State Justices Have Chance to Review Abortion Stands

Within months, the realigned state Supreme Court could decide to re-examine the trailblazing decisions of past years that have recognized a constitutional right to abortion under California law.

Thus far, the new, more conservative court has sidestepped the politically explosive question. But anti-abortion forces are hoping Monday’s ruling by the U.S. Supreme Court will provide the state court with added incentive to tackle the issue.

While the federal high court decision did not change California law, it did allow states more leeway to restrict abortion without violating federal constitutional standards. If the state court is to overturn or modify its past rulings, now is the time, abortion foes say.

“We’ve had an extreme philosophical change on the state court, just as we’ve had a change on the U.S. Supreme Court,” Janet B. Carroll, legislative director of the California Pro-Life Council, said Wednesday. “We’re hopeful that (Monday’s ruling) has established a whole new psychology pointing to the need to review these issues. . . . The state court can’t duck it forever.”

Abortion rights lawyers stand by their belief that the state court, despite its dramatic change in makeup, will leave intact rulings dating to 1969 that have asserted a far-reaching state right to abortion that goes beyond any such right under the federal Constitution.

“This court has behaved in a principled fashion, and we certainly hope and expect it will continue to do so,” said Margaret C. Crosby, staff counsel for the American Civil Liberties Union of Northern California.

But if the justices are so inclined, they could recast California abortion law in either of two pending cases that are expected to come before the high court by November.

In one case, a group of physicians and civil libertarians is challenging the constitutionality of a 1987 state law that requires unmarried minors to obtain the consent of a parent or judge before obtaining an abortion.

In the other dispute, abortion rights groups are preparing to file suit next week to strike down tight legislative restrictions on state-funded abortions for low-income women under the Medi-Cal program. Such limitations have been enacted--and then invalidated in the courts--for 11 straight years.

The court under Chief Justice Malcolm M. Lucas twice last year refused to review appellate rulings overturning the Medi-Cal curbs. Only Lucas and Justice Edward A. Panelli voted to hear the cases--two votes short of the four required to grant review.

The Lucas court, without dissent, also declined last year to review a trial court injunction blocking implementation of the parental-consent law while its validity was debated in the courts.

But, as anti-abortion forces are quick to note, the refusal to review a lower court ruling, in itself, does not indicate that the justices agree with that decision. Ironically, that same point was emphasized recently by a member of the high court who cited the abortion funding case as an example.

Justice Marcus M. Kaufman, in an appearance last year at UC Berkeley, noted that there had been several rulings made under former Chief Justice Rose Elizabeth Bird that had been left intact by the new court, even though the justices may have had misgivings about those decisions.

Kaufman added cryptically that there may have been “procedural” reasons--such as the court’s heavy caseload--for refusing to hear the Medi-Cal case and a challenge by Gov. George Deukmejian’s Administration to a 1981 ruling upholding a constitutional right to state-funded abortions.

The state Supreme Court’s liberal course on the issue began in 1969, four years before the federal high court recognized a constitutional right to abortion in the landmark case of Roe vs. Wade. In its ruling, the state court, citing an implied state right to privacy and a woman’s “fundamental right” to choose whether to bear children, overturned the conviction of a Los Angeles physician for performing an abortion.

In 1972, the state court voided most parts of a law passed in 1967 restricting abortion, ruling those portions were too vague and violated the right to due process.

Then in 1981, the justices ruled that legislative attempts to restrict state-funded abortions infringed on a specific right to privacy enacted by the voters in a 1972 constitutional amendment. The state could not deny low-income women funds for abortion while providing funds for childbirth, the court said.

The late Justice Mathew O. Tobriner, writing the lead opinion for the court, declared: “The decision whether to bear a child or to have an abortion is so private and so intimate that each woman in this state--rich or poor--is guaranteed the constitutional right to make that decision as an individual, uncoerced by governmental intrusion.”

Now the focus of attention has returned again to the state high court. But this time, five appointees of Deukmejian hold a majority, in sharp contrast to the liberal bloc that had dominated the court for decades before the defeat of Bird and two other justices in the 1986 fall election. Of the four justices who upheld abortion rights in the 1981 decision, only one--Justice Stanley Mosk--remains on the court.

If the more conservative court decides to reshape abortion law, it could use either the abortion-funding or parental-consent case as the vehicle to do so. Both disputes could reach the high court docket by November, depending on the pace of lower court proceedings.

Abortion rights attorneys plan to file suit in the state Court of Appeal here Tuesday, urging that the Legislature’s most recently enacted limits on Medi-Cal funding be overturned as they have been 11 times before. Last year, the appeals court quickly struck down the regulation again, citing the 1981 high court ruling and its recognition of privacy rights.

On July 26, the state appeals court here will hear argument over the validity of the parental consent law.

WATSON RESULUTION--Sen. Diane Watson unveiled a resolution reaffirming California abortion rights. Page 24