Court Upholds Order Barring Abortion Law

In a big win for abortion-rights groups, a state Court of Appeal on Thursday upheld an order blocking enforcement of a 1987 state law requiring unmarried minors to get the approval of a parent, guardian or judge to obtain an abortion.

While not ruling directly on the constitutionality of the law, the three-member appeals panel refused to overturn a preliminary injunction by a San Francisco judge that barred implementation of the law pending a trial over its legality.

The panel, relying heavily on the state constitutional right to privacy, said the trial court had not “abused its discretion” in concluding that opponents of the law were likely to succeed in their lawsuit challenging its legal validity.

The appeal court noted that the abortion-rights lawyers challenging the law had offered considerable evidence that the statute would cause “increased stress and depression” among minors, strain parent-child relations and induce minors to obtain illegal abortions.

“There was evidence which indicates that all but a very few adolescent minors have the capacity for exercising mature judgment concerning the wisdom of an abortion,” Appellate Justice William D. Stein wrote in a 24-page opinion joined by Appellate Justices John T. Racanelli and William A. Newsom.

To support its ruling, the panel repeatedly cited the state constitutional right to privacy--a right interpreted to be broader than the privacy right under the federal Constitution. A similar independent state right to privacy was cited last week by the Florida Supreme Court in striking down that state’s parental consent law.

And the panel made clear that state authorities will face a substantial task in defending the law in further proceedings. “Since (the law) will severely impair, or totally deny, the exercise of an intimate and fundamental constitutional right, the burden at trial will be upon the (state) to prove a compelling interest in the regulation of unemancipated minors’ consent to an abortion,” Stein said.

The appeals court rejected contentions by lawyers for the state attorney general’s office that the law should be upheld and allowed to take effect now. The panel disagreed specifically with the state’s claim that minors, being less able to make mature and informed choices, were entitled to fewer privacy protections than adults. “California’s Constitution . . . provides that the right to privacy is guaranteed to all persons,” Stein wrote.

Thursday’s action means the ban on enforcement of the law remains in effect pending trial in San Francisco, unless the ruling is overturned by the state Supreme Court.

The state high court, then under Chief Justice Rose Elizabeth Bird, issued a decision in 1981 in an abortion-funding case that recognized a broad right to abortion under the state right to privacy. Now, the court is led by conservatives, but it already has passed up one opportunity to review the 1987 parental-consent law and has twice refused to consider appeals court rulings forbidding the Legislature to deny state-funded abortions to Medi-Cal recipients.

Richard D. Martland, chief assistant attorney general, expressed disappointment with Thursday’s ruling and said authorities would determine later whether to appeal the ruling to the state Supreme Court.

Martland also declined to forecast what the high court might do with such an appeal. “We just can’t say at this point,” he said. “I don’t think we have enough of an indication from previous actions as to what the court would do.”

The state attorney added that meanwhile, a trial on the issue and further appeals by the losing side could take years before the issue is finally resolved.

The ruling was warmly received by Margaret C. Crosby of the American Civil Liberties Union of Northern California, one of the lawyers representing the medical and health provider groups that brought suit challenging the law.

The decision was “especially reassuring,” she said, in the wake of a ruling last summer by the U.S. Supreme Court that gave states more authority under federal law to limit abortion rights.

“This ruling today forcefully reaffirms the California Constitution’s right to privacy,” Crosby said. “It really puts the state to a heavy burden of proof to support the law at trial. And until it can do that, teen-agers can continue to get abortions on a confidential basis--and that’s wonderful news.”

Anti-abortion forces expressed hope that the state Supreme Court now will take the opportunity to uphold the parental consent law.

“We were not expecting to have many victories in the lower courts, which are pretty much bound to past decisions,” said Janet B. Carroll, legislative director of the California Pro-Life Council. “We want to be optimistic about the new high court, hoping it will rule in a different fashion than the Rose Bird court did. . . . We believe that 80% of the people in California and the rest of the nation favor parental consent laws.”

The eventual outcome will have wide impact in California, where an estimated 35,000 unmarried minors receive abortions annually.

Under the law, such minors, 17 or younger, must obtain consent from a parent, guardian or judge unless there is a medical emergency. The statute mandates swift and confidential proceedings--and requires judges to approve an abortion if they conclude that the minor is sufficiently mature and informed to consent to the operation.

The law was challenged by the American Academy of Pediatrics and other groups in November, 1987, two months before it was scheduled to go into effect. In December of that year, San Francisco Superior Court Judge Morton R. Colvin issued the injunction preventing the statute from taking effect while its constitutionality was at issue in the courts.

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