls.
But the considered opinions of doctors and Juvenile Court judges, as well as a look at the actual text of Proposition 73, reveal that the initiative is fraught with adverse ramifications for virtually all Californians. It also poses particular issues for the Jewish community.
Much of the literature against Proposition 73 correctly emphasizes that many teenage girls will seek underground abortions, rather than have their parents (or guardians, foster parents or other legal designees) learn that they are pregnant. Thus, under the banner, "Protect California's Teens," a Planned Parenthood Web page urges that defeating Proposition 73 is essential to ensuring that desperate teenagers retain access to safe and legitimate medical care.
This emphasis is entirely appropriate. But there's more to object to in this ballot initiative. One of the proposition's most troubling aspects lies within the fine print. Proposition 73 amends the California Constitution to define abortion as a procedure ending the life of a "child conceived but not yet born."
This radical definition has profound implications not only for teens, but also for adult women. And this carefully calculated wording should be of particular interest to the Jewish community.
Many Jewish couples undergo genetic screening as part of family planning. Those of us who learn we are dual carriers of genetic mutations (e.g., Tay Sachs) know there is a one in four chance of conceiving a child afflicted with the disease.
Couples who face this risk make the wrenching choice of attempting to have a biological child, while also taking the precaution of undergoing testing after conception. Diagnosis is possible through either chorionic villus sampling 10 to 12 weeks into the pregnancy or amniocentesis in the second trimester. Couples choose such procedures with the hope of having a healthy baby.
But typically, they also have resolved to terminate a pregnancy that would, if carried to term, bring forth a child doomed to endure unconscionable suffering ending in early death. A couple that follows this course of action sometimes has the blessing of Orthodox rabbis who would ordinarily oppose abortion.
Amending California's Constitution to define abortion as ending the life of a "child conceived but not yet born" has profound implications for adult Jewish couples that rely on pregnancy testing. The proposition's language would, in effect, shorten the road to outlawing abortion.
Indeed, that appears to be the aim of James Holman, the San Diego millionaire who backed Proposition 73 with $800,000, most of which went to paid signature gatherers to get the initiative onto the ballot. In line with his devout, conservative beliefs, Holman has expressed opposition to contraception, as well as to abortion apparently under all circumstances, including rape and incest.
Defining abortion as terminating the life of "a child that is conceived but not yet born" also could undermine the legality of stem cell research, perhaps the most promising scientific frontier of the 21st century. Here again, the medical implications are heightened for those of us in the Jewish community who recognize that stem cell research may herald the cures for degenerative diseases linked with genetic markers prevalent among us.
This subtle but intentional groundwork for outlawing abortion is reason enough for opposing Proposition 73, but even at face value, this measure would do more harm than good. It is opposed by Planned Parenthood, of course, and other pro-choice organizations, but also by California Women Lawyers, a statewide organization that promotes the general interests of women in society, as well as the California League of Women Voters.
Women's advocacy organizations are correct to cite the dangers to teens posed by parental notification initiatives. Indeed, efforts to decriminalize abortion in the 1970s were largely spearheaded by doctors, lawyers, and clergy who knew only too well that making abortion illegal did not prevent abortion, but simply made the procedure lethal to many women who sought out illegal abortions.
Today, the American Medical Association, the American Academy of Family Physicians and the American College of Obstetricians and Gynecologists all oppose parental notification laws, citing the risk to teens. According to the American Academy of Pediatrics, mandating parental notification does not achieve the intended goal of family communication, but does increase the risk of harm by delaying access to appropriate medical care.
Parental notification is also opposed by Bill and Karen Bell, who lost their daughter to an illegal abortion in 1988. Although Becky Bell belonged to a loving Indianapolis family, this high school junior pursued an underground abortion, rather than tell her parents. The Bells never had the chance to tell their daughter they were not, after all, angry at her.
Instead, they became outraged at the parental notification law, operative in Indiana, that compelled their daughter to resort to the underground abortion that claimed her life. In the wake of their family tragedy, the Bells became activists against parental notification laws.Proposition 73 contains a supposed answer in its "judicial bypass provision," which would enable teens to seek court orders excusing health care providers from the parental notification requirement in appropriate circumstances. This provision is unrealistic and unreasonably cumbersome both for teenagers and the courts, which is why Juvenile Court judges have gone on record against it.
To activate this provision, California courts would have to appoint guardians ad litem to speak on behalf of teenagers and, in most cases, to appoint lawyers for the minors, as well. In sum, the law would impose a mandate upon all courts, with no source of funding to carry it out.
Like many of my colleagues on the California Women Lawyers board, my personal choices were for marriage and children. I hope, want and expect that my daughters will come to me, however reluctantly, if they became pregnant unexpectedly. But a sweeping parental notification requirement will affect all families, including vulnerable teenagers in broken and abusive families.
As the tragic example of Becky Bell reminds us, even girls in "good" families may resort to underground abortions. And, a close examination of Proposition 73 makes clear that its language and intentions strike far closer to home than many of us previously thought possible in California.
The Jewish community -- and everyone else -- should oppose Proposition 73 not only because it is bad for teenage girls we may never meet, but also because it is bad -- and dangerous -- for adults, including ourselves.
Angela J. Davis is president-elect of California Women Lawyers, an independent bar association that advocates on public-policy issues.