Abortion Debate in Court Focuses on Consent Issue

In a new round in the intensifying debate over abortion, a state Court of Appeal was asked Wednesday to uphold the constitutionality of a 1987 law requiring unmarried minors to get the consent of a parent or a judge before obtaining an abortion.

A state attorney defending the statute urged the panel to set aside a lower court injunction that blocked implementation of the law before it could take effect last year.

Minors do not have the same right to sexual privacy as adults and the law serves a “significant state interest,” said state Deputy Atty. Gen. Elisabeth C. Brandt. An immature minor, she said, too often rejects childbirth without adequate consultation and “goes through the process with anyone who will take her money and give her an abortion.”

“There is a long-term benefit in involving the parent,” said Brandt. “There is evidence that young minors tend to panic and give in to peer pressure. They think, ‘My parents will kill me; my boyfriend will kill me; I’ll lose my figure. I have to get an abortion.’ ”

But a San Francisco lawyer representing medical and civil rights groups challenging the law urged the panel to leave the injunction intact and allow existing statutes--which require only that a doctor obtain the minor’s “informed consent”--to continue to govern the issue.

“Minors do not have less privacy rights than adults,” said Attorney Linda E. Shostak , and the new law thus violates the privacy guarantees of the state Constitution.

“The Legislature took a system that works pretty well . . . and changed it to criminalize abortion for teen-agers, unless they get consent of a parent or judge,” said Shostak.

The panel heard argument for an hour on the politically charged issue, pressing the attorneys with dozens of questions and, on occasion, appearing skeptical about the validity of the 1987 law.

Appellate Justice William A Newsom said he saw “serious problems” in the law’s requirement that judges determine whether a minor is “mature” enough for an abortion. In that respect, the statute may be impermissibly vague and force judges to act without advice from psychologists or other experts, the justice said.

Similarly, Presiding Justice John T. Racanelli expressed concern that the law might be discriminatory by requiring minors seeking abortions to go through legal procedures not required of minors choosing to give birth. “Aren’t they being treated unequally?” Racanelli asked.

The hearing was held in one of two cases now before the appeal court that could change the state’s legal course on abortion. The second case under review is a challenge by civil rights groups to the validity of the most recent legislative budget restrictions on state-funded abortions in the Medi-Cal program.

U.S. Court Decision

The heated debate over the issue has taken on new intensity after a ruling by the U.S. Supreme Court on July 3 giving states more power to limit abortion under the federal Constitution. While the decision did not change California law, it refueled hopes among anti-abortion groups that past state rulings will be modified or overturned.

The law at issue Wednesday requires unmarried minors to obtain the consent either of a parent, guardian or a judge, unless there is a medical emergency. The statute mandates confidential and expedited proceedings--free of charge and appealable to higher courts--and requires that judges must approve abortions if they conclude that the minor is sufficiently mature and informed to consent to the operation or that an abortion is in her “best interest.”

The decision in the case will have wide impact. Of about 300,000 abortions performed annually in California, an estimated 35,000 involve unmarried minors. A ruling is due by October.

The statute was first challenged in November, 1987, two months before the law was to go into effect, when the American Academy of Pediatrics and other groups represented by the American Civil Liberties Union filed suit in San Francisco, charging that it violated the state constitutional right to privacy.

In December, 1987, San Francisco Superior Court Judge Morton R. Colvin issued an injunction preventing the law from going into effect while its legality was tested in the courts.