Trial Begins on Minors’ Right to Abortion : Lawsuit: Challengers hope to invalidate 1987 state law requiring girls 17 and under to obtain parental or judicial consent before ending a pregnancy.
In a bellwether test of abortion rights, trial is set to begin here Monday over the constitutionality of a 1987 state law requiring unmarried minors to get consent from a parent or judge to obtain an abortion.
Dozens of psychologists, counselors and other expert witnesses have been called by both sides to present their views on the ability of girls 17 and under to make mature choices between childbirth and abortion--and the need for parents to be involved in those decisions.
By recent count, 41 states have enacted parental consent or parental notice laws. But 21 of those states--including California--are not yet enforcing the laws because of court challenges. Meanwhile, more than 400,000 teen-agers are receiving abortions annually in the United States, an estimated 10% of them in California.
The case is being watched closely by both sides in the ongoing national debate over abortion. Anti-abortion forces, heartened by U. S. Supreme Court rulings last year upholding parental notice laws in Minnesota and Ohio, hope the nation’s largest state will follow suit.
“This is extremely important to the health and welfare of young girls,” Ann-Louise Lohr, counsel for Americans United for Life Legal Defense Fund, said last week. “With almost one-third of all abortions being performed on minors every year, anything you can do to reduce that amount would be beneficial. . . . And from a parental perspective, parents do have rights to know what’s going on with their kids.”
Abortion-rights groups say that despite the 1990 rulings permitting parental involvement laws under the U.S. Constitution, the California case still could set a precedent for states to invoke their own constitutions to strike down such laws.
Their lawsuit challenging the California law contends that the statute conflicts with the state constitutional right to privacy and violates the duty of government to remain neutral in the choice between childbirth and abortion.
“The real issue here is whether stereotypic assumptions--that all parents can and will provide helpful counsel to their pregnant daughters or that teen-agers make rash or uninformed decisions about pregnancy--can justify infringing on teen-agers’ fundamental rights of privacy and procreation,” said Linda E. Shostak, an attorney working with the American Civil Liberties Union of Northern California.
State lawyers defend the law as a justifiable governmental attempt to protect minors and preserve the parent-child relationship.
“There is a fundamental benefit of having parents involved with their kids,” said Deputy Atty. Gen. Ralph M. Johnson. “Our view is that the overwhelming majority of parents love their kids and support their kids. And when they have a daughter who finds herself with an unwanted pregnancy, they can be the single most important source of support for that daughter.”
The trial of the lawsuit in Superior Court is expected to last up to six weeks. It will be held without a jury.
The challengers of the parental consent law have prepared a list of 22 witnesses--including physicians, psychologists, sociologists and counselors--who will testify in person or by deposition. Judges from two states with laws that have been implemented--Minnesota and Massachusetts--also are on the list.
Those witnesses are expected to assert that the laws do little to encourage teen-agers to consult their parents about abortion; that minors can make their own mature decisions about abortion, and that fears about the adverse psychological impact of abortion are exaggerated.
Abigail English, an attorney for the National Center for Youth Law, contends that minors who cannot gain consent from their parents will often be reluctant to turn to a judge.
Minors often fear and mistrust the courts, and judges in other states often feel they are only an obstacle in the process, she said. “Judicial proceedings add little but delay,” English said.
The challengers also will contend that parental involvement laws force minors to seek illegal abortions in their own states--or, if feasible, simply to cross state lines to obtain abortions in states without such laws.
The state will counter with its own expert witnesses. These witnesses, from around the country, will discuss the value of parental involvement in the decision-making process and what they say is the adverse impact of keeping parents out of the process.
Testimony will be presented on the limited ability of adolescents to make decisions with long-term consequences. “Common sense tells us there is a great deal of difference between the maturity of a 12-year-old and that of an 18-year-old,” Johnson said.
The state also will present the results of a study in Minnesota showing a drop in both abortion and birth rates among 15- to 17-year-olds after enactment of a parental notice law. That trend, backers of such laws say, suggests that teen-agers, faced with parental involvement should they become pregnant, will turn to more responsible sexual behavior.
The suit was brought by a coalition of groups led by the American Academy of Pediatrics in November, 1987, just two months before the law was to go into effect. In late December, San Francisco Superior Court Judge Morton R. Colvin issued a preliminary injunction barring implementation of the law pending a decision on its validity.
In October, 1989, a state Court of Appeal in San Francisco upheld the injunction. While not ruling directly on the constitutionality of the statute, the appeals panel said that the challengers probably would succeed.
The three-member panel said that a minor’s right to abortion--like that of an adult--was protected by the state constitutional guarantee of privacy, an explicitly stated protection seen as broader than any privacy right implicit in the U. S. Constitution.
Whatever the outcome of the trial, an appeal seems probable--and the issue very likely will reach the state Supreme Court.
In 1981, the state high court under Chief Justice Rose Elizabeth Bird issued a ruling in an abortion-funding case that recognized a broad right to abortion under the state Constitution. Several times since then, the high court has let stand appellate rulings barring the Legislature from denying state-funded abortions to Medi-Cal recipients.
Johnson, the lawyer for the state, declines to speculate on the eventual outcome. But Margaret C. Crosby of the ACLU, one of the lawyers for the challengers, believes that if the law’s foes emerge victorious in the Court of Appeal, the state Supreme Court will simply let such a decision stand.
“There would be no need for the California Supreme Court to hear the case,” Crosby said. “This is a court willing to maintain California’s important tradition of maintaining state law independence.”