A controversial state law requiring unmarried minors to obtain parental or judicial consent for an abortion was ruled unconstitutional Wednesday by a San Francisco Superior Court judge.
Judge Maxine M. Chesney held that the law--passed in 1987 but never enforced while it was challenged in court--violates a minor's right to privacy under the California Constitution.
The judge rejected contentions by state attorneys that girls age 17 and under often lack the ability to make informed decisions and could suffer serious medical, emotional or psychological consequences from an abortion.
"The great majority of minors possess the cognitive ability and maturity to make fully informed choices as to abortion," Chesney said.
The judge also turned down arguments that the law validly protected parental rights to participate in the choice between childbirth and abortion and would serve to strengthen parent-child ties.
"Rather than furthering the state's interest in the health of minors and in the parent-child relationship, the legislation in question will actually work against those interests," she said.
The ruling was issued in a widely watched test of the state's ability to regulate abortion. By recent count, 41 states have enacted laws requiring parental consent or notice--but 21 states, including California, are not enforcing those laws pending legal challenges. An estimated 30,000 minors receive abortions annually in California, according to lawyers.
The decision also came amid widespread speculation that the U.S. Supreme Court, acting in a Pennsylvania case, this summer will give states greater ability to restrict abortion and may even abandon Roe vs. Wade, the 1973 landmark ruling that established a constitutional right to abortion.
In past decisions, the U.S. high court has approved parental consent laws in other states under the federal Constitution. But lawyers emphasized Wednesday that Chesney's decision was based exclusively on the state Constitution and thus did not raise issues subject to federal court review.
"California's independent right to privacy (adopted by the voters in 1972) predates Roe vs. Wade and it will survive (Roe's) dismantling by a hostile Supreme Court," said Margaret C. Crosby of the American Civil Liberties Union of Northern California.
A spokesman for state Atty. Gen. Daniel E. Lungren, whose office defended the 1987 law in court, expressed disappointment with the ruling. "We thought we presented a very strong case," spokesman David Puglia said. The decision will be reviewed and an appeal will be considered, he said.
Janet B. Carroll, legislative director of the California Pro-Life Council, voiced hope that ultimately the state Supreme Court will uphold the law.
"The people who voted in 1972 for the privacy amendment never intended it to have anything to do with the health care of minors or the killing of an innocent child," Carroll said. She added that public opinion polls show overwhelming support for parental consent laws.
The statute requires minors to get approval from a parent or guardian--or as an alternative, approval by a judge--before receiving an abortion. The law was passed by the Legislature out of concern that abortion can have serious consequences for minors and in the belief that parents can provide useful advice to their children and necessary medical information to physicians.
But before the law was to take effect in January, 1988, a coalition of health groups represented by the ACLU filed suit challenging the statute. They contended that it infringed on the minor's right to reproductive choice and violated the government's obligation to be neutral between childbirth and abortion.
San Francisco Superior Court Judge Morton R. Colvin issued a preliminary injunction preventing the statute from taking effect pending a decision on its validity. A state Court of Appeal later upheld the injunction, leaving the law dormant pending a non-jury trial on its merits before Judge Chesney.
About 25 experts on both sides of the issue--physicians, psychologists and sociologists--testified during a monthlong trial last October, presenting data from studies and opinions on how parental consent laws have worked in other states.
Chesney, in a 39-page opinion, concluded that the state had failed to show a "compelling interest" in requiring parental or judicial consent for abortions for minors.
The judge called abortion "one of the safest medical procedures available for all women and, in particular, for teen-agers." The risk of complications in pregnancy and childbirth are higher for all women, particularly young teen-agers, she said.
For two decades, minors have been consulting with their doctors and obtaining abortions without parental consent--and no evidence was presented of negative effects, the judge said.