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Abortion Politics,

Could Proposition 73 help put Gov. Schwarzenegger's reform slate over the top?

12:00 AM, Oct 28, 2005 • By BILL WHALEN
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LATE LAST MONTH, and with little fanfare other than a brief mention in a press release, Gov. Arnold Schwarzenegger signed a law making it a $250 fine to pierce the body of someone under the age of 18 without parental or guardian consent. It was a law which had expired the previous January; Schwarzenegger's action put it back on the books and made it permanent.

What does this little-noticed law have to with California's special election? Supporters of Proposition 73, the first of the eight initiatives on the Nov. 8 ballot, use it as a metaphor for the inconsistencies of California's approach to abortion. In the Golden State, a minor needs parental permission for matters as mundane as receiving an aspirin from the school nurse. Yet, abortion services are legally available without parental involvement--neither notification nor consent.

If approved, Prop. 73 would constitutionally amend that by making California the 16th state with a parental notification law (another 19 require parental consent).

Specifically, the measure would:

* Prohibit abortions for minor girls until at least 48 hours after a parent or legal guardian is notified.

* Allow a pregnant minor to ask a juvenile court to waive the notification requirements.

* Waive the notification requirement if the mother's life is certifiably at risk.

* Allow a minor/parent/guardian to seek civil damages against physicians who "knowingly or negligently" fail to comply with the notification requirement.

* Define abortion as "the use of any means to terminate the pregnancy of an unemancipated minor female known to be pregnant with the knowledge that the termination with those means will, with reasonable likelihood, cause the death of the unborn child, a child conceived but not yet born."

It's not the first time that California has delved into the subject. In 1987, the Democratic state legislature passed a law requiring parental consent or judicial approval for teens seeking abortions. It was signed by then-Gov. George Deukmejian, a Republican, but a legal challenge kept the parental consent law from going into effect. After a decade of litigation, the state Supreme Court upheld the law, only to later reverse itself and declare the matter unconstitutional.

Nor is it the first time the state has taken notice of legal nuances regarding the unborn. Scott Peterson, who's currently sitting on San Quentin's Death Row, was charged with murdering his unborn son because Section 187 of the state's Penal Code states that "murder is the unlawful killing of a human being, or a fetus, with malice aforethought." So why isn't abortion legally recognized as murder in California? Section 187 contains two fetal exceptions--one to save the life of the mother; the second for abortions performed legally under the Therapeutic Abortion Act (signed, in 1967, by then-Gov. Ronald Reagan).

IN THREE IMPORTANT RESPECTS, Prop. 73 provides a yardstick for both California and the nation.

First, there is the big-picture question of the U.S. Supreme Court and Roe v. Wade. Earlier this year, the high court said it would rule on the constitutionality of New Hampshire's parental notification law, which like Prop, 73 requires 48 hours notice before the procedure, unless a judge grants an exception or the girl's life is at risk (unlike 73, New Hampshire's law makes no exception for cases in which the health of the pregnant girl is at risk, which is why it's been challenged). Prop 73's opponents see the initiative as a challenge to Roe, in particular the amendment language saying that the abortion "causes the death of an unborn child." California Sen. Barbara Boxer says that this descriptor "sets it to overturn Roe . . . in our state." On the yes side, the argument is that the initiative's intent is to reduce California's teen abortion rate, currently the fourth highest in the nation.

The second factor: how the idea of amending abortion laws plays in a Democratic state. A poll by the Public Policy Institute of California indicates that 70 percent of likely voters would not support overturning Roe. But the same poll found voters split on Prop. 73, with 48 percent opposing and 44 percent supporting (a September Field Research poll has voters evenly split at 45-45, while a Survey USA poll has Prop. 73 in the lead, 59-39). With the public divided, Prop. 73 becomes a chance for both sides of the abortion divide to flex their muscles.