AMERICAN ACADEMY OF PEDIATRICS v. LUNGREN

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Court of Appeal, First District, Division 1, California.

AMERICAN ACADEMY OF PEDIATRICS et al., Plaintiffs and Respondents, v. Daniel E. LUNGREN, as Attorney General, etc., et al., Defendants and Appellants.

No. A058627.

Decided: June 30, 1994

Daniel E. Lungren, Atty. Gen., Robert L. Mukai, Chief Asst. Atty. Gen., Charlton G. Holland, III, Asst. Atty. Gen., Stephanie Wald, Supervising Deputy Atty. Gen., Ralph M. Johnson, Deputy Atty. Gen., San Francisco, for appellants. Linda E. Shostak, Annette P. Carnegie, Lori A. Schechter, Morrison & Foerster, Abigail English, Adolescent HealthCare Project, National Center for Youth Law, Margaret C. Crosby, American Civil Liberties Union Foundation of Northern California, Inc., San Francisco, Carol Sobel, ACLU Foundation of Southern California, Los Angeles, for respondents. Ann G. Daniels, Farella, Braun & Martel, Leslie G. Landau, Brandt Andersson, McCutchen, Doyle & Enersen, San Francisco, Geraldine Jaffe, Irvine, Robert F. Kane, Elizabeth Bader, Chair, Queen's Bench Amicus Curiae Committee, Jill Schlichtmann, President, Queen's Bench, San Francisco, for amici curiae.

Introduction

As we stated in our introduction to American Academy of Pediatrics v. Van de Kamp (1989) 214 Cal.App.3d 831, 263 Cal.Rptr. 46 (hereinafter, American Academy I ):

“The issue before this court today is not the morality or immorality of abortion.  ‘The morality of abortion is not a legal or constitutional issue;  it is a matter of philosophy, of ethics, and of theology.   It is a subject upon which reasonable people can, and do, adhere to vastly divergent convictions and principles.’  (Committee to Defend Reproductive Rights v. Myers (1981) 29 Cal.3d 252, 284 [172 Cal.Rptr. 866, 625 P.2d 779, 20 A.L.R.4th 1118].)   Nor is the issue before this court today whether women have the right to procreative choice.   That issue is settled.  (People v. Belous (1969) 71 Cal.2d 954 [80 Cal.Rptr. 354, 458 P.2d 194];  Roe v. Wade (1973) 410 U.S. 113 [35 L.Ed.2d 147, 93 S.Ct. 705].)   The right to procreative choice in California is protected by article I, section 1 of our Constitution and extends to all women regardless of wealth (Committee to Defend Reproductive Rights v. Myers, supra, 29 Cal.3d at p. 262 [172 Cal.Rptr. 866, 625 P.2d 779] ) or age (Ballard v. Anderson (1971) 4 Cal.3d 873, 880–881 [95 Cal.Rptr. 1, 484 P.2d 1345, 42 A.L.R.3d 1392].)”  (American Academy I, 214 Cal.App.3d at p. 836, 263 Cal.Rptr. 46.)

In American Academy I, we decided that it was possible that legislation restricting the right to procreative choice for unemancipated minors invades their constitutionally protected right to privacy.   Today we revisit that issue and conclude that it does.

Our Legislature has been concerned with abortion since the founding of California.   Initially it was illegal to perform an abortion except to save the life of the mother.  (Stats.1850, ch. 99, § 45, at p. 233.)   In 1967 the Legislature enacted the Therapeutic Abortion Act (Health & Saf.Code, § 25950 et seq.) permitting the procedure when there was a substantial risk that the continuance of the pregnancy would “gravely impair the physical or mental health of the mother, ․ [or] the pregnancy resulted from rape or incest.”   (Health & Saf.Code, § 25951.)   These restrictions were declared violative of a woman's constitutionally protected right to procreative choice.  (Roe v. Wade (1973) 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147;  see also People v. Belous (1969) 71 Cal.2d 954, 80 Cal.Rptr. 354, 458 P.2d 194.)   Thus, until 1987, every woman in California had an essentially unrestricted right to consent to the furnishing of care related to the prevention or treatment of pregnancy.  Civil Code section 34.5 codified this right as to minors.1

In 1987 the Legislature singled out one class of pregnancy care—therapeutic abortions—and one class of women—unemancipated minors—and passed legislation designed to restrict the ability of members of that class to obtain that procedure.   Assembly Bill No. 2274 (hereafter, A.B. 2274) (Stats.1987, ch. 1237) amended Civil Code section 34.5 and added Health and Safety Code section 25958.   A.B. 2274 affirms that an unemancipated minor may consent to the furnishing of care related to the treatment or prevention of pregnancy.   It further provides, however, that she may not obtain a therapeutic abortion without first having obtained the written consent of one of her parents or a legal guardian.   If she is unable to obtain such consent, or elects not to seek it, she can obtain an abortion only by successfully petitioning the juvenile court for permission to consent to that procedure.   The juvenile court is charged with the responsibility of determining whether the minor is so sufficiently mature and informed as to enable her to decide on her own whether to have an abortion.   If she is, the court is required to grant the petition.   If she is not, the court will make the decision for her.

Plaintiffs, health care providers, challenged the constitutionality of A.B. 2274.   The superior court entered judgment declaring the provisions of Civil Code section 34.5, as amended by A.B. 2274 (Stats.1987, ch. 1237), and the provisions of section 25958 of the Health and Safety Code as added by A.B. 2274, unconstitutional as violating California's right to privacy.   The court enjoined the defendants (hereafter, the State) from enforcing those provisions.

Decision in American Academy I

The Legislature stated certain reasons, or findings, for implementing A.B. 2274:  “(a) the medical, emotional, and psychological consequences of an abortion are serious and can be lasting, particularly when the patient is an immature minor;  (b) the capacity to become pregnant and the capacity for exercising mature judgment concerning the wisdom of an abortion are not logically related;  (c) minors often lack the ability to make fully informed choices that take account of both immediate and long-range consequences of their actions;  (d) parents ordinarily possess information essential to a physician's exercise of his or her best medical judgment concerning a minor child;  and (e) parents who are aware that their minor daughter has had an abortion may better ensure that she receives adequate medical attention subsequent to her abortion.”  (Stats.1987, ch. 1237, § 1.)

Plaintiffs argued that A.B. 2274 violated the minors' federal- and state-guaranteed rights of privacy.   Plaintiffs obtained a preliminary injunction against the implementation of its provisions until the issue of its constitutionality could be determined on the merits.   In October 1989 we affirmed the order granting the preliminary injunction and remanded the matter to the superior court for further proceedings.  (American Academy of Pediatrics v. Van de Kamp, supra, 214 Cal.App.3d 831, 263 Cal.Rptr. 46.)

The question before us in American Academy I was whether the superior court abused its discretion in issuing the injunction.   Accordingly, we considered whether support existed for the superior court's conclusions (1) that the harm or hardship from implementing A.B. 2274 was overbalanced by the harm resulting from maintaining the status quo, and (2) that the plaintiffs were likely to prevail at trial.   We concluded, as had the superior court, that a balancing of harms favored maintaining the status quo until a trial on the matter could be had.  (Id. at pp. 838–839.)   We then considered whether it was likely that the plaintiffs would prevail on the merits at trial, a question which required us not only to review the evidence submitted to the superior court, but to draw several legal conclusions.   In American Academy I, we held that although the federal right of privacy might not (and, indeed, would not) invalidate California's parental consent statute, the constitutionality of that statute must be tested against the right of privacy guaranteed by the California Constitution.   We found that the right of privacy guaranteed by article I, section 1 of California's Constitution 2 is broader in scope than the federal right of privacy.   We therefore concluded that it is not enough that laws similar to A.B. 2274 have withstood federal constitutional challenge;  A.B. 2274 must withstand challenge under California's Constitution.  (American Academy I at pp. 839–842, 263 Cal.Rptr. 46.)   Federal law is relevant only as defining the least amount of interference with the right of privacy which may be tolerated.

We found that the right of privacy is a fundamental right, and the ability to choose whether or not to give birth and whether or not to undergo procedures relevant to that choice are among the most fundamental and intimate aspects of that right.   We concluded that the right of privacy, including the right to choose whether to give birth or to terminate a pregnancy, therefore, may not be burdened absent a compelling state interest.   In addition, we held that it is not enough that a compelling state interest for the legislation exists;  legislation adversely affecting the right of privacy is justified only if the benefits of the state action manifestly outweigh the burden placed on privacy rights.  (American Academy I at p. 843, 263 Cal.Rptr. 46.)   We further found that minors enjoy a right of privacy co-extensive with that enjoyed by adults, i.e., that a minor's right to privacy is fundamental, including the right to choose whether to have an abortion, and may not be burdened absent a compelling state interest such that the benefits of the legislation manifestly outweigh the burden it imposes on the right of privacy.  (Id. at pp. 842–845, 263 Cal.Rptr. 46.)   We recognized, however, that legislation which would be unconstitutional as applied to adults might be constitutional as applied to minors, but concluded that it does not follow that anything less than a compelling state interest can justify invading the privacy rights of minors.   Rather, the different situation and needs of minors are such that the State might be able to assert a compelling interest for legislation affecting them which would not be compelling if the legislation affected adults.  (Id. at p. 845, 263 Cal.Rptr. 46.)   In addition, we concluded that even if A.B. 2274 does indeed further a compelling state interest, its burden on the right of privacy is justified only by a showing that the compelling state interest cannot be protected adequately by less burdensome means.  (Id. at p. 845, 263 Cal.Rptr. 46.)

We also found that A.B. 2274 singled out only those minors seeking to have an abortion;  it did not purport to regulate minors making other medical choices, including the choice to carry a pregnancy to term.   A.B. 2274 thus differentiates between (1) minors making the decision to abort and (2) minors deciding to undergo other forms of medical care related to pregnancy.   We concluded, therefore, that the legislation also might violate constitutional guarantees of equal protection.  (American Academy I at p. 847, 263 Cal.Rptr. 46.)   As the legislation burdens a fundamental interest, we found that the State bore the burden of establishing not only that the legislation furthers some compelling interest, but that the distinctions drawn by that legislation were necessary to further that competing interest.  (American Academy I at p. 847–848, 263 Cal.Rptr. 46, and see D'Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 17, 112 Cal.Rptr. 786, 520 P.2d 10;  Committee to Defend Reproductive Rights v. Myers, supra, 29 Cal.3d at p. 282, fn. 28, 172 Cal.Rptr. 866, 625 P.2d 779.)

In summary, we concluded in American Academy I that the State had the burden of showing (1) that the invasion of privacy rights was justified by some compelling state interest which in fact would be furthered by the legislation, (2) that the statute's disparate treatment of like-situated minors was necessary to the furtherance of that interest, and (3) that the interest could not be furthered by other means less harmful to the fundamental right.   We placed the burden on the State to show that a reason existed for the legislation's discrimination between classes of minors and that no less discriminatory legislation could be drafted.   After reviewing the showing made by the plaintiffs, we found that they had made a prima facie case that A.B. 2274 did not in fact further a compelling state interest and, thus, had demonstrated that they were likely to prevail at trial.   We therefore affirmed the order granting the preliminary injunction.

The Evidence at Trial and the Trial Court's Findings

Noting that the resolution of the issues involved in the proceedings depended in part upon factual determinations, we remanded the matter to the superior court which, applying the principles established in American Academy I, found that the legislation did indeed burden the right to privacy and that the state had failed completely to show that the burden on the right was justified by the interests which the legislation sought to further.   The evidence not only supports the superior court's conclusion, it mandates it.3

There is no real question but that interests asserted by the legislation are indeed compelling;  i.e., there is a compelling interest in the medical, emotional and psychological welfare of minors.   In addition, a compelling state interest may be found in (1) the interest in reducing the teenage pregnancy rate, and (2) the interest in preserving and fostering the parent-child relationship.   The evidence, however, disclosed that, however compelling they might be, none of the interests asserted by the Legislature as reasons for implementing A.B. 2274, and none of the additional interests asserted by the State at trial, in fact would be furthered by the legislation.   The evidence was nothing less than overwhelming that the legislation would not protect these interests, and would in fact injure the asserted interests of the health of minors and the parent-child relationship.   It also appears that the existing medical system in fact serves these asserted interests and that the legislation therefore is not the least intrusive means available of furthering them.   Finally, the State produced no evidence justifying the distinction drawn by the legislation between minors deciding to abort and minors deciding to undergo other pregnancy-related procedures.   Thus the State showed no justifiable reason for discriminating between minors choosing to undergo abortions and those choosing to carry to term.

The trial court found that the injuries to minors resulting from the implementation of A.B. 2274 cannot be justified by the benefits furthered by it, and thus certainly cannot justify the burden the legislation imposes on the right of privacy.   On our own review of the evidence, we can but affirm the superior court's conclusion:

“[R]ather 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.   Further, the legislation is not the least intrusive alternative available to address those interests.   The State's interests are more than adequately served under the State's existing medical system, which does not unduly impinge upon minors' constitutional rights.”

We will, therefore, conclude that A.B. 2274 does not and cannot further the interests it purports to protect, that it in fact injures those interests, and that there is no justification for its disparate treatment of like-situated individuals.   We also conclude that the judicial bypass procedure creates a substantial obstacle whose only effect is to hinder the minor from obtaining an abortion.   Whether a minor is capable of giving informed consent to undergo an abortion is a question which can be more easily decided by a physician than a judge.

Issues Relevant to This Appeal

I. Application of Law of the Case

 Under the doctrine of law of the case, “ ‘the decision of an appellate court, stating a rule of law necessary to the decision of the case, conclusively establishes that rule and makes it determinative of the rights of the same parties in any subsequent retrial or appeal in the same case.’ ”   (Nally v. Grace Community Church (1988) 47 Cal.3d 278, 301, 253 Cal.Rptr. 97, 763 P.2d 948, quoting 9 Witkin, Cal. Procedure (3d ed. 1985) Appeal, § 737, pp. 705–707.)   The State urges us to decline to apply this doctrine as to the legal conclusions reached in American Academy I.  (See DiGenova v. State Board of Education (1962) 57 Cal.2d 167, 179, 18 Cal.Rptr. 369, 367 P.2d 865 [recognizing that the doctrine is no more than a rule of procedure and will not be adhered to if its application will result in an unjust decision].)   We decline the invitation, but note that we would not deviate from our prior conclusions even were we to reconsider them.

II. The Effect of Hill v. National Collegiate Athletic Assn. (1994) 7 Cal.4th 1, 26 Cal.Rptr.2d 834, 865 P.2d 633

In finding that A.B. 2274 violates the right of privacy guaranteed by the California Constitution, the superior court, following our decision in American Academy I, considered the legislation in light of California decisional law.   After the superior court rendered its decision, the California Supreme Court issued its opinion in Hill v. National Collegiate Athletic Assn. (1994) 7 Cal.4th 1, 26 Cal.Rptr.2d 834, 865 P.2d 633, redefining the approach to be used in determining if the right of privacy has been violated.   We conclude that although the superior court could not and did not specifically employ the approach established in Hill, its decision remains valid.

The discreet question addressed by the Supreme Court in Hill was whether the National Collegiate Athletic Association's (NCAA) objectives in conducting testing for proscribed drugs outweigh a student athlete's expectation of privacy.   In holding that it does, the court (1) found that California's constitutional right to privacy applies to nongovernmental as well as to governmental entities;  (2) rejected the argument that any invasion of that right can be justified only by showing that it furthers a compelling interest;  (3) established a balancing test for determining whether a particular invasion of the right of privacy may be justified;  and (4) found that the burden of establishing no less intrusive means of accomplishing a legitimate end should not be placed on a nongovernmental defendant.

In reaching these conclusions the court surveyed the sources of California's constitutional right to privacy, including the tort of invasion of privacy, the right of privacy guaranteed by the federal Constitution, and California's so-called “Privacy Initiative,” adopted November 7, 1972, which caused article I, section 1 to be incorporated into the State's Constitution.   Some of the court's observations on the tort of invasion of privacy and the cases defining the federal right to privacy are germane to the application of Hill 's principles to this case.   The court noted that the freedom to act without observation in a home, hospital room, or other private place is an interest vindicated by the privacy tort.  (Hill v. National Collegiate Athletic Assn., supra, 7 Cal.4th at 24, 26 Cal.Rptr.2d 834, 865 P.2d 633.)  “Each of the four categories of common law invasion of privacy identifies a distinct interest associated with an individual's control of the process or products of his or her personal life.   To the extent there is a common denominator among them, it appears to be improper interference (usually by means of observation or communication) with aspects of life consigned to the realm of the ‘personal and confidential’ by strong and widely shared social norms.”  (Id. at pp. 24–25, 26 Cal.Rptr.2d 834, 865 P.2d 633.)   These privacy rights have psychological foundations emanating from personal needs to establish and maintain identity and self-esteem by controlling self-disclosure.   The right of privacy “is not so much one of total secrecy as it is of the right to define one's circle of intimacy.”  (Id. at p. 25, 26 Cal.Rptr.2d 834, 865 P.2d 633, original emphasis.)   Whether conduct violates the privacy tort depends, among other things, on the likelihood of that conduct to cause serious harm, “particularly to the emotional sensibilities of the victim.”  (Ibid.)  In addition, although the common law tort requires that the actionable disclosure of private facts be widely published and not confined to a few persons or limited circumstances, particularly when professional relationships such as doctor and patient are at issue, the state constitutional right to privacy may be invaded by a less-than-public dissemination of information.  (Id. at p. 27, 26 Cal.Rptr.2d 834, 865 P.2d 633.)

A. Hill's Balancing Test

 The court in Hill rejected any argument that the compelling interest test must be employed in all cases involving claimed invasions of California's right to privacy.   Instead, the court held that a flexible legal standard must be employed in considering such claims.   It established this standard by defining the elements of, and possible defenses to, a cause of action for invasion of the right of privacy.   The elements are:  (1) a legally protected privacy interest, (2) a reasonable expectation of privacy and (3) a serious invasion of the privacy interest.  (Hill v. National Collegiate Athletic Assn., supra, 7 Cal.4th at pp. 35–37, 26 Cal.Rptr.2d 834, 865 P.2d 633.)   The defenses are the interests which will be furthered by implementing the policy or procedure at issue.   The privacy interest at issue in any case must “be specifically identified and carefully compared with competing or countervailing privacy and nonprivacy interests in a ‘balancing test.’   The comparison and balancing of diverse interests is central to the privacy jurisprudence of both common and constitutional law.”   (Id. at p. 37, 26 Cal.Rptr.2d 834, 865 P.2d 633.)   Finally, Hill holds that “[w]hether a legally recognized privacy interest is present in a given case is a question of law to be decided by the court.  [Citations.]  Whether plaintiff has a reasonable expectation of privacy in the circumstances and whether defendant's conduct constitutes a serious invasion of privacy are mixed questions of law and fact.   If the undisputed material facts show no reasonable expectation of privacy or an insubstantial impact on privacy interests, the question of invasion may be adjudicated as a matter of law.”   (Id. at p. 40, 26 Cal.Rptr.2d 834, 865 P.2d 633.)   We find that it is similarly true that if the undisputed material facts show a strong expectation of privacy and a substantial impact on privacy interests, the question of invasion also may be adjudicated as a matter of law.

B. The Necessity of Applying the Balancing Test to the Present Case

 Neither the superior court nor our court in American Academy I had the prescience to apply the balancing test established in Hill.   As we read the opinion in Hill, it requires the application of the balancing test in all cases;  however, in some cases—including the present—the balance includes a requirement that the legislation at issue further a compelling state interest.   In other words, the plaintiff in all cases is required to show the existence of the three elements of the cause of action.   When the plaintiff has done so, and it is further established that the action at issue impairs not only a privacy interest but a significant privacy interest, the defendant can justify that impairment only by showing that the action furthers a compelling interest.   If the action impairs a less significant privacy interest, the defendant may be able to justify the impairment by demonstrating that it furthers a less than compelling interest.

 Thus, by rejecting the notion that “every assertion of a privacy interest under article I, section 1 must be overcome by a ‘compelling interest’ ” (Hill v. National Collegiate Athletic Assn., supra, 7 Cal.4th at pp. 34–35, 26 Cal.Rptr.2d 834, 865 P.2d 633), Hill established that a compelling interest still must be shown in some cases.   As to those aspects of our state constitutional right to privacy implicating government action impacting freedom of association or involving an invasion of an interest fundamental to personal autonomy, a “ ‘compelling state interest’ ” must be present to overcome the vital privacy interest.  (Id. at p. 34, 26 Cal.Rptr.2d 834, 865 P.2d 633.)

“The particular context, i.e., the specific kind of privacy interest involved and the nature and seriousness of the invasion and any countervailing interests, remains the critical factor in the analysis.   Where the case involves an obvious invasion of an interest fundamental to person autonomy, e.g., freedom from involuntary sterilization or the freedom to pursue consensual familial relationships, a ‘compelling interest’ must be present to overcome the vital privacy interest.   If, in contrast, the privacy interest is less central, or in bona fide dispute, general balancing tests are employed.”   (Ibid.) 4

It does not follow, however, that once a particular interest is established as being the same type of autonomy interest as in Myers, or the other cases cited by Hill in footnote 11, it is, ipso facto, an interest which cannot be invaded absent a compelling state interest.   Such an argument, we think, fails in light of the Hill court's emphasis on the “multifaceted character of the right to privacy” (Hill v. National Collegiate Athletic Assn., supra, 7 Cal.4th at p. 35, 26 Cal.Rptr.2d 834, 865 P.2d 633).   We conclude, rather, that such cases as Myers provide guidance in determining whether a particular interest meets the first element of Hill 's test:  that it is in fact a legally protected privacy interest.   These cases, however, did not, or at least did not directly, consider whether the second and third elements of Hill 's test had been met;  elements which will be defined only through case-by-case analysis.   Cases such as Myers also establish the kind of showing a defendant must make to justify the invasion of a privacy right meeting all three of Hill 's requirements.5  In other words if, upon consideration of all of the elements stated in Hill, it is determined that the interest at issue is in fact “vital,” cases such as Myers establish that it is not enough for the defendant to establish that a countervailing interest will be furthered by the action at issue;  it has to establish that such countervailing interest is compelling.6

C. Application of the Balancing Test to This Case

We must determine whether the superior court's conclusion that the legislation at issue is unconstitutional survives the balancing test established in Hill or whether the case must be remanded for further action by the superior court.   We conclude that the reasoning and conclusions of the superior court remain valid under the test, and that the judgment, accordingly, should be affirmed without remand.

 Following Hill, the first issue is whether the plaintiff has established the kind of invasion of a privacy interest which would be unconstitutional absent justification.   The Hill court held, in essence, that a plaintiff makes a prima facie case of unconstitutional invasion of a privacy interest by establishing (1) a legally protected privacy interest, (2) a reasonable expectation of privacy, and (3) a serious invasion of that interest.   The court did not state the weight to be given to each of these factors in determining whether a plaintiff has made the requisite showing;  however, given the emphasis on balancing, a reasonable approach is to balance these factors as well.   For example, where it is shown that the privacy interest at issue is very strong, a plaintiff will be able to make out a prima facie case even though his or her expectation of privacy is not extremely strong, or the invasion of the privacy interest is not extremely serious.

i. Legally Protected Privacy Interest

The Hill court found that the right of privacy encompasses two kinds of interests:  “(1) interests in precluding the dissemination or misuse of sensitive and confidential information (‘informational privacy’);  and (2) interests in making intimate personal decisions or conducting personal activities without observation, intrusion, or interference (‘autonomy privacy’).”  (Hill v. National Collegiate Athletic Assn., supra, 7 Cal.4th at p. 35, 26 Cal.Rptr.2d 834, 865 P.2d 633.)   Established norms, as defined by “the usual sources of positive law governing the right to privacy-common law development, constitutional development, statutory enactment, and the ballot arguments accompanying the Privacy Initiative” determine whether a particular interest should be protected.  (Id. at p. 36, 26 Cal.Rptr.2d 834, 865 P.2d 633.)

 Under these norms, the interest in the privacy of medical treatment and medical information, particularly inquires about personal medication such as birth control pills, is a legally protected interest.  (Hill v. National Collegiate Athletic Assn., supra, 7 Cal.4th at pp. 52–53, 26 Cal.Rptr.2d 834, 865 P.2d 633.)   There can be no question but that the right to choose whether or not to give birth, including the right to choose an abortion, is not only an interest involving autonomy privacy, but an exceedingly fundamental privacy interest.  (Committee to Defend Reproductive Rights v. Myers, supra, People v. Belous, supra, and Ballard v. Anderson, supra, 4 Cal.3d 873, 95 Cal.Rptr. 1, 484 P.2d 1345.)

ii. Reasonable Expectation of Privacy

The court in Hill recognized that the expectation of privacy will depend, in part, on the circumstances.  Hill found, for example, that although the observation of urination certainly implicates privacy interests, the expectation of private urination is reduced in the context of intercollegiate athletic activities.   The court noted that athletes disrobe in such a setting, and are concerned with and discuss bodily functions, medical treatment, etc.   Hill found that the expectation of privacy is further reduced by the fact that the NCAA gives advance notice of the testing and the opportunity to refuse, albeit that refusal means disqualification from competition.

Making a procreative choice, obviously, also implicates privacy interests.   It could be argued that the relevant context of this choice—at least insofar as the context requires sharing the decision with a parent—carries little, or at least a reduced, expectation of privacy.   Thus, it could be argued that minors expect to share such personal, medical information with their parents.   We conclude, however, that although minors may have a reduced expectation of privacy, they do in fact have a strong expectation of privacy in making procreative choices such as abortion.   Many adolescents, even those in the most functional of homes, do not discuss their procreative choices with their parents, and they certainly have no expectation of discussing them with a judge.   Moreover, plaintiffs produced significant, and uncontradicted, evidence that minors with families which habitually share personal information do in fact involve their parents in the abortion decision.   Thus, the legislation at issue has no effect on them.   It affects minors from other kinds of homes—those where personal information is not shared and where discovery of the minor's intimate matters not uncommonly lead to physical and psychological abuse.   The atmosphere in these homes is quite different from the relaxed atmosphere of an intercollegiate locker room envisioned by the Hill court.   In addition, unlike the situation in Hill, minors are given no choice.   Under the legislation at issue they must share their private intentions either with their parents or with a judge.

It follows that although a minor's expectation of privacy may be less than that of an adult, it certainly exists, and is quite strong when it comes to sharing procreative choices with a parent or a judge.

iii. Seriousness of Invasion of Privacy Interest

Although the Hill opinion finds that not every invasion of an established privacy interest supports a claim of unconstitutional action or policy, it specifically notes that the Privacy Initiative was concerned with safeguarding certain intimate and personal decisions from government interference in the form of penal and regulatory laws.  (Hill v. National Collegiate Athletic Assn., supra, 7 Cal.4th at p. 36, 26 Cal.Rptr.2d 834, 865 P.2d 633.)   “Actionable invasions of privacy must be sufficiently serious in their nature, scope, and actual or potential impact to constitute an egregious breach of the social norms underlying the privacy right.”  (Id. at p. 37, 26 Cal.Rptr.2d 834, 865 P.2d 633.)   There are actually two privacy interests affected by the proposed legislation here.   The first is the right to make a private procreative choice.   A.B. 2274, forces the minor to divulge her procreative choice against her wishes.   In addition, a minor who cannot or will not obtain parental consent is required to divulge a highly intimate choice to a complete stranger in what the evidence shows is an extremely stressful proceeding.   This legislation, accordingly, constitutes a serious invasion of the right to make that choice in private.   Perhaps more significantly, however, this legislation creates the possibility that a minor will be compelled to bear a child against her wishes.   It would be hard to imagine a more egregious breach of social norms.

The plaintiffs in this case clearly made a prima facie showing of an unconstitutional invasion of the right of privacy.   Moreover, although all three elements of the cause of action have been established, the strength of the interest at issue is such that the plaintiffs need only have shown that the minors have some expectation of privacy, albeit not as great an expectation as an adult might have, and that the invasion of that interest is real—as opposed to overwhelming.7

iv. Defenses

 Under Hill, once plaintiffs established the existence of the necessary elements of the cause of action, the burden passed to the State to establish as an affirmative defense that the invasion of the right to privacy is justified.   Although some lesser showing might suffice in other instances, the court in Hill specifically held that in cases such as this—where a plaintiff has established that the legislation impacts a vital autonomy interest—the state has the burden of showing that the impact is justified by a compelling state interest.   It follows that the test described in Myers applies;  it has to be considered:  (1) whether the conditions which are imposed relate to the purposes of the legislation which provide the benefit;  (2) whether the utility of the conditions imposed clearly outweighs the resulting impairment of constitutional rights;  and (3) whether there are no less offensive alternatives available to achieve the state's objective.   The court in Hill discussed the third prong of this test, holding that the burden of proving it need not be imposed invariably on the defendant.   It held, however, that the “ ‘least restrictive alternative’ ” burden is imposed on defendants in privacy cases which “(1) involve clear invasions of central, autonomy-based privacy rights, particularly in the areas of free expression and association, procreation, or government-provided benefits in areas of basic human need;  or (2) are directed against the invasive conduct of government agencies․”  (Hill v. National Collegiate Athletic Assn., supra, 7 Cal.4th at p. 49, 26 Cal.Rptr.2d 834, 865 P.2d 633.) 8

 The trial court in the present case correctly placed the burden of proving all three elements on the defendant, and found by “overwhelming” evidence that the burden had not been met.   The State did not show that any of the asserted governmental interests would be furthered by the legislation.   It necessarily follows that the utility of the legislation does not outweigh the resulting impairment of constitutional rights.   Lastly, the status quo provides an effective and less restrictive alternative.

The only remaining question is whether the matter should be remanded to the superior court for additional fact finding.   We conclude that remand is unnecessary.   The Hill opinion points out that the first element of a cause of action for invasion of the right to privacy:  whether a particular interest is a legally valid privacy interest, is a question of law.   Remand, therefore, is not needed for the purposes of resolving this issue.   In addition, the superior court correctly placed the burden on the State to establish as a defense that a compelling state interest justified the legislation.   Again, remand is not necessary.   The second and third elements of the cause of action—expectation of privacy and seriousness of the invasion—theoretically involve issues of fact;  however, those issues were litigated below, albeit somewhat indirectly.   The State produced no evidence to counter the plaintiffs' evidence establishing that forcing an unwilling minor to disclose her decision to abort to a parent or judge causes extreme stress—evidence which establishes the minor's expectation of privacy.   In addition, there is no question but that the invasion of the privacy interest is severe.   Under the circumstances there is no need to remand the matter for a further evidentiary hearing.

III. The Argument that the Superior Court Should Not Have Considered Plaintiffs' Evidence

As noted earlier, the evidence overwhelmingly supports the superior court's conclusions that A.B. 2274 will not in fact further any compelling state interest.   The State argues that it was improper, or at least unnecessary, to consider that evidence.   In essence it asserts that its only burden was to establish that A.B. 2274 was designed to further a compelling state interest;  it did not also need to show that such state interest in fact would be furthered by the legislation or that the actual, as opposed to the supposed, beneficial effect of the legislation justified the burden on the right of privacy.   The State's position is that where, as here, there is a facial challenge to a law, the only question is whether the Legislature rationally could believe that the law will further a compelling state interest.   We disagree.

 The right of privacy is a fundamental right, and the right to choose whether or not to bear a child is among the most private and intimate of decisions.

“[I]f the right of privacy means anything, it is the right of the individual ․ to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.  (Original italics.) (Eisenstadt v. Baird (1972) 405 U.S. 438, 453 [31 L.Ed.2d 349, 362, 92 S.Ct. 1029, 1038].)   This right of personal choice is central to a woman's control not only of her own body, but also to the control of her social role and personal destiny․  The implications of an unwanted child for a woman's education, employment opportunities and associational opportunities (often including marriage opportunities) are of enormous proportion.  (Karst, The Freedom of Intimate Association (1980) 89 Yale L.J. 624, 641, fn. 90.)  [¶] Thus, the constitutional rights at issue here are clearly among the most intimate and fundamental of all constitutional rights.  (Committee to Defend Reproductive Rights v. Myers, [1981] 29 Cal.3d [252], 274–275 [172 Cal.Rptr. 866, 625 P.2d 779].)”  (American Academy I, 214 Cal.App.3d at p. 843, 263 Cal.Rptr. 46, internal quotation marks omitted.)

When legislation invades a fundamental right, the courts have the duty to look behind any legislative finding and independently determine whether the particular invasion is justified.  (Landmark Communications, Inc. v. Virginia (1978) 435 U.S. 829, 843–844, 98 S.Ct. 1535, 1543–1544, 56 L.Ed.2d 1;  Spiritual Psychic Science Church v. City of Azusa (1985) 39 Cal.3d 501, 514, 217 Cal.Rptr. 225, 703 P.2d 1119;  People v. Glaze (1980) 27 Cal.3d 841, 848, 166 Cal.Rptr. 859, 614 P.2d 291.)   In Canaan v. Abdelnour (1985) 40 Cal.3d 703, 221 Cal.Rptr. 468, 710 P.2d 268, involving an equal protection challenge to an election ordinance, the Supreme Court recognized an approach we find equally applicable here.  “[A] court must resolve such a challenge by an analytical process that parallels its work in ordinary litigation.   It must first consider the character and magnitude of the asserted injury to the rights ․ that the plaintiff seeks to vindicate.   It then must identify and evaluate the precise interests put forward by the State as justifications for the burden imposed by its rule.   In passing judgment, the Court must not only determine the legitimacy and strength of each of those interests;  it also must consider the extent to which those interests make it necessary to burden the plaintiff's rights.   Only after weighing all these factors is the reviewing court in a position to decide whether the challenged provision is unconstitutional․  The results of this evaluation will not be automatic;  as we have recognized, there is no substitute for the hard judgments that must be made.”  (40 Cal.3d at p. 712, 221 Cal.Rptr. 468, 710 P.2d 268, internal quotation marks omitted, quoting from Anderson v. Celebrezze (1983) 460 U.S. 780, 789–790, 103 S.Ct. 1564, 1570–1571, 75 L.Ed.2d 547.)

 In some instances, the court's duty to review the necessity for the legislation can be discharged by nothing other than a consideration of the face of the regulation.   In Parr v. Municipal Court (1971) 3 Cal.3d 861, 92 Cal.Rptr. 153, 479 P.2d 353, for example, the court had only to look at the “declaration of urgency” accompanying an ordinance prohibiting certain uses of public property to find that the ordinance violated equal protection guarantees.   Other situations, however, cannot be resolved absent some factual analysis on the question of whether the legislation at issue justifies the burden on a fundamental right.   In Planned Parenthood v. Casey (1992) 505 U.S. 833 [112 S.Ct. 2791], 120 L.Ed.2d 674, the Supreme Court considered a facial challenge to Pennsylvania legislation placing a number of limitations on the ability of a woman to obtain an abortion.   Among other things, the legislation required a woman seeking an abortion to sign a statement indicating that she had notified her husband of her intended abortion.   The trial court, after hearing the testimony of numerous expert witnesses, made a number of findings tending to show that this provision was unnecessary and could lead to domestic violence.  (Id. at p. 2791 – –––– [112 S.Ct. at pp. 2826–2827].)   In striking down the spousal consent portion of the legislation, the Supreme Court took note of those findings and also of various studies supporting them, concluding that the evidence refuted any assumption that women would benefit from being compelled to consult with their husbands about whether to undergo an abortion.  (Id. at p. 2791 [112 S.Ct. at p. 2830].)   Thus, the court's duty to look into the validity of legislative findings may require it to weigh evidence submitted by the parties, particularly when those regulations invade a fundamental interest.9  In addition, the court's duty to determine whether there is no less restrictive method of protecting the asserted state interest (In re Arias (1986) 42 Cal.3d 667, 697, fn. 34, 230 Cal.Rptr. 505, 725 P.2d 664) also may involve issues of fact.   Under the circumstances of the present case, it was entirely appropriate for the superior court to consider such evidence as was presented to decide if A.B. 2274 in fact furthered a compelling state interest, and if that interest might be furthered by less restrictive means.   Only after those factual findings were made could it be decided if the need for the legislation justified the resulting burden on the right of privacy.

IV. The State Failed to Meet its Burden of Showing that A.B. 2274 Furthers a Compelling State Interest

The State argues that the superior court incorrectly applied the compelling interest test, and that it also incorrectly determined that A.B. 2274 furthered no compelling state interest.   To the extent the argument repeats those arguments made in the earlier appeal, we reject them for the reasons stated in American Academy I.   To the extent the argument is that, after Hill, the State was not required to show a compelling state interest, we reject it for the reasons we have stated.   To the extent the argument is that the State has asserted a compelling state interest, we agree with the superior court that the health and welfare of minors is indeed a compelling state interest.   We also agree that the related interest of fostering parent-child relationships may be compelling, and that the State may have a legitimate interest in involving parents in the decisions of their children.   As we have stated, however, it is not enough for the Legislature to assert a compelling state interest as justification for the legislation;  it also must show that the legislation will in fact further that interest.   The trial court concluded, and we agree, that A.B. 2274 will not protect the health and welfare of minors, will not foster the parent-child relationship, and will provide only little, if any, support for any interest in involving parents in the decisions of their children.

Finally, we do not agree that the interest of a parent in being involved in a child's medical decision should supersede the child's privacy rights.   The State cites authority recognizing that a parent has a strong interest in the welfare of his or her child and in the preservation of the family unit, that parenting is a fundamental right, and that, ordinarily, the most effective method of promoting a child's interests is to help parents achieve their own interests.  (See In re Angelia P. (1981) 28 Cal.3d 908, 916–917, 171 Cal.Rptr. 637, 623 P.2d 198;  In re Roger S. (1977) 19 Cal.3d 921, 928, 141 Cal.Rptr. 298, 569 P.2d 1286;  In re Lisa R. (1975) 13 Cal.3d 636, 648, fn. 13, 119 Cal.Rptr. 475, 532 P.2d 123.)   It does not follow, however, that a parent's interest in parenting, including the interest to be involved in a child's medical decisions, can supersede a child's fundamental right of privacy, including the right to make such a decision free of parental interference.   As stated by the court in In re Angelia P., supra, “In some situations, however, there may be a conflict of interests [between parent and child].   In these situations, the legal system should protect the child's interests.”  (28 Cal.3d at p. 917, 171 Cal.Rptr. 637, 623 P.2d 198;  and see In re Roger S., supra, 19 Cal.3d at p. 931, 141 Cal.Rptr. 298, 569 P.2d 1286, finding that for purposes of due process, a child's liberty interest outweighs any interest of the parent in the exercise of parental authority.).   For this reason even under the more limited right of privacy guaranteed by the federal Constitution, a child's right of privacy exceeds a parent's right to be involved in the abortion decision.   Thus, under federal law, a parental consent statute may be upheld only if it affords a method by which a minor may obtain an abortion without notifying, or obtaining the consent of, a parent.   (See, Planned Parenthood v. Casey, supra, 505 U.S. at p. ––– “– [112 S.Ct. at p. 2830];  Akron v. Akron Center for Reproductive Health (1983) 462 U.S. 416, 439–440, 103 S.Ct. 2481, 2497–2498, 76 L.Ed.2d 687;  Planned Parenthood of Missouri v. Danforth (1976) 428 U.S. 52, 74–75, 96 S.Ct. 2831, 2843–2844, 49 L.Ed.2d 788;  Bellotti v. Baird (1979) 443 U.S. 622, 643–644, 99 S.Ct. 3035, 3048–3049, 61 L.Ed.2d 797.)   We have concluded that the right of privacy guaranteed by the California Constitution permits less intrusion than does the federally guaranteed right.   There is, accordingly, even greater reason to conclude that any parental interests in the child's decisions or welfare must bow to the child's right of privacy.

V. Informational Privacy and Equal Protection Issues

Plaintiffs contended that by creating and maintaining records relating to the bypass procedures, A.B. 2274 violates the right to informational privacy.   The superior court did not analyze this argument, concluding that, because the State had been unable to justify the burden on privacy rights in general, it also could not justify the burden placed on informational privacy.   Having concluded that this legislation unconstitutionally interferes with autonomy privacy, we need not also consider whether it places an impermissible burden on informational privacy.   Nor shall we consider the constitutional question of whether A.B. 2274 also violates equal protection guarantees.  (See People v. Williams (1976) 16 Cal.3d 663, 667, 128 Cal.Rptr. 888, 547 P.2d 1000.)

CONCLUSION

The judgment and order of injunction are affirmed.

APPENDIX

The superior court noted that minors have been undergoing abortions for the last 20 years without parental involvement, and there was no evidence that the medical, emotional and psychological consequences of an abortion, particularly when the patient is an immature minor, are serious or can be long lasting.   To the contrary, the uncontradicted evidence disclosed that an abortion is a medically safe procedure, particularly for adolescents, and that the risk of medical complications resulting from pregnancy and childbirth is significantly greater than the risk of undergoing a therapeutic abortion.   The trial court concluded, therefore, that A.B 2274 cannot be justified on the grounds of protecting the minor's physical well-being.

Additional evidence disclosed that minors are at no special psychological or emotional risk from abortion and, indeed, are less likely than adults to experience any adverse psychological reaction to the procedure.   Few women, whether adults or minors, suffer psychological or emotional consequences from abortion.   Indeed, the evidence was that minors who choose to undergo abortion experience a sense of self-esteem and sense of control equal to, and ultimately greater than, that experienced by those who choose to carry to term.   There was evidence that a child's emotional and developmental well-being is adversely affected by a family situation in which significant decisions, such as the abortion decision, are made without benefit of parental involvement.   Contrary to any implication by the State, however, the evidence was that the decision by the minor not to involve a parent in the abortion decision does not lead to a poor familial relationship, but is the result of a poor familial relationship.   In addition, the evidence was that parental involvement can have an adverse psychological or emotional effect on the minor, particularly when that involvement is coercive or otherwise interferes with the minor's ability to make an autonomous decision.   The evidence accordingly established that the decision to undergo an abortion does not itself cause emotional or psychological injury, and that compelling parental involvement in the decision does not aid, but can in fact injure, a child's emotional or psychological well-being.   The trial court concluded, therefore, that A.B. 2274 cannot be justified on the grounds of protecting the minor's psychological or emotional well-being.

The superior court found support for the legislative finding that the capacity to become pregnant is not necessarily related to the capacity to exercise mature judgment.   The court further found that the question must be whether a particular minor is mature enough to give informed consent to a medical procedure, i.e., abortion.   As the superior court found, no operation may be performed unless the patient has given informed consent.   Thus before a physician may perform an abortion, he or she must be satisfied that the patient, whether or not a minor, is in fact capable of giving informed consent for an abortion and that the decision to have an abortion is in fact the result of such informed consent—just as a physician must be satisfied that informed consent has been given for any medical procedure.

In addition, the evidence disclosed that adolescents in general are capable of the kind of cognitive and operational thinking required to give informed consent to medical procedures, including therapeutic abortions.   Plaintiffs produced evidence that most adolescents, at least by the age of 14 or 15, are capable of adult decision making, exhibiting the ability to reason logically and to take into account both the short-term and long-term consequences of their behavior.   The State did not claim otherwise but argued, through its expert witness, that the decision to undergo an abortion has ethical and moral overtones and that a woman is not capable of making a moral decision until the age of 18 or 19.   Other expert witnesses, however, testified that young adolescents do in fact have the capacity to consider ethical matters and make moral judgments in the same manner as adults.   It was further shown that adolescents follow the same process as do adults when considering and deciding whether to have an abortion.   The superior court accordingly concluded that the evidence disclosed that adolescents as a group do not differ from adults as a group in their methods of making the decision whether or not to have an abortion.

Plaintiffs also introduced evidence that adolescents are in fact given a wealth of information and counseling designed to ensure that they understand and truly consent to whatever medical decision they ultimately make.   Standardized counseling protocols have been implemented in any clinic receiving government funds.   Counselors provide objective information and nondirective counselling on the risks, benefits and contraindications of both abortion and of carrying a pregnancy to term.   For all of these reasons, and particularly in light of the fact that a physician may not perform any medical procedure, including abortions, without first having obtained the informed consent of the patient, the superior court concluded that A.B. 2274 is not necessary as a method of protecting minors from consenting to abortions without fully understanding the implications and effects of that choice on their health and well-being.

Thus, the evidence was that the interests asserted by the Legislature as its reasons for enacting A.B. 2274 will not be furthered by the legislation, and thus do not justify the burden the legislation places on the right of privacy.

APPENDIX—Continued

The State argued that other interests not set forth in the legislative findings will be furthered by the legislation, specifically:  (1) the interest in reducing the teenage pregnancy rate, and (2) the interest in preserving and fostering the parent-child relationship.   As to the first of these arguments, the State introduced a study indicating that the adolescent pregnancy rate had dropped in the states of Minnesota, Missouri and Massachusetts following the adoption of a parental consent statute in each state.   Plaintiffs, however, countered with evidence that in each instance the pregnancy rate had dropped for other reasons.   They pointed out that during the same time periods the teenage pregnancy rate had also dropped in states with no parental consent statute, and introduced evidence that parental consent statutes did not reduce the rate of pregnancy, but simply caused minors seeking abortions to obtain them in other states.   In other words, the evidence was that although the rate of abortion may have dropped, the actual rate of pregnancy did not.   The superior court concluded that parental consent statutes have no effect on the adolescent pregnancy rate.   Moreover, the court found that there are other methods of reducing teenage pregnancies less injurious to the right of privacy.   These methods include education and counseling on the subjects of sexual conduct and birth control, and providing other forms of birth control.   The court concluded, therefore, that A.B. 2274 cannot be justified on the ground that it will lower the rate of teenage pregnancies.   The superior court also found that the State's position in effect was that the parental consent statute would be an effective deterrent to teenage sex.   In other words, one method of deterring a teenager from engaging in sex would be to threaten her with the possibility that she might be compelled to bear an unwanted child.   The court, with good reason, questioned the rationality of prescribing pregnancy as punishment.  (And see Carey v. Population Services International (1977) 431 U.S. 678, 694–695, 97 S.Ct. 2010, 2021, 52 L.Ed.2d 675.)

As to the interest in fostering and preserving the parent-child relationship, the court noted, again, that the evidence was that compelling a minor to consult a parent about an abortion decision cannot aid, and in many instances will in fact injure, the parent-child relationship.   The superior court therefore concluded that a parent's right to control his or her children cannot supersede the minor's right of privacy in the area of procreative choice so as to justify legislation interfering with the minor's right of privacy.   In all events, the evidence was that most minors do consult with their parents when deciding whether to have an abortion.   Part of the counseling given minors is to encourage them to consult with their parents.   Furthermore, studies show that minors are no more likely to consult with their parents in states having parental consent statutes than in states having no such legislation.   The determinative factor is not the existence of a parental consent statute, but the quality of the parent-child relationship prior to the pregnancy.   The likelihood that a child will consult a parent improves with the quality of that relationship, but the consultation itself has no positive effect on that relationship.

The evidence also showed that for many minors, consulting with a parent simply is not a reasonable option.   Plaintiffs presented evidence that a significant number of families are abusive or otherwise dysfunctional.   In a substantial number of these families, adolescent girls are at a particular risk for violence.   Even the State's witnesses recognized that at least 10 percent of the state's families have none of the attributes for coping effectively with family problems, and other families have only a few such attributes.   The trial court found that to the extent A.B. 2274 might compel any minor from an abusive family to discuss her pregnancy with her parent or parents, it would endanger the minor by causing her to place herself at physical and mental risk.

The court also found that a significant number of these adolescents ultimately will choose to undergo the judicial bypass procedure rather than consult with a parent.   The evidence showed that this choice itself was detrimental to the well-being of the minor.   Minors in states having parental consent statutes delay the decision to undergo an abortion;  the percentage of delayed abortions therefore increases following the implementation of such legislation.   The medical risks of abortion, however, increase as a pregnancy advances.   Any delay in obtaining an abortion caused by the minor's reluctance to go through the judicial bypass procedure, accordingly, is potentially injurious to her health.   From this evidence it follows that the implementation of A.B. 2274 will harm at least one of the interests the legislation is intended to further:  the physical well-being of minors.

In addition, the judicial bypass procedure requires minors to go to court and to discuss private and intimate matters with a judge and other strangers.   The evidence was that the procedure causes these adolescents extreme anxiety.   Testimony from out-of-state judges who have presided over such proceedings established that the proceedings are difficult and upsetting.   Moreover, the testimony further established that the judicial bypass procedures achieve no real end.   The judges found that the minors as a rule were mature enough to make a choice, in which case the judge, as he or she was required to do, simply affirmed the minor's choice to undergo an abortion.   In those instances in which the minor was not mature, the judges nearly universally concluded that she was not mature enough to become a mother and thus again decided that she should undergo an abortion, again affirming her choice.   The evidence was that only an infinitesimal number of petitions were denied.   The court found that of the 3,000 petitions heard in the first five years under the Minnesota statute, only 9 were denied.   In the first five years under the Massachusetts statute, only 13 were denied and, of those, 11 denials were reversed on appeal.   The result is that the evidence disclosed that the judicial bypass is a costly, unwieldy and essentially pointless procedure which achieves no purpose other than to cause stress to minors and delay the implementation of their decision to abort, thus rendering the abortion more dangerous.

FOOTNOTES

1.   Civil Code section 34.5 provided:  “Notwithstanding any other provision of law, an unemancipated minor may give consent to the furnishing of hospital, medical and surgical care related to the prevention or treatment of pregnancy, and that consent shall not be subject to disaffirmance because of minority.   The consent of the parent or parents of [an unmarried, pregnant minor] shall not be necessary in order to authorize [the] hospital, medical, and surgical care.”   Our Supreme Court, in Ballard v. Anderson (1971) 4 Cal.3d 873, 95 Cal.Rptr. 1, 484 P.2d 1345, held that under section 34.5, minors were entitled to consent to therapeutic abortions as well as other types of pregnancy-related medical care.

2.   Article I, section 1 declares:  “All people are by nature free and independent and have inalienable rights.   Among these are enjoying and defending life and liberty, acquiring, possessing, and protecting property, and pursuing and obtaining safety, happiness, and privacy.”

3.   We have summarized the superior court's thorough, detailed, findings and conclusions in the Appendix to our opinion.

4.   In footnote 11 to this holding, the opinion cites a number of cases discussing, with apparent approval, the tests employed in each.   These cases include Committee to Defend Reproductive Rights v. Myers, supra, 29 Cal.3d 252, 172 Cal.Rptr. 866, 625 P.2d 779 (invalidating restrictions on state funding of abortions on equal protection grounds), Conservatorship of Valerie N. (1985) 40 Cal.3d 143, 219 Cal.Rptr. 387, 707 P.2d 760 (right to elect sterilization as method of contraception is an exercise of a fundamental constitutional right which cannot be restricted absent a “compelling interest”), and People v. Stritzinger (1983) 34 Cal.3d 505, 194 Cal.Rptr. 431, 668 P.2d 738 (patient's privacy interest in psychotherapy can be impaired upon showing of compelling state interest).   (Hill, supra, 7 Cal.4th at pp. 34–35, fn. 11, 26 Cal.Rptr.2d 834, 865 P.2d 633.)

5.   Myers established a three-part test for determining whether an asserted state interest permits the invasion of a vital privacy right.   In making that determination a court should consider “(1) whether the conditions which are imposed relate to the purposes of the legislation which provide the benefit;  (2) whether the utility of the conditions imposed clearly outweighs the resulting impairment of constitutional rights;  and (3) whether there are no less offensive alternatives available to achieve the state's objective.”  (Committee to Defend Reproductive Rights v. Myers, supra, 29 Cal.3d at p. 270, 172 Cal.Rptr. 866, 625 P.2d 779.)   By citing Myers, and like cases, the court in Hill necessarily concluded that such a test should be applied when the privacy interest in fact has been determined to be vital.

6.   This view of the Hill opinion—that a Myers-type test should be applied in certain situations—is supported by Justice Kennard's concurring opinion:  “The majority properly insists that the courts of this state, in assessing alleged invasions of privacy, be guided above all by the context of the particular case.   This necessarily means that the correct legal analysis will differ depending in part on the governmental or nongovernmental status of the defendant.   Thus, the majority recognizes and accepts the existing law that in appropriate circumstances the compelling interest standard continues to be applicable to governmental invasions of privacy rights, and holds that the compelling interest test must be applied when the interest invaded is fundamental to personal autonomy.”  (7 Cal.4th at p. 59, 26 Cal.Rptr.2d 834, 865 P.2d 633.)   Justice Kennard cites Committee to Defend Reproductive Rights v. Myers as an example of a case applying the compelling interest standard (id. 7 Cal.4th at p. 59, 26 Cal.Rptr.2d 834, 865 P.2d 633).   She also cites People v. Belous, supra, 71 Cal.2d 954, 80 Cal.Rptr. 354, 458 P.2d 194, which held that the right to choose whether to have children is fundamental and may not be interfered with absent a compelling interest (id. at pp. 963–964, 80 Cal.Rptr. 354, 458 P.2d 194).

7.   In fact, as discussed, the evidence demonstrated that the minors do have a heightened expectation of privacy and that the invasion of their privacy interest is quite serious.

8.   The court in Hill implied that the only cases in which this burden need not be placed on the defendant are those cases in which the defendant is a nongovernmental entity.  (7 Cal.4th at pp. 38–39, 50, 26 Cal.Rptr.2d 834, 865 P.2d 633.)

9.   The Supreme Court also considered the validity of a portion of the legislation requiring a physician, as opposed to a qualified assistant, to provide information relevant to a woman's informed consent to an abortion.   The court upheld that portion of the legislation finding, “Since there is no evidence on this record that requiring a doctor to give the information as provided by the statute would amount in practical terms to a substantial obstacle to a woman seeking an abortion, we conclude that it is not an undue burden.”  (Planned Parenthood, supra, at p. 2791 [112 S.Ct. at p. 2824].)   The court, accordingly, again recognized that the issue of whether a particular regulation unduly burdens the exercise of the right to decide whether to terminate a pregnancy—which itself is an aspect of the right of privacy—may involve issues of fact.

STEIN, Associate Justice.

NEWSOM, Acting P.J., and DOSSEE, J., concur.