Response to Roy Hanson's "Updated Analysis" of Proposition 4

October 29, 2008 13:22 by Homeschooler

By Catherine W. Short, Esq.

In July 2008, Roy Hanson published a “Preliminary Analysis” of Proposition 4.

After unsuccessfully attempting to communicate with Mr. Hanson to discuss his concerns, the Proposition 4 campaign responded with a detailed critique of Mr. Hanson’s Analysis, which pointed out, inter alia, Mr. Hanson’s obvious unfamiliarity with parental involvement laws. Repeatedly, Mr. Hanson objected to provisions that are required, under U.S. Supreme Court precedent, to be included in parental involvement laws. To omit or weaken these provisions, as suggested by Mr. Hanson, would result in the law being struck down.

Two months later, Mr. Hanson published his “Updated Analysis.” In this updated analysis, Mr. Hanson repeats many of the same errors, though he has modified it somewhat in response to our critique of his “Preliminary Analysis.” In the main, he has simply buried many of the same errors in his new analysis, omitting the details that showed how misplaced his objections were. For that reason, readers who wish to grasp fully Mr. Hanson’s lack of expertise in this area and the overreaching nature of his criticisms should read Prop 4’s Critique of the Preliminary Analysis, as well as this paper.

Concern #1: “Extensive” exceptions circumventing parental rights.

Mr. Hanson still counts the medical emergency exception (Sec 32(f)) and the judicial bypass (Sec 32(g)) among the “extensive” exceptions that make Prop 4 unacceptable and impotent, even though both of these provisions are constitutionally required, both are in place in all of the other parental involvement laws that are currently reducing teen abortion and pregnancy rates, and even though, in Prop 4, these provisions are worded more restrictively than the equivalent exceptions in some other states’ laws – including the state of Texas, where Mr. Hanson now resides.

Mr. Hanson states that a minor who was not in fact in an abusive situation could “easily manipulate” the alternative family member notification provision. In fact, such manipulation would be very difficult. First of all, she would have to have another adult family member who would be willing not only to keep the pregnancy and abortion a secret from her parents, but also to stand by and let their relative, the girl’s parents, be falsely accused of abuse. Second, the girl would realize that this manipulation would probably result in her parents finding out anyway, and under much worse circumstances. If the parents have not in fact been abusing the girl, then it is highly likely that, if CPS opens an investigation, the parents will soon figure out why that happened. Third, even if the girl does not realize on her own the futility of this strategy, the doctor will probably point it out to her, in his own interest. He has no desire to be give a girl a secret abortion under circumstances which make it very probable that the parents will find out fairly soon, leaving him with extremely angry and distraught parents on his hands. He is going to tell the girl to seek a judicial bypass, which provides him with some cover.

Concern #2: “Emotional abuse” and “severe emotional abuse” are undefined.

Mr. Hanson provides a scenario in which a court would rule that certain facts (such as parents teaching a child that abortion is murder or that premarital sex is wrong) would constitute “emotional abuse” for purposes of the judicial bypass. (Updated Analysis, 2(b)).

What Mr. Hanson completely overlooks is that the judicial bypass cannot be granted on the grounds of “emotional abuse.” There are only two grounds in Prop 4 for granting the judicial bypass, and these two grounds are both required under U.S. Supreme Court precedents: a) maturity of the minor, and b) best interest of the minor. All that Prop 4 says about abuse is that, if a “best interest” finding is based on evidence of physical, sexual, or emotional abuse, that abuse should be reported.

Thus, Mr. Hanson’s entire scenario falls apart. In petitioning the court for a waiver, a minor is not going to allege that she is the “victim of emotional abuse.” She would allege, on forms prepared by the Judicial Council, that notification of a parent is not in her best interest and then present whatever evidence she has. If the court denied the petition and she appealed, the issue on appeal would be, “Did the minor present clear and convincing evidence that notification of a parent is not in her best interest?” Emotional abuse would not come into it. Similarly, the court would not rule whether certain facts “met the threshold for emotional abuse.”

Rather, the issue would be whether those facts demonstrate sufficiently that notification of a parent is not in the minor’s best interest. Again, emotional abuse simply doesn’t come into it. The question of whether some conduct was or was not emotional abuse is one for the juvenile court, not the court of appeal, to decide for one reason only, namely, whether and what should be reported as suspected abuse.

There would be no “ruling” or “finding” or “holding” that any particular conduct constituted emotional abuse.

What makes this scenario ludicrous as a practical matter is the idea that a court of appeal is going to bend over backwards to grant the waiver of notification of parent based on these flimsy grounds (i.e., teaching that abortion is murder and premarital sex is wrong) but then risk revealing the abortion to the parents by telling the juvenile court to report those flimsy facts to child protective services as suspected emotional abuse. The scenario makes no sense on its face.

But the more important point is that “emotional abuse” is not a grounds for granting a bypass, and therefore, the issue of what is or isn’t emotional abuse would not be a matter to be decided by a court of appeal.

Concern #3: Innocent parents susceptible to false allegations of abuse or neglect.

First of all, “neglect” doesn’t come into Prop 4 at all. Although some parental involvement laws allow waivers of notification based on allegations of neglect as well as abuse, Prop 4 does not.

Second, as to false allegations of abuse in the context of the judicial bypass, there is simply no way around that possibility if one is to have a parental involvement law that will not be struck down. However, one can take comfort in the fact that apparently Mr. Hanson is unable to point to any cases of this happening in the 34 states that have these laws, going back up to 25 years.

Third, as discussed above, there are many obstacles and disincentives to girls making false allegations of abuse in the context of the alternative family member notification. Again, several other states have laws that allow a waiver for alleged abuse, and apparently there are no CPS horror stories coming out of those states.

Indeed, in Wisconsin, not a single minor has even used this provision for the past eight years (as far back as we could trace the data).

Fourth, Mr. Hanson’s “parade of horribles” concerning what might happen to innocent families is reminiscent of Planned Parenthood’s slogan, “If she can’t come to me, I just want her to be safe.” According to Planned Parenthood, parents believe that it is better for minors to be allowed to get secret abortions if there is any chance at all that they might otherwise decide to “take matters into their own hands,” even though there is no evidence of minors ever having done so, Mr. Hanson’s version of this is, “If she can’t come to me, I just want her to leave my name out of this completely.” In other words, Mr. Hanson wants parents to reject Prop 4 on the grounds that it is better that their daughter be able to get a secret abortion if the alternative is a risk that she might be desperate and vindictive enough to made a false allegation against them. In fact, just as with Planned Parenthood’s argument, Mr. Hanson believes that it is better for thousands and thousands of California teens (appx. 8000 - 10,000) to get secret abortions every year, than to risk that someday, some parents in California will be unnecessarily investigated by CPS. Better that thousands of girls deceive their parents, risk their health and safety, undergo the emotional upheaval by themselves, and frequently be coerced and exploited by boys and men, than that some parent possibly have to respond to false allegations of abuse.

One has to ask what parents themselves, who later learned of a daughter who obtained a secret abortion, think of this calculus. Do they say, “Well, at least we never ran the risk of her falsely accusing us. That would be worse than anything that happened to her or even might have happened to her”?

Concern #4: “New standard and principle” in the constitution.

Although Prop 4 does contain a definition of “adult family member,” that definition is circumscribed by the prefatory language “For purposes of this Section. . .” Each of the definitions in Prop 4 is designed specifically for that section. Prop 4 does not define any term for general purposes in the state constitution.

Mr. Hanson states that “parental involvement can be undermined with a constitutional provision that allows for the circumvention of parental involvement” in the absence of a “due process court hearing.” It is logically impossible to have a due process court hearing on the issue of parental notification of a minor’s abortion. How would Mr. Hanson propose that parents be given a due process hearing to decide whether or not they should be notified of a minor daughter’s imminent abortion? To state the question is to realize its absurdity.

Again, Mr. Hanson is objecting to provisions that are required, by U.S. Supreme Court precedent, to be in a parental involvement law. To omit these provisions would mean the law would, not might, be struck down.

Concern #5: Inappropriate language for the Constitution

Mr. Hanson seems to be under the impression that the California Constitution has some historically sacred status, akin to the Bill of Rights or the U.S. Constitution as a whole. On the contrary, the California Constitution is a veritable code of diverse laws that has been amended over 500 times since the initiative process was instituted about a hundred years ago. Hardly an election goes by without at least one amendment to the state constitution being proposed, and frequently enacted.

Mr. Hanson then begs the question by saying Prop 4 will be difficult to change “when new bad case law precedents eventually develop . . . ” As explained above, his scenarios for that happening do not make sense on their own terms.

Concern #6: Dangerous wording in the constitution could be used to diminish parental rights in other areas.

Again, Mr. Hanson seems to think that the California Constitution is a semi-sacred document, rather than seeing what it has in fact evolved into, i.e., a place for the people to put new laws to ensure they are not tampered with by the state courts or the legislature. Prop 4 does not contain sweeping pronouncements about the rights of minors vis-à-vis their parents. It is a meticulously exact prescription for requiring parental notification and exceptions thereto in a single narrowly defined situation.

Mr. Hanson argues that future courts could look at the judicial bypass and decide to expand those provisions to other areas of the law. Any court looking at these provisions would see their wording is virtually identical to other parental involvement laws and the Supreme Court precedents upholding such laws. The idea that a court would hold that the people of California, in enacting these provisions of Prop 4, intended to initiate some piecemeal emancipation or semiemancipation of minors is ridiculous. In fact, parental rights are much more at risk now, under the current state supreme court precedent holding that minors have a constitutional “right to privacy” that forbids the state from requiring parental involvement in a minor’s abortion decision. Mr. Hanson’s worst-case scenarios would be far more likely to be predicated on the minor’s “right to privacy” as it currently stands than on a law specifically limiting minors’ rights to engage in certain activity without parental involvement.

Conclusion: Fixed in constitutional concrete.

Mr. Hanson says that, if Prop 4 passes, “Current bad case law precedents would become fixed in constitutional concrete.” That sounds very scary, but we have no idea what he means. What “current bad case law” is he referring to? And how would Prop 4 affect those cases? That statement is typical of Mr. Hanson’s hyperbolic pronouncements about parental involvement laws and California constitutional jurisprudence: very scary-sounding, but ultimately meritless.

CONCLUSION

Prop 4 provides a very significant parental right to millions of California parents who now are completely without any right to be notified if a minor daughter seeks and undergoes an abortion. The portrayal of Prop 4 as a step backward for parental rights is erroneous and misleading.


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