Legal Dispute Over Abortion May Hinge on Privacy Issue

In 1972, the voters approved a one-word change in the state Constitution that was so uncontroversial it was likened to being in favor of motherhood. By a wide margin, “privacy” was added to the list of inalienable rights of all Californians.

But now that once-innocuous amendment is at the center of the widening legal battle over abortion--and the outcome may well depend on how broadly the right to privacy is interpreted by the courts.

Among the questions being raised is whether the state’s right to privacy goes beyond federal constitutional guarantees in upholding the right to abortion. State appeals courts are reviewing a law requiring parental or judicial consent to abortions for unmarried minors and newly reenacted legislative restrictions on state-funded abortions for the poor.

The privacy issue also is at the heart of two other cases in the appeals courts raising challenges to mandatory drug tests for job applicants and college athletes. In dispute, among other things, is whether the privacy clause bars testing by non-governmental employers and associations.

Those cases have taken on dramatic new significance in the wake of a ruling last month by the U.S. Supreme Court allowing states more leeway in restricting abortion--a decision many experts see as prelude to an eventual high-court reversal of its landmark 1973 ruling in Roe vs. Wade legalizing most abortions.

In one form or another, the privacy question is certain to eventually reach a newly aligned and more conservative state Supreme Court that thus far has given little clue on how it will deal with the issue.

Over the years, the right to privacy has proved a constantly evolving and sometimes vague legal concept. The right is not mentioned explicitly in the federal Constitution, but the U.S. Supreme Court has recognized an implied right in striking down warrantless wiretaps, bans on birth-control devices and other governmental intrusions on the individual.

In California, courts found an implied privacy right in the state Constitution even before the voters adopted it explicitly in the 1972 election. And in the last two decades, the state Supreme Court has upheld the right in a wide range of rulings.

In 1969, the justices, recognizing an implied state and federal privacy right, struck down a century-old statute making abortion criminal except in order to preserve the mother’s life. In 1981, the court cited privacy rights enhanced by the 1972 amendment to overturn then-current legislative limits on state-funded abortions for low-income women.

In other areas, the court in 1975 upheld the right to privacy as the justices barred covert surveillances of college classrooms by police. Five years later, the court invoked the right in striking down a municipal ordinance that limited the number of unrelated inhabitants in a single household.

But in some instances, the court has declined to extend the right. In 1983, the justices, over a dissent by then-Chief Justice Rose Elizabeth Bird, refused to bar use in court of a secretly taped conversation between an arrested robbery suspect and his accomplice in the back seat of a police car. Bird, joined by former Justice Cruz Reynoso, argued unsuccessfully that under the 1972 amendment, the right to privacy should be expanded to protect such conversations from deceptive and clandestine recording by authorities.

But, despite those and other decisions, the full breadth and meaning of the right and the implications of the 1972 amendment are still subject to sharp debate in legal circles.

Advocates of a broad and far-reaching privacy right contend that it bars governmental or corporate intrusions into a wide range of personal conduct. For example, they say, it can--and has--been applied to uphold the right of terminally ill patients to refuse life-support devices.

“What is really important is that privacy appears among the declaration of rights by the people (in the state Constitution),” said Erwin Chemerinsky, professor of law at USC. “That declaration means, ‘when in doubt, interpret such a right more broadly, rather than more narrowly.’ ”

In the view of Chemerinsky and others, the 1981 ruling by the state Supreme Court firmly established that California law protects abortion rights beyond any right established by the U.S. Supreme Court.

“The decision quite clearly says that the California right is one that is independent of and broader than the one established in Roe vs. Wade,” he said.

Professor Jennifer Friesen of Loyola Law School in Los Angeles says a broad interpretation of the right is further strengthened by another provision of the state Constitution declaring that the rights it guarantees “are not dependent” on those protected by the federal Constitution.

“It’s difficult to conclude that state law should be as narrow as the federal law,” said Friesen. “There’s just no support for that contention.”

But other authorities see a much more limited right to privacy--one that must be balanced against competing rights and important state interests.

Deputy Atty. Gen. Elisabeth C. Brandt, the lawyer representing the state in defense of the parental-consent law, contends in that case that on the question of abortion, the state Constitution does not provide any greater privacy rights than those accorded under the federal Constitution and interpreted by the U.S. Supreme Court.

The 1981 ruling, she said, did not establish a right to abortion that went beyond Roe vs. Wade, but merely recognized a state right equal to the federal right.

“It’s clear that the state Supreme Court has invoked the state right to privacy extensively in other areas,” Brandt said. “But on abortion, the court has not yet gone beyond where the U.S. Supreme Court has gone.”

The 1972 amendment explicitly establishing a right to privacy followed widespread concern among legislators and others over the growing collection of confidential data of individual citizens.

Ballot arguments by proponents of the measure focused largely on the “proliferation of governmental snooping and data collection” and the compilation of unnecessary information by credit companies and other businesses. Other language was less specific: “The right to privacy is the right to be left alone,” proponents declared.

Opponents said there were already sufficient legal restraints on the invasion of privacy by government and businesses. The danger in the amendment, opponents said, was that it would make it far more difficult to investigate fraud among recipients of welfare and other governmental assistance.

In the current debate, anti-abortion forces say the privacy amendment has been misconstrued in the courts and applied improperly to establish a “right” far beyond that envisioned by the voters.

“The whole aim of the amendment clearly was to protect the citizen from computer-snooping--it had nothing to do with abortion,” said Cyrus Zal, a Folsom attorney representing Americans United for Life. “It was even supported by many pro-life legislators at the time. Unfortunately, the court under Rose Bird read into the right to privacy something that was never intended.”

Other lawyers disagree, saying the voters did intend that the right to privacy be applied on a wide front, going well beyond a limited right to so-called “informational privacy.”

“The voter pamphlet specifically cited the ‘right to be left alone’ as one of the most important rights in a civilized society,” said Edward M. Chen, staff counsel for the American Civil Liberties Union of Northern California. “The broad right to privacy has been accepted now for so long and is so much in the fabric of our life that it’s too late in the day to come up with a revisionist interpretation of the amendment.”

In any event, that question is likely to be resolved in these cases now before the courts that, along with other issues, involve the right to privacy:

PARENTAL CONSENT

State attorneys last month asked an appeals panel in San Francisco to uphold the constitutionality of the 1987 parental consent law, contending it meets standards established by the U.S. Supreme Court and does not conflict with state court rulings. Any rights of minors must be balanced against parental rights and the state’s interest in protecting young people from making impulsive and ill-advised decisions, state lawyers say.

Attorneys for medical and civil rights groups challenging the law asked the panel to leave intact a lower-court injunction barring the statute from taking effect pending a trial on its validity.

ABORTION FUNDING

Another appellate panel here has been asked by lawyers for the ACLU and other groups to strike down the Legislature’s most-recent limitations on abortion-funding under the Medi-Cal program. The restrictions--similar to those previously invalidated in court for 11 straight years--allow funding for abortions only when the mother’s life is in danger, a pregnancy has resulted from rape or incest, the unborn child is severly deformed or an unmarried minor has notified her parents.

Lawyers for the state say that in the wake of the latest U.S. Supreme Court ruling on abortion, the time is ripe for the California Supreme Court to reconsider its 1981 decision invalidating funding restrictions as a violation of the right to privacy and equal protection of the law.

But the case also involves another legal issue that could well determine the result. Challengers contend the restrictions conflict with another state constitutional provision requiring that bills passed by the Legislature be limited to a “single subject.” The opponents of the restrictions say the lawmakers improperly used the Budget Act, which involves appropriations, to make substantive changes in separate statutes that authorize abortions in the Medi-Cal program.

DRUG TESTS

FOR JOB APPLICANTS

Three job-seekers are contesting a private employers’ requirement that they pass tests to detect the use of illegal drugs. An Alameda County Superior Court judge issued a preliminary injunction barring the tests as unconstitutional but the order was lifted by the Court of Appeal. Oral argument has been set by the court for later this month.

Attorneys for the defendants in the suit, Times Mirror Books and Matthew Bender & Co., contend among other things that the state right to privacy does not apply to private businesses. (Both of these companies are owned by Times Mirror Corp., which owns the Los Angeles Times.) Civil libertarians say the right, as established under the 1972 amendment, was clearly designed to protect against unwarranted intrusions by both government and business. However, the state Supreme Court, in a footnote in a separate case decided last March, indicated the application of the right to the private sector remained unsettled.

DRUG TESTS

FOR COLLEGE ATHLETES

A Santa Clara County Superior Court judge last August invalidated the National Collegiate Athletic Assn.’s mandatory random drug-testing program at Stanford University. Judge Conrad L. Rushing rejected claims by the NCAA that its program was necessary to ensure fair competition and protect the health of student athletes.

The judge, in a sweeping assertion of the state right to privacy, declared: “The right to one’s personality means that (an athlete) does not have to submit to the watchful eye of an NCAA while he urinates.” Argument in the case is expected to be heard this fall by a state Court of Appeal in San Jose.