ANTI-CHOICE LAWS
Refusal to Provide Medical Services
ABORTION REFUSAL CLAUSE
California allows certain individuals or entities to refuse to provide abortion services.
To whom does the refusal clause apply? Physicians, registered nurses, licensed vocational nurses, or persons with staff privileges at or employed by a hospital or facility, as well as nonprofit facilities organized or operated by a religious corporation, association, or organization, or the employees thereof.
What does the refusal clause allow? No physician, registered nurse, licensed vocational nurse, or person with staff privileges at or employed by a hospital or facility, who objects in writing on moral, ethical, or religious grounds, may be required to directly participate in an abortion. The refusal of a person to participate may not be a basis for a claim for damages, penalty, discipline, refusal to admit by a medical educational facility, or a refusal to employ unless the person would be assigned in the normal course of business to work in those parts of the facility where abortion patients are cared for. The refusal of a physician to participate may not be the basis for refusal to grant staff privileges. A person associated with a medical facility that does not permit abortion who participates in an abortion in another facility may not be subject to penalty.
In addition, no nonprofit facility organized or operated by a religious corporation, association, or organization, or the employees thereof, may be required to permit, provide, or perform abortion services. The refusal of a facility or its employees to permit or provide abortion may not be a basis for liability or other recriminatory action.
Does the law require the refusing entity to notify the persons affected? Yes, under some circumstances. A nonprofit facility must post a notice of its refusal in a location open to prospective and admitted patients.
Are there circumstances under which a refusal clause may not be exercised? Yes. The refusal clause does not apply to medical emergency situations.
Does the law require the refusing individual or entity to provide medically and factually accurate information or provide a referral for abortion services? No.
Does the law provide a mechanism for women to otherwise obtain specific reproductive health services, information, or referrals if an individual and/or entity exercises a refusal clause? No.
Cal. Health & Safety Code § 123420 (Enacted 1995).
HEALTH CARE PROVIDER AND HEALTH CARE INSTITUTION REFUSAL CLAUSES
California allows certain individuals or entities to refuse to comply with individual health care instructions or decisions based on conscience.
To whom does the refusal clause apply? Health care providers and health care institutions.
What does the refusal clause allow? A health care provider, defined as a person who is licensed, certified, or otherwise authorized by state law to provide health care, may refuse to comply with an individual health care instruction or decision for reasons of conscience. In addition, a health care institution, defined as an institution, facility, or agency licensed, certified, or otherwise authorized by law to provide health care, may refuse to comply with an individual health care instruction or health care decision if the instruction or decision is contrary to a policy of the institution that is expressly based on reasons of conscience.
Does the law require the refusing entity to notify the persons affected? Yes. A health care provider or health care institution that refuses to comply with an individual health care instruction or health care decision must promptly inform the patient.
Are there circumstances under which a refusal clause may not be exercised? No.
Does the law require the refusing individual or entity to provide medically and factually accurate information or provide a referral for the requested health services? No.
Does the law provide a mechanism for women to otherwise obtain specific reproductive health services, information, or referrals if an individual and/or entity exercises a refusal clause? Yes. A health care provider or health care institution that refuses to comply with an individual health care instruction or health care decision must (1) inform the patient promptly; (2) make all reasonable efforts to assist in the transfer of the patient to another health care provider or institution that is willing to comply with the instruction or decision; and (3) provide continuing care to the patent until the transfer is accomplished or until it appears that a transfer cannot be accomplished.
Cal. Prob. Code §§ 4619, 4621, 4734, 4736.
INSURANCE COVERAGE FOR CONTRACEPTION REFUSAL CLAUSE
Although California law requires health insurance plans that cover prescription drugs to provide equitable coverage for contraception, certain employers and/or insurers may require that their plans exclude coverage for contraception.
To whom does the refusal clause apply? Religious employers for whom contraception is contrary to their religious tenets.
What does the refusal clause allow? A religious employer may require issuers of its health insurance plans to exclude coverage for contraception.
Is this refusal clause overbroad, jeopardizing insurance coverage for contraception for women? No. The law appropriately defines the term "religious employer" as a non-profit organization that has the purpose of inculcation of religious values and that primarily employs and serves persons who share the religious tenets of the entity. This narrow definition is appropriately limited in scope, applying to religious entities but not broad-based entities that operate in the public sphere.
Does the law require the refusing entity to notify the persons affected? Yes. An employer exercising a refusal clause must provide written notice of the exclusions to prospective employees.
Are there circumstances under which a refusal clause may not be exercised? Yes. A refusal clause may not be used to exclude coverage for prescription contraceptive methods ordered for reasons other than contraceptive purposes, such as decreasing the risk of ovarian cancer or eliminating symptoms of menopause, or for prescription contraception necessary to preserve the life or health of an insured.
Does the law provide a mechanism for women to obtain contraceptive coverage if their employer exercises a refusal clause? No.
Has a court considered the constitutionality of this law? Yes. The California Supreme Court held that this law is constitutional under both federal and state constitutions. Catholic Charities of Sacramento, Inc. v. Superior Court, 85 P.3d 67 (Cal. 2004), cert. denied, 125 S. Ct. 53 (U.S. Cal. Oct. 4, 2004).
Cal. Health & Safety Code § 1367.25; Cal. Ins. Code § 10123.196.
Restrictions on Young Women's Access to Abortion
California law restricts young women's access to abortion.
Is the law enforceable? No. A state court held that this law is unconstitutional and unenforceable because requiring parental consent or judicial authorization violates, without adequate justification, the explicit right of privacy set forth in the California Constitution. Am. Acad. of Pediatrics v. Lungren, 940 P.2d 797 (Cal. 1997).
Who is considered a minor? A young woman under the age of 18.
What is required - parental consent or parental notice? Consent.
Who must provide consent? One parent.
Are there other trusted adults who may provide consent instead? No.
What is the process for obtaining consent? A young woman may not obtain an abortion without the written consent of one parent.
May the parental mandate be waived if a young woman is a victim of rape or incest? No.
May the parental mandate be waived if a young woman is a victim of child abuse? No.
May the parental mandate be waived if a young woman's health is threatened? Yes, but only if a medical emergency exists requiring immediate medical action.
May the parental mandate be waived under any other circumstances? Yes, the young woman may try to obtain permission from a judge.
If a young woman must obtain permission from a judge, what is the process? She must secure a court order stating either that she is sufficiently mature and sufficiently informed to make her own decision or that an abortion is in her best interests.
Are there other significant requirements under the law? No.
Has a court considered the constitutionality of this law? Yes. A court held that California's parental consent law is unconstitutional under the state constitution and has issued a permanent injunction prohibiting its enforcement. Am. Acad. of Pediatrics v. Lungren, 940 P.2d 797 (Cal. 1997).
Other information about the law: None.
Cal. Health & Safety Code § 123450 (Enacted 1995); Cal. Fam. Code § 6500 (Enacted 1992).
Targeted Regulation of Abortion Providers (TRAP)
Restrictions on Who May Perform Abortions
California prohibits certain qualified health care professionals from performing abortions.
Only a licensed physician and surgeon may perform a surgical abortion, and only a person who has a valid license or certificate obtained pursuant to California law authorizing that person to assist in the performance of surgical abortion services may assist in the performance of these services. Only a licensed physician and surgeon, or person who has obtained a license or certificate of authorization in accordance with some other provision of law authorizing the performance of nonsurgical abortion, may perform a nonsurgical abortion. Cal. Bus. & Prof. Code § 2253 (Enacted 2000; Last Amended 2002).
PRO-CHOICE LAWS
Contraceptive Equity
California law requires health insurance plans that cover prescription drugs to provide equitable coverage for contraception.
What is required? If a health insurance plan provides coverage for outpatient prescription drugs, it must provide coverage for a variety Food and Drug Administration-approved prescription contraceptive methods, as designated by the insurer. If the insured's health care provider determines that none of the methods designated by the insurer is medically appropriate, the insurer shall provide coverage for another FDA-approved prescription contraceptive prescribed by the insured's health care provider.
To which insurance plans does the law apply? All health care service plan contracts (except for specialized health care service plan contracts) and certain disability insurance policies issued or renewed on or after January 1, 2000 that provide coverage for outpatient prescription drugs.
Does the law contain a refusal clause, allowing certain employers and/or insurers to refuse to provide or pay for contraceptive coverage? Yes.
To whom does the refusal clause apply? Religious employers for whom contraception is contrary to their religious tenets.
What does the refusal clause allow? A religious employer may require issuers of its health insurance plans to exclude coverage for contraception.
Is this refusal clause overbroad, jeopardizing insurance coverage for contraception for women? No. The law carefully defines the term "religious employer" as a nonprofit organization that has the purpose of inculcation of religious values and that primarily employs and serves persons who share the religious tenets of the entity. This definition appropriately covers religious entities but not broad-based entities that operate in the public sphere.
Does the law require the refusing entity to notify the persons affected? Yes. An employer exercising a refusal clause must provide written notice of the exclusions to prospective employees.
Are there circumstances under which a refusal clause may not be exercised? Yes. A refusal clause may not be used to exclude coverage for prescription contraceptive methods ordered for reasons other than contraceptive purposes, such as decreasing the risk of ovarian cancer or eliminating symptoms of menopause, or for prescription contraception necessary to preserve the life or health of an insured.
Does the law provide a mechanism for women to obtain contraceptive coverage if their employer exercises a refusal clause? No.
Has a court considered the constitutionality of this law? Yes. The California Supreme Court held that this law is constitutional under both federal and state constitutions. Catholic Charities of Sacramento, Inc. v. Superior Court, 85 P.3d 67 (Cal. 2004), cert. denied, 125 S. Ct. 53 (U.S. Oct. 4, 2004).
Cal. Health & Safety Code § 1367.25 (Enacted 1999); Cal. Ins. Code § 10123.196 (Enacted 1999).
Emergency Contraception
PHARMACY ACCESS TO EMERGENCY CONTRACEPTION (EC)
California explicitly allows pharmacists to provide emergency contraception (EC) directly to women without a prescription. A pharmacist may dispense EC to a woman under standardized procedures or protocols developed by an authorized prescriber and the pharmacist or under standardized procedures or protocols developed and approved by the State Pharmacy Board and the Medical Board of California in consultation with the American College of Obstetricians and Gynecologists (ACOG), the California Pharmacist Association, and other appropriate entities.
A pharmacist must provide all EC recipients with a standardized fact sheet that includes the indications for use of EC, the appropriate method for using EC, the need for medical follow-up, and other appropriate information. The State Board of Pharmacy, in consultation with the State Department of Health Services, ACOG, the California Pharmacists Association, and other health care organizations, is charged with developing the fact sheet.
A pharmacist, pharmacist's employee, or pharmacist's agent is prohibited from directly charging a patient a separate consultation fee for EC but may charge an administrative fee not to exceed ten dollars above the retail cost of the drug.
All pharmacists dispensing EC must first complete an EC training program that consists of at least one hour of approved continuing education about EC.
Cal. Bus. & Prof. Code § 4052 (Enacted 2001; last amended 2003).
EMERGENCY CONTRACEPTION (EC) FOR SEXUAL ASSAULT VICTIMS
California law ensures that sexual assault victims receive access to emergency contraception (EC) in hospital emergency rooms. As part of the minimum standards for the examination and treatment of a sexual assault victim, a physician or other health care provider must offer a sexual assault victim EC and dispense EC to her upon request.
Cal. Penal Code § 13823.11(e) (Enacted 2002).
Freedom of Choice Act
California has created additional protections for reproductive rights by adding an affirmative right to choose into its state law. This law ensures women's access to pre-viability abortions and would remain in effect even if Roe v. Wade were overturned.
"The legislature finds and declares that every individual possesses a fundamental right of privacy with respect to personal reproductive decisions. . . Every individual has the fundamental right to choose or refuse birth control. . . Every woman has the fundamental right to choose to bear a child or to choose and to obtain an abortion. . . The state shall not deny or interfere with a woman's fundamental right to choose to bear a child or to choose and obtain an abortion. . ." Cal. Health & Safety Code § 123462 (Enacted 2002).
Guaranteed Access to Prescriptions
California law guarantees that women's birth control prescriptions will be filled. Pharmacists are prohibited from obstructing a patient's access to a legally prescribed drug or device, except under limited circumstances, such as if dispensing the drug is a violation of law or would be harmful to the patient.
If the prescribed drug is not in stock, the pharmacist must: (1) immediately notify the patient and arrange for the drug or device to be delivered to the pharmacy or directly to the patient in a timely manner; (2) promptly transfer the prescription to a nearby pharmacy known to stock the drug or device; or (3) return the prescription to the patient and refer the patient to a nearby pharmacy.
A pharmacist may refuse to dispense a drug or device based on ethical, moral, or religious grounds but only if the pharmacist has previously notified his or her employer in writing of the objection, and the employer can accommodate the objection without undue hardship. Under those circumstances, employers are required to establish protocols that guarantee that a patient has timely access to the prescribed drug or device, notwithstanding the pharmacist's objection.
All pharmacies are required to prominently display a notice for women and other consumers that explains their rights to access to prescription drugs or devices. A written receipt that contains the required information may be provided to consumers as an alternative to posting the notice in the pharmacy.
The Board of Pharmacy and its executive officer are allowed to issue citations and letters of admonishments for violations of the law.
Cal. Bus. & Prof. Code §§ 733, 4122, 4314, 4315 (Enacted 2005; Last Amended 2006).
Low-Income Women's Access to Abortion
California allows women eligible for state medical assistance for general health care to obtain public funds for abortion. Medical justification or prior authorization for abortion is not required. Medi-Cal Medical Services Provider Manual,, Part 2, Abortions, 1-8 (Jan. 2005) at http://files.medi-cal.ca.gov/pubsdoco/publications/masters-MTP/Part2/abort_m00o03.doc.
A court held that the California Constitution prohibits the state from excluding abortion services from the state medical assistance program while funding other pregnancy-related services. Comm. to Defend Reprod. Rights v. Myers, 625 P.2d 779 (Cal. 1981).
Low-Income Women's Access to Family Planning
California provides increased access to reproductive health care services through a Section 1115 family planning waiver. The waiver covers family planning services for men and women of childbearing age with incomes at or below 200% of the federal poverty level, who are not otherwise eligible for state and federal health care programs.
The waiver allows the state to test outreach strategies to reach underserved populations, including increasing the number of providers in certain geographic areas, and creating gender-specific training programs for at-risk men.
Beneficiaries of family planning coverage available through the waiver are not required to pay premiums or co-payments for covered services. Covered services include: all FDA-approved birth control methods, devices and supplies; a comprehensive reproductive health history, physical examination and pap smear; emergency services directly related to the contraceptive method and follow-up; pregnancy testing and counseling; prevention and treatment of sexually transmitted infections; HIV testing and counseling; limited diagnostic services for fertility management; male and female sterilization; reproductive health education and counseling.
The waiver is currently running under monthly extensions.
Cal. Family Planning Demonstration Fact Sheet, Ctrs. for Medicare and Medicaid Servs., Mar. 24, 2003 at http://www.cms.hhs.gov/MedicaidStWaivProgDemoPGI/MWDL/itemdetail.asp?filterType=none&filterByDID=-99&sortByDID=2&sortOrder=ascending&itemID=CMS028184&intNumPerPage=2000 (last visited Dec. 5, 2008); NARAL Pro-Choice America Survey of State Medicaid Offices
Protection Against Clinic Violence
California has numerous laws related to clinic violence and harassment. Under the California FACE Act enacted in 2001, any person who by force, threat of force, or violent physical obstruction intentionally injures, intimidates, interferes with, or attempts to injure, intimidate, or interfere with, any person or entity because that person or entity is a reproductive health services client, provider, or assistant, or in order to intimidate any person or entity from becoming or remaining a reproductive health services client, provider, or assistant, is guilty of a misdemeanor, punishable, for a first offense, by imprisonment for up to one year and a fine of up to $25,000 and, for a second offense, by imprisonment for up to one year and a fine of up to $50,000. If the physical obstruction was nonviolent, the person is guilty of a misdemeanor, punishable, for a first offense, by imprisonment for up to six months and a fine of up to $2000 and, for a second offense, by imprisonment for up to six months and a fine of up to $5000.
Any person who intentionally damages or destroys the property of a person, entity, or facility, or attempts to do so, because the person, entity, or facility is a reproductive health services client, provider, assistant, or facility is guilty of a misdemeanor punishable, for a first offense, by imprisonment for up to one year and a fine of up to $25,000 and, for a second offense, by imprisonment for up one year and a fine of up to $50,000.
An aggrieved reproductive health services client, provider, or assistant may bring a civil action for injunctive relief, compensatory and punitive damages, costs of the lawsuit, and reasonable fees for attorneys and expert witnesses. In lieu of actual compensatory damages, the plaintiff may elect to recover statutory damages of $1000 for each exclusively nonviolent violation and $5000 for any other violation. In addition the state attorney general, a district attorney, or a city attorney may bring a civil action for injunctive relief, for compensatory damages to aggrieved persons, and for the civil penalty of up to $2000 for an exclusively nonviolent first violation, $15,000 for any other first violation, up to $5000 for an exclusively nonviolent subsequent violation, and $25,000 for any other subsequent violation. This law does not apply to a minor's parent or guardian who is acting towards the minor. Cal. Penal Code §§ 423 - 423.6 (Enacted 2001).
An additional law provides that any person who intentionally prevents an individual from entering or exiting a health care facility by physical detention or obstruction is guilty of a misdemeanor, punishable for a first offense by imprisonment, a fine of up to $250, or both; for a second offense, imprisonment for at least five days and a fine of up to $500; and for a subsequent offense, imprisonment for at least 30 days and a fine of up to $2000. Cal. Penal Code § 602.11 (Enacted 1992).
Another law provides that any person who, alone or in concert with others, intentionally prevents an individual from entering or exiting a health care facility by physically obstructing the individual's passage or by disrupting the facility's normal functioning, defined as intentionally rendering or attempting to render a health care facility temporarily or permanently unavailable or unusable by a licensed health care practitioner, the facility's staff, or patients, commits the tort of commercial blockade. An aggrieved person or health care facility may seek civil damages. The court having jurisdiction over a civil proceeding under this law shall take all steps reasonably necessary to safeguard the individual privacy and prevent the harassment of a health care patient, licensed health care practitioner, or employee, client, or customer of a health care facility who is a party or witness in the case, including granting protective orders. Cal. Civ. Code §§ 3427 - 3427.4 (Enacted 1994).
Another law provides that any person who ignites or explodes any destructive device or commits arson for the purpose of terrorizing another, or in reckless disregard of terrorizing another, at a health facility, a place where a meeting or presentation regarding abortion policies or practices is taking place, or an office or meeting site of an organization that counsels for or against abortion or that engages in, as a major activity, lobbying, publicizing, or organizing with respect to abortion is guilty of a felony and shall be imprisoned for three, five, or seven years and fined up to $10,000. Cal. Penal Code § 11413 (Enacted 1985).
Another law provides that any person who willfully and maliciously damages any structure with butyric acid or a similar substance is guilty of a crime punishable by imprisonment and/or by a fine of up to $1000 for damage less than $400, up to $5000 for damage of $400 to $4999, up to $10,000 for damage of $5000 to $49,999, and up to $50,000 for damage of $50,000 or more. Cal. Penal Code § 594.4 (Enacted 1993; Last Amended 1994).
Additionally, under the "Reproductive Rights Law Enforcement Act" enacted in 2001, the state attorney general shall collect information relating to anti-reproductive rights crimes and release the findings on its website, direct local law enforcement agencies to report to the California Department of Justice information relative to such crimes, submit an annual report to the state legislature, and develop a plan to prevent, apprehend, prosecute, and report anti-reproductive rights crimes. In addition, the Commission on Peace Officer Standards and Training is required to develop a two-hour telecourse on anti-reproductive rights crimes, to be made available to all California law enforcement agencies as well as the prepare guidelines establishing standard procedures that may be followed by law enforcement agencies in the investigation and reporting of cases involving anti-reproductive-rights crimes. The law's repeal date has been extended through 2014. Cal. Penal Code §§ 13775 - 13779 (Enacted 2001; Last Amended 2008).
In 2002, California enacted another clinic violence related law, creating the "Address Confidentiality for Reproductive Health Care Service Providers, Employees, Volunteers, and Patients" program, recognizing that reproductive health service clinic providers, employees, volunteers, and patients are often subject to harassment, threats, and acts of violence. This act allows state and local agencies to withhold personal address information from public records if providers, employees, volunteers, or patients of reproductive health facilities complete a state certification application to participate in the confidentiality program. Cal. Gov't Code §§ 6215 - 6217 (Enacted 2002).
In 2003, California enacted legislation prohibiting insurance premiums from being excessive or unfairly discriminatory for reproductive health services facilities or their administrative offices. This law also requires an insurer to report a cancellation or non-renewal of insurance policy if the insured submits a claim that is the result of an anti-reproductive rights crime. Cal. Ins. Code § 676.10 (Enacted 2003).
State Constitutional Protection
The California Constitution protects the right to reproductive choice as a fundamental right and to a greater extent than the federal Constitution. The California Supreme Court struck down under the state's constitutional right to privacy a law limiting state medical assistance for abortion to cases of life endangerment, severe physical health damage, fetal deformity, rape, incest, or unlawful intercourse with a minor. Committee to Defend Reprod. Rights v. Myers, 625 P.2d 779 (Cal. 1981). A similar restriction has been upheld by the U.S. Supreme Court under the federal Constitution. Williams v. Zbaraz, 448 U.S. 358 (1980).
The state supreme court also struck down a law requiring either parental consent or a judicial waiver before a minor could obtain an abortion. American Acad. of Pediatrics v. Lungren, 940 P.2d 797 (Cal. 1997). A similar restriction has been upheld by the U.S. Supreme Court under the federal Constitution. Planned Parenthood Ass'n of Kansas City v. Ashcroft, 462 U.S. 476 (1983).
OTHER LAWS
Informed Consent
California has an abortion-specific informed consent law.
Clinics providing abortion services must hold "information and education sessions" to give the woman information about how the abortion procedure is performed, possible risks and complications, and alternatives to abortion. Cal. Code Regs. tit. 22, § 75040.
Post-Viability Abortion Restriction
California's post-viability restriction states that an abortion may be provided after viability only if in the good-faith medical judgment of the physician, the continuation of the pregnancy poses a risk to the woman's life or health. Cal. Health & Safety Code §§ 123464 - 123468 (Enacted 2002; Last Amended 2003).
NARAL Pro-Choice America supports the legal framework established in Roe v. Wade and does not oppose restrictions on post-viability abortion, such as California's, that contain adequate exceptions to protect the woman's life and health.
