Justices Open Door to Change in California’s Abortion Policy
More than 20 years of accumulated law enshrines California’s liberal abortion policy as a woman’s basic right. In this, pro-choice leaders of the state found protection from the tumult of Monday.
The U.S. Supreme Court ruling did not alter this about California: The ability of a woman to obtain an abortion is secured by the privacy provision of the state Constitution, two decades of rulings by the state Supreme Court under three different chief justices and a 22-year-old abortion statute.
Gathering Storm Clouds
But the thunderclap from the high court’s ruling in Washington heralded a fast-gathering political storm about what is really right and who among the righteous shall triumph here in California.
Anti-abortion leaders were quick to note that for all the abortion-on-demand tradition of the state, there is nothing in the law that the Legislature cannot change, nothing in state constitutional precedent that the new Republican-appointed conservative majority on the California high court cannot alter. There is, they continue, also nothing standing in the way of attempts to rewrite the California Constitution via voter ballot initiative. And the U.S. Supreme Court now seems sympathetic to their hopes.
Out of these possibilities, both sides drew their energy for the impending political struggle in California--a struggle that some suggested may grow to dwarf all single-issue political battles of the past as an aroused electorate battles over life and death and liberty.
“Full-scale war!” predicted Assembly Ways and Means Committee Chairman John Vasconcellos (D-San Jose), who opposes abortion. “Years of chaos!” said Sen. Diane Watson (D-Los Angeles), chairwoman of the Senate Health and Human Services Committee and an abortion supporter.
Among the states, California is regarded as one of those where a woman’s ability to obtain an abortion is most secure, independent of changing national standards.
But as the U.S. Supreme Court turned the corner on its sanction of abortion on demand, permitting state restrictions, the whole question of “rights” was suddenly, although not surprisingly given the weeks of buildup, unsettled.
“This is a storm warning that has gone out today,” said John K. Van de Kamp, state attorney general and Democratic contender for governor in 1990. He predicted abortion will be “front and center” in the debates before the Legislature for years to come.
“But as we open the debate, let us be clear: Women still have the right to choose in this state,” he said.
“Politically, it changes the whole equation,” said Los Angeles political consultant Alan Arkatov. “There are few issues that cut across age, sex, race, the political parties. This is one of them. You just say abortion and you get an impulse.”
Few things are as unavailing as predicting the course of such volatile turns in history. But would-be experts on both sides said they believed the Supreme Court decision will be felt in two steps in California.
One, more people will become politically active on both sides--maybe many more people. Two, the fight will not be a single decisive encounter in the courts or Legislature or through the voter initiative. Instead, it is likely to go forth through a series of skirmishes in which anti-abortionists strive for incremental gains against pro-choicers trying to hold ground.
In the early going, the odds seem to favor the pro-choice side.
Framework of Battle Lines
The basic layout of the three branches of government at the start of this renewed fight is this:
Gov. George Deukmejian describes himself as “pro-life,” or anti-abortion. But he leaves office at the end of next year and all the major candidates to succeed him are “pro-choice"--Democrats Van de Kamp, former San Francisco Mayor Dianne Feinstein and state Controller Gray Davis and Republican Sen. Pete Wilson.
All made statements Monday in support of California’s abortion laws and traditions.
Feinstein proclaimed sisterhood with other women in the battle: “As a woman, I am solidly and irretrievably pro-choice.” Davis said that, as the man who signs state checks, “I will continue to make Medi-Cal payments to public hospitals and family planning clinics” for abortion.
Wilson said that if elected he would not try to stop Medi-Cal funding of abortions, even though he personally opposes using taxpayer funds for abortions. “The courts have repeatedly ruled that this is the right of a woman. I don’t believe the governor of California should be a scofflaw.”
Refuses to Hear Cases
The state Supreme Court under Deukmejian-appointed Chief Justice Malcolm M. Lucas has twice refused to hear cases to cut off Medi-Cal funding of abortion. This has disappointed anti-abortion leaders who were hoping that the Lucas court would rewrite abortion precedents set under former Chief Justices Rose Elizabeth Bird and Donald R. Wright.
More recently, the Lucas court also disappointed anti-abortion activists on the subject of a new state law requiring parental consent for minors seeking an abortion. A trial judge blocked implementation of the law and the Lucas court backed the action unanimously.
Margaret Crosby, a staff attorney with the ACLU who has argued the case for 10 years in state courts on behalf of a woman’s right to have an abortion, predicted that the state court would not follow the U.S. Supreme Court in changing course.
“I expect not, and I hope not,” she said. “The whole idea of a state Constitution is that it is independent of the federal Constitution and that fundamental law in a state does not shift with change that occurs 3,000 miles away.”
This leaves the final branch of government, the Legislature. Around the state, pro and con groups gathered on Monday and rallied and held vigils at the offices of lawmakers, as if in agreement that the members of the Senate and Assembly will be the most vulnerable to citizen pressure.
On surveys and expert evaluations leading to Monday’s ruling, neither side could claim anything approaching a reliable majority in either house.
Typical was a poll by the Feminist Majority and the California Abortion Rights Action League, which found that senators who favored abortion outnumbered opponents, 18 to 17, with five not responding. In the Assembly, the breakdown was 38 to 29 against, with 13 unknown.
The Sacramento coordinator for the National Right to Life League, Janet Carroll, similarly said the prospects in the Legislature were uncertain. “I don’t see the possibility of ending abortion right now through the Legislature--I wish I could but I can’t.”
For the last 10 years, lawmakers have voted to limit or abolish government financing of abortions through the Medi-Cal program. But this is quite likely an unreliable indicator of true sentiment. The reason is that the funding cutoff is reversed each year like clockwork by the state Supreme Court, meaning that a legislator can vote against use of taxpayer funds for abortion knowing it will not have a real effect.
Such a painless path no longer lies ahead for lawmakers.
Just listen to Robin Schneider, executive director of the California Abortion Rights Action League, and her counterpart, Susan Carpenter McMillan, president of the Southern California Right to Life League:
Schneider: “We are horrified . . . . Everything from today on is based on the assumption that we cannot trust the courts to protect our right to choose. This is an open invitation to the state Legislature to pass restrictions. And we’re going to see to it that it doesn’t happen . . . . You are going to see single-issue pro-choice voting like something you’ve never seen before. And we have the numbers on our side. We’re going to prove that being for abortion is good for a politician.”
McMillan, wearing a button saying I survived My Mother’s Pregnancy : “You will see an army coming together. I think we need to get in the trenches and pull out some of these key abortionists and put in some pro-life officials. . . . There isn’t going to be one pro-life legislator that is not visited by our people. It’s been a luxury to be on board in the past eight years. Now they are going to have to put their money where their mouth is. . . . We want our legislators out front and leading the march.”
As they spoke, hundreds of activists on both sides took to the streets in cities across the state for pre-planned rallies and vigils, targeting in particular offices of key legislators.
The next move seems to belong to the anti-abortionists. Leaders of this often splintered movement said they will try to reach common ground in the weeks ahead--and perhaps proceed to force legislative votes on some abortion restrictions. Among the ideas mentioned by various leaders were requirements for consent of the male partner before abortions, increased counseling and an absolute cutoff of abortions at 20 weeks.
Movement leaders such as Sen. John Doolittle (R-Rocklin) suggested pressing the state Supreme Court with another appeal. And some more eager activists are calling for a ballot initiative to bring the matter to a head in 1990, although others caution against such a bold gamble, given public opinion polls showing a majority in California supporting a woman’s right to an abortion.
A poll by The Times last month found that 49% of Californians surveyed supported abortion while 29% were opposed and 22% did not voice an opinion. The California poll by Mervin Field last February measured the pro-abortion majority at 66% to 27% in the state.
Staff writers Keith Love, Judy Pasternak, Daniel M. Weintraub, Philip Hager, Alisa Samuels and Jonathan Gaw contributed to this story.
CHRONOLOGY OF CALIFORNIA ABORTION LAW
1967--Gov. Ronald Reagan signs the California Therapeutic Abortion Act in a compromise with legislative Democrats. The Republican governor says he is “fully sympathetic with attempts to liberalize the outdated abortion law” then in existence. He talks about the “humanitarian goals of the measure,” saying “a liberalization of the abortion laws is necessary.”
The law, still on the books, permits abortions in hospitals during the first 20 weeks of pregnancy if a committee of physicians finds the pregnancy will impair the life or health of the mother or if it results from rape or incest.
1972--The California Supreme Court under Chief Justice Donald R. Wright voids many of the restrictions of the abortion law on grounds of vagueness. Left intact is the requirement that abortions be performed in hospitals.
Reagan becomes disenchanted by what he considers a too-liberal implementation of the law. While he is governor, there are an estimated 750,000 abortions in California, one-third of them financed by the state’s Medi-Cal health insurance program for the poor.
Also in 1972, California voters approve a ballot initiative and amend the state Constitution establishing an express right of privacy.
1973--Roe vs. Wade establishes a national right to abortions as a matter of privacy.
1979--Legislature approves restrictions or prohibitions on use of Medi-Cal funds for abortion. State Supreme Court in 1981 under Chief Justice Rose Elizabeth Bird rules that such prohibitions violate a woman’s right to privacy. Medi-Cal abortions continue.
1986-Voters defeat Bird and two other liberal justices.
1987-The Legislature votes to require women under age 18 to obtain parental consent for abortions. A trial judge blocks enforcement and the case is now before a California appeals court.
1988-Twice this year the state Supreme Court under Chief Justice Malcolm M. Lucas refuses to hear a challenge to Medi-Cal financing of abortions. Medi-Cal abortions continue.