Justices Uphold Parent Consent in Teen Abortion

A strongly divided California Supreme Court on Thursday upheld a previously blocked state law that requires minors to obtain permission from a parent or a judge to have an abortion.

The 1987 law, never enforced because of lower court rulings, prohibits doctors from performing abortions on unmarried girls under the age of 18 without consent. Doctors who perform the abortions could be prosecuted for misdemeanors.

Justice Stanley Mosk, the court’s most liberal member, wrote the 4-3 decision to uphold the law. Rejecting arguments by civil libertarians, physicians and women’s groups, the majority held that the law does not violate state constitutional protections of privacy because minors have fewer legal rights than adults.

“This case is not about the morality of abortion,” Mosk wrote. Minors, he said, “may not reasonably expect to have the unrestricted freedom of an adult to exercise” the choice to have an abortion without consent.

The ruling will allow the abortion law to go into effect in 30 days unless the court agrees to a delay or decides to rehear the case. Abortion rights activists said they would file a petition for a rehearing by the court, which has changed in membership since the abortion case was argued.

Abortion providers estimate that 30,000 unmarried teenagers now obtain abortions in California each year. Lawyers who fought the law said they expect that 14,000 young women annually will seek permission from California judges to have abortions and expressed concerns that the courts may not be able to accommodate the additional caseload.

If a girl does not obtain a parent’s permission, she will have to meet with a county judge assigned to juveniles in the judge’s chambers. The meeting and the court records are supposed to be kept confidential.

The judge will determine whether the girl is sufficiently informed and mature enough to decide to have an abortion. Now, that determination is left in the hands of physicians.

Charlotte Newhart, chief administrative officer for the western region of the American College of Obstetricians and Gynecologists, said she was surprised that the court decided that judges were more fit than doctors to decide whether a girl has the maturity to make such a call.

“Each two weeks there is a delay in the procedure,” she said at a news conference, “it becomes more complex and dangerous. We believe this decision endangers” young women.

Physicians found to have performed abortions without the consent of a judge or parent or guardian could be found guilty of a misdemeanor, punishable by a fine of up to $1,000 or 30 days in jail or both.

The ruling sparked angry dissents from the court’s two women, Justices Joyce Kennard and Kathryn Mickle Werdegar, and from Justice Ronald George, whom Wilson has selected to head the court after Chief Justice Malcolm Lucas retires in May.

Teenagers who perceive court involvement as “unbearably intimidating, dangerous or humiliating” may risk their lives with illegal or self-induced abortions or opt for bearing a child they cannot care for, Kennard said.

“The benevolent appearance of parental involvement is deceiving,” she said, adding that in other states “the laws have serious adverse effects and yield few benefits for children or society.”

About 38 other states have laws requiring minors to either notify parents or obtain consent from them to have abortions. Opposing forces in the abortion debate cite conflicting studies about the impact of those laws, which are enforced in 29 of those states.

Anti-abortion activists point to a study that showed a decline in teenage pregnancies in Minnesota after a consent law was passed. Abortion rights activists contend that there was no correlation proven between the decline and the law and note that the study also found an increase in second-trimester abortions. Other studies have shown that teenagers simply travel to states without consent laws to have abortions.

Mosk said the challengers--led by the American Academy of Pediatrics--had not firmly demonstrated that the law will increase health risks for young women seeking abortions. He wrote that obtaining judicial permission “may, at most, result in a delay of approximately two weeks.”

Minors already are required by law to obtain permission for most medical and dental treatment, for a permanent tattoo, for marriage and for a driver’s license, Mosk noted.

“They are premised on a fundamental social tenet that children require protection against their own immaturity and vulnerability in making decisions that may have serious consequences for their health and well-being,” he wrote.

Civil libertarians viewed the ruling as a significant retreat in the California Supreme Court’s line of cases protecting women’s rights to choose. They said the majority provided a legal framework for defending other kinds of abortion restrictions.

“The decision in fact jeopardizes the fundamental reproductive rights of all women,” said Margaret Crosby, a lawyer with the American Civil Liberties Union of Northern California.

But Deputy Atty. Gen. Ralph M. Johnson, who defended the law before the court, dismissed as “nonsense” concerns that the ruling opened the door to other kinds of abortion restrictions.

Rather, he said, the decision established a legal “analytical model” that can be used to prevent minors from claiming other privacy rights they may not currently enjoy. “I think it is a very solid reaffirmation of the role of parents and mothers in their minors’ abortion decision-making,” Johnson said.

Most minors will consult with their parents, he said, and abortion providers in states with consent laws generally walk girls who do not have parental permission through the legal process, even driving them to court and providing the paperwork.

Voting with Mosk were Lucas, Justice Marvin R. Baxter and retired Justice Armand Arabian, who worked on the case before his recent departure. Justice Ming W. Chin has replaced Arabian on the court, and he could vote on the petition for reconsideration, said the ACLU’s Crosby.

When Wilson nominated him, Chin was asked if he supported abortion rights. He said he supported a woman’s right to choose. As a result, his confirmation hearing was dominated by angry anti-abortion activists who urged, unsuccessfully, that he be denied a seat on the court.

Johnson said he believes the court will decline to reconsider the case. “It is extraordinarily rare to find a decision granted a rehearing absent a new set of facts,” Johnson said, “not a new set of justices.”

Mosk, the only Democrat on the court, has been traditionally protective of civil liberties. But some lawyers who have followed his career said he also has tended to view juvenile matters differently from those of adults.

George argued in his dissent that the majority largely ignored the obligation of government to act “evenhandedly” when deciding issues of abortion choice. The law places significantly greater restrictions on a minor’s access to abortion than on her access to medical attention should she decide to continue the pregnancy, he said.

Werdegar, who like George was appointed by Wilson, complained in her dissent that the majority had diminished the state right to privacy. She called the state consent law “overly broad” because it requires 17-year-olds to go through the same hurdles as 12-year-olds, who presumably are not as mature.

Atty. Gen. Dan Lungren issued a statement praising the majority decision for recognizing “the value of the special family relationship,” while physician groups and abortion rights activists pledged to lobby the Legislature to change the law.

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