State High Court to Revisit Ruling on Abortion Consent

With two new justices casting the decisive votes, the California Supreme Court agreed Wednesday to reconsider its ruling last month upholding a state law that requires minors to obtain parental consent for abortions.

The action to reconsider came as a result of recent turnover on the state high court. Newly appointed Justices Ming W. Chin and Janice Rogers Brown joined Chief Justice Ronald George and Justices Kathryn Mickle Werdegar and Joyce Kennard, who had dissented in the abortion ruling, in voting to rehear the case.

Gov. Pete Wilson appointed Chin and Brown earlier this year to fill vacancies left by the retirements of Chief Justice Malcolm Lucas and Justice Armand Arabian, who had cast two of the four votes needed to uphold a 1987 parental consent law.

The justices voted for the rehearing at their private weekly conference Wednesday. No written decision was issued. The vote prevents the consent law from taking effect until a new hearing is held and another decision is reached, a process that will take at least several months.

Abortion rights activists appeared stunned and elated at the court’s change of heart. A decision to rehear a case is highly unusual, and some court analysts had expected that Chin and Brown would be reluctant to cast a controversial vote so soon in their tenures on the court. Both are in their first months of hearing cases and will appear on the November 1998 ballot for voter confirmation.

“Everyone is very happy,” said Elaine Elinson, a spokeswoman for the American Civil Liberties Union, which is representing the American Academy of Pediatrics and other opponents of the law. “It looks like we may have snatched victory from the jaws of defeat.”

The Legislature passed the parental consent law in 1987, but successful court challenges prevented its implementation. In its ruling April 4, the state high court reversed the earlier rulings and upheld the law, which prohibits unmarried girls under the age of 18 from obtaining an abortion without consent from a parent, guardian or judge.

A spokesman for Wilson said the governor supports the 1987 law as prudent to protect the physical and mental health of juveniles. Wilson declined to comment on the court’s decision, but he said he has not made abortion part of any “litmus test” for appointment to the state Supreme Court.

Antiabortion activists have accused Wilson of appointing only justices who support abortion rights. The activists have shown up at recent court confirmation hearings and hinted at efforts to recall justices who do not follow their views.

Abortion foes opposed the appointment of Chin because he told reporters he favored a woman’s right to choose, and fought the elevation of George from associate to chief justice because of his dissent in the consent case. Brown has not publicly stated her views on abortion.

The court last voted to reconsider a case in 1993, but did not change its ruling. The court also granted new hearings in 1987 on six cases that had been decided by former Chief Justice Rose Elizabeth Bird and liberal colleagues. The court reversed the six Bird decisions.

In seeking a rehearing, the ACLU argued that the April ruling diminished the right to privacy guaranteed by the California Constitution and ignored evidence that the state law will harm pregnant teenagers. Abortion providers estimate that about 30,000 unmarried teenagers now obtain abortions in California each year.

Justice Stanley Mosk, the court’s most liberal member, wrote the decision upholding the consent law, contending that minors do not enjoy the same privacy protections as adults. Mosk observed that minors in California already need parental permission to marry, to obtain most medical and dental treatment and to get a permanent tattoo.

Under the consent law, a minor who does not have parental consent can get authorization from a judge. Mosk wrote that judicial oversight would delay abortions about two weeks.

George, Kennard and Werdegar had filed separate dissents to the April ruling. Kennard accused the majority of bowing to “comfortable platitudes and folk wisdom” and warned that teenagers will be at greater health risk. The others objected on similar grounds.

The case was brought by the American Academy of Pediatrics, the California Medical Assn. and other health care groups. Under the law, a physician would be guilty of a misdemeanor if he or she performed an abortion on a minor without adult consent.

Margaret Crosby, an ACLU lawyer who is representing the plaintiffs, said the court’s decision to rehear the case “will affect the lives of thousands of teenagers.”

“We hope that on reconsideration,” she said, “the court will protect the right of all women, including teenagers, to decide whether to become parents.”

Deputy Atty. Gen. Ralph M. Johnson, who is representing the state in the case, called Wednesday’s action both “extraordinary” and “somewhat disappointing.”

He cautioned, however, that the votes of the new justices should not be interpreted as a definite sign they will ultimately vote against the abortion law.

“It may just be that these justices want the opportunity to participate in the ultimate decision,” Johnson said. “. . . I don’t expect to lose.”

Jan Carroll, associate western director of National Right to Life, said her group was “extremely disappointed” by the vote to rehear the case and will consider making the decision a campaign issue when the current justices face voters. The justices must be confirmed by voters every 12 years.

William P. Clark, a former justice of the state high court and later an official in President Ronald Reagan’s administration, said in a statement: “My old court is simply wrong today. The courts are clearly substituting their own moral judgment for that of the people when abortion is involved.”