Saying No to the Client

For nearly every lawyer, there comes a time when he must tell a favorite client to look else-where for representation because he’s wrong. For California Atty. Gen. John K. Van de Kamp, that moment has come. As the Daily Journal revealed the other day, Van de Kamp has served notice that his office will no longer defend the restrictions that the state Legislature has placed on Medi-Cal abortions for poor women.

Van de Kamp withdrew because his office considered the latest restrictions, part of the Budget Act, a lost cause. Year after year, as the Legislature has yielded to pressure from anti-abortion organizations and voted to exempt most abortions from Medi-Cal funding, the restrictions consistently have been invalidated in court; 10 times the attorney general’s office has defended the restrictions, and 10 times it has lost.

The governing precedent, Committee to Defend Reproductive Rights vs. Myers, was handed down in 1981 by the California Supreme Court; the justices held that as long as the state pays for maternity care under Medi-Cal, any attempt to restrict abortion funding violates a woman’s privacy right to choose whether to give birth. That decision, from the era of Chief Justice Rose Elizabeth Bird, continues to infuriate conservatives, particularly because the U.S. Supreme Court ruled the opposite. But the California court remains the ultimate arbiter of the state Constitution, and even the realigned state Supreme Court, under Chief Justice Malcolm Lucas, as recently as May passed up an opportunity to overturn the decision in the Myers case.

As Van de Kamp’s office explained, the 1988 restrictions are identical to those passed last year--and then struck down. “Given the current state of the law . . . there is no legal argument that we can professionally advance to distinguish the present case from the one just concluded,” said the statement from the attorney general.

Van de Kamp, widely considered a likely candidate for governor in 1990, may take some heat for this position. But his decision to pass is not only sensible legally--why fight an unwinnable battle?--but reflects what other attorneys general, including now-Gov. George Deukmejian, have done: Decline to represent state agencies when they disagree with agency positions.

In Van de Kamp’s absence it will fall to attorneys for the California Department of Health Services to defend the abortion restrictions, whose enforcement has been suspended by a court of appeal. They will undoubtedly do a creditable job, though we doubt that the result will be any different from before. But is it too much to hope that, next year, the Legislature will see the light and stop enacting indefensible laws?