Crime Initiative Augurs Prosecutions for Abortion

A bitter war of words over a court reform initiative to be placed on the ballot in 1990 has erupted between its chief sponsor, Sen. Pete Wilson, and Atty. Gen. John K. Van de Kamp, both declared candidates for governor.

Van de Kamp, a Democrat, claims that Wilson’s initiative endangers a woman’s constitutional right to have an abortion. Wilson, a Republican, retorts that Van de Kamp’s raising of the “choice” issue is a smoke screen masking his distaste for tough anti-crime measures. While the attorney general’s motives in challenging the proposed initiative are known only to himself, the potential impact of the measure on abortion rights is subject to reasoned analysis.

That analysis begins with California’s statutory law on abortion. Many may be surprised to learn that the penal code of California criminalizes most of the abortions performed each year in this state. Sections 274 to 276 of that code, for example, make it a crime to perform or receive an abortion outside a hospital, or to solicit such a procedure.

In fact, most of the hundreds of thousands of abortions performed in this state each year take place in clinics, and thus violate the penal code. If prosecutors were free to enforce statutes now “on the books” in California, the legions of doctors, nurses, health workers and pregnant women involved in clinical abortions could be subjected to immediate prosecution and possible incarceration.

Such prosecutions have not occurred in this state for two decades, however, because women in California enjoy a constitutional right to abortion. Since constitutional rights prevail over legislative enactments, women need not fear prosecution for obtaining abortions, nor doctors for performing them, as long as (and here is the rub) their constitutional rights are not abrogated by amendment or judicial revision of existing constitutional doctrine.

Pro-choice advocates across the country are profoundly fearful that judicial withdrawal of the federal constitutional right to an abortion established by Roe vs. Wade is around the corner. In July, the Roe right was chipped away by the Supreme Court’s decision in Webster vs. Reproductive Health Services. Many court watchers believe that Roe will be entirely overruled in the coming term. Such a decision would mean that there will be no federal constitutional impediment to enforcing the sort of radical restrictions on abortion found in existing statutes in California and other states.

Nevertheless, unlike citizens of most other states, Californians need not be affected by a Roe reversal. The constitutional right to an abortion was established in this state not by the 1973 U.S. Supreme Court’s Roe decision, but by the 1969 decision of the California Supreme Court in People vs. Belous. That opinion, and others like People vs. Barksdale that followed, sustained the claim of criminal defendants prosecuted for abortion that they had a right of choice under the California Constitution. A 1972 amendment to the state Constitution expressly guaranteeing the privacy of Californians legally cemented California as a pro-choice state.

In sum, left untouched, the state Constitution’s privacy provision will prevent prosecution under present abortion laws--even if Roe falls. Were the state privacy provision to die at the same time as Roe, however, women and their doctors would be no safer from criminal prosecution here than in other parts of the country.

That is where the new crime initiative comes in. By its express terms, it amends the California Constitution to eliminate all state constitutional rights of criminal defendants, including that of privacy, which are not also guaranteed under the U.S. Constitution. In other words, under the initiative, a woman or her doctor prosecuted for participating in a clinical abortion could defend themselves only by raising whatever federal constitutional rights they possess.

Cases like Belous and Barksdale would no longer provide independent state law protection for abortion defendants. The initiative’s passage having wiped out present state constitutional protections, California women choosing to abort pregnancies would be vulnerable to prosecution the day after Roe was overruled.

Wilson has said that he does not intend that the initiative restrict abortion rights in California. That statement is no doubt as true as it is irrelevant. Since the intent of a law’s proponents is often impossible to ascertain, well-established law requires that the courts ignore that intent if the terms of a legal provision are clear. The initiative’s terms leave no room for doubt or exception: If passed, no criminal defendant will be able to protect herself from prosecution for abortion or any other crime by invoking her state constitutional right to privacy. Some may choose to support the initiative for that reason, others to oppose it, but the initiative’s impact on abortion prosecutions is certainly a large factor to be weighed in assessing its merits.