Justices Strike Down Abortion Consent Law

TIMES LEGAL AFFAIRS WRITER

In an unusual turnabout, the California Supreme Court on Tuesday struck down a state law that would have required girls under 18 to obtain permission for abortions.

The 4-3 decision repudiates a previous ruling by the court in favor of the never-enforced law. Tuesday's decision, written by Chief Justice Ronald George, said the 1987 law violates privacy rights guaranteed by the state Constitution.

An estimated 30,000 minors obtain abortions in California each year, and the law would have forced them to obtain permission from a parent or a judge before legally terminating a pregnancy. About 30 states have consent laws for abortion.

"No one would doubt the value to a pregnant minor of wise and caring parental guidance and support as she confronts a decision that will affect the rest of her life," George wrote, "assuming such support is available and the minor is willing to seek it."

But the law could have endangered the health of pregnant girls who were "too frightened or too embarrassed" to disclose their condition to a parent or a court by forcing them to delay or obtain illegal abortions, George wrote.

The decision to have an abortion, "unlike many other choices, is a decision that cannot be postponed until adulthood," he wrote.

The Supreme Court took the unusual step of reconsidering support for the consent law after its membership changed last year.

The new vote left the court badly splintered and produced five separate opinions that totaled nearly 200 pages. Justice Ming W. Chin, a conservative appointed by Gov. Pete Wilson last year, cast the decisive fourth vote to reject the law.

Justice Janice Rogers Brown, Wilson's other most recent appointee, voted in favor of parental consent, accusing her colleagues of violating the constitutional rights of parents.

Atty. Gen. Dan Lungren assailed the court's decision, and a major antiabortion group vowed to wage a campaign against Chin and George, who face a confirmation vote on the November 1998 ballot.

The governor said he was disappointed with the ruling, and said that state lawmakers should work to craft a new law that meets the court's constitutional concerns.

The case, Wilson said, points to the need for parents to be intimately involved in their children's lives.

"As a loving, just and wise society we should put even more energy and effort into preventing unwanted, unintended and unwise pregnancies than in crafting a procedure to deal with our failure to do so," Wilson said.

The court's April 1996 ruling upholding the abortion law had not taken effect when two of the justices in the majority retired. Chin and Brown replaced them and joined George and Justices Kathryn Mickle Werdegar and Joyce Kennard, who had been the dissenters, in voting to reconsider the case.

It is relatively rare for the California Supreme Court to vote to revisit a ruling before it is final and then overturn it. This generally occurs only when there is turnover on the court. Conservative members of the court took similar actions several years ago when they voted to reexamine cases decided by Chief Justice Rose Elizabeth Bird's court after voters ousted Bird and two colleagues. The conservative justices overturned six Bird rulings.

But Lungren accused the George court of setting bad precedent by changing course. "Now the right of privacy has been twisted to interfere with the relationship between a parent and child," Lungren said in a statement.

Although the U.S. Supreme Court has upheld consent laws in other states, George said California's situation is different because the state Constitution has stronger privacy protections than the federal Constitution. In California, the state must demonstrate a "compelling" or "extremely important and vital" reason for interfering in reproductive choices, the court said.

It is inconsistent for the state to cite a compelling justification for requiring minors to obtain consent for an abortion when there is no such requirement for minors who want to continue a pregnancy, he said. Giving birth is potentially riskier to a minor's health than an abortion and carries lifetime ramifications, he added.

The court said most minors consult their parents before having an abortion, and those who do not "have good reason to fear that informing their parents will result in physical or psychological abuse," often because of previous violence or incest in the home.

Chin and Werdegar joined George's opinion. Kennard agreed that the law was unconstitutional but wrote a separate ruling. Justices Stanley Mosk, Marvin Baxter and Brown each wrote dissents.

The consent law, passed by the Legislature in 1987, was supposed to take effect the following year. But the American Academy of Pediatrics and other physician groups filed suit to block it. A trial court and a Court of Appeal found the law unconstitutional, and the state appealed to the California Supreme Court. After the high court upheld the law, the American Civil Liberties Union last year asked for reconsideration.

Margaret Crosby, an ACLU attorney who argued against the law before the court, praised Tuesday's ruling as "an extremely strong reaffirmation of a constitutional protection for fundamental decisions."

In Orange County, the ruling that brought the nearly 10-year legal battle to a close met with relief and indignation.

"We didn't want to see barriers erected that prevent young people from seeking important health care, and certainly, with abortion, time is of the essence," said Jon Dunn, president of Planned Parenthood of Orange and San Bernardino Counties.

If the court had ruled differently, Dunn said his organization would have helped teens navigate the judicial bypass system spelled out in the law, whereby they could try to persuade a judge in a confidential hearing that they were mature enough to choose an abortion.

Orange County Juvenile Court Administrator Kari Sheffield said officials there had geared up to handle a barrage of such cases, which were potentially fraught with legal complications

"The fact that the court doesn't have to deal with the issue is a relief," she said. "We have our existing delinquency and dependency caseloads. We're not lacking for business here."

Anti-abortion leaders, however, blasted the court's ruling as a violation of parental rights.

"Would these people say a child should be able to go have a cancerous tumor removed or an appendectomy? Of course not!" said Jo Ellen Allen, former president of the conservative Eagle Forum of California, which filed a friend-of-the-court brief on behalf of the parental consent law.

"A young girl cannot get her ears pierced without her parents' permission, but she can get an abortion without her parents' permission. There's something fundamentally wrong with the decision."

Kennard, in her opinion, contended that most minor girls are capable of making informed and mature decisions about abortions. Only a "very small" number of pregnant girls, almost all younger than 14, lack the necessary maturity, she said.

Kennard indicated that she might support a different kind of consent requirement for younger girls, but noted that the state abortion law did not differentiate between ages.

Mosk, the author of the court's former majority opinion in the case, noted that minors cannot obtain most medical and dental treatment without a parent's consent. They are barred from getting a permanent tattoo, from obtaining a driver's license and even from using a tanning facility without parental permission, he said.

These restrictions stem from "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," Mosk wrote.

Justice Brown accused the court's plurality of abrogating the constitutional rights of parents, described the court's thinking as circular, and called the case "an excellent example of the folly of courts in the role of philosopher kings."

"When fundamentally moral and philosophical issues are involved and the questions are fairly debatable," Brown wrote, "the judgment call belongs to the Legislature."

Baxter also contended that the court should have deferred to the Legislature. It was reasonable for state legislators to conclude that children do not have the same capacity as adults for decision-making and are more vulnerable to outside pressures, he said.

The California ProLife Council, the state affiliate of the national group, sends mailings to about 500,000 voters and will work to defeat Chin and George when they appear on the November 1998 ballot, she said. Mosk and Brown also will be up for confirmation then.

But Ann Daniels, a spokeswoman for the California Abortion and Reproductive Rights Action League, said her group would try to counteract the antiabortion organization's campaign. "We will mobilize California's pro-choice majority to make sure this doesn't happen," Daniels said. "We have been fighting the anti-choice group at the ballot box for many years."

Although the abortion rights group disagrees with the positions taken by Mosk and Brown, Daniels said they will not work against them. "These judges interpreted the law," she said. "They did not write dissertations on whether or not they were pro-choice or anti-choice."

Retired California Supreme Court Justice William P. Clark, who served in former President Ronald Reagan's Cabinet, issued a statement calling the court's decision "simply wrong."

"When Californians realize how the court has usurped the people's prerogative on this moral issue," Clark said, "I predict they will react by constitutional amendment to regain their rightful power and privilege with reference to their children."

Times staff writer Lee Romney contributed to this report.

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