Rights of Particular Groups and Classifications

A.   Minors

1.   Right to Abortion:  Minors in California may consent to abortion care.[1]  Parental consent or notification is not required.[2]  Under California law, minors possess the same rights to access abortion care as adult women.

2.    Informed Consent:  In California, minors may obtain medical care related to the prevention or treatment of pregnancy, including abortion care, provided that the clinician is satisfied that the minor is capable of informed consent.[3]

3.   Medical RecordsA minor is entitled to inspect medical records relating to her abortion care.[4]  A parent or guardian may not inspect or obtain copies of a minor’s medical records relating to her abortion care without the minor’s permission.[5]

4.   Research:  Parental permission is not legally required for a minor to participate in abortion-related research in California.[6]

The right to consent to abortion-related research rests with the minor, provided she may consent to the underlying treatment under state law.  All other laws relating to patient consent and research on human subjects apply (e.g., informed consent provisions and institutional internal review board requirements).

5.   Minors’ Ability to Leave School for Confidential Treatment without Parental Involvement

a.    District Must Notify Students and Parents of Right to Leave School for Confidential Medical Services:  The governing board of each school district is required to notify pupils enrolled in the district and their parents that school authorities may excuse any student from the school for the purpose of obtaining confidential medical services without providing notice to, or obtaining consent from, the student’s parent or guardian.[7]

b.    School May Not Require Parental Permission or Notify Parents:  A school district may not require students to obtain written parental consent prior to leaving school to receive confidential medical services.  A school may not notify a parent when a student leaves school to receive confidential medical services.[8]

c.    Protection from Discrimination:  California law protects students who have obtained an abortion from discrimination in school settings.  Public and certain private schools may not exclude or deny a student from any program or activity, including class, solely on the basis of a student’s termination of a pregnancy or recovery from this procedure.[9]

 

B.   Women in Detention Facilities:

1.    Right to Abortion: A pregnant woman in a state or local detention facility has the same right to access abortion care as all other women in California.[10]  The right to obtain an abortion also applies to pregnant minors in state and local detention facilities.[11]

2.   Access to Services and Providers: An incarcerated woman has the right to access services to determine whether she is pregnant and to obtain abortion or prenatal care from a physician of her choice.[12]  These provisions apply to minors as well as adult women.[13]

3. Sterilization: “[S]terilization for the purpose of birth control . . . of an individual . . . imprisoned in a state prison or a reentry facility, community correctional facility, county jail, or any other institution in which an individual is involuntarily confined or detained under a civil or criminal statute, is prohibited.” An exception is made when the procedure is required for the immediate preservation of the individual’s life, or when the procedure is required for the necessary treatment of a medical condition. (nfn1)

4.   Notice: Rights of incarcerated females relative to pregnancy and abortion care must be posted in at least one conspicuous place to which all females have access.[14]

 

C.   Incapacitated Adults

See Chapter 6 (Informed Consent and Capacity).

 

D.   Medi-Cal Funding for Abortion

California’s Medi-Cal program pays for abortion services for qualifying low-income women.[15]

 


[1]   Am. Acad. of Pediatrics v. Lungren, 16 Cal. 4th 307 (1997); see also Cal. Fam. Code §§ 6920-6929 (2011) for a complete list of medical services to which a minor may consent.

[2]   Lungren, 16 Cal. 4th 307; see also Cal. Fam. Code § 6925 (2011).

[3]   Id.

[4]   Cal. Health & Safety Code § 123110 (2011).

[5]   Id. §§ 123105(e), 123110, 123115; see also Cal. Civil Code § 56.11 (2011).

[6]   Federal regulations governing Institutional Review Board (“IRB”) approval for studies involving human subjects provide special protections for subjects who are “children.” 45 C.F.R. § 46.401 et seq. (2011).  For a child to participate in research, parental permission and, where appropriate, the assent of the child must be provided unless these requirements are waived by the IRB.  45 C.F.R. § 46.408(a), (b) (2011).  However, under the definition of “children,” if state law authorizes a minor to consent to the medical care or treatment underlying the research, the minor is not considered a child and parental permission is not required. 45 C.F.R. § 46.402(a) (2011).  Permission is generally not required for a minor to participate in abortion-related research in California as a minor may consent to pregnancy care, including abortion.

[7]   Cal. Educ. Code § 46010.1 (2011).

[8]   87 Ops. Cal. Att’y. Gen. 168 (2004).

[9]   Cal. Code Regs. tit. 5, § 4950 (2011).  “Educational institution” is defined as “any public or private preschool, elementary, or secondary school or institution operated by the local agency, or any combination of school districts or counties recognized as the administrative agency for public elementary or secondary schools.”  Id. § 4910.  This provision applies to both public and private schools described above that receive state and federal funding, or that enroll  students who receive state financial aid.  Id. § 4900; Cal. Educ. Code § 220 (2011).  However, provisions protecting students who have obtained an abortion are not applicable to schools controlled by religious organizations if the application would not be consistent with the religious tenets of that organization.  Cal. Educ. Code § 221.

[10]   Cal. Penal Code §§ 3405, 3406, 4023.6, 4028 (2011).

[11]   Cal. Welf. & Inst. Code §§ 1773, 222; see also Cal. Code Regs. tit. 15, § 4736 (2011) (procedures for minors in state facilities to obtain abortions).

[12]   Cal. Penal Code §§ 3405, 3406, 4023.6, 4028 (2011).

[13]   Cal. Welf. & Inst. Code §§ 222, 1774 (2011); see also Cal. Code Regs. tit. 15, §§ 1122, 1416 (2011).

(nfn1) Cal.Penal Code § 3440 (a)-(b) (2015).

[14]   Cal. Penal Code  §§ 3405, 3406, 4023.6 (2011); Cal. Welf. & Inst. Code §§ 220, 1773 (2011).

[15]   Since 1977, the federal Hyde Amendment has prohibited the use of federal Medicaid funds to pay for medically necessary abortion care for low-income women, except in very limited circumstances.  In 1981, the California Supreme Court considered this issue and held that statutory restrictions on Medi-Cal funding for abortion were unconstitutional under the privacy and equal protection guarantees of the California Constitution.  See Comm. to Defend Reprod. Rights v. Myers, 29 Cal. 3d 252 (1981).