Response to Roy Hanson's "Summary of Primary Concern" about Proposition 4

October 28, 2008 22:00 by Homeschooler

by Catherine Short, Esq.

Mr. Hanson’s "primary concern" about Proposition 4 centers on the judicial waiver procedures. He states that it is "not a good idea" to place these procedures in the state constitution. However, beyond that statement, he gives no indication as to why they are particularly troublesome in the constitution, as opposed to being in a statute. Indeed, Mr. Hanson’s worst-case scenarios, if they were plausible at all, could just as easily play out in the case of a statute as a constitutional provision. As we see in other states, these predictions have not been borne out in actual experience.

Mr. Hanson lays out a hypothetical situation involving a girl seeking a secret abortion alleging that a parent has inflicted emotional abuse. This hypothetical is based on the misconception that Prop 4 requires a finding of abuse, emotional or otherwise, for a court to rule that notification of a parent is not in the minor’s best interest. In fact, Prop 4 provides that the court may waive notification on two grounds, i.e., maturity of the minor, or best interests of the minor. As noted elsewhere, these are federally constitutionally required provisions. Prop 4 further provides that if the finding that notification of a parent is not in the minor’s best interest is based on evidence of physical, sexual, or emotional abuse, that evidence shall be reported to child protective services. Thus, a court need not find abuse of any sort in order to grant the waiver in the minor’s best interest. This is what U.S. Supreme Court precedent requires.

Mr. Hanson’s scenario is premised on "liberal, activist" judges being inclined to waive notification for a minor. Granting that is the case, these judges can do so without making any finding or drawing any conclusion whatsoever about abuse, emotional or otherwise. Indeed, if the judges in fact want to help girls get secret abortions, they will not even acknowledge that any evidence about a minor’s relationship with her parent is evidence of emotional abuse, because that would trigger the reporting requirement. Rather, they will steer clear of saying anything about emotional abuse that could trigger the reporting requirement.

Mr. Hanson then posits that a court’s rulings about what constitutes emotional abuse would allow juvenile courts in other cases to rule "that a child can circumvent the will of their parents in circumstances having nothing to do with abortion if they want to do something that their parents won’t allow them to do." Mr. Hanson does not specify what legal mechanism a child would use to achieve this end. In the case of notification for abortion, there is a specific legal mechanism, because obtaining an abortion has been held to be a federal constitutional right. There is no mechanism for children to petition the juvenile court to get around their parents’ wishes or prohibitions based on emotional abuse. This whole line of argument is a red herring.

Finally, Mr. Hanson appears to be under the impression that Prop 4 is the first parental involvement law to use the term "emotional abuse." In fact, it is a common term in these laws. Indeed, the parental notification law in Texas, where Mr. Hanson has resided for several years, provides that a judicial waiver may be granted if the court finds that notification "may lead to the physical, sexual, or emotional abuse of a minor." Texas Family Code §33.003. Has Mr. Hanson seen the slightest evidence that the term "emotional abuse" is being misconstrued in Texas or any of the other states whose parental involvement laws use this term? Apparently not, as he did not even seem aware that the term was used in these other laws.

Like the concerns expressed in Mr. Hanson’s "Preliminary Analysis" of Proposition 4, Mr. Hanson’s "primary concern" is without foundation. Proposition 4 deserves the support of California voters who want to protect minors, enhance parental rights, and decrease teen pregnancies and abortions.

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