Learn About the Law
Get help with your legal needs
FindLaw’s Learn About the Law features thousands of informational articles to help you understand your options. And if you’re ready to hire an attorney, find one in your area who can help.
AMERICAN ACADEMY OF PEDIATRICS et al., Plaintiffs and Respondents, v. Daniel E. LUNGREN, as Attorney General, etc., et al., Defendants and Appellants.
In this case, we must determine whether Assembly Bill No. 2274, 1987–1988 Regular Session, which prohibits unemancipated minors from obtaining abortions without either the consent of a parent or judicial authorization, is valid under article I, sections 1 and 7 of the California Constitution. The trial court declared the law invalid, as violating the rights to privacy and equal protection of unemancipated minors who seek to terminate their pregnancies, and permanently enjoined its enforcement. The Court of Appeal affirmed. Because we conclude that Assembly Bill No. 2274 is constitutional, we reverse the judgment of the Court of Appeal.
Enacted by the Legislature in 1987, Assembly Bill No. 2274 amends former Civil Code section 34.5 (now Fam.Code, § 6925) to exclude abortion from the medical procedures for which an unemancipated minor may give consent without “disaffirmance because of minority.” (Fam.Code, § 6921.) 1 It also added former section 25958 to the Health and Safety Code, providing that “[e]xcept in a medical emergency requiring immediate medical action, no abortion shall be performed upon an unemancipated minor unless she first has given her written consent to the abortion and also has obtained the written consent of one of her parents or legal guardian.” (Former Health & Saf.Code, § 25958, subd. (a), repealed Stats.1995, ch. 415, § 161, now at Health & Saf.Code, § 123450, subd. (a).) 2
Assembly Bill No. 2274 includes a judicial bypass provision, with the following requirements. If an unemancipated minor's parent or guardian is unavailable or refuses consent, or if the unemancipated minor elects not to seek consent, she may file a petition in the juvenile court. (Health & Saf.Code, § 123450, subd. (b).) The court must assist her, or a person she designates, in preparing the petition and notices; it must also advise her that she has a right to court-appointed counsel, and it may appoint a guardian ad litem. (Ibid.) A hearing must be set within three days of filing the petition. (Ibid.) At the hearing, the juvenile court must determine whether the unemancipated minor is “sufficiently mature and sufficiently informed to make the decision on her own regarding an abortion.” (Id., subd. (c)(1).) If it finds that she is, and that she has consented on that basis, it must grant the petition. (Id., subd. (c)(1).) If it determines that she is not, it must grant the petition if an abortion would be in her “best interest,” but otherwise deny the petition. (Id., subd. (c)(2).)
The Judicial Council adopted rules and developed forms to implement the judicial bypass provisions. (Cal. Rules of Court, rule 240; Cal. Standards Jud.Admin., § 23.) Those rules require, inter alia, that the hearings “be conducted informally in the chambers of a judge of the superior court, sitting as a juvenile court.” (Cal. Rules of Court, rule 240(e).) Petitioner may, if she desires, be accompanied by a “support person” and “one or more parents or a guardian.” (Ibid.) The hearing “may be conducted immediately if a courtroom or chambers is available; otherwise it shall be scheduled and conducted not more than three calendar days after the date of filing.” (Id., rule 240(d).) If the court grants the petition, it must “immediately provide petitioner with two certified copies of the Order Authorizing Abortion Without Parental Consent and the Confidential Affidavit of Minor” and explain to petitioner that, to establish her identity, she should take one copy of each document to the provider of any abortion. (Id., rule 240(g).) If the court denies the petition, it must make “findings of facts and state the evidence supporting each finding in its order of denial.” (Id., rule 240(h).) Moreover, if the court denies the petition, it must advise the petitioner of her right to appeal, that the appeal will be decided within five court days of filing the notice of appeal, that she is entitled to an attorney, and that the appeal and the attorney will not cost her or her parents or guardian any money. (Id., rule 240(i).) The court must immediately appoint counsel if petitioner has not been represented at the hearing. (Ibid.)
Assembly Bill No. 2274 was to become effective January 1, 1988. Before that time, in November 1987, plaintiffs American Academy of Pediatrics, California District IX; the California Medical Association; the American College of Obstetricians and Gynecologists, District IX; Planned Parenthood of Alameda San Francisco; and Philip Darney, M.D., sought declaratory and injunctive relief, on the ground that the legislation violates the right to privacy under article I, section 1 of the California Constitution.
In December 1987, the superior court issued a preliminary injunction enjoining enforcement of any provision of Assembly Bill No. 2274. The People appealed. In October 1989, the Court of Appeal affirmed the order granting issuance of the preliminary injunction and remanded for trial.3 In October and November 1991, the superior court conducted a 16–day trial, without a jury. Twenty-five expert witnesses testified, including physicians, psychologists, lawyers, counselors, and judges; an additional six expert witnesses were heard by deposition.
In June 1992, the trial court issued a lengthy statement of decision and a judgment declaring Assembly Bill No. 2274 unconstitutional and permanently enjoining its enforcement. Specifically, it ruled that the legislation violates the rights to autonomy and informational privacy under article I, section 1 and the right of equal protection under California Constitution article I, section 7.
The People appealed from the judgment. While the appeal was pending, we established, in Hill v. National Collegiate Athletic Assn. (1994) 7 Cal.4th 1, 26 Cal.Rptr.2d 834, 865 P.2d 633 (Hill ), the standard for deciding claims under the state constitutional right to privacy. The Court of Appeal concluded that “although the superior court could not and did not specifically employ the approach established in Hill, its decision remains valid.” It affirmed the judgment on the ground that Assembly Bill No. 2274 violates an unemancipated minor's right to autonomy privacy. It declined to decide whether it also violates her rights to informational privacy or to equal protection. We granted review.
In resolving the present challenge to Assembly Bill No. 2274 under the California Constitution, we are bound by the “ ‘incontrovertible conclusion that the California Constitution is, and always has been, a document of independent force.’ ” (Committee to Defend Reproductive Rights v. Myers (1981) 29 Cal.3d 252, 261, 172 Cal.Rptr. 866, 625 P.2d 779.) Thus, although we may derive guidance from the numerous decisions of the United States Supreme Court concerning comparable statutes, we are not bound by its determinations.4 Just as the rights guaranteed by the California Constitution are explicitly “not dependent on those guaranteed by the United States Constitution,” (Cal. Const., art. I, § 24), our interpretation of those rights, including the right to privacy, has never been dependent on analogous federal decisions.
Nor are the constitutional provisions identical. In 1972, the electors added the explicit right of “privacy” to the other inalienable rights enumerated in article I, section 1 of the state Constitution; “[t]he federal constitutional right of privacy, by contrast, enjoys no such explicit constitutional status.” (Committee to Defend Reproductive Rights v. Myers, supra, 29 Cal.3d pp. 262–263, 172 Cal.Rptr. 866, 625 P.2d 779, italics in original.)
Moreover, “we have on numerous occasions construed the California Constitution as providing greater protection than that afforded by parallel provisions of the United States Constitution.” (Committee to Defend Reproductive Rights v. Myers, supra, 29 Cal.3d at p. 261, fn. 4, 172 Cal.Rptr. 866, 625 P.2d 779). Thus, our court recognized the existence of a constitutional right of procreative choice in People v. Belous (1969) 71 Cal.2d 954, 80 Cal.Rptr. 354, 458 P.2d 194, four years before the United States Supreme Court acknowledged the existence of a comparable right under the Fourteenth Amendment, in Roe v. Wade (1973) 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147: “The fundamental right of the woman to choose whether to bear children follows from the Supreme Court's and this court's repeated acknowledgment of a ‘right of privacy’ or ‘liberty’ in matters related to marriage, family, and sex.” (People v. Belous, supra, 71 Cal.2d at p. 963, 80 Cal.Rptr. 354, 458 P.2d 194.) In Committee to Defend Reproductive Rights v. Myers, we reiterated the “basic recognition that, for a woman, the constitutional right of choice is essential to her ability to retain personal control over her own body.” (29 Cal.3d at p. 274, 172 Cal.Rptr. 866, 625 P.2d 779.)
Recently, in Hill, this court reaffirmed that the right to privacy under the California Constitution, including “central, autonomy-based privacy rights” in the area of procreation, is distinct from, and in some respects broader than, the federal right. (Hill, supra, 7 Cal.4th at p. 49, 26 Cal.Rptr.2d 834, 865 P.2d 633; see also id. at pp. 73–86, 26 Cal.Rptr.2d 834, 865 P.2d 633 (dis. opn. of Mosk, J.).) Thus, unlike under the Fourteenth Amendment, the right to privacy under the California Constitution applies to nongovernmental as well as governmental action. Moreover, Hill articulates and applies an analytical framework for determining whether conduct violates the state constitutional privacy right that is distinct from federal precedent.
Nevertheless, it bears emphasis that the present case, concerning the right of unemancipated minors to privacy in the area of reproductive choice, involves a question of first impression. Although, in Myers and Belous, we upheld an adult woman's right to be free of undue intrusion or burden in making the intimate and fundamental decision whether to bear a child, those precedents are not readily applicable to young adolescents who may lack the maturity and understanding to exercise informed choice without parental or other adult oversight.
This case is not about the morality 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, supra, 29 Cal.3d at p. 284, 172 Cal.Rptr. 866, 625 P.2d 779, fn. omitted.) Rather, “[o]ur obligation is to define the liberty of all, not to mandate our own moral code.” (Planned Parenthood v. Casey, supra, 505 U.S. 833, 850, 112 S.Ct. 2791, 2806, 120 L.Ed.2d 674.)
Nor, despite some of the more rhetorical assertions of the parties and amici curiae, does this case require us to choose between two extreme results, i.e., either “forc[ing] at least some minor mothers to carry unwanted pregnancies to term” or “prohibit[ing] parental involvement in an unemancipated minor's decision to terminate a pregnancy by abortion.” Similarly, we are not called upon to approve or disapprove of Assembly Bill No. 2274 as a matter of social policy.
Instead, we must undertake the more modest, if difficult, task of determining whether Assembly Bill No. 2274 passes muster under those provisions of our Constitution protecting the rights to privacy and equal protection. We conclude that it does.
Under Hill, “a plaintiff alleging an invasion of privacy in violation of the state constitutional right to privacy must establish each of the following: (1) a legally protected privacy interest; (2) a reasonable expectation of privacy in the circumstances; and (3) conduct by defendant constituting a serious invasion of privacy.” (7 Cal.4th at pp. 39–40, 26 Cal.Rptr.2d 834, 865 P.2d 633.) If the plaintiff establishes those elements, the burden shifts to the defendant to show that “the invasion of privacy is justified because it substantively furthers one or more countervailing interests.” (Id. at p. 40, 26 Cal.Rptr.2d 834, 865 P.2d 633.) “Where the case involves an obvious invasion of an interest fundamental to personal 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.” (Id. at p. 34; accord, id. at pp. 59 (conc. opn. of Kennard, J.), 62 (conc. & dis. opn. of George, J.), 73 (dis. opn. of Mosk, J.), 26 Cal.Rptr.2d 834, 865 P.2d 633.) Moreover, when the conduct at issue involves the governmental “invasion of central, autonomy-based privacy rights,” the state bears the burden of establishing that there were “no less intrusive means” of accomplishing its legitimate objectives. (Id. at p. 49, 26 Cal.Rptr.2d 834, 865 P.2d 633.)
Applying the standard to this case, we conclude that Assembly Bill No. 2274 is constitutional.5
Initially, with respect to whether an unemancipated minor has a legally protected privacy interest concerning procreative choice, we conclude that she has such an interest but it is neither coequal with that of an adult, nor, in the case of an immature unemancipated minor, absolute even in the early stages of pregnancy. It is not the case, as plaintiffs assert, that the legally protected privacy interest in procreative choice does not vary based on the maturity or cognitive ability of the person whose choice is at issue.
It is true that the privacy provision of the California Constitution does not expressly distinguish between adults and minors. It provides that “All people ․ have inalienable rights. Among these are ․ privacy.” (Cal. Const., art. I, § 1, italics added.) Nor does the ballot argument in favor of Proposition 11, which added the express right to privacy to the California Constitution, offer relevant extrinsic evidence on this point. It draws no distinction between adults and children. “This amendment creates a legal and enforceable right of privacy for every Californian.” (Ballot Pamp., Proposed. and Amends. to Cal. Const. with arguments to voters, Gen. Elec. (Nov. 7, 1972) argument in favor of Prop. 11, p. 26.) “There should be no ambiguity about whether our constitutional freedoms are for every man, woman and child in this state.” (Id. at p. 27, 26 Cal.Rptr.2d 834, 865 P.2d 633.) Its definition refers broadly to the right of privacy as “the right to be left alone.” (Ibid.)
Although we have not addressed the point in the context of the right to privacy, our analysis of the closely related right to liberty under the California Constitution requires the conclusion that the privacy interests of an unemancipated minor are qualitatively different from those of an adult and subject both to reasonable regulation by the state to an extent not permissible with adults and to control by the unemancipated minor's parents to an even greater extent.
In In re Roger S. (1977) 19 Cal.3d 921, 141 Cal.Rptr. 298, 569 P.2d 1286, we assessed the state constitutional right of a 14–year–old unemancipated minor, committed to a state hospital on the application of his parent, to an opportunity for a precommitment hearing before a neutral fact finder. We concluded that “the personal liberty interest of a minor is less comprehensive than that of an adult, and a parent or guardian not only may but must curtail that interest in the proper exercise of his obligation to guide the child's development․” (Id. at p. 927, 141 Cal.Rptr. 298, 569 P.2d 1286.) In certain areas, however, including the admission to a state hospital, “a minor of 14 years or more possesses rights which may not be waived by the parent or guardian” (ibid.), including the right to procedural due process under article I, section 7(a) of the California Constitution.
We emphasized that although “ ‘[c]onstitutional rights do not mature and come into being magically only when one attains the state-defined age of majority,’ ” “the liberty interest of a minor is not coextensive with that of an adult.” (In re Roger S., supra, 19 Cal.3d at pp. 927–928, 141 Cal.Rptr. 298, 569 P.2d 1286.) An unemancipated minor's liberty interest is more limited both as related to her parents and as against the state. “Parents, of course, have powers greater than that of the state to curtail a child's exercise of the constitutional rights he may otherwise enjoy, for a parent's own constitutionally protected ‘liberty’ includes the right to ‘bring up children’ ” (Id. at p. 928, 141 Cal.Rptr. 298, 569 P.2d 1286.) This parental right involving an unemancipated minor is not unlimited; it may be curtailed by the state “ ‘if it appears that parental decisions will jeopardize the health or safety of the child, or have a potential for significant social burdens.’ ” (Ibid.) “We emphasize here our assumption that the great majority of parents are well motivated and act in what they reasonably perceive to be the best interest of their children. That fact cannot, however, detract in any way from the child's right to procedures that will protect him from arbitrary curtailment of his liberty interest in ․ a drastic manner no matter how well motivated.” (Id. at p. 936, 141 Cal.Rptr. 298, 569 P.2d 1286.)
The state may also curtail an unemancipated minor's constitutional right to liberty. “ ‘[E]ven where there is an invasion of protected freedoms “the power of the state to control the conduct of children reaches beyond the scope of its authority over adults.” ’ ” (In re Roger S., supra, 19 Cal.3d at p. 928, 141 Cal.Rptr. 298, 569 P.2d 1286.)
In In re Roger S., we balanced the liberty interest of a 14–year–old unemancipated minor as against his parents and as against the state regarding the right to due process in proceedings to admit him to a state mental hospital. We determined that “no interest of the state or a parent sufficiently outweighs the liberty interest of a minor old enough to independently exercise his right to due process to permit the parent to deprive him of that right.” (In re Roger S., supra, 19 Cal.3d at p. 931, 141 Cal.Rptr. 298, 569 P.2d 1286.) The unemancipated minor's liberty interest did not, however, entitle him to all the same procedural protections as an adult in the same situation. (Id. at p. 935, 141 Cal.Rptr. 298, 569 P.2d 1286.)
Although In re Roger S. involved the state constitutional right to liberty, a similar analysis applies to the closely related right to privacy.6 Here, as in In re Roger S., we must balance the constitutional rights of an unemancipated minor—in this case the right to make the fundamentally private decision whether or not to bear a child—with the right of the parent, and of the state in loco parentis, to oversee critical decisions that may affect the welfare of the unemancipated minor, and, if appropriate, to decide what is in her best interest.
From In re Roger S., we may derive the following principles. First, an unemancipated minor's constitutional rights are not equal to, and are in some instances more limited than, those of an adult, both as against her parents and as against the state. Second, an unemancipated minor has a right to procedures that will protect her from arbitrary and drastic curtailment of constitutional rights by her parents, or, presumably, the state, no manner how well motivated. Third, a mature unemancipated minor, as opposed to an unemancipated minor incapable of informed consent, has an increased right to exercise her constitutional rights, but even a mature unemancipated minor is not entitled to all of the same procedural protections as an adult in the same situation.7
Applying those principles to the privacy right asserted here yields several elementary conclusions.
First, as a general matter, the right to privacy of an unemancipated minor is more limited than that of an adult. An unemancipated minor has limited privacy rights as against the state. It can intervene in his or her interests, including by requiring or precluding medical treatment. (See, e.g., In re Roger S., supra, 19 Cal.3d at p. 933, 141 Cal.Rptr. 298, 569 P.2d 1286; cf. Bellotti v. Baird, supra, 443 U.S. at p. 635, 99 S.Ct. at 3044 (lead opn. of Powell, J.) [“[T]he States validly may limit the freedom of children to choose for themselves in the making of important, affirmative choices with potentially serious consequences.”].)
By statute, the Legislature has in numerous areas curtailed an unemancipated minor's ability to make choices implicating privacy. Thus, before the age of 18, a minor is not “capable of consenting to and consummating marriage” without parental consent and a court order (Fam.Code, § 302); nor can an unmarried minor legally consent to sexual intercourse (Pen.Code, § 261.5). Among other restrictions implicating privacy, an unemancipated minor cannot obtain most medical and dental treatment, including most surgical procedures and even routine X-rays, without parental notification and/or consent, or, in certain circumstances, court consent. (Fam.Code, §§ 6910, 6911, 6922; Health & Saf.Code, § 123930; Pen.Code, § 11171.) An unemancipated minor may not, before the age of 18, undergo voluntary sterilization, with or without parental consent. (Fam.Code, § 6925(b)(1); Cal.Code Regs., tit. 22, § 70707.1(a)(1) (1994).) No minor may, before the age of 18, donate any part of his body in the event of his death (Health & Saf.Code, § 7150.5) or receive a permanent tattoo (Pen.Code, § 653), again regardless of parental consent. Minors under the age of 18 are also restricted from obtaining a driver's license (Veh.Code, §§ 17700, 17701) or using a tanning facility (Bus. & Prof.Code, § 22706, subds. (b)(3) & (4)) without parental consent.
Such restrictions are based, in large part, on an unemancipated minor's disability of nonage, including the inability to enter into a binding contract. (See Civ.Code, § 1556 [“All persons are capable of contracting, except minors, persons of unsound mind, and persons deprived of civil rights.”].) 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. (See Ballard v. Anderson (1971) 4 Cal.3d 873, 878, 95 Cal.Rptr. 1, 484 P.2d 1345 [“ ‘The right of the infant to avoid his contracts is one conferred by law for his protection against his own improvidence and the designs of others.’ ”]; Stanford v. Kentucky (1989) 492 U.S. 361, 395, 109 S.Ct. 2969, 2988–2989, 106 L.Ed.2d 306 (dis. opn. of Brennan, J.) [“[M]inors are treated differently from adults in our laws, which reflects the simple truth derived from communal experience that juveniles as a class have not the level of maturation and responsibility that we presume in adults and consider desirable for full participation in the rights and duties of modern life. [¶] ․ Adolescents ‘are more vulnerable, more impulsive, and less self-disciplined than adults,’ and are without the same ‘capacity to control their conduct and to think in long-range terms.’ ”]; accord, Hodgson v. Minnesota, supra, 497 U.S. at p. 459, 110 S.Ct. at pp. 2949–2950 (conc. opn. of O'Connor, J.); Bellotti v. Baird, supra, 443 U.S. at p. 635, 99 S.Ct. at p. 3044 (lead opn. of Powell, J.) [“Viewed together, our cases show that although children generally are protected by the same constitutional guarantees against governmental deprivations as are adults, the State is entitled to adjust its legal system to account for children's vulnerability and their needs for ‘concern, ․ sympathy, and ․ paternal attention.’ ”].)
The Legislature has the power to remove the disability in certain instances, as in the so-called medical emancipation statutes. (Fam.Code, § 6920 et seq.; see also Ballard v. Anderson, supra, 4 Cal.3d at p. 878, 95 Cal.Rptr. 1, 484 P.2d 1345 [discussing express limitations on the power of unemancipated minors to disaffirm their contracts for medical services].) It is not, however, constitutionally required to do so. We discern no basis for concluding that the addition by the electors of an express privacy provision to article I, section 1 of the California Constitution was intended to remove entirely an unemancipated minor's disability of nonage—even though that disability necessarily places limits on liberty and privacy interests that do not apply to adults.
Unemancipated minors also have limited privacy interests as against a parent. We have recognized a parent's right to direct his or her child's upbringing as “ ‘a compelling one, ranked among the most basic of civil rights.’ ” (In re Roger S., supra, 19 Cal.3d at p. 934, 141 Cal.Rptr. 298, 569 P.2d 1286; cf. Pierce v. Society of Sisters (1925) 268 U.S. 510, 535, 45 S.Ct. 571, 573, 69 L.Ed. 1070 [“The child is not the mere creature of the State; those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations.”].) Those rights include extensive power to direct the education of a child and to make critical decisions concerning medical treatment. The interest of a child in privacy yields to the necessity for parental guidance and oversight. A parent may, if he or she deems it advisable, give consent to most medical treatment of their unemancipated minor children, so long as it will not jeopardize health or safety—even if the child objects. Certainly, a parent can force an obdurate six-year-old—or sixteen-year-old—to get a tetanus vaccination.
Second, an unemancipated minor has a right to procedures that will protect her from arbitrary and drastic curtailment of her privacy interest by her parents, or, presumably, the state, no matter how well motivated.
In In re Roger S., we held that the physical restraint and injury to reputation of involuntary confinement in a mental hospital are consequences so severe that an unemancipated minor who is mature enough to participate intelligently in the decision must be permitted independently to assert his right to due process. Although pregnancy involves a different set of considerations, arbitrary curtailment of a pregnant unemancipated minor's privacy interest may result in emotional, physical, and psychological detriment that is equally, if not more, severe. “[T]he potentially severe detriment facing a pregnant woman [citation] is not mitigated by her minority. Indeed, considering her probable education, employment skills, financial resources, and emotional maturity, unwanted motherhood may be exceptionally burdensome for a minor. In addition, the fact of having a child brings with it adult legal responsibility, for parenthood, like the attainment of the age of majority, is one of the traditional criteria for the termination of the legal disabilities of minority. In sum, there are few situations in which denying a minor the right to make an important decision will have consequences so grave and indelible. [¶] Yet, an abortion may not be the best choice for the minor.” (Bellotti v. Baird, supra, 443 U.S. at p. 642, 99 S.Ct. at pp. 3047–3048 (lead opn. of Powell, J.).)
Justice Powell emphasized the “unique nature of the abortion decision, especially when made by a minor,” which requires the state “to act with particular sensitivity when it legislates to foster parental involvement in this matter.” (Bellotti v. Baird, supra, 443 U.S. at p. 642, 99 S.Ct. at p. 3047 (lead opn. of Powell, J.).) Because of the gravity of the decision whether to bear a child, we are persuaded that an unemancipated minor's interest in privacy under the California Constitution is at least as strong as that under the United States Constitution: neither a parent nor the state can exercise an absolute veto over a mature unemancipated minor's decision to terminate a pregnancy. (See Planned Parenthood of Central Missouri v. Danforth, supra, 428 U.S. at p. 74, 96 S.Ct. at p. 2843 [“[T]he State does not have the constitutional authority to give a third party an absolute, and possibly arbitrary, veto over the decision of the physician and his patient to terminate the patient's pregnancy, regardless of the reason for withholding the consent”]; Bellotti v. Baird, supra, 443 U.S. at p. 643, 99 S.Ct. at p. 3048 (lead opn. of Powell, J.) [if the state requires parental consent, it must provide for an alternative procedure for obtaining authorization for abortion].) The constitutionally protected interest in privacy of an unemancipated minor includes terminating her pregnancy if it is in her best interest to do so, or, if she is mature, if it is her informed decision to do so—even if her parent denies consent.
Third, although an unemancipated minor has a greater privacy interest if she is mature, even a mature unemancipated minor is not entitled to all of the same freedoms and protections as an adult in the same situation. Her interest in privacy is subject to greater restrictions, which may include parental consent or notice or judicial authorization that would not be justifiable in the case of an adult woman.
In In re Roger S., we rejected the petitioner's suggestion that a minor is entitled to all the procedures needed before an adult may be involuntarily committed to a state mental institution. Instead, we required only that before a minor could be committed by his parents to a mental institution, he must be afforded procedures to ensure “a fair opportunity to establish that (1) he is not mentally ill or disordered, or that, (2) even if he is, confinement in a state mental hospital is unnecessary to protect him or others and might harm rather than improve his condition.” (19 Cal.3d at p. 935, 141 Cal.Rptr. 298, 569 P.2d 1286.) We emphasized that “[p]rocedures designed to establish these facts are necessary to accommodate both the parent's right to control his child's development and the state's interest in limiting parental control when parental action may harm the physical or mental health of the child.” (Ibid.)
Assembly Bill No. 2274 accommodates the same balance of interests: the parent's right to control his child's development is advanced by the consent requirement, while the state's interest in limiting parental control when it might harm the physical or mental health of the child is advanced by providing a judicial bypass that includes a prompt hearing before a juvenile court judge, confidentiality, and a right to counsel. As in In re Roger S., the procedures adequately “protect [her] from arbitrary curtailment of [her privacy] interest in such a drastic manner no matter how well motivated.” (19 Cal.3d at p. 936, 141 Cal.Rptr. 298, 569 P.2d 1286.)
Next, Hill requires that the plaintiffs establish that a minor has a “reasonable expectation” that she will not be required to obtain parental consent, or authorization by way of a judicial bypass, before she can obtain an abortion. For the reasons discussed, we conclude that they do not make the requisite showing. Because an unemancipated minor has more limited privacy interests than an adult, her reasonable expectation of privacy is diminished: she may reasonably expect that neither her parent nor the state can exercise an absolute veto over her choice whether to terminate her pregnancy; she may not reasonably expect to have the unrestricted freedom of an adult to exercise that choice without authorization from a parent or a judge.
Plaintiffs point to the medical emancipation statutes, which permit an unemancipated minor to give consent to certain medical procedures, formerly including abortion, without parental approval. (Fam.Code, §§ 6925–6929; Ballard v. Anderson, supra, 4 Cal.3d at p. 884, 95 Cal.Rptr. 1, 484 P.2d 1345.) They assert that the unemancipated minor's interest in privacy requires no less.
The argument is unpersuasive. The ability of minors to obtain most medical procedures has always been, and still is, severely restricted; most procedures, including routine dental and medical care as well as surgery, require parental consent. There is, under our statutes, a general presumption that an unemancipated minor, unlike an emancipated minor or an adult woman, is incapable of informed consent.8 Moreover, although since Ballard v. Anderson, unemancipated minors have been able to give consent to therapeutic abortion, their ability to do so has never been unrestricted; it has depended on the determination of a third party, the treating physician, that she is capable of “informed consent.” 9
The legislation at issue here alters the procedure for an unemancipated minor obtaining an abortion, but it does not impose a restriction that could fairly be said to violate her “reasonable expectation” of privacy. Indeed, the legislation facilitates the ability of a mature unemancipated minor to obtain an abortion, regardless of parental consent, if she so chooses. It also facilitates the ability of an immature unemancipated minor to obtain an abortion, again regardless of parental consent, if it is in her best interest. Moreover, Assembly Bill No. 2274 preserves the confidentiality of the decision making process. In view of her more limited privacy interests, an unemancipated minor's “reasonable expectation” extends no further.
Finally, Hill requires that the plaintiffs establish that Assembly Bill No. 2274 constitutes a serious invasion of the privacy interest. “No community could function if every intrusion into the realm of private action, no matter how slight or trivial, gave rise to a cause of action for invasion of privacy․ 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.” (Hill, supra, 7 Cal.4th at p. 37, 26 Cal.Rptr.2d 834, 865 P.2d 633.)
Plainly, Assembly Bill No. 2274 does not constitute a serious breach of the social norms underlying the privacy “right” of unemancipated minors. It requires parental consent or a determination from a juvenile court judge that an unemancipated minor seeking an abortion is mature, or, even if not, that terminating her pregnancy is in her best interest. As discussed, California has long required parental consent before an unemancipated minor can undergo most medical procedures.
We have recognized that under our deeply rooted social norms, the privacy and liberty interests of unemancipated minors are generally more restricted than those of adults: “The liberty interest of a minor is qualitatively different from that of an adult, being subject both to reasonable regulation by the state to an extent not permissible with adults [citations] and to an even greater extent to the control of the minor's parents unless ‘it appears that the parental decisions will jeopardize the health or safety of the child or have a potential for significant social burdens.’ ” (In re Roger S., supra, 19 Cal.3d at p. 934, 141 Cal.Rptr. 298, 569 P.2d 1286.)
Nor do our social values and traditions exist in a vacuum. Thus, it is of some significance that most states have required parental notice or consent before an unemancipated minor can terminate her pregnancy by an abortion.10 Moreover, the United States Supreme Court, in upholding parental notice and consent statutes, has repeatedly emphasized that such requirements are consistent with our national social norms about the interests of unemancipated minors. That an unemancipated minor might prefer, for any number of reasons, not to be required to obtain consent from a parent or appear before a juvenile court judge—and may not have been required to do so under the prior law—does not mean, as the Court of Appeal concluded, that the legislative act is an “egregious breach of social norms” in requiring her to do so.11
In the ultimate analysis, plaintiffs fail to establish the threshold elements of their privacy claim under the California Constitution. Even if they had done so, their claim would fail nonetheless: the intrusion on any right to privacy enjoyed by an unemancipated minor is justified because it “substantively furthers one or more countervailing”—and, indeed, “compelling”—interests of the state. (Hill, supra, 7 Cal.4th at pp. 34, 40, 26 Cal.Rptr.2d 834, 865 P.2d 633.) 12
The state unquestionably has an interest in protecting the physical and mental health of unemancipated minors. That interest is both legitimate and compelling. The interest includes assuring that an unemancipated minor who desires an abortion is capable of giving informed consent or, even if not, that an abortion is in her best interest.
Under prior law, absent any statutory requirement to the contrary, the determination of informed consent was left to the physician: “A minor of any age who is unable to convince competent medical authorities that she has the requisite understanding and maturity to give an informed consent for any medical treatment, including a therapeutic abortion, will be denied such treatment without the consent of either a parent or legal guardian.” (Ballard v. Anderson, supra, 4 Cal.3d at p. 883, 95 Cal.Rptr. 1, 484 P.2d 1345, fn. omitted.) As the trial court here underscored: “the physician who performs the abortion must be satisfied that the minor is, in fact, capable of giving informed consent for that procedure and that her decision to have an abortion, is, in fact, the result of such informed consent. If the physician is not satisfied in this regard, he/she cannot and will not perform an abortion.”
Assembly Bill No. 2274 provides that the determination of informed consent will, instead, be made by a parent or a juvenile court judge. It presumes that a parent—as opposed to a physician—is the person most likely to have knowledge of an unemancipated minor's maturity and ability to give informed consent, and, unlike a physician, is capable of determining, in the case of an unemancipated immature minor, what is in her best interest. It provides, however, that when that presumption fails, or when an unemancipated minor either cannot or, for whatever reason, will not, seek consent from a parent, a neutral juvenile court judge, as opposed to a physician, must make the determination whether she is mature enough to give informed consent, or, as a physician cannot do, authorize an abortion that is nonetheless in her best interest.
The trial court concluded that the legislation, though perhaps reasonable in purpose, does not, in fact, advance any compelling interest. It based the conclusion on extensive findings of fact and conclusions of law. Principally, it determined that abortion is “one of the safest medical procedures available for all women and, in particular, for teenagers”; that “for the great majority of minors, abortion has no serious medical, emotional, or psychological consequences and poses no significant risk to their physical well being”; and that “with the exception of the small percentage of very young adolescents, again the great majority of minors possess the cognitive ability and maturity to make a fully-informed choice.”
The People contend that the evidence on these issues was conflicting and subject to debate; some of the findings are supported by studies whose results are, at the very least, counterintuitive, e.g., the finding that “adolescents as a group do not differ from adults as a group with respect to how they make the decision as to whether or not to have an abortion.” 13 Moreover, they suggest that most of the statutes requiring parental consent for medical procedures are founded on the counterassumption, that unemancipated minors are not, as a group, as capable as adults of making decisions about short- and long-term effects of medical procedures. They argue that the factual findings are immaterial; because the Legislature reasonably believed it was furthering legitimate interests, we must accept as true its “findings” to that effect.14
We need not decide whether the trial court's findings, if supported by substantial evidence, are binding on this court, and whether they can override contrary legislative findings. Even accepting those findings by the trial court that are supportable, we conclude that they do not establish that the compelling interest of protecting the physical and mental health of unemancipated minors is not substantively advanced. That is, in large part, because the determination whether any individual unemancipated minor is sufficiently mature to make a fully informed choice about abortion cannot rest on statistics about “adolescents as a group” or generalities about “the great majority of minors.” Although this is particularly crucial in the case of “very young adolescents,” absent a bright-line rule concerning when an unemancipated minor is “mature,” someone must in every case make the determination whether an individual unemancipated minor is capable of giving informed consent, or, if not, whether the procedure is in her best interest. (Ballard v. Anderson, supra, 4 Cal.3d at p. 883, 95 Cal.Rptr. 1, 484 P.2d 1345.) 15
The Legislature could reasonably determine that the decision should not be left in the hands of the treating physician, if for no other reason than the fact that in the case of an unemancipated minor, unlike an adult, there is no presumption that she is capable of giving informed consent.16 Nor, of course, is a physician's determination that an unemancipated minor has given informed consent legally dispositive. Moreover, a physician is ethically barred from performing an abortion without parental consent or judicial authorization—even if it is in the unemancipated minor's best interest—if she is not sufficiently mature to give informed consent(Ballard v. Anderson, supra, 4 Cal.3d at p. 883, 95 Cal.Rptr. 1, 484 P.2d 1345). Assembly Bill No. 2274 facilitates a determination of whether abortion is in the unemancipated minor's best interest in such cases, even if she cannot, or will not, obtain parental consent.17
There are, of course, additional considerations. In any individual case, factors beyond mere medical judgment may weigh in favor of, or against, an abortion. A parent may offer a more complete and accurate perspective on those factors than a physician, as might a neutral juvenile court judge in a bypass procedure. Further, unlike a parent acting in the unemancipated minor's overall best interest or a neutral judge, a physician may have a “ ‘direct, personal, substantial, pecuniary interest in reaching a conclusion’ ” (Belous, supra, 71 Cal.2d at p. 972, 80 Cal.Rptr. 354, 458 P.2d 194), or a personal bias in favor of—or against—abortion. As Justice Stewart observed: “There can be little doubt that the State furthers a constitutionally permissible end by encouraging an unmarried pregnant minor to seek the help and advice of her parents in making the very important decision of whether or not to bear a child․ It seems unlikely that she will obtain adequate counsel and support from the attending physician at an abortion clinic, where abortions for pregnant minors frequently take place.” (Planned Parenthood of Central Missouri v. Danforth, supra, 428 U.S. at p. 91, 96 S.Ct. at p. 2851, fn. omitted (conc. opn. of Stewart, J.).) By the same token, she may not obtain objective counsel and support from the attending physician at an anti-abortion, or “pro-life,” pregnancy clinic.
The trial court's findings do not establish that voluntary parental involvement is detrimental. Indeed, on the contrary, the trial court determined, based on extensive uncontroverted evidence, that, ordinarily, encouraging unemancipated minors to consult with a parent about an abortion decision serves to promote the physical and emotional welfare of children. The legislation advances the state's compelling purpose to the extent that it encourages unemancipated minors to obtain parental consent.
The trial court also found, however, that “parental involvement laws do not serve to change the numbers [of minors who involve a parent].” The finding is based primarily on a single study comparing the rate of involvement of parents in the abortion decisions of minors in Minnesota, which requires consent, and Wisconsin, which does not. (Blum et al., The Impact of a Parental Notification Law on Adolescent Abortion Decision-making (1987) 77 Am.J.Pub. Health 619.) The study is doubtful authority for the conclusion that enactment of the Minnesota parental involvement law had no effect on the percentage of adolescents who involved their parents in the abortion decision.18 The additional evidence in point was conflicting and largely anecdotal.19
In any event, however, even if the rate of parental involvement remained the same, that fact would not be dispositive. The legislation takes into account that not all emancipated minors will seek parental consent; a significant number may not. Indeed, in some instances, it could be positively detrimental to an unemancipated minor to inform her parents. Again, that does not mean that a physician should—or can—make the determination whether the unemancipated minor is mature, or whether an abortion is nevertheless in her best interest. The Legislature has provided for a judicial bypass in those instances.
The trial court also concluded that a judicial bypass does not advance the state's purpose and would “result in more harm than help” for those unemancipated minors who lack a “realistic option” of consulting with their parents. The conclusion is unsound.
The trial court stated that the judicial bypass procedure “is of absolutely no benefit to minors”: it “has no effect on a minor's ultimate decision with respect to abortion ․ [and] rather than providing a benefit to minors ․ poses a gratuitous threat to their physical and emotional well-being.” The statements are based exclusively on expert testimony and submissions concerning judicial bypass procedures in other states. The trial court placed great emphasis on the testimony of three judges—two judges from Minnesota and one from Massachusetts—that they felt like “a rubber stamp” and did not “make any difference” in the decisions of the minors who petitioned for a judicial bypass. It also stressed the testimony of some out-of-state witnesses that adolescents using the bypass procedure manifest anxiety and find the experience “nerve-racking.” 20
Evidence concerning the way different statutes have operated in different states is of limited value in evaluating the constitutionality of Assembly Bill No. 2274.21 Any assessment of the bypass system in the California juvenile courts must of necessity await implementation of the statute. We cannot determine, in advance of its implementation, that the judicial bypass under Assembly Bill No. 2274 is pointless or unduly intimidating to minors, let alone that it poses a “threat to their physical and emotional well-being.”
The findings are, moreover, largely beside the point. The purpose of the California judicial bypass is not to have an “effect” one way or another on a mature unemancipated minor's “ultimate decision with respect to abortion.” Its purpose, instead, is to determine whether an unemancipated minor is, in fact, mature enough to give informed consent, and, if not, whether an abortion is in her best interest. Thus, even if the findings are accepted, i.e., that in most cases, an unemancipated minor seeking a judicial bypass will receive authorization for an abortion, the judicial bypass nonetheless advances substantial purposes not addressed by the prior law. It provides for a disinterested and neutral judicial determination of each individual unemancipated minor's ability to give informed consent; it also allows immature unemancipated minors who cannot, for whatever reason, obtain parental consent, to obtain a determination by a juvenile court judge whether abortion is in her best interest and, if it is, authorization for the procedure.
Although requiring an unemancipated minor to obtain parental consent or a judicial bypass may result in some delay in obtaining an abortion, plaintiffs have not demonstrated that the legislation will result in a substantially increased health risk to unemancipated minors seeking abortion. An unemancipated minor who obtains parental consent may suffer no delay at all. Even if she uses the judicial bypass, once she files a petition with the juvenile court, the legislation requires that a hearing be set within three days and judgment must be entered within one day of submission of the matter. (Health & Saf.Code, § 123450, subds. (b) & (c).) Any appeal must be set within five days of filing the notice for appeal and judgment must be entered within one court day of submission of the matter. (Id., subd. (d).) Use of the judicial bypass, then, may, at most, result in a delay of approximately two weeks. Although there is some degree of increased risk with delay, abortion remains, as the trial court found, “one of the safest medical procedures available for all women and, in particular, for teenagers.” One physician testified that “it has the lowest rate of deaths associated with it and also the lowest rate of serious complications in comparison to any other operation which is widely performed in this country.” 22
We also conclude that the judicial bypass is minimally intrusive: it is speedy, informal, and confidential. There is no substantial evidence supporting the trial court's “finding” that requiring an unemancipated minor to appear before a juvenile court judge for an expedited, informal hearing on these important questions—even if somewhat intimidating—poses a “gratuitous threat” to the physical and emotional well-being of either a mature or an immature unemancipated minor.
The state has carried its burden of showing that the legislation substantively furthers a “compelling interest” and that there were “no less intrusive means” of accomplishing its legitimate objectives. (Hill, supra, 7 Cal.4th at p. 49, 26 Cal.Rptr.2d 834, 865 P.2d 633.) Accordingly, we must proceed to the additional issues raised: whether Assembly Bill No. 2274 violates an unemancipated minor's right to informational privacy, and whether it violates the equal protection clause of article I, section 7 of the California Constitution.
The trial court erred in concluding that the judicial bypass procedures violate an unemancipated minor's right to informational privacy, i.e., the interest in preventing dissemination or misuse of sensitive confidential information.
As Hill emphasizes, informational privacy is the “core value furthered by the Privacy Initiative.” (Hill, supra, 7 Cal.4th at p. 35, 26 Cal.Rptr.2d 834, 865 P.2d 633.) “A particular class of information is private when well-established social norms recognize the need to maximize individual control over its dissemination and use to prevent unjustified embarrassment or indignity.” (Ibid.) The right to informational privacy is not, however, absolute. “Invasion of a privacy interest is not a violation of the state constitutional right to privacy if the invasion is justified by a competing interest․ [¶] ․ [I]f intrusion is limited and confidential information is carefully shielded from disclosure except to those who have a legitimate need to know, privacy concerns are assuaged.” (Id. at p. 38, 26 Cal.Rptr.2d 834, 865 P.2d 633.)
The disclosures required under Assembly Bill No. 2274 do not violate an unemancipated minor's reasonable expectation of privacy or seriously invade her privacy interest. An unemancipated minor who seeks parental consent for an abortion will be required to disclose the fact of her pregnancy to her parent. In light of an unemancipated minor's limited privacy interest as against her parents, we conclude that her reasonable expectation of privacy is not violated. She may, of course, elect not to tell her parents anything at all and seek a judge's authorization.
An unemancipated minor who seeks judicial authorization for an abortion will be required to provide certain confidential information to the juvenile court. The disclosures required are minimal; Assembly Bill No. 2274 requires no more information than is necessary to satisfy the state's compelling interest in protecting the physical and mental health of unemancipated minors, by providing a judicial bypass for determining whether an unemancipated minor seeking an abortion is mature, or, if she is not, whether an abortion is in her best interest.
Thus, Assembly Bill No. 2274 permits a petitioner to use only her initials or a pseudonym and requires the juvenile court to ensure that the unemancipated minor's identity is held confidential. (Health & Saf.Code, § 123450, subd. (b).) Although the petitioner must file an affidavit with her real name and date of birth, any declarations bearing her real name must be sealed in an envelope marked confidential; all documents filed in any proceeding may be inspected only by the judge, specifically authorized court personnel, the petitioner, her attorney, and her guardian ad litem. (Id., subd. (c); Cal. Rules of Court, rule 240(c) & (j), form AB–110.)
The medical information required to be disclosed is minimal. The forms adopted by the Judicial Council require the unemancipated minor to state how she knows she is pregnant, how many weeks pregnant she is, whether she has talked to someone about the medical and emotional consequences, and where she receives her usual health care. They do not require disclosure of detailed medical information or history. (Cal. Rules of Court, rule 240(j), form AB–105.)
Citing our decision in Committee to Defend Reproductive Rights v. Myers, supra, 29 Cal.3d 252, 172 Cal.Rptr. 866, 625 P.2d 779, the trial court also concluded that the Assembly Bill No. 2274 violates equal protection by distinguishing between two similarly situated groups: pregnant unemancipated minors who choose abortion and pregnant unemancipated minors who choose to carry their pregnancies to term. It concluded that because unemancipated minors who carry their pregnancies to term may obtain medical care without parental consent, unemancipated minors who seek to terminate their pregnancies cannot be required to obtain consent or judicial authorization.
We disagree. Assembly Bill No. 2274 does not unfairly discriminate on the basis of an unemancipated minor's reproductive choice.
In Committee to Defend Reproductive Rights v. Myers, supra, 29 Cal.3d 252, 172 Cal.Rptr. 866, 625 P.2d 779, we emphasized that “the decision whether to bear a child or to have an abortion is so private and so intimate that each woman in this state—rich or poor—is guaranteed the constitutional right to make that decision as an individual, uncoerced by governmental intrusion.” (Id. at p. 284, 172 Cal.Rptr. 866, 625 P.2d 779, italics in original.) Accordingly, we invalidated budget act restrictions that eliminated Medi–Cal funding of abortion while maintaining Medi–Cal funding of prenatal care and childbirth, on the ground that the restrictions lacked compelling justification. We rejected the suggestion that restrictions on the funding of abortions relate to a legitimate state interest in encouraging childbirth: once the state “ ‘chooses to enter the constitutionally protected area of [reproductive] choice, it must do so with genuine indifference.’ ” (Id. at p. 285, 172 Cal.Rptr. 866, 625 P.2d 779.)
Myers is not controlling. First, Assembly Bill No. 2274 does not effectively nullify the constitutional right to abortion, through the “power of the purse” or otherwise. (See Committee to Defend Reproductive Rights v. Myers, 29 Cal.3d at p. 284, 172 Cal.Rptr. 866, 625 P.2d 779.) Nor does it involve imposing a condition on the enjoyment of publicly conferred benefits. The Court of Appeal's attempt to draw an analogy between the benefit of government funding and “the ‘benefit’ of consent without parental involvement” is wholly unpersuasive; indeed, the parties agree that for most unemancipated minors, parental involvement—not its absence—is beneficial. More fundamentally, unlike the legislation in Myers, Assembly Bill No. 2274 affects unemancipated minors, whose rights and interests, as discussed, are distinct from those of adult women.
Plaintiffs contend that because the “right” to give birth is not burdened with a consent requirement, no such burden can be imposed on the “right” to an abortion. They argue that Legislature's decision to burden only abortion cannot be justified as promoting the welfare of teenagers because the medical, psychological, and social consequences of choosing teenage motherhood are more profound than the consequences of terminating an unplanned pregnancy. Their suggestion that any burden on an unemancipated minor's reproductive choice must be “equal” fails to withstand scrutiny: an unemancipated minor seeking an abortion and an unemancipated minor carrying a pregnancy to term are not similarly situated.23
Thus, the Legislature could legitimately require that a pregnant unemancipated minor's interest in consenting to medical treatment differs depending on whether she chooses to carry her fetus to term or to obtain an abortion. It could reasonably, and neutrally, determine, as a matter of policy, that in the case of an unemancipated minor who is pregnant and intends to bear a child the public health interest in allowing her to obtain medical care for herself and her fetus is overriding, regardless of parental approval and whether or not the unemancipated minor is mature. It is widely accepted that early prenatal care can reduce medical risks and assure a healthy outcome for both the mother and child. At the same time, the Legislature could neutrally determine that voluntary abortion, which ordinarily involves an optional surgical procedure with significant consequences, requires mature consent or a determination that it is in the unemancipated minor's best interest.
Plaintiffs implicitly concede as much when they acknowledge that the Legislature may recognize legitimate differences between the needs of women who choose childbirth or abortion. A fortiori, it may also do so in the case of unemancipated minors making the same choice, whose needs and interests may require protections distinct from those accorded to adult women.
Because we conclude, for all the foregoing reasons, that Assembly Bill No. 2274 withstands the constitutional challenges raised by plaintiffs, we reverse the judgment of the Court of Appeal with directions to reverse the judgment of the trial court, with directions to enter judgment in favor of the People.
California's parental consent law, which prohibits abortions for women under the age of 18 years without either the consent of one parent or judicial authorization, may at first glance appear so eminently reasonable that its constitutional validity could scarcely be in doubt. But evidence received at the trial of this case, much of it based on the experience of other states with similar laws, shows that the benevolent appearance of parental involvement laws is deceiving; the laws have serious adverse effects and yield few benefits for children or society.
In brief, the relevant facts are these: Most adolescent women who become pregnant will consult a parent voluntarily, and those who do not frequently have good reasons for not doing so. With a parental consent law in effect, some pregnant adolescents who do not voluntarily consult a parent will seek and obtain judicial authorization, but the delay caused by the procedure will increase the medical risks of the abortion significantly without in any way enhancing the process by which the adolescent makes the abortion decision. Others will reveal their pregnancy to a parent and request consent, but will derive little or no benefit from parental consultation that is legally coerced rather than voluntary. Finally, there will be some pregnant adolescents who cannot or will not obtain parental consent for an abortion and who will not seek judicial authorization because they perceive this process as unbearably intimidating, dangerous, or humiliating. Some of these adolescents will risk their health and their very lives with illegal or self-induced abortion, while others will delay any decision until abortion is no longer feasible and will bear a child they are ill equipped to care for.
Determining the constitutional validity of a law having such paradoxical and potentially serious effects is no easy task. Indeed, this case presents a confluence of state constitutional issues of great complexity and delicacy. We must adjudicate rights under the state constitutional right of privacy in the always thorny context of abortion, rendered all the more volatile and challenging because the rights at issue are those of adolescents rather than adults. And we must do so using a test newly established in Hill v. National Collegiate Athletic Assn. (1994) 7 Cal.4th 1, 26 Cal.Rptr.2d 834, 865 P.2d 633. Without question this is one of the most important and difficult cases we have decided in many years.
Unfortunately, this court has not risen to the occasion. The majority ignores the distinction between rights and interests, hopelessly confusing these two distinct concepts and straying from the analysis mandated by Hill v. National Collegiate Athletic Assn., supra, 7 Cal.4th 1, 26 Cal.Rptr.2d 834, 865 P.2d 633. Where sensitive and penetrating analysis is called for, the majority relies instead on abstract categorical pronouncements about the inferior legal status of children. Disregarding the superior court's findings in this case, which are solidly grounded in the best scientific evidence available, the majority relies instead on assumptions grounded in nothing more than comfortable platitudes and folk wisdom.
I would affirm the judgment of the Court of Appeal holding that California's parental consent law violates the right of privacy guaranteed by our state Constitution. As the evidence received at the trial of this case persuasively demonstrates, the great majority of pregnant adolescents who do not voluntarily consult their parents are sufficiently mature to make the abortion decision by themselves and should be permitted to do so in consultation with their physicians and without requiring parental consent or judicial authorization.
There is a very small group of pregnant adolescents for whom parental consent is not an available option but who are too immature to give informed consent to an abortion. Almost all members of this group are under the age of 14 years. Because the Legislature has not enacted a parental consent law applying solely to these younger adolescents, and thus the issue is not now before this court, I do not decide whether a parental consent law so narrowed in focus would violate the state constitutional right of privacy, although I note that the interests of these younger adolescents would be better served by a law that allowed their physicians or others concerned with their welfare to petition for judicial authorization on their behalf. The present parental consent, by contrast, requires the adolescent herself to shoulder the entire burden of initiating legal proceedings to obtain judicial authorization.
Preliminarily, it is essential to state what this case is not about.
The morality of abortion is not at issue in this case. As this court has noted, the morality of abortion 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 (lead opn. by Tobriner, J.), fn. omitted.) The United States Supreme Court has made the same point: “Men and women of good conscience can disagree, and we suppose some always shall disagree, about the profound moral and spiritual implications of terminating a pregnancy, even in its earliest stage․ Our obligation is to define the liberty of all, not to mandate our own moral code.” (Planned Parenthood of Southeastern Pa. v. Casey (1992) 505 U.S. 833, 850, 112 S.Ct. 2791, 2806, 120 L.Ed.2d 674.)
Nor is this case about the value of parental involvement in the decision of a pregnant adolescent to continue or terminate her pregnancy. On the contrary, all parties and all members of this court agree that, in general, an adolescent who learns she is pregnant and is considering an abortion will benefit substantially from consultation with a parent and should be encouraged to do so. Parental assistance is important and beneficial because, in general, no one knows the child as well, or cares as deeply about the child's welfare, as the parent.
Likewise, all parties and all members of this court agree that parental involvement will not benefit every pregnant adolescent. Not every pregnant adolescent has parents out of the comforting and idyllic world of a Norman Rockwell painting. Indeed, anyone familiar with the dependency cases heard in this state's juvenile courts understands that many pregnant adolescents have no competent and caring parent to consult, and that for them parental consultation is simply not an option.
What is this case about? The primary issues are these: (1) Will the parental consent law advance the state's interest in protecting the physical and mental health of adolescent women by “assuring that an unemancipated minor who desires an abortion is capable of giving informed consent or, even if not, that an abortion is in her best interest” (maj. opn., ante, at pp. 215–216 of 51 Cal.Rptr.2d, pp. 1162–1163 of 912 P.2d)? (2) If the law will accomplish this purpose for only a small percentage of the adolescents affected by its provisions, is there some other way to do so without the substantial adverse effects that will arise from the legally mandated invasion of the privacy rights of the many adolescents who wish to have an abortion, are capable of giving informed consent, and cannot or will not obtain parental consent?
This court is fortunate to have a well-developed factual record, largely ignored by the majority, with which to resolve these issues. At the trial, 25 witnesses testified in person and 6 others by deposition. The witnesses included distinguished professionals in the fields of medicine, psychology, adolescent development, reproductive health statistics, and family violence, as well as lawyers, counselors, and judges who have participated in the implementation of similar laws in other states. Based on this evidence, the superior court issued a 39–page statement of decision containing many findings of fact. On appeal, the state has not challenged the sufficiency of the evidence to support these findings.
In its statement of decision, the superior court acknowledged that “the State has a compelling interest in the protection of minors from physical, psychological and emotional harm.” But the court found no evidence that the parental consent law would further that interest. In particular, the court found:
1. “[A]n abortion is one of the safest medical procedures available for all women and, in particular, for teenagers. The risk of complications in pregnancy and childbirth are significantly higher for all women and particularly for younger teenagers.” 1
2. “The medical history relevant to the abortion procedure is the type of information the minor herself would best know and, in fact, might be hesitant to disclose in the presence of a parent.” 2
3. “[M]inors rarely, if ever, experience complications following an abortion.”
4. “[F]or most women, abortion poses no threat to their psychological or emotional well-being․ [A]dolescents are at no special risk and are actually less likely than adult women to experience any adverse psychological reaction to abortion.” 3
5. “[P]arental involvement in this specific area may have an adverse psychological effect ․ if it takes on a coercive character, and ․ the ability to make an autonomous decision about abortion is an important predictor of a minor's satisfaction with her decision.” 4
6. “[W]ith the exception of the small percentage of very young adolescents, again the great majority of minors possess the cognitive ability and maturity to make a fully-informed choice as to abortion and are competent to give informed consent to abortion․” 5
7. “[A]s to that small percentage of minors who are not competent to give informed consent, medical ethics and practices preclude abortion in the absence of parental approval.” 6
The superior court then considered whether the parental consent law would further the state's compelling interest in “preserving and fostering the parent-child relationship.” On this point, the court made these findings:
1. “[A] majority of minors voluntarily consult with a parent as to their decision to have an abortion.”
2. “[P]arental involvement laws do not serve to change the numbers [that is, do not increase the number of minors who consult with a parent as to their decision to have an abortion].” 7
3. “Rather than legislation, the chief determinant of whether a minor consults a parent appears to be the quality of the relationship established between the parent and child before the pregnancy.” 8
4. “[I]f a trusting and supportive relationship between a parent and child has not already been established, it is unlikely that the State can create in a moment of crisis what the parents were unable to develop over the course of the preceding years.”
5. “[F]or a significant number of minors, parental consultation is not a realistic option.” 9
Regarding the effect of a judicial bypass procedure, the superior court found that in other states with parental consent laws “rather than further the State's interest in the health of its minors, or even having no effect at all, the legislation actually had a detrimental effect.” In particular, the court found:
1. The bypass procedure delays the performance of the abortion, and “increases the likelihood of a second trimester abortion.” This delay significantly increases the medical risks of abortion.10
2. “In addition to adverse medical consequences, the bypass procedure entails serious psychological and emotional consequences.” 11
3. The bypass procedure does not assist pregnant minors in making “a mature and informed decision.” 12
Summing up, the superior court made this finding:
“One must conclude from all of the evidence presented as to the effectiveness of the judicial bypass procedure that the procedure has no effect on a minor's ultimate decision with respect to abortion nor on the process by which that decision is made. Further, rather than providing a benefit to minors, the bypass procedure poses a gratuitous threat to their physical and emotional well-being.”
Concluding that the parental consent law violates the right of privacy guaranteed by article I, section 1, of the California Constitution, the superior court declared the law invalid and permanently enjoined its enforcement. On appeal, a unanimous Court of Appeal affirmed.
The issue before this court is whether California's parental consent law violates the privacy rights of minors guaranteed by the California Constitution.
Unlike the federal Constitution, the California Constitution expressly recognizes and safeguards the right of privacy. In article I, section 1, the California Constitution provides: “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.” (Italics added.) The words “and privacy” were added by an initiative adopted by the voters on November 7, 1972 (hereafter the Privacy Initiative).
The elements of a cause of action for invasion of the state constitutional right to privacy are: (1) a legally protected privacy interest; (2) a reasonable expectation of privacy on the plaintiff's part; and (3) an invasion of the privacy interest that is “serious” rather than “slight or trivial.” (Hill v. National Collegiate Athletic Assn., supra, 7 Cal.4th 1, 35–37, 26 Cal.Rptr.2d 834, 865 P.2d 633.) Once a plaintiff has established these elements, the defendant may defend on the basis “that the invasion of privacy is justified because it substantively furthers one or more countervailing interests.” (Id. at p. 40, 26 Cal.Rptr.2d 834, 865 P.2d 633.) If this defense is raised, the plaintiff may rebut it by “showing there are feasible and effective alternatives to defendant's conduct which have a lesser impact on privacy interests.” (Ibid.)
A. Legally Protected Privacy Interest
Privacy interests are of two kinds: (1) autonomy privacy, which is the interest “in making intimate personal decisions or conducting personal activities without observation, intrusion, or interference”; and (2) informational privacy, which is the interest in preventing “dissemination or misuse of sensitive and confidential information.” (Hill v. National Collegiate Athletic Assn., supra, 7 Cal.4th 1, 35, 26 Cal.Rptr.2d 834, 865 P.2d 633.)
A woman's decision to continue or terminate a pregnancy implicates both of these privacy interests, but I will focus here only on the interest in autonomy privacy. Because I conclude that the parental consent law is an unconstitutional invasion of the autonomy interest, I need not and do not address whether it is also an unconstitutional invasion of the informational privacy interest.
“It is inherent in the right to make the abortion decision that the right may be exercised without public scrutiny and in defiance of the contrary opinion of the sovereign or other third parties.” (Bellotti v. Baird (1979) 443 U.S. 622, 655, 99 S.Ct. 3035, 3054, 61 L.Ed.2d 797 (conc. opn. of Stevens, J.).) Few decisions are more intimate or more important in determining the subsequent course of a woman's life than her decision to continue or terminate a pregnancy. Not surprisingly, this court has recognized that the state constitutional right of privacy protects a woman's right to choose whether or not to give birth, including the right to terminate a pregnancy by abortion. (See Committee to Defend Reproductive Rights v. Myers, supra, 29 Cal.3d 252, 262, 172 Cal.Rptr. 866, 625 P.2d 779; People v. Belous (1969) 71 Cal.2d 954, 963, 80 Cal.Rptr. 354, 458 P.2d 194.)
The majority concedes that pregnant adolescents have a legally protected privacy interest in procreative choice, but it asserts that this interest “is neither coequal with that of an adult, nor, in the case of an immature unemancipated minor, absolute even in the early stages of pregnancy.” (Maj. opn., ante, at p. 209 of 51 Cal.Rptr.2d, p. 1156 of 912 P.2d.) Additionally, the majority asserts that “the privacy interests of an unemancipated minor are qualitatively different from those of an adult.” (Id. at p. 209 of 51 Cal.Rptr.2d, p. 1156 of 912 P.2d.) These assertions confuse the separate concepts of interests and rights. More importantly, by attempting to weigh or quantify the privacy interest at stake by reference to the holder of that interest, rather than simply acknowledging that plaintiffs have identified a recognized privacy interest, the majority collapses and combines distinct steps in the analysis mandated by this court's decision in Hill v. National Collegiate Athletic Assn., supra, 7 Cal.4th 1, 26 Cal.Rptr.2d 834, 865 P.2d 633. By prematurely giving weight to considerations that bear only on the seriousness of or the justification for the invasion of the privacy interest, the majority artificially inflates the importance of those considerations in the constitutional analysis.
The term “interest” generally means “having a share or concern” in some thing so that one is “liable to be affected or prejudiced” depending on its condition or outcome. (Estate of Brown (1938) 24 Cal.App.2d 573, 575, 75 P.2d 658.) The term may be used to refer to “the object of any human desire” (Rest.2d Torts, § 1), whether beneficial or not, or only to “that which is ‘truly good for a person whether he desires it or not.’ ” (Houlgate, The Child & the State, A Normative Theory of Juvenile Rights (1980) p. 105, quoting Feinberg, Social Philosophy (1973) p. 26; see also Scott v. McPheeters (1939) 33 Cal.App.2d 629, 631, 92 P.2d 678 [defining “interest” as “anything that is profitable or beneficial”].) But the term “interest,” by itself, “carries no implication that the interest is or is not given legal protection.” (Rest.2d Torts, § 1, com. a, p. 2.) When an interest has legal protection, it is then referred to as a “right.” (Id., § 1, com. b, p. 2.)
Every pregnant woman, regardless of age, is vitally affected by the decision to continue or terminate her pregnancy and stands to gain or lose depending upon whether that decision is made without interference by the state or any other third party and without public disclosure. Thus, the privacy interest in procreative choice does not vary based on the age or maturity of the pregnant woman whose choice is at issue.
This is not to say that a child's privacy right in procreative choice under the state Constitution is equal in all respects to that of an adult. Generally speaking, children's constitutional rights are not coextensive with those of adults in similar situations. (See, e.g., McKeiver v. Pennsylvania (1971) 403 U.S. 528, 545, 91 S.Ct. 1976, 1986, 29 L.Ed.2d 647 [no right to jury trial in juvenile court delinquency adjudication]; Prince v. Massachusetts (1944) 321 U.S. 158, 170, 64 S.Ct. 438, 444, 88 L.Ed. 645 [stating that “the power of the state to control the conduct of children reaches beyond the scope of its authority over adults”].) But this is not because of any inherent qualitative difference between the interests of children and those of similarly situated adults; rather, it is because children's interests are counterbalanced by other significant interests, including the interest of the state, as parens patriae, in protecting youth, the interest of parents in preserving their relationships with and their authority over their children, and the interests shared by children and their parents in family autonomy and family privacy. (See Mnookin et al., In the Interest of Children (1985) p. 32; Keiter, Privacy, Children, and Their Parents: Reflections On and Beyond the Supreme Court's Approach (1982) 66 Minn.L.Rev. 459, 492–493.)
Under Hill v. National Collegiate Athletic Assn., supra, 7 Cal.4th 1, 26 Cal.Rptr.2d 834, 865 P.2d 633, a court considers these countervailing interests in due course after it has found the elements of a privacy cause of action: (1) a significant, legally protected privacy interest; (2) a reasonable expectation of privacy under the circumstances; and (3) an actual or threatened invasion of this privacy interest that is sufficiently serious to warrant constitutional protection. If these elements are present, the scope of the right of privacy in a given context can be determined only by undertaking the full analysis mandated by this court's decision in Hill v. National Collegiate Athletic Assn., supra, 7 Cal.4th 1, 26 Cal.Rptr.2d 834, 865 P.2d 633.
When it asserts that children's privacy interests are necessarily and invariably inferior to those of adults (because of countervailing interests that often exist), before even examining the state's proffered justification, the majority begs the question (Do the countervailing interests justify this particular invasion of this particular privacy interest?) and invites analytical incoherence and confusion. The majority substitutes a general proposition (courts have often sanctioned invasion of children's interests that would be unconstitutional if the interests were those of adults) for the careful and fact-specific analysis that the Constitution requires. In short, the majority's categorical assertion that an adolescent's privacy interests “are qualitatively different from those of an adult” (maj. opn., ante, at p. 209 of 51 Cal.Rptr.2d, p. 1156 of 912 P.2d) is simply a means of short-weighting the scales of constitutional analysis to ensure that adolescents receive diminished privacy protection without engaging in the judicial labor required to carefully identify and weigh the relevant competing interests and to determine how the law affects them.
Moreover, as the majority concedes (maj. opn., ante, at p. 209 of 51 Cal.Rptr.2d, p. 1156 of 912 P.2d), nothing in the history or language of the privacy provision of the California Constitution suggests that it was intended for adults alone or that children were to receive only some greatly watered-down protection. The ballot pamphlet argument in support of the Privacy Initiative advised voters that the initiative “creates a legal and enforceable right of privacy for every Californian ” and, even more explicitly, that “[t]here should be no ambiguity about whether our constitutional freedoms are for every man, woman and child in this state.” (Ballot Pamp., Proposed Amends. to Cal. Const. with argument to voters, Gen Elec. (Nov. 7, 1972) argument in favor of Prop. 11, pp. 26–27, underlining deleted, italics added.)
B. Reasonable Expectation of Privacy
During childhood and adolescence, a person prepares for life as an adult, gradually assuming greater control and responsibility over his or her life. The pace of this developmental process should be regulated so that it is neither too fast nor too slow. The emerging adults should be neither charged with responsibilities they are not yet competent to handle nor deprived of control over matters they are perfectly able to deal with on their own.
During the process of human growth, therefore, the individual's competence gradually increases, accompanied by a gradual increase in the control a person exercises over his or her life. This expanding competence and control, in turn, supplies the individual with a reasonable expectation that he or she will be permitted to exercise that control without undue interference from parents or others who are charged with supervising the child's development. Accordingly, we may conclude that an adolescent has a reasonable expectation of autonomy privacy—that is, the power to make a decision without outside interference, observation, or disclosure—as to decisions that are within that person's competence and that are protected by the right of privacy for adults.
An adult woman's decision to either continue a pregnancy to term or terminate it by abortion is protected by the right of privacy under both the state and federal Constitutions. (Roe v. Wade (1973) 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147; Doe v. Bolton (1973) 410 U.S. 179, 93 S.Ct. 739, 35 L.Ed.2d 201; Committee to Defend Reproductive Rights v. Myers, supra, 29 Cal.3d 252, 262, 172 Cal.Rptr. 866, 625 P.2d 779.) An adolescent woman may reasonably expect the same privacy protection if she is mature enough to make the decision competently by herself. The question, then, is this: At what point in a woman's growth from childhood to adulthood does she acquire the competence to make this decision?
After considering the evidence presented by the parties in this case, the superior court found that “with the exception of the small percentage of very young adolescents ․ the great majority of minors [who have become pregnant] possess the cognitive ability and maturity to make a fully-informed choice as to abortion and are competent to give informed consent to abortion.”
The evidence at trial amply supports this finding. Gary Melton, a professor of psychology, testified that after the United States Supreme Court's decisions in Bellotti v. Baird, supra, 443 U.S. 622, 99 S.Ct. 3035, 61 L.Ed.2d 797 and H.L. v. Matheson (1981) 450 U.S. 398, 101 S.Ct. 1164, 67 L.Ed.2d 388, the American Psychological Association set up an interdivisional committee to study issues related to adolescent abortion. Professor Melton was selected to chair this committee. After surveying the relevant scientific literature, this committee determined, among other things, that although a number of relevant studies had been performed, there was no basis in existing research to conclude that adolescents as a group were less competent than adults to make decisions concerning abortion. (See Am. Psychological Assn., Interdivisional Committee on Adolescent Abortion, Adolescent Abortion: Psychological and Legal Issues (Jan.1987) 42 Am. Psychologist 73.) These conclusions were published in book form, and were later reviewed and adopted by the National Academy of Sciences. Professor Melton testified that “at least from the age of 14 or so” adolescents have the ability to “comprehend the information that's given to them and to weigh it rationally at adult-like levels.” He further testified that adolescents are “able to reason about real life situations and to do so in ways that show a good comprehending of circumstances and a rational logical process of dealing with that information.” Finally, he testified that this evidence of adolescents' competence in making decisions applies to health care decisions in general and to decisions concerning abortion in particular.
Michael Saks, a social psychologist and professor at the University of Iowa College of Law, testified about a working paper he wrote for the Office of Technology Assessment of the United States Congress addressing this question: “At what age are adolescents competent to make their own health care decisions?” After surveying the relevant psychological studies, he concluded that there are no detectable differences between mid-adolescents and young adults in their 20's regarding their ability to make such decisions, and thus adolescents are competent to consent to general health care by the age of 14.
Based on her own research and her review of another study, Nancy Adler, a professor of medical psychology in the Department of Psychiatry and Pediatrics at the University of California at San Francisco, testified that in her opinion adolescents do not differ from adults in their ability to understand the risks and benefits of abortion. (See also, Houlgate, The Child & the State, A Normative Theory of Juvenile Rights, supra, at p. 72 [stating that available empirical evidence “does not give any support to the claim that children over the age of thirteen or fourteen years lack the capacity for rational choice”].)
In a footnote, the majority brushes aside this evidence, preferring to rely instead on “normative assumptions” that are “deeply rooted in our culture and society.” (Maj. opn., ante, at p. 211, fn. 7, of 51 Cal.Rptr.2d, p. 1158, fn. 7, of 912 P.2d.) But unexamined assumptions, no matter how deeply rooted, are no substitute for facts in adjudicating constitutional privacy rights on a matter of such profound importance.
To be sure, the very concept of legal minority, or nonage, embodies an assumption of incompetence to exercise the full panoply of rights and privileges available to adults. Our laws have established various age restrictions for voting, driving motor vehicles, purchasing alcoholic beverages, and the like. Because individuals mature at different rates, these age limits are a necessarily inexact and therefore arbitrary measure of maturity, but they have nonetheless been accepted as constitutionally valid for most purposes. But not for all.
There are some decisions so fundamental and so “life-shaping” that age limits are not constitutionally acceptable as a means of conclusively determining that an adolescent below the prescribed age is not yet ready to assume sole responsibility for those decisions. The decision to continue or terminate a pregnancy is one such decision. The United States Supreme Court has so held. (Planned Parenthood of Missouri v. Danforth (1976) 428 U.S. 52, 74, 96 S.Ct. 2831, 2843, 49 L.Ed.2d 788; Bellotti v. Baird, supra, 443 U.S. 622, 643 & fn. 23, 99 S.Ct. 3035, 3048 & fn. 23, 61 L.Ed.2d 797.)
The abortion decision is different not only because, unlike the decision to “receive a permanent tattoo” (maj. opn., ante, at p. 211 of 51 Cal.Rptr.2d, p. 1158 of 912 P.2d), a pregnancy decision fundamentally affects the subsequent course of a woman's life, but also because, unlike a decision concerning marriage or sterilization (ibid.), the abortion decision is highly time sensitive. Although marriage and sterilization can be postponed to adulthood, the option of abortion “effectively expires in a matter of weeks from the onset of pregnancy.” (Bellotti v. Baird, supra, 443 U.S. 622, 642, 99 S.Ct. 3035, 3047, 61 L.Ed.2d 797.) “[T]he abortion decision is one that simply cannot be postponed, or it will be made by default with far-reaching consequences.” (Id. at p. 643, 99 S.Ct. at p. 3048.)
Regardless of age restrictions, therefore, an adolescent's expectation of privacy is reasonable as to decisions with the following characteristics: (1) they are protected by the right of privacy for adults, (2) they are within the adolescent's competence, (3) they have serious and enduring consequences, and (4) they cannot be postponed to the age of legal majority. (See Keiter, Privacy, Children, and Their Parents: Reflections On and Beyond the Supreme Court's Approach, supra, 66 Minn.L.Rev. 459, 503, 517.)
For those adolescents of sufficient maturity (that is, generally, adolescents of 14 years or older), the decision to continue or terminate a pregnancy has each of these characteristics. These adolescents therefore have a reasonable expectation of autonomy privacy in the making of this decision.
C. Seriousness of the Invasion
An important purpose of the Privacy Initiative was to “safeguard[ ] 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 1, 36, 26 Cal.Rptr.2d 834, 865 P.2d 633.) The parental consent law at issue here is both penal and regulatory—it imposes criminal sanctions on any doctor who performs an abortion in violation of its provisions, and it regulates abortions by requiring a pregnant adolescent woman who has decided to terminate her pregnancy to obtain either the consent of a parent or judicial authorization for the abortion procedure.
Although the parental consent law does not absolutely preclude mature adolescent women from obtaining abortions without parental consent, the trial court record convincingly demonstrates that resort to the judicial bypass procedure by those adolescents unable or unwilling to obtain parental consent is time-consuming and emotionally traumatic, and it exposes the affected minors to significantly increased medical risks occasioned by the delay attributable to the procedure. (See Bellotti v. Baird, supra, 443 U.S. 622, 642–643, 99 S.Ct. 3035, 3047, 61 L.Ed.2d 797 [stating that the right to terminate a pregnancy “effectively expires in a matter of weeks”].)
That pregnant adolescents find the judicial bypass procedure highly repugnant and that it operates as a major obstacle to their exercise of free choice are illustrated by the tragic story of Becky Bell, who died at the age of 17 as a result of complications from an illegal abortion. When she learned she was pregnant, she also learned that under the law of her state (Indiana) she could obtain a legal abortion without parental consent only by applying to a juvenile court judge for a waiver of the consent requirement. “What does a judge have to do with this?” she reportedly asked a counselor. Unwilling to reveal her very personal decision for scrutiny by a judge, she resorted to an illegal abortion, a choice that cost her her life. (See Note, Hodgson v. Minnesota: Chipping Away at Roe v. Wade in the Aftermath of Webster (1991) 18 Pepperdine L.Rev. 955; Tribe, Abortion: The Clash of Absolutes (1990) p. 203; Indiana Dad in S.F. to Tell How Abortion Law Led to Death, S.F. Chronicle (Jan. 22, 1996) p. A15, cols. 1–4.)
I therefore agree with the Court of Appeal that the parental consent law invades the privacy interests of pregnant adolescents in a way that is not “slight or trivial.” (Hill v. National Collegiate Athletic Assn., supra, 7 Cal.4th 1, 37, 26 Cal.Rptr.2d 834, 865 P.2d 633.)
Here, the majority asserts that the parental consent law does not seriously invade the privacy interests of pregnant adolescents; the majority states, in explanation, that “California has long required parental consent before an unemancipated minor can undergo most medical procedures.” (Maj. opn., ante, at p. 215 of 51 Cal.Rptr.2d, p. 1162 of 912 P.2d.) Assuming for the sake of argument that existing statutes provide a reliable guide to what does and does not constitute a serious breach of a constitutionally protected privacy interest (cf. McCabe, Legislative Facts as Evidence in State Constitutional Search Analysis (1992) 65 Temple L.Rev. 1229, 1232 [noting apparent inconsistency in United States Supreme Court decisions on relevancy of state and federal statutes to reasonableness of privacy expectation for purposes of Fourth Amendment] ), the majority's argument still misses the mark.
For one thing, an abortion is unlike “most medical procedures” in constitutionally significant ways. As previously mentioned, the decision to continue or terminate a pregnancy is exceptional and virtually unique among decisions that an adolescent woman might be called upon to make, because it both has profound nonmedical implications for the subsequent course of a woman's life and is time sensitive, requiring a decision within days or at most weeks. (Bellotti v. Baird, supra, 443 U.S. 622, 642–643, 99 S.Ct. 3035, 3047–3048, 61 L.Ed.2d 797.) Similarly, as a medical procedure, an abortion is exceptional; if the pregnancy is proceeding normally, abortion is an elective procedure, yet one that is medically time sensitive and that has far-reaching nonmedical implications for the subsequent course of the patient's life. It is also a medical procedure for which the utmost confidentiality is generally expected.
In addition, the Legislature has generally not required parental consent for medical procedures relating to sexuality and procreation. For example, minors are “medically emancipated”—that is, they may obtain medical treatment without parental consent—for purposes of prescribing and furnishing contraceptive drugs and devices (Fam.Code, § 6925), for medical treatment relating to pregnancy (ibid.), for the diagnosis and treatment of sexually transmitted diseases, rape, and sexual assault (id., §§ 6925–6928), and for testing for “HIV” infection (Health & Saf.Code, § 121020, subd. (a)(1) [minors 12 years and older deemed competent to consent] ). Indeed, except for sterilization, abortion is the only medical procedure related to sexuality and procreation for which the Legislature has required parental consent. Accordingly, the statutory scheme regarding medical treatment for persons under the legal age of majority, instead of supporting the majority's decision, provides an additional ground for concluding that the parental consent law at issue here is a serious invasion of the privacy interests of pregnant adolescents.
As additional support for its conclusion that the parental consent law is not a serious invasion of a pregnant adolescent's privacy interests, the majority notes that a number of other states have enacted parental consent laws. The majority fails to note, however, that the Florida Supreme Court, the only other state court to consider the constitutionality of a parental involvement law under a state constitutional right of privacy, concluded that the law violated the right of privacy guaranteed by the Florida Constitution. (In re T.W. (Fla.1989) 551 So.2d 1186, 1194.)
Plaintiffs have established the elements of a cause of action for invasion of the state constitutional right of privacy—a legally protected privacy interest, a reasonable expectation of privacy, and a serious invasion of the protected privacy interest. Therefore, the burden shifts to the state to establish justification for the parental consent law.
D. Legal Standard
The majority declines to decide whether the proper legal standard by which to judge the state's asserted justification for the parental consent law is the compelling state interest standard (as plaintiffs contend and as the Court of Appeal concluded) or instead is a less rigorous, intermediate standard under which the state need only demonstrate that the challenged law serves a significant interest not present in the case of an adult (as the state contends). I would decide this issue.
The compelling state interest standard is required by this court's previous decision in Hill. Without qualification, we there said: “Where the case involves an obvious invasion of an interest fundamental to personal 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.” (Hill v. National Collegiate Athletic Assn., supra, 7 Cal.4th 1, 34, 26 Cal.Rptr.2d 834, 865 P.2d 633; see also id. at pp. 59 (conc. & dis. opn. of Kennard, J.), 62 (conc. & dis. opn. of George, J.), 73 (dis. opn. of Mosk, J.), 26 Cal.Rptr.2d 834, 865 P.2d 633.) The burdens that the parental consent law imposes on a pregnant adolescent's decision to terminate her pregnancy constitute an obvious invasion of an interest fundamental to personal autonomy. Therefore, the compelling interest standard applies.
The compelling interest standard is no less applicable because the parental consent law's burdens are imposed on minors rather than adults. As previously mentioned, the state Constitution's privacy guarantee extends equally to “every man, woman and child in this state.” (Ballot Pamp., Proposed Amends. to Cal. Const. with argument to voters, Gen Elec. (Nov. 7, 1972) argument in favor of Prop. 11, pp. 26–27, italics added.)
The majority concludes that “[t]he state has carried its burden of showing that the [parental consent] legislation substantively furthers a ‘compelling interest’ and that there were ‘no less intrusive means' of accomplishing its legitimate objectives.” (Maj. opn., ante, at p. 221 of 51 Cal.Rptr.2d, p. 1168 of 912 P.2d.) The majority identifies a single interest that the parental consent legislation assertedly furthers—the state's “interest in protecting the physical and mental health of unemancipated minors.” (Maj. opn., ante, at p. 216 of 51 Cal.Rptr.2d, p. 1163 of 912 P.2d.) The superior court considered this interest compelling, as do I. But I also agree with the superior court's conclusion that the state has failed to demonstrate that the parental consent law advances this interest.
The majority concludes that the parental consent law will protect the physical and mental health of pregnant adolescents because, for those pregnant adolescents who cannot or will not obtain parental consent, it affords them a judicial bypass procedure through which a judge may authorize the abortion upon determining either that the adolescent is mature enough to make the decision by herself or, if not, that the abortion would be in her best interests. The majority acknowledges that the adolescent's physician is required to make the same determination of maturity in deciding whether the adolescent has given informed consent to the abortion (maj. opn., ante, at p. 216 of 51 Cal.Rptr.2d, p. 1163 of 912 P.2d), but the majority concludes that an additional maturity determination by a judge will better protect the adolescent's physical and mental health because (1) unlike the physician, the judge has no pecuniary interest in the decision and is thus more objective (id. at p. 218 of 51 Cal.Rptr.2d, p. 1165 of 912 P.2d), and (2) if the adolescent is not sufficiently mature to give informed consent to an abortion, the judge can authorize the abortion upon a finding that it is in the adolescent's best interests, whereas the adolescent's physician may not proceed without the informed consent of either the adolescent or her parents (ibid.). Finally, the majority dismisses as unsupported or irrelevant the superior court's findings that any advantages inherent in the judicial bypass are outweighed by the emotional distress and the delay in performance of the abortion (thereby increasing its medical risks) that the judicial bypass procedure causes.
As the majority implicitly acknowledges, in determining whether a law furthers an identified state interest, a court must consider both the positive and negative impacts of the law on that interest. Only by such a balanced inquiry may a court determine whether, considering all effects of the legislation, both positive and negative, the legislation on balance advances the interest offered to justify it. Accordingly, I will consider first the claimed beneficial effects of the legislation, and then any detrimental effects, as they relate to the physical and mental health of pregnant adolescents seeking abortions.
1. Superiority of judges over physicians in making the maturity determination
I do not share the majority's low opinion of the professional integrity of physicians. The majority's assertion that doctors may not be relied upon to act impartially “is necessarily somewhat degrading to the conscientious physician, particularly the obstetrician, whose professional activity is concerned with the physical and mental welfare, the woes, the emotions, and the concern of his [or her] female patients.” (Doe v. Bolton, supra, 410 U.S. 179, 196, 93 S.Ct. 739, 750, 35 L.Ed.2d 201.) Determining whether a patient has given informed consent to a proposed medical procedure is an integral part of the practice of medicine with respect to patients of all ages (see Arato v. Avedon (1993) 5 Cal.4th 1172, 1182–1184, 23 Cal.Rptr.2d 131, 858 P.2d 598; Riese v. St. Mary's Hospital & Medical Center (1987) 209 Cal.App.3d 1303, 1322–1323, 271 Cal.Rptr. 199), and the physician's license provides sufficient assurance that the physician will do so competently, fairly, and objectively (see Doe v. Bolton, supra, 410 U.S. 179, 199–200, 93 S.Ct. 739, 751–752). Should a particular physician fail to do so, the consequences would include professional censure, revocation or suspension of the medical license, and tort liability to the patient for negligence or battery. The state has not demonstrated that these safeguards are inadequate.
Indeed, the majority's assertion that physicians cannot be relied upon to make the maturity determination accurately, fairly, and objectively is supported by no evidence in the present record. Mere supposition, even when plausible, is insufficient. When a state law burdens the exercise of a fundamental right, the government's “attempt to justify that burden as a rational means for the accomplishment of some significant state policy requires more than a bare assertion, based on a conceded complete absence of supporting evidence, that the burden is connected to such a policy.” (Carey v. Population Services International (1977) 431 U.S. 678, 696, 97 S.Ct. 2010, 2022, 52 L.Ed.2d 675, fn. omitted (plur. opn. by Brennan, J.); see also id., p. 702, 97 S.Ct. p. 2025 (conc. opn. of White, J.) [“the State has not demonstrated that the prohibition against distribution of contraceptives to minors measurably contributes to the deterrent purposes which the State advances as justification for the restriction”]; New Jersey Citizen Action v. Edison Tp. (3d Cir.1986) 797 F.2d 1250, 1257 [“when, as here, fundamental free speech interests are patently burdened, the district court not only is free to but indeed is required to overturn regulations that are premised on legislative assumptions contradicted by facts in the record”].)
Finally, the state has less restrictive alternatives available. It could by statute regulate the manner in which physicians make the informed consent determination for adolescents seeking abortion, just as it may regulate other aspects of medical treatment, to ensure that the determination is made according to the highest professional standards.
2. Best interests authorization for immature minors
The majority asserts that the judicial bypass option furthers the physical and mental health of pregnant immature minors who seek an abortion without parental consent because it permits judicial authorization of abortions for these minors if abortion would be in their best interests. I agree that the law as it exists without the parental consent legislation does not well serve the needs of pregnant immature minors who seek an abortion but cannot obtain parental consent.
But immature minors (that is, generally, those below the age of 14) constitute only a very small percentage, certainly less than 5 percent, of the entire class of adolescents who seek abortions without parental consent.13 This is so for two reasons: the pregnancy rate for adolescents below the age of fourteen is much lower and their rate of voluntary parental involvement much higher than for older adolescents. (See Alan Guttmacher Inst., Sex and America's Teenagers (1994) pp. 49, 81, fn. 151.) Because the group of immature minors is so small compared with the larger class of pregnant minors affected by the parental consent law, and because a law could easily be tailored to affect only this group, the parental consent law may not be justified on the ground that it advances the welfare of pregnant immature minors who seek an abortion without parental consent.
As I mentioned at the outset, because the parental consent law at issue in this case applies to all unemancipated minors, I need not and do not decide whether a more narrowly drawn law, applying only to adolescents under the age of 14 years, would violate the state constitutional right of privacy. I note, however, that California's existing parental consent law, which the majority upholds, is subject to criticism insofar as it requires a child who is or may be immature to herself shoulder the burden of initiating and pursuing legal proceedings to obtain judicial authorization for an abortion. By comparison, the Legislature has established a judicial authorization procedure for adults who lack the capacity to give informed consent to a medical procedure (Prob.Code, § 3200 et seq.), but the Legislature has provided that proceedings to obtain this authorization may be commenced not only by the patient, but also by his or her physician, spouse, relative, friend, “or other interested person” (id., § 3203, subd. (c)). Thus, the Legislature has implicitly recognized that it may be unreasonable to require an adult who is incapable of giving informed consent to a medical procedure to undertake the task of commencing legal proceedings for judicial authorization. For an immature adolescent seeking an abortion without parental consent, it seems equally unreasonable to expect the adolescent to apply for judicial authorization. The physician who has determined that the adolescent is too immature to give informed consent to an abortion, or another individual counseling the adolescent, should be able to request judicial authorization on the adolescent's behalf. (See Keiter, Privacy, Children, and Their Parents: Reflections On and Beyond the Supreme Court's Approach, supra, 66 Minn.L.Rev. 459, 514 & fn. 272.)
3. Detrimental effects of bypass procedure—delay and emotional distress
The superior court found that the judicial bypass option would in many cases delay performance of the abortion until the second trimester, thereby significantly increasing the medical risks and the cost of the procedure. The majority concedes that the judicial bypass procedure will produce delays of up to two weeks, but it asserts that delays of this length are not medically significant. (Maj. opn., ante, at p. 220 of 51 Cal.Rptr.2d, p. 1167 of 912 P.2d.) The evidence presented at trial supports the superior court's conclusion, not that of the majority. For example, Dr. Policar (see fn. 1, ante ) testified that after the 10th week of pregnancy, the medical risks “go up quite precipitously” and in fact increase at the rate of “50 percent for every week beyond the tenth week.” Paula Marie Wendt (see fn. 12, ante ) testified that delay associated with the judicial bypass procedure in Minnesota has caused some abortions to be performed in the second trimester (that is, after the thirteenth week of pregnancy) that otherwise would have performed during the first trimester. I note also that in Hodgson v. Minnesota, supra, 497 U.S. 417, 110 S.Ct. 2926, 111 L.Ed.2d 344, United States Supreme Court Justice Thurgood Marshall cited a study finding that “for women 19 years old and younger, the number of deaths per 100,000 abortions was 0.2 for the first 8 weeks of pregnancy, 0.6 for weeks 9 through 12, 3.4 for weeks 13 through 16, and 7.8 for week 17 and after.” (Id. at p. 465–466, 110 S.Ct. at p. 2953 (conc. & dis. opn. of Marshall, J.) citing Cates, Schulz, & Grimes, The Risks Associated with Teenage Abortion (1983) 309 New Eng. J. Med. 621, 623.)
The superior court also found that the judicial bypass option would subject the adolescents who use it to considerable emotional trauma. The majority concedes that the proceeding would be “somewhat intimidating” to a pregnant adolescent (maj. opn., ante, at p. 221 of 51 Cal.Rptr.2d, p. 1168 of 912 P.2d), but it asserts it would not be so distressful as to pose a threat to the physical or emotional well-being of those who invoke it. If the majority means that the emotional distress would be transitory, causing no adverse psychological effects long term, I would agree. But the true significance of the emotional distress occasioned by judicial bypass lies not in its long-term psychological impact but in its short-term behavioral impact. Adolescents will be extremely reluctant to use a procedure they perceive and experience as stressful, dangerous, and humiliating,14 and they will go to great lengths to avoid such a procedure, turning instead to illegal abortions or self-induced abortions, or delaying all action until abortion is no longer feasible, thereby allowing the decision to be made by default rather than by careful and mature reflection and deliberate choice.
Additionally, the majority suggests that evidence about the emotional distress caused by the use of judicial bypass proceedings in other states is irrelevant because California's law differs in some respects. (Maj. opn., ante, at pp. 219–220 & fn. 21, of 51 Cal.Rptr.2d, pp. 1166–1167 & fn. 21, of 912 P.2d.) But the differences the majority cites—California requires one-parent consent whereas Massachusetts requires two-parent consent and Minnesota requires two-parent notification—relate to the parental involvement option, not the judicial bypass option. The majority is unable to name a single feature of the judicial bypass proceeding under our law that would both distinguish it from those of Massachusetts or Minnesota and diminish the reluctance of adolescents to participate in these proceedings.
Furthermore, judicial bypass will not be a realistic option for many adolescents in rural, sparsely populated counties because of the long distances required to reach a courthouse and because of the unacceptable risk that confidentiality will be lost by a chance encounter with a relative, neighbor, or acquaintance at the courthouse. Also, many counties in California have no providers for second trimester abortions (see trial testimony of Dr. Michael Policar), so that delays occasioned by the judicial bypass procedures may effectively preclude abortions for some minors living in these counties.
Like the superior court and the Court of Appeal, I conclude that any beneficial effect of the parental consent law on the physical and emotional well-being of pregnant adolescent minors seeking abortion would be outweighed by the detrimental effect of the judicial bypass, and thus that on balance the parental consent law would not further the state's compelling interest in the physical and emotional well-being of children.
4. Increasing parental involvement in adolescents' abortion decisions
To justify the parental consent law's serious invasion of the privacy interests of pregnant adolescents seeking abortion, the majority does not assert that the law will increase parents' involvement in their children's abortion decisions. (Maj. opn., ante, at pp. 218–219 of 51 Cal.Rptr.2d, pp. 1165–1166 of 912 P.2d.) Nevertheless, some comment on this point seems appropriate because the state has argued it and because to many disinterested observers increasing parental involvement may appear to be the legislation's primary purpose.
The law existing before and apart from the parental consent law permitted but did not require parental involvement; it left to the pregnant adolescent herself the decision whether or not to consult her parents. Under the parental consent law also, parental involvement is permitted but not required, the only difference being that a pregnant adolescent who chooses not to involve a parent must obtain judicial authorization for an abortion. Is this change likely to increase the rate or incidence of parental involvement that would occur in the law's absence by causing at least some minors who would not otherwise do so to consult a parent before making the abortion decision?
After considering evidence concerning the experience with parental involvement laws in Massachusetts and Minnesota, the superior court found that these laws do not in fact increase the number of minors who consult their parents about the abortion decision. As the majority recognizes, the evidence to support this finding is far from conclusive but is probably sufficient to support the more cautious finding that any increase in parental involvement resulting from parental involvement laws is probably not great.
Of greater significance, in my view, is the superior court's related finding that when a pregnant adolescent consults a parent against her better judgment and only to avoid having to apply for judicial authorization, the adolescent is unlikely to derive any of the benefit that would normally be expected from parental consultation. The superior court reasoned that an adolescent's initial reluctance to consult a parent often evidences a significant underlying problem or dysfunction in the parent-child relationship. Although facing and jointly resolving a crisis situation—such as an adolescent's unplanned pregnancy (which must be resolved under the time constraints imposed by the steeply escalating medical risks of abortion as the pregnancy progresses beyond the 10th week)—can strengthen a parent-child relationship that is fundamentally sound, a flawed relationship is likely to further deteriorate or unravel under this sort of pressure, resulting in emotional, psychological, and even physical harm to the child. Thus, it is doubtful that parental consultation that is coerced by a parental consent law will, on balance, benefit or strengthen parent-child relationships. This reasoning is supported by the evidence presented at the trial in superior court. (See fn. 4, ante; see also Rhode, Politics and Pregnancy: Adolescent Mothers and Public Policy (1991) 1 S.Cal.Rev.L. & Women's Stud. 99, 126 [stating that “[v]irtually every major professional study has concluded that compulsory parental involvement ill serves adolescent needs and family relationships”]; Keiter, Privacy, Children, and Their Parents: Reflections On and Beyond the Supreme Court's Approach, supra, 66 Minn.L.Rev. 459, 500–501 [stating that “[w]henever notification or consent requirements mandate parental involvement, conflict between the parent and child portending severe disruption of the family is likely”].)
If the goal is to encourage beneficial parent-child communications about a pregnant adolescent's options, there are feasible and effective alternatives having a lesser impact on privacy interests.
For example, the state could act to ensure that before an abortion is performed adolescents are advised in an effective but noncoercive manner to consult their parents,15 and that adolescents who are reluctant to do so receive appropriate professional assistance in working with their parents. The evidence at trial revealed that in California many and perhaps most pregnancy tests are performed in health clinics that receive state funding. The state may attach conditions to this funding, including adherence to counseling protocols. Through such protocols, the state may insist that adolescents who have tested positive for pregnancy are encouraged to consult their parents. To ensure that this encouragement is effective, the state may provide written materials and videos to use either as training aids for the counselors or to be shown or given directly to the adolescents.16 In addition, the state could ensure that the clinics make their facilities available, or the state could provide its own facilities, so that adolescents may discuss their pregnancies with their parents in a neutral setting and in the presence of a trained and supportive counselor or family therapist. (See Rhode, Politics and Pregnancy: Adolescent Mothers and Public Policy, supra, 1 S.Cal.Rev.L. & Women's Stud. 99, 126 [advocating “voluntary parental outreach programs” that “seek to improve family communication and adolescent decisionmaking skills while avoiding the notice or consent requirements that deter teenagers from seeking assistance”].)
I conclude that the state has failed to justify the parental consent law's serious invasion of the privacy interests of pregnant adolescents.
California's parental consent law was enacted to protect the physical and mental health of pregnant adolescents and to give these adolescents the benefit of consultation with a caring and supportive parent. Laudable purposes, to be sure. But the parental consent law also seriously invades the privacy interests of adolescents, and when a law burdens fundamental rights, “merely stating a laudable purpose” is insufficient. (People v. Glaze (1980) 27 Cal.3d 841, 848, 166 Cal.Rptr. 859, 614 P.2d 291.) The constitutionality of a law is judged not by the value of the policies it seeks to implement, but by “the objective effect of the legislative terms.” (County of Los Angeles v. Superior Court (1975) 13 Cal.3d 721, 727, 119 Cal.Rptr. 631, 532 P.2d 495.)
Benefiting from the experience of other states with similar laws, and a well-developed trial record, this court is equipped to assess the “objective effect” of the parental consent law. What the trial record shows is that most pregnant teenagers consult their parents voluntarily, and that there are a variety of reasons why the others do not. Some merely wish to spare their parents' feelings, but others do not consult their parents because the parents are physically or emotionally abusive or because parent-child relations have broken down or would break down completely if the pregnancy were disclosed. The delays caused by the judicial bypass option will move many abortions into the second trimester, significantly increasing medical risks. To avoid having to reveal their pregnancies to a judge and submit to the judge's questioning about their decision to terminate the pregnancies, some pregnant teenagers will obtain illegal abortions, and may die as a result, and others will delay taking any action until an abortion is no longer feasible. As Professor Laurence Tribe has summed it up, “parental consent and notice requirements may sound like moderate recognitions of the parents' central role in family life but are likely in practice to achieve little and to cause great grief.” (Tribe, Abortion: The Clash of Absolutes, supra, p. 203.)
In judging the constitutionality of the parental consent law, this court should listen to the eminent medical professionals who in their testimony in this case described the law's damaging effects on youth, and to the superior court and the Court of Appeal, which declared the law unconstitutional. We should listen to the Florida Supreme Court, the only other state court to evaluate a parental consent law against a state constitutional right of privacy, which concluded that its parental consent law violated the right of privacy guaranteed by the Florida Constitution. (In re T.W., supra, 551 So.2d 1186.) And we should listen to the legal commentators, who have by an overwhelming majority concluded that these laws should be declared unconstitutional.17
As United States Supreme Justice Lewis Powell has written, “[t]he need to preserve the constitutional right and the unique nature of the abortion decision, especially when made by a minor, require a State to act with particular sensitivity when it legislates to foster parental involvement in this matter.” (Bellotti v. Baird, supra, 443 U.S. 622, 642, 99 S.Ct. 3035, 3047, 61 L.Ed.2d 797 (lead opn. by Powell, J.).) California's parental consent law, though certainly well intentioned, lacks the sensitivity required to satisfy the privacy guarantee of our state Constitution. Because the parental consent law seriously invades the privacy interests of minors, and because its practical effects are such that it does not significantly advance any countervailing interest of either the state, the pregnant minor women, or their parents, I would uphold the decisions of the superior court and the Court of Appeal declaring unconstitutional and enjoining the enforcement of the parental consent law on the ground that it violates the right of privacy guaranteed to every Californian—man, woman, and child—by our state Constitution.
I respectfully dissent.
In my view, the majority opinion is flawed in two fundamental respects. First, I believe the majority seriously misinterprets and misapplies the general analytical framework that this court recently adopted in Hill v. National Collegiate Athletic Assn. (1994) 7 Cal.4th 1, 26 Cal.Rptr.2d 834, 865 P.2d 633 (hereafter Hill ), to govern the resolution of all claims alleging a violation of the right of privacy guaranteed by article I, section 1, of the California Constitution. In particular, I believe the majority errs in concluding that, under the Hill analysis, the very substantial state constitutional privacy claim raised in the present case properly may be rejected without even considering the legitimacy or strength of the state interests supporting the legislation at issue (Assem. Bill No. 2274 (1987–1988 Reg. Sess.)), or determining whether such interests actually are served by the legislation. (Maj. opn., ante, p. 215 of 51 Cal.Rptr.2d, p. 1162 of 912 P.2d.)
Second, I believe that in evaluating the specific state constitutional privacy right at issue in this case—the right of an individual to choose whether or not to bear a child—the majority largely ignores a central and distinctive feature of this state constitutional right as established in Committee to Defend Reproductive Rights v. Myers (1981) 29 Cal.3d 252, 172 Cal.Rptr. 866, 625 P.2d 779 (hereafter Myers )—namely, the obligation of the government, when it legislates in the intimate and sensitive realm of reproductive choice, to act evenhandedly with regard to this right of choice. As I shall explain, in my view the challenged statute violates this constitutional principle of governmental neutrality by placing significantly greater restrictions upon a pregnant minor's access to medical care in the event she chooses to terminate her pregnancy than if she chooses not to terminate her pregnancy.
The majority's favorable reaction to the enactment at issue is not difficult to understand. The challenged legislation rests upon the seemingly unassailable premise that a pregnant minor should seek the counsel of her parents before deciding to have an abortion. No one would question the value to the minor of wise and caring parental guidance and support as she confronts a decision that will affect the rest of her life, assuming such support is available and the minor is willing to seek it.
Experience has taught, however, that a minor who is pregnant or infected with a sexually transmitted disease frequently is too ashamed or frightened to disclose the condition to a parent (or a judge), and often will avoid seeking necessary and timely medical care if parental consent (or judicial authorization) must be obtained before such care may be provided. More than two decades ago, the well-documented deterrent effect of requiring minors to obtain parental (or judicial) consent prior to receiving medical care for pregnancy and sexually transmitted diseases led to the enactment in California of “medical emancipation” statutes applicable to minors with such conditions. (See former Civ.Code, § 34.5 [enacted 1953], now Fam.Code, § 6925; former Civ.Code § 34.7 [enacted 1968], now Fam.Code, § 6926.) By adopting these measures, the Legislature recognized that although it is important for minors who are pregnant or infected with sexually transmitted diseases to seek the advice and support of their parents, it is more important for such minors (and for the rest of society) that they have unimpeded access to confidential medical services.
Although the decision whether or not to enact such medical emancipation statutes generally involves a legislative policy decision, serious constitutional questions are raised in this case because the Legislature has not implemented its policy determination in an evenhanded manner with regard to the constitutional right of choice. Prior to the enactment of the legislation at issue in the present case, the state treated all pregnant minors equally with regard to unimpeded access to medical care, drawing no distinction between a minor who chose to terminate her pregnancy and a minor who chose to proceed with her pregnancy and give birth. The legislation challenged here, however, abandoning that evenhanded approach, conditions a pregnant minor's access to medical care upon obtaining parental consent or judicial authorization in the event the minor chooses to terminate her pregnancy, but leaves the minor's access to medical care unimpeded if the minor chooses not to terminate her pregnancy.
Although the legislation before us ostensibly rests upon the laudable purposes of promoting the parent-child relationship and protecting the medical, emotional, and psychological well-being of pregnant minors, these purposes do not justify the unequal treatment accorded by the statute. There is no dispute that, particularly for a pregnant minor, the medical, emotional, and psychological (not to mention the social and educational) consequences that may flow from a decision to carry a fetus to term and give birth are at least as serious as the consequences that may flow from a decision to have an abortion. Further, it is equally evident that parental consultation and guidance is as important and potentially beneficial for a pregnant minor who is considering carrying a fetus to term and giving birth, as for a minor who is considering terminating her pregnancy. Finally, to the extent the legislation rests upon an assumption that there is a need to have someone other than the treating physician determine whether a pregnant minor is mature enough to make such a decision, the need for such an independent determination of maturity applies no less to a minor who has decided to proceed with her pregnancy and have a child than to a minor who has decided to terminate her pregnancy. Thus, all of the ostensible purposes of the legislation apply with at least equal force to a pregnant minor who chooses to proceed with a pregnancy, as to a minor who chooses to terminate a pregnancy.
Although the majority does not discuss at length the question of unequal treatment, it briefly defends the different rules applicable to a pregnant minor who chooses to bear a child by asserting that “an unemancipated minor seeking an abortion and an unemancipated minor carrying a pregnancy to term are not similarly situated” (maj. opn., p. 222 of 51 Cal.Rptr.2d, p. 1169 of 912 P.2d), and by observing that the Legislature reasonably could conclude that it is important not to deter a pregnant minor from seeking prenatal medical care. (Maj. opn., pp. 222–223 of 51 Cal.Rptr.2d, pp. 1169–1170 of 912 P.2d.) Our decision in Myers establishes, however, that an individual who chooses not to bear a child and one who chooses to bear a child are “similarly situated,” at least in the sense that both are entitled to evenhanded treatment on the part of the government. Unimpeded access to necessary medical care is as essential for a pregnant minor who chooses not to bear a child as for a minor who chooses to have a child, and the state's unquestionably compelling interest in encouraging prenatal medical care can be fully served without denying equal access to medical care to a minor who exercises her freedom of choice by deciding not to bear a child.
Under the constitutional principle recognized in Myers, once the state, recognizing that a parental consent requirement may deter a pregnant minor from obtaining timely and necessary medical care, has provided that a minor may obtain medical care without parental consent (or judicial authorization) in the event the minor chooses to bear a child, it may not deny similar unimpeded access to medical care to the minor if she chooses not to bear a child. Having acknowledged, and acted to alleviate, the health risks realistically posed by a parental consent requirement in the situation of a pregnant minor who chooses to bear a child, the state may not turn a blind eye to those risks with respect to a minor who chooses not to bear a child, and thereby increase the risk that the minor will suffer the resulting tragic consequences, for example, of a self-induced or back-alley abortion.
Accordingly, I believe the trial court and the Court of Appeal correctly concluded that the challenged statute violates the right of privacy provision of the California Constitution.
In this court's recent decision in Hill, supra, 7 Cal.4th 1, 26 Cal.Rptr.2d 834, 865 P.2d 633, I wrote separately to express my disagreement with several aspects of the majority opinion. (See Hill, supra, 7 Cal.4th at pp. 62–73, 26 Cal.Rptr.2d 834, 865 P.2d 633 (conc. & dis. opn. of George, J.).) My views did not prevail in Hill, and I recognize and acknowledge that the majority opinion in Hill establishes the governing California law. Although the majority in the present case purports to follow Hill in deciding the state constitutional privacy issue now before us, in my view the majority's analysis is inconsistent with that decision.
In Hill, supra, 7 Cal.4th 1, 26 Cal.Rptr.2d 834, 865 P.2d 633, this court established a new framework for deciding claims brought under the state constitutional privacy clause. Hill sets forth three elements that a plaintiff alleging an invasion of privacy in violation of the state constitutional right of privacy must establish as a threshold matter before a defendant is required to provide any explanation or justification for its challenged conduct: the plaintiff must establish “(1) a legally protected privacy interest; (2) a reasonable expectation of privacy in the circumstances; and (3) conduct by defendant constituting a serious invasion of privacy.” (7 Cal.4th at pp. 39–40, 26 Cal.Rptr.2d 834, 865 P.2d 633.) Once the plaintiff establishes these elements, the defendant may demonstrate that the challenged invasion of privacy is justified and not unconstitutional by establishing that the challenged conduct “substantively furthers one or more countervailing interests.” (Id. at p. 40, 26 Cal.Rptr.2d 834, 865 P.2d 633.) Thereafter, the plaintiff may “rebut a defendant's assertion of countervailing interests by showing there are feasible and effective alternatives to defendant's conduct which have a lesser impact on privacy interests.” (Ibid.)
In applying the framework set forth in Hill, the majority fails adequately to take into account that the three threshold elements were established in Hill as a means of screening out, at the outset of litigation, insubstantial claims that cannot properly be viewed as violating the state constitutional right of privacy. Under Hill, unless a plaintiff's claim satisfies these threshold elements, a governmental or private defendant is not put to the burden of explaining the reasons or justifications for its action. It necessarily follows that the threshold elements of Hill are intended to identify situations in which the impingement upon privacy of which the plaintiff complains would not violate the state constitutional right of privacy even if there were no justification whatsoever for the impingement. Under Hill, the circumstance that a plaintiff has established the three elements does not signify that the plaintiff has proved the challenged conduct is unconstitutional, but simply means that the court then must examine the justifications for the defendant's conduct and evaluate the strength of those justifications against the burden that the conduct imposes upon the plaintiff's constitutional privacy interest.
As I shall explain, in my view the majority does not properly evaluate the three threshold elements.
(1) Protected privacy interest
Because the concept of privacy is quite amorphous, and thus the theoretical reach of the constitutional privacy clause is extremely broad, Hill makes it clear that in order to establish that an alleged infringement upon a plaintiff's privacy rises to the level of constitutional magnitude, he or she must establish that the defendant's action affects a privacy interest that the state constitutional right of privacy was intended to protect—that is, a “protected privacy interest.”
In the present case, however, I would have thought there could be, and certainly should be, no doubt whatsoever that the challenged statute affects such a “protected privacy interest” so as to satisfy the initial element of the Hill test. California decisions long have established, of course, that the right of a woman to choose whether or not to bear a child constitutes a privacy interest that is protected by the California Constitution (see, e.g., People v. Belous (1969) 71 Cal.2d 954, 963, 80 Cal.Rptr. 354, 458 P.2d 194), and in Myers this court explicitly declared that this state constitutional privacy right is “clearly among the most intimate and fundamental of all constitutional rights.” (Myers, supra, 29 Cal.3d 252, 275, 172 Cal.Rptr. 866, 625 P.2d 779.)
Contrary to the majority's conclusion, the circumstance that the statute here at issue affects the rights of pregnant minors, rather than adults, cannot signify that this case does not involve a “protected privacy interest” for purposes of the initial threshold element of Hill. To begin with, as the majority recognizes, the California Constitution, unlike its federal counterpart, contains an explicit privacy clause. 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, ․ and privacy.” (Italics added.) The Constitution does not limit the enumerated constitutional rights to adults. Moreover, the ballot argument accompanying the measure that specifically added the privacy clause to article I, section 1 confirms that the constitutional right of privacy afforded by this provision was intended to apply to “every Californian,” including “every man, woman, and child in this state.” (Ballot Pamp., Proposed Amends. to Cal. Const. with arguments to voters, Gen. Elec. (Nov. 7, 1972), argument in favor of Prop. 11, pp. 26–27, underlining omitted, italics added.) Finally, in other contexts, California decisions have recognized that the right of privacy under the California Constitution applies to minors as well as to adults (see, e.g., In re Scott K. (1979) 24 Cal.3d 395, 155 Cal.Rptr. 671, 595 P.2d 105; Planned Parenthood Affiliates v. Van de Kamp (1986) 181 Cal.App.3d 245, 278, 226 Cal.Rptr. 361), and no case ever has suggested that the state constitutional right of privacy—insofar as it involves a person's decision whether to bear a child—is inapplicable to pregnant minors. Thus, it seems manifest that the statute at issue in this case implicates a “protected privacy interest” within the meaning of the first threshold element of the Hill test, and that the plaintiffs' challenge cannot properly be rejected at this threshold stage under the principles established by the decision in Hill.
Of course, such a conclusion does not mean that the circumstance that the statute involves minors rather than adults is irrelevant to the ultimate resolution of the constitutional issue presented by this case. Without question, the circumstance that the statute applies to minors is directly relevant in assessing the nature and strength of the state interests that may explain and justify the legislation's impact upon the constitutionally protected privacy interests at issue. Under the framework established in Hill, however, a court properly must consider the proffered justifications for a challenged statute at a later stage of the legal analysis, and not in determining the threshold question whether the statute implicates a protected privacy interest in the first place. In departing from this approach, and effectively defining the nature and scope of the protected privacy interest by reference to the justifications for limiting the constitutional right, the majority improperly short-circuits the analysis called for by Hill, and undermines the careful balancing process mandated by that decision.
(2) “Reasonable expectation of privacy”
I believe that the majority similarly errs in analyzing the second threshold element of the Hill test, the “reasonable expectation of privacy.”
In discussing the application of this element to the challenged athletic drug testing program at issue in Hill, the court in Hill explained that “the reasonable expectation of privacy of plaintiffs (and other student athletes) ․ must be viewed within the context of intercollegiate athletic activity and the normal conditions under which it is undertaken.” (Hill, supra, 7 Cal.4th at p. 41, 26 Cal.Rptr.2d 834, 865 P.2d 633.) Thus, this element requires an inquiry into whether there is something in the specific setting or particular circumstances in which the alleged intrusion of the privacy arises that demonstrates the plaintiff has no reasonable expectation of privacy in such a context, so that the alleged intrusion would not violate the state Constitution even if there were no justification for the allegedly intrusive conduct.
In the present case, the challenged statutory requirements apply to all pregnant minors and, unlike the drug testing program in Hill, are not confined to a specific setting or limited context. Thus, if the statute affects a “protected privacy interest” for purposes of the first element of Hill—as I believe it clearly does—there is nothing in the circumstances of the case before us to suggest that the pregnant minors affected by this legislation do not have a reasonable expectation of privacy for purposes of the second element of Hill. Contrary to the implication of the majority's analysis, the reasonable expectation of privacy element established in Hill was not intended simply to duplicate the question whether the defendant's conduct affects a “protected privacy right.”
(3) “Serious invasion of privacy interest”
In setting forth the basis for the third threshold element, the court in Hill explained: “No community could function if every intrusion into the realm of private action, no matter how slight or trivial, gave rise to a cause of action for invasion of privacy. ‘Complete privacy does not exist in this world except in a desert, and anyone who is not a hermit must expect and endure the ordinary incidents of the community life of which he is part.’ [Citation.] 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. Thus, the extent and gravity of the invasion is an indispensable consideration in assessing an alleged invasion of privacy.” (Hill, supra, 7 Cal.4th at p. 37, 26 Cal.Rptr.2d 834, 865 P.2d 633.) In my view, this passage demonstrates that the third threshold element of the Hill test was intended simply to screen out those instances in which, although a constitutionally protected privacy right is implicated, the impingement at issue is insubstantial or trivial and thus should not be viewed as posing a serious constitutional question.1
In this case, it seems clear that the effect of the challenged statute upon a pregnant minor's constitutional right of privacy cannot, by any stretch of the imagination, properly be characterized as insubstantial or trivial. The legislation requires every pregnant minor who does not wish to bear a child to inform either a parent or a judicial officer of her condition and obtain the authorization of such person in order to receive professional medical care to terminate the pregnancy. If the minor's parent refuses to consent to an abortion (or if the minor is too ashamed or frightened to consult a parent), and if a judge determines that the minor is too immature to make the decision and that the termination of pregnancy would not be in the minor's best interests (or if the minor is too embarrassed or intimidated to seek judicial intervention), the minor will be compelled either to proceed with the pregnancy against her will, or to attempt to terminate the pregnancy herself through a potentially dangerous self-induced or illicit abortion.
In sum, I believe that under Hill the state constitutional challenge in this case cannot be decided by finding that plaintiffs have failed to meet the threshold elements of a state constitutional claim (as the majority suggests), but rather must be resolved by determining whether the state interests served by the statute are sufficient to justify the statute's impact upon privacy rights.
After concluding that plaintiffs' constitutional challenge to the statute properly may be rejected under Hill 's threshold elements, the majority proceeds to discuss the state's proffered justifications for the statute, and to conclude that, in any event, those justifications are sufficient to outweigh any impingement upon privacy rights. (Maj. opn., pp. 215–221 of 51 Cal.Rptr.2d, pp. 1162–1168 of 912 P.2d.)
The trial court in this case determined that although the interests upon which the challenged statute ostensibly was based—i.e., the protection of the physical and emotional health of minors and the promotion of the parent-child relationship—were “compelling interests,” the statute nonetheless was unconstitutional, because the state had failed to establish that the statute was likely to achieve or promote those interests. On appeal, the parties disagree as to the weight that properly should be given to the trial court's findings in this regard. The state argues that the trial court failed to give proper deference to the legislative findings accompanying the statute.
In my view, this issue is a difficult one. On the one hand, it is unusual for a trial judge to consider evidence on matters involving what usually are denominated “legislative facts,” and to overturn legislation on the ground that—even though a statute's provisions appear on their face to be reasonably related to a compelling state interest—the evidence before the court indicates that, in reality, the statute is not likely to achieve the legislative objective. On the other hand, when a constitutional right is at stake, it is clear that the Legislature cannot have a free hand simply to declare that a statute's restriction upon such a right is necessary to serve a specified compelling state interest; the significance of the constitutional status of a right would be seriously undermined were courts required completely to defer to legislative findings in this regard. (See Planned Parenthood of Southeastern Pennsylvania v. Casey (1992) 505 U.S. 833, 855, 887–898, 112 S.Ct. 2791, 2809, 2826–2831, 120 L.Ed.2d 674 (joint opn. of O'Connor, Kennedy, and Souter, JJ.); Spiritual Psychic Science Church v. City of Azusa (1985) 39 Cal.3d 501, 514, 217 Cal.Rptr. 225, 703 P.2d 1119.)
In my view, however, it is unnecessary to rest our decision solely or primarily upon the trial court's findings as to the likely effect of the challenged legislation. As noted at the outset of this opinion, even if the legislative findings are taken at face value, I believe that the statute before us nonetheless is unconstitutional, because it fails to accord the evenhanded treatment (between those who choose to bear a child and those who choose not to bear a child) that is required by the state Constitution under this court's decision in Myers, supra, 29 Cal.3d 252, 172 Cal.Rptr. 866, 625 P.2d 779.
In Myers, supra, 29 Cal.3d 252, 172 Cal.Rptr. 866, 625 P.2d 779, this court addressed the question whether, under the California Constitution, the state may provide free medical care to indigent pregnant women who choose to carry their fetuses to term and give birth, but deny such medical care to indigent women who choose to terminate their pregnancies. Although the United States Supreme Court earlier had held—in a closely divided decision—that such differential treatment does not violate the constitutional right of privacy embodied in the federal Constitution (see Harris v. McRae (1980) 448 U.S. 297, 100 S.Ct. 2671, 65 L.Ed.2d 784), this court concluded in Myers that the California Constitution does not permit such unequal treatment. The court in Myers held that although the state has no constitutional obligation to provide medical care to pregnant women, once the state decides to provide medical care to those women who choose to bear a child, the state Constitution prohibits the state from denying medical care to those pregnant women who choose not to bear a child. Thus, the Myers decision clearly establishes that the state constitutional privacy right differs from the federal constitutional privacy right in this fundamental respect.
In reaching our conclusion in Myers, we took note of a then very recent decision of the Massachusetts Supreme Court that reached a similar result on the basis of the Massachusetts Constitution. (See Moe v. Secretary of Administration (1981) 382 Mass. 629, 417 N.E.2d 387.) Since Myers, a number of other states have concluded that the protection that their respective constitutions afford to the right of reproductive choice is similar to the protection afforded by the California Constitution as interpreted in Myers, and bars the state from providing medical care for childbirth without providing it for abortion. (See, e.g., Women of the State of Minnesota v. Gomez (Minn.1995) 542 N.W.2d 17; Women's Health Center v. Panepinto (1993) 191 W.Va. 436, 446 S.E.2d 658; Right to Choose v. Byrne (1982) 91 N.J. 287, 450 A.2d 925; Doe v. Maher (1986) 40 Conn.Supp. 394, 515 A.2d 134.) Thus, these states too have recognized that, unlike the federal Constitution, their state constitutions embody a requirement of nondiscriminatory, evenhanded governmental treatment of pregnant women without regard to how they exercise their constitutional right to choose whether to bear a child.
Like the legislation invalidated in Myers, the statute now before us fails to operate in an evenhanded fashion. Assembly Bill No. 2274 places restrictions upon the provision of medical care to pregnant minors who choose to terminate their pregnancies, but does not impose similar restrictions upon pregnant minors who choose to carry their pregnancies to term. Whether or not the Legislature intended to do so, this differential treatment is likely in at least some instances, as a practical matter, to skew a minor's decision in favor of childbirth. Such a result sometimes may follow simply as a matter of inertia—a minor who is afraid to tell her parents about her condition or to go to court may postpone action until it is too late safely to terminate her pregnancy—while in other cases a teenager who finds herself pregnant may choose to bear a child simply because that is the only decision that the law permits the minor to make on her own, without anyone else's permission or approval.
Although the statutory scheme before us discriminates against those minors who choose to terminate their pregnancies, a statutory scheme that discriminated against those minors who choose to bear a child similarly would violate the requirement of governmental neutrality. The latter circumstance would be presented, for example, were we faced with a statutory scheme—enacted, perhaps, by a Legislature particularly concerned with teenage mothers and the financial burden that they and their children impose upon society—that was the mirror image of the statute in this case, i.e., a statute that permitted those pregnant minors who chose to have an abortion to obtain medical assistance without parental consent or judicial authorization, but that required those minors who wished to carry their fetuses to term to obtain parental consent or judicial authorization before obtaining necessary medical care. Such a statutory scheme, which might well be likely to tilt a minor's decision in favor of terminating her pregnancy, would be just as inconsistent with the requirement of governmental neutrality as the statute now before us.
Moreover, even when the present statutory scheme does not lead a minor, who otherwise would choose to terminate her pregnancy, to carry the fetus to term and bear a child, the legislation will prevent any minor who is too ashamed or frightened either to inform a parent of her condition or to seek court authorization from obtaining professional medical assistance in terminating her pregnancy, leaving such a minor only with the dangerous options of pursuing a self-induced or back-alley abortion. In view of the substantial number of young women who are impregnated by family members, or know they face a hostile and violent parental reaction in the event a parent becomes aware of their pregnancy (for example, if a neighbor or family friend happens to learn of the presence of the minor at court), the risk that many minors may pursue such hazardous options is a very real one. A minor who chooses to carry her fetus to term, by contrast, is permitted to obtain necessary medical care, and thereby avoid added health risks, even if she similarly is too ashamed or frightened to inform her parents of her condition or go to court.
The stated legislative findings upon which Assembly Bill No. 2274 ostensibly was based do not support the differential treatment mandated by the statute. As the majority indicates, the legislation at issue purportedly rests upon a concern for protecting a pregnant minor's medical, emotional, and psychological well-being and for promoting the parent-child relationship. Such concerns, however, apply with equal force to a pregnant minor who decides to carry the fetus to term and give birth, and to a minor who decides that she does not wish to have a child and chooses to terminate her pregnancy. The state does not dispute that the medical, emotional, and psychological consequences that may result from a minor's decision not to terminate her pregnancy (and instead to carry the fetus to term and give birth, and thereafter either to assume the responsibilities of parenting or to place the child for adoption) are at least as serious as the consequences that may result from a minor's decision to have an abortion. And nothing in the legislative findings supporting the enactment suggests that minors who choose to proceed with a pregnancy and give birth are less in need of parental guidance and support than those who choose to terminate a pregnancy. Finally, to the extent that there is a need to ensure that a pregnant minor is mature enough to decide, by herself, how to proceed, that need certainly is no less pressing when a minor wishes to continue her pregnancy and have a child, than when a minor believes it would be in her best interest not to bear a child at such an early age. Consequently, even if one were to assume (contrary to the trial court's conclusion) that the legislative findings do provide some support for a parental consent law, those findings still do not explain or justify the legislation's disparate treatment of a pregnant minor on the basis of whether she decides to have an abortion rather than carry the fetus to term.
The majority does not discuss the Myers decision, or its requirement of evenhanded treatment and governmental neutrality, in evaluating whether the statute challenged in this case violates the state constitutional right of privacy. But the majority does briefly address Myers in analyzing plaintiffs' equal protection claim.2
In attempting to justify the imposition of a parental consent requirement upon a pregnant minor who chooses to terminate a pregnancy, but not upon a pregnant minor who chooses to bear a child, the majority declares that “an unemancipated minor seeking an abortion and an unemancipated minor carrying a pregnancy to term are not similarly situated” (maj. opn., p. 222 of 51 Cal.Rptr.2d, p. 1169 of 912 P.2d). Relying upon the circumstance that “[i]t is widely accepted that early prenatal care can reduce medical risks and assure a healthy outcome for both the mother and child,” the majority concludes that the Legislature “could reasonably, and neutrally, determine, as a matter of policy, that in the case of an unemancipated minor who is pregnant and intends to bear a child the public health interest in allowing her to obtain medical care for herself and her fetus is overriding, regardless of parental approval and whether or not the unemancipated minor is mature,” whereas, in the case of “voluntary abortion, which ordinarily involves an optional surgical procedure with significant consequences, ․ mature consent or a determination that it is in the unemancipated minor's best interest” is required. (Maj. opn., pp. 222–223 of 51 Cal.Rptr.2d, pp. 1169–1170 of 912 P.2d, original italics.)
In my view, the majority's explanation is fundamentally inconsistent with our decision in Myers and cannot withstand critical scrutiny. In the first place, of course, both the decision to proceed with a pregnancy and give birth and the decision to terminate a pregnancy are “voluntary” decisions, and, once a decision has been made, the medical care necessary to proceed safely is no more “optional” for one choice than for the other. Furthermore, although there unquestionably are very strong public health reasons for permitting a pregnant minor who plans to carry a fetus to term to obtain medical care for herself and her fetus even if the minor is afraid or reluctant to inform her parents of her pregnancy or to go before a judge, equally strong public health reasons exist for permitting a pregnant minor who similarly is fearful of informing her parents or going before a judge, but who wishes to terminate her pregnancy, to obtain professional medical care. As already noted, denying a pregnant minor in this situation access to professional medical care may result in relegating a frightened and desperate minor to attempting to undergo a self-induced or back-alley abortion—a course of action that experience has shown may lead to truly tragic results.
In sum, I believe that the constitutional principle of governmental neutrality that led this court to conclude in Myers that the state may not pay for the medical expenses associated with childbirth, but refuse to pay for the medical expenses related to the termination of pregnancy, compels the conclusion that the state may not permit a pregnant minor who chooses childbirth to obtain medical care without parental consent but deny similar access to a minor who chooses without parental consent to terminate her pregnancy.3
For the foregoing reasons, I conclude that the statute before us violates the state constitutional right of privacy. I note that the only other state that recently has considered a state constitutional challenge to a comparable “parental consent” law found the law unconstitutional under its state Constitution. In Florida, as in California, the state Constitution contains an explicit provision establishing a state constitutional right of privacy. In In re T.W. (Fla.1989) 551 So.2d 1186, 1194–1195, the Florida Supreme Court struck down the provision, relying in part upon the absence of a sufficient justification for the distinction drawn by the statute between a pregnant minor's consent to an abortion and the minor's consent to any other medical procedure involving her pregnancy. (See also State v. Koome (1975) 84 Wash.2d 901, 530 P.2d 260, 267–268.)
Because the majority ignores the mandate of this court's own precedent in Myers that the government act evenhandedly when it legislates in the area of reproductive choice, I cannot join today's decision holding that Assembly Bill No. 2274 is constitutional.
I would affirm the judgment of the Court of Appeal upholding the judgment rendered by the trial court.
I dissent. In my view, this court's decision in Hill v. National Collegiate Athletic Assn. (1994) 7 Cal.4th 1, 26 Cal.Rptr.2d 834, 865 P.2d 633 (Hill ) does not support the majority's conclusion that a minor has no legally protected privacy interest in deciding whether to have an abortion.
I particularly disagree with the majority's premise that the state Constitution offers protection against only those invasions of privacy that constitute “egregious breach[es]” of social norms. (See maj. opn., ante, at pp. 209, fn. 5, 214, 215, fn. 11, of 51 Cal.Rptr.2d, pp. 1156, fn. 5, 1161, 1162, fn. 11, of 912 P.2d.) This dubious presupposition underlies the majority's conclusion that plaintiffs have failed to establish even the threshold elements of a claim under the privacy clause. Read in its entirety and according to its spirit, Hill requires a court to weigh the privacy interest being impaired against the justifications for the impairment whenever the impairment is “serious” or, in other words, more than “slight,” “trivial,” or “de minimis.” (Hill, supra, 7 Cal.4th at pp. 37, 43, 26 Cal.Rptr.2d 834, 865 P.2d 633; dis. opn. of George, J., ante.) That the true meaning of the 112–page opinion in Hill lies in a single phrase—“egregious breach of social norms”—to the exclusion of the many other words the court used to describe and grapple with the concept of a cognizable invasion of privacy, strains credulity. Under the majority's reading of Hill, a court would be hard-pressed to hold that the privacy clause reached even the specific practice (the amassing of personal information by businesses and government) criticized in the voters' pamphlet on Proposition 11 (the Privacy Initiative). (Ballot Pamp., Proposed Amends. to Cal. Const. with arguments to voters, Gen. Elec. (Nov. 7, 1972) p. 26.)
Having unnecessarily diminished the right to privacy by reading Hill in this grudging manner, the majority further diminishes it by relying upon legislation concerning the rights of minors generally, and the subject of abortion specifically, as primary evidence of the “social norms” said to define the privacy right's scope. (See maj. opn., ante, pp. 211–212, 215 of 51 Cal.Rptr.2d, pp. 1158–1159, 1162 of 912 P.2d.) I doubt the voters, who thought they were creating a broad constitutional right to privacy with the potential for superseding contrary legislation, had in mind a narrow right circularly defined by reference to statutory law. Instead, the reason the voters added a privacy clause to the Constitution must have been to enhance the zone of privacy subject to legal protection—not to restrict legal protection, in practical effect, to whatever scope the Legislature allowed.
In summary, contrary to the majority's implicit but strong suggestion, the “egregious breach of social norms” standard is not compelled by Hill, supra, 7 Cal.4th 1, 26 Cal.Rptr.2d 834, 865 P.2d 633, and, in fact, appears inconsistent with the evident purpose and intended scope of the Privacy Initiative. Yet a court's job is to ensure, to the extent possible, that the laws of the state develop harmoniously. The majority's reading of Hill creates unnecessary and avoidable disharmony between the Privacy Initiative and the analysis we established in Hill to enforce the Privacy Initiative.
Applying Hill correctly, plaintiffs have made the required threshold showing of a cognizable invasion of privacy and, thus, have shifted to the state the burden of demonstrating that the challenged statute advances a sufficiently important countervailing interest. I agree with Justices Kennard and George the invasion of privacy at issue here is serious enough to require the state to prove that its statute furthers a compelling interest. The state, as the trial court found and the Court of Appeal agreed, has failed to carry that burden.
Even assuming for the sake of argument that the statute does further a compelling interest, there appear to be less intrusive means to further the interest. As Justice Kennard suggests, to ensure that a minor who desires an abortion is sufficiently mature to make that decision, the state could properly rely on the professional judgment of the physician, who under existing law already must determine that the patient is capable of giving informed consent. (See dis. opn. of Kennard, J., ante, at pp. 234–235 of 51 Cal.Rptr.2d, pp. 1181–1182 of 912 P.2d.) Furthermore, as Justice Kennard also suggests (id. at p. 236 of 51 Cal.Rptr.2d, p. 1183 of 912 P.2d), the state could distinguish between the youngest minors, perhaps those 14 years old and under, and those of greater years and maturity. The statute as presently written is overly broad, sweeping within its provisions minors who cannot reasonably be deemed to be similarly situated (12–year–olds and younger children versus 17–year–olds) with respect to maturity and the capacity to make responsible choices concerning their own best interests.
Finally, I question the majority's decision to address constitutional issues left undecided by the Court of Appeal. Respect for orderly procedure counsels that we remand the matter to permit the Court of Appeal to address, in the first instance, the questions whether the statute unconstitutionally infringes minors' informational privacy interests, and violates the state's duty to act evenhandedly concerning the choice between childbirth and abortion. (See Committee to Defend Reproductive Rights v. Myers (1981) 29 Cal.3d 252, 285, 172 Cal.Rptr. 866, 625 P.2d 779; see also dis. opn. of George, J., ante, at pp. 247–250 of 51 Cal.Rptr.2d, pp. 1194–1197 of 912 P.2d.)
1. “A person under the age of 18 years is an emancipated minor if any of the following conditions is satisfied: [¶] (a) The person has entered into a valid marriage, whether or not the marriage has been dissolved. [¶] (b) The person is on active duty with the armed forces of the United States. [¶] (c) The person has received a declaration of emancipation pursuant to [Family Code] Section 7122.” (Fam.Code, § 7002.) A minor may petition for a declaration of emancipation if he or she is at least 14 years of age, willingly lives separate and apart from parents or guardian with their consent or acquiescence, and is managing his or her own financial affairs. (Id., § 7120.) An emancipated minor may, inter alia, “consent to medical, dental, or psychiatric care, without parental consent, knowledge, or liability.” (Id., § 7050, subd. (e)(1).)
2. In relevant part, Assembly Bill No. 2274 provides (Stats.1987, ch. 1237, §§ 2, 3, p. 4396 et seq.):“Section 2. Section 34.5 of the Civil Code is amended to read:“34.5 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 such minor shall not be necessary in order to authorize the hospital, medical, and surgical care.“This section shall not be construed to authorize a minor to be sterilized without the consent of his or her parent or guardian [or] to authorize an unemancipated minor to receive an abortion without the consent of a parent or guardian other than as provided in Section 25958 of the Health and Safety Code.“Section 3. Section 25958 is added to the Health and Safety Code, to read:“25958. (a) Except in a medical emergency requiring immediate medical action, no abortion shall be performed upon an unemancipated minor unless she first has given her written consent to the abortion and also has obtained the written consent of one of her parents or legal guardian.“(b) If one or both of an unemancipated, pregnant minor's parents or her guardian refuse to consent to the performance of an abortion, or if the minor elects not to seek the consent of one or both of her parents or her guardian, an unemancipated pregnant minor may file a petition with the juvenile court. If, pursuant to this subdivision, a minor seeks a petition, the court shall assist the minor or person designated by the minor in preparing the petition and notices required pursuant to this section. The petition shall set forth with specificity the minor's reasons for the request. The court shall ensure that the minor's identity is confidential. The minor may file the petition using only her initials or a pseudonym. An unemancipated pregnant minor may participate in the proceedings in juvenile court on her own behalf, and the court may appoint a guardian ad litem for her. The court shall, however, advise her that she has a right to court-appointed counsel upon request. The hearing shall be set within three days of the filing of the petition. A notice shall be given to the minor of the date, time, and place of the hearing on the petition.“(c) At the hearing on a minor's petition brought pursuant to subdivision (b) for the authorization of an abortion, the court shall consider all evidence duly presented, and order either of the following:“(1) If the court finds that the minor is sufficiently mature and sufficiently informed to make the decision on her own regarding an abortion, and that the minor has, on that basis, consented thereto, the court shall grant the petition.“(2) If the court finds that the minor is not sufficiently mature and sufficiently informed to make the decision on her own regarding an abortion, the court shall then consider whether performance of the abortion would be in the best interest of the minor. In the event that the court finds that the performance of the abortion would be in the minor's best interest, the court shall grant the petition ordering the performance of the abortion without consent of, or notice to, the parents or guardian. In the event that the court finds that the performance of the abortion is not in the best interest of the minor, the court shall deny the petition.“Judgment shall be entered within one court day of submission of the matter.“(d) The minor may appeal the judgment of the juvenile court by filing a written notice of appeal at any time after the entry of the judgment. The Judicial Council shall prescribe, by rule, the practice and procedure on appeal and the time and manner in which any record on appeal shall be prepared and filed. These procedures shall require that the notice of the date, time, and place of hearing, which shall be set within five court days of the filing of notice of appeal, shall be mailed to the parties by the clerk of the court. The appellate court shall ensure that the minor's identity is confidential. The minor may file the petition using only her initials or a pseudonym. Judgment on appeal shall be entered within one court day of submission of the matter.“(e) No fees or costs incurred in connection with the procedures required by this section shall be chargeable to the minor or her parents, or either of them, or to her legal guardian.“(f) It is a misdemeanor, punishable by a fine of not more than one thousand dollars ($1000), or by imprisonment in the county jail of up to 30 days, or both, for any person to knowingly perform an abortion on an unmarried or unemancipated minor without complying with the requirements of this section.”
3. The Court of Appeal concluded, inter alia, that the right to privacy under the California Constitution extends to the decision whether to undergo childbirth, does not distinguish between the right of privacy of adults and children, and may not be intruded upon absent a compelling state interest.
4. The United States Supreme Court has addressed the constitutionality of parental notice and consent requirements at length on eight occasions. (See Planned Parenthood of Central Missouri v. Danforth (1976) 428 U.S. 52, 96 S.Ct. 2831, 49 L.Ed.2d 788; Bellotti v. Baird (1979) 443 U.S. 622, 99 S.Ct. 3035, 61 L.Ed.2d 797; H.L. v. Matheson (1981) 450 U.S. 398, 101 S.Ct. 1164, 67 L.Ed.2d 388; Planned Parenthood Assn. v. Ashcroft (1983) 462 U.S. 476, 103 S.Ct. 2517, 76 L.Ed.2d 733; City of Akron v. Akron Center for Reproductive Health (1983) 462 U.S. 416, 103 S.Ct. 2481, 76 L.Ed.2d 687; Hodgson v. Minnesota (1990) 497 U.S. 417, 110 S.Ct. 2926, 111 L.Ed.2d 344; Ohio v. Akron Center for Reproductive Health (1990) 497 U.S. 502, 110 S.Ct. 2972, 111 L.Ed.2d 405; Planned Parenthood v. Casey (1992) 505 U.S. 833, 112 S.Ct. 2791, 120 L.Ed.2d 674.) Most recently, in Casey, a majority of the court upheld a Pennsylvania statute requiring that before an unemancipated minor under the age of 18 may obtain an abortion she must obtain the consent of one of her parents or opt for a judicial procedure that allows her to bypass the consent requirement. (Id. at p. 899, 112 S.Ct. at p. 2832 (opn. of O'Connor, J., Kennedy, J., and Souter, J.) [“Our cases establish, and we reaffirm today, that a State may require a minor seeking an abortion to obtain the consent of a parent or guardian, provided that there is an adequate judicial bypass procedure.”]; and id. at pp. 970–971, 112 S.Ct. at p. 2869 (conc. & dis. opn. of Rehnquist, C.J.) [“We think it beyond dispute that a State ‘has a strong and legitimate interest in the welfare of its young citizens, whose immaturity, inexperience, and lack of judgment may sometimes impair their ability to exercise their rights wisely.’ [Citation.] A requirement of parental consent to abortion, like myriad other restrictions placed upon minors in other contexts, is reasonably designed to further this important and legitimate state interest.”].)
5. Although the parties litigated, and the trial court decided, the claims in this matter prior to and thus without the benefit of our opinion in Hill, the Court of Appeal subsequently concluded that no additional evidence was required. The parties have not challenged that conclusion. At trial, they presented extensive evidence and argument concerning, inter alia, the nature of the privacy right involved, the expectations of unemancipated minors regarding their ability to obtain an abortion, the procedures used for determining informed consent of minors by physicians performing abortions, and the severity of the burdens imposed by Assembly Bill No. 2274. Indeed, plaintiffs concede that, as to each of the elements under Hill, they have had both the opportunity and the incentive to present the relevant facts and legal arguments. They argue that the trial court's factual findings, based on the evidence they presented at trial, “bear directly upon the burdening of [the right to privacy], the justifications for the burden, and whether the statute actually furthers the State's articulated goals.” Similarly, they argue that the evidence they presented to the trial court establishes that Assembly Bill No. 2274 creates substantial obstacles for pregnant teenagers, which amount to an “egregious breach of social norms.”
6. Indeed, in In re Roger S., we repeatedly relied on decisions by the United States Supreme Court concerning the right to privacy, including decisions specifically involving the right of minors to obtain abortions. Thus, we cited Planned Parenthood of Central Missouri v. Danforth, supra, 428 U.S. 52, 96 S.Ct. 2831, 49 L.Ed.2d 788, in support of our conclusion that the liberty interest of a minor is qualitatively different from that of an adult. (In re Roger S., supra, 19 Cal.3d at p. 931, 141 Cal.Rptr. 298, 569 P.2d 1286.) Danforth underscored the state's “somewhat broader authority to regulate the activities of children than of adults” and emphasized that, in holding the legislation at issue in that case invalid, it did not “suggest that every minor, regardless of age or maturity, may give effective consent for termination of her pregnancy.” (Planned Parenthood of Central Missouri v. Danforth, supra, 428 U.S. at pp. 74–75, 96 S.Ct. at p. 2844.) In a recent case implicating the privacy rights of unemancipated minors, the United States Supreme Court observed: “Traditionally at common law, and still today, unemancipated minors lack some of the most fundamental rights of self-determination—including even the right of liberty in its narrow sense, i.e., the right to come and go at will. They are subject, even as to their physical freedom, to the control of their parents or guardians.” (Vernonia School District 47J v. Acton (1995) ––– U.S. ––––, ––––, 115 S.Ct. 2386, 2391, 132 L.Ed.2d 564.)
7. In reviewing a Massachusetts abortion consent statute, Justice Powell wrote: “We have recognized three reasons justifying the conclusion that the constitutional rights of children cannot be equated with those of adults: the peculiar vulnerability of children; their inability to make critical decisions in an informed, mature manner; and the importance of the parental role in child rearing.” (Bellotti v. Baird, supra, 443 U.S. at p. 634, 99 S.Ct. at p. 3043 (lead opn. of Powell, J.).) These grounds for distinguishing the rights of children from those of adults are deeply rooted in our culture and society. They are based on normative assumptions about the family, including the mutual interests of children and their parents and the benefits to children of parental guidance and control. As such, although not immutable or even pellucid, they are not subject to simple “proof” by the preponderance of the evidence through a battle of the experts, or to the vagaries of the adversarial process. In this case, the parties presented evidence and the trial court made extensive factual findings concerning the cognitive abilities of adolescents to make critical decisions and about the importance of the parental role in a child's exercise of her privacy interest concerning the decision to have an abortion. Those findings prove to be of limited application to an assessment of the constitutional interests involved in this case.
8. Even under the medical emancipation provisions, the right to consent is limited to a handful of medical procedures and treatment. (See, e.g., Fam.Code, § 6924, subd. (b)(1) & (2) [minor 12 years or older may consent to mental health treatment if, in the opinion of the attending professional person, he or she is “mature enough to participate intelligently” in the services and would present a danger of serious physical or mental harm to self or to others without the treatment or is the alleged victim of incest or child abuse]; id. § 6926 [minor 12 years of age or older may consent to medical care related to diagnosis or treatment of infectious, contagious, or communicable disease]; id. § 6927 [minor 12 years of age or older may consent to medical care related to diagnosis or treatment for rape]; id., § 6928 [minor may consent to medical care related to diagnosis and treatment for sexual assault]; id. § 6929 [minor 12 years of age or older may consent to medical care and counseling related to diagnosis and treatment of drug or alcohol related problem].) Moreover, many of the provisions require parental notice and involvement. Thus, treatment for mental health problems, sexual assault, and alcohol or drug abuse require involvement of the minor's parent or guardian unless, in the opinion of the professional person treating or counseling the minor, it would be inappropriate. (Id., §§ 6924, subd. (d), 6928, subd. (c), 6929, subd. (c).) The right of even an “independent minor” to confidentiality as against his or her parents is also limited under the “medical emancipation” statutes. Thus, although a minor 15 years of age or older may consent to medical care if he or she is living separate and apart from parents or guardian and is financially independent, “a physician and surgeon or dentist may, with or without the consent of the minor patient, advise the minor's parent or guardian of the treatment given or needed if the physician and surgeon or dentist has reason to know, on the basis of the information given by the minor, the whereabouts of the parent or guardian.” (Id., § 6922, italics added.)
9. The same is not true for an adult woman or an emancipated minor, whose “reasonable expectation” regarding medical treatment includes “the right, in the exercise of control over [her] own body, to determine whether or not to submit to lawful medical treatment.” (Cobbs v. Grant (1972) 8 Cal.3d 229, 242, 104 Cal.Rptr. 505, 502 P.2d 1.) Unlike the statutes governing consent to medical treatment for minors, there are no usual requirements that an adult woman obtain consent or authorization from a third party to obtain care.
10. States with consent or notification requirements for minors in force include: Alabama, Arkansas, Georgia, Indiana, Kansas, Kentucky, Louisiana, Maine, Maryland, Massachusetts, Michigan, Minnesota, Mississippi, Missouri, Nebraska, North Dakota, Ohio, Oklahoma, Pennsylvania, Rhode Island, South Carolina, Tennessee, Utah, West Virginia, Wisconsin, Wyoming.
11. In his dissent, Justice George asserts that this element of the Hill test “was intended simply to screen out those instances in which, although a constitutionally protected privacy right is implicated, the impingement at issue is insubstantial or trivial and thus should not be viewed as posing a serious constitutional question.” (Dis. opn. of George, J., post, at p. 245 of 51 Cal.Rptr.2d, p. 1192 of 912 P.2d.) Not so. As Justice George previously correctly stated in Hill: “Under the third element adopted by the majority, a plaintiff is not entitled even to put a defendant to the burden of presenting a justification for its conduct unless the plaintiff can establish not only that the defendant's conduct infringes upon a constitutionally protected privacy interest, but that the invasion of privacy is ‘sufficiently serious in [its] nature, scope, and actual or potential impact to constitute an egregious breach of the social norms underlying the privacy right.’ ” (Hill, supra, 7 Cal.4th at p. 68, 26 Cal.Rptr.2d 834, 865 P.2d 633 (conc. & dis. opn. of George, J.) italics in original.) He also concurred in Heller v. Norcal Mutual Ins. Co. (1994) 8 Cal.4th 30, 44, 32 Cal.Rptr.2d 200, 876 P.2d 999, in which we applied the same test. We note that in Hill, the intrusion consisted of suspicionless visually monitored urination of student athletes; a female athlete could be required to give a urine sample even if she were menstruating. We found the procedure “particularly intrusive”: “Although diminished by the athletic setting and the exercise of informed consent, plaintiffs' privacy interest are not thereby rendered de minimis․ The NCAA's use of a particularly intrusive monitored urination procedure justifies further inquiry, even under conditions of decreased expectations of privacy.” (Hill, supra, 7 Cal.4th at p. 43, 26 Cal.Rptr.2d 834, 865 P.2d 633.) The intrusion clearly “constitut[ed] an egregious breach of the social norms underlying the privacy right.” (Id., at p. 37, 26 Cal.Rptr.2d 834, 865 P.2d 633.)
12. Plaintiffs argue that this case involves the invasion of an interest fundamental to the personal autonomy of unemancipated minors, and that the state, therefore, must present a “compelling interest” to overcome that vital privacy interest. (See Hill, supra, 7 Cal.4th at p. 34, 26 Cal.Rptr.2d 834, 865 P.2d 633.) The People contend that a less rigorous standard than “compelling interest” should apply to the constitutional rights of unemancipated minors. We have not previously resolved the issue, nor need we do so here: under either standard, the state has carried its burden.
13. For example, amici curiae point to an article criticizing the studies on which the trial court relied as overstating what is known about the cognitive ability of minors to make decisions concerning health care, including decisions about abortion. The article stresses that there are “few data supporting the assertion of equivalent decision making competence ․ [and] few studies in which subjects made decisions or in which adolescent and adult abilities were compared.” (Gardner et al., Asserting Scientific Authority: Cognitive Development and Adolescent Legal Rights (June 1989) Am. Psychologist 895, 898). The authors conclude that “[t]he assertion of equal decision-making capacity was unwarranted ․ because at present little is known about the relative decision-making competence of adolescents and adults.” (Id. at p. 899.)
14. The legislative “findings,” culled from opinions of the United States Supreme Court, are as follows: “(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, p. 4396.)
15. As Justice Powell noted in Bellotti, “the peculiar nature of the abortion decision requires the opportunity for case-by-case evaluations of the maturity of pregnant minors.” (Bellotti v. Baird, supra, 443 U.S. at p. 644, fn. 23, 99 S.Ct. at p. 3048, fn. 23 (lead opn. of Powell, J.).) “Not only is it difficult to define, let alone determine, maturity, but also the fact that a minor may be very much an adult in some respects does not mean that his or her need and opportunity for growth under parental guidance and discipline have ended.” (Id. at pp. 643–644, fn. 23, 99 S.Ct. at p. 3048, fn. 23.) Indeed, one of plaintiffs' own experts testified that “[t]o assume a 13–year old with a physical appearance of someone five years her senior has advanced cognitive skills is to run the risk of failing to reach the patient: it is akin to a misdiagnosis.” Significantly, in oral argument, plaintiffs conceded that the capacity to give informed consent varies in the case of each individual unemancipated minor; thus, in response to our question whether a 17–year–old is capable of giving informed consent, counsel answered, “Maybe, maybe not.”For the same reason, we also reject the notion that Assembly Bill No. 2274 might be deemed constitutional as applied to unemancipated minors under the age of 14 and unconstitutional only as to minors 14 years and older. As Justice Brennan observed, “18 is the dividing line that society has generally drawn, the point at which it is thought reasonable to assume that persons have an ability to make, and a duty to bear responsibility for their, judgments.” (Stanford v. Kentucky, supra, 492 U.S. at p. 396, 109 S.Ct. at p. 2989 (dis. opn. of Brennan, J.).) It is true that a minor 14 years or older may, inter alia, petition for emancipation (Fam.Code, § 7120), for a guardian (Prob.Code, § 1510, subd. (a)) or for a guardian ad litem (Code Civ.Proc., § 373), obtain a “junior permit” to operate a motor vehicle (Veh.Code, § 12513), or, under certain conditions, be detained in jail (Welf. & Inst.Code, § 207.1, subd. (d), or found not to be a “fit and proper subject to be dealt with under the juvenile ․ law” (id., § 707, subd. (a)). None of these statutes, however, suggest that a 14–year–old unemancipated minor must or should ordinarily be treated as an adult—indeed, they implicitly recognize that he or she is usually not mature enough to be so treated. Moreover, although some of these statutes arguably recognize the age of 14 as some kind of a dividing line between childhood and adolescence (as opposed to adulthood), the medical consent statutes have never created any bright line rule for adolescents of 14 years or older. Nor, in any event, was the evidence presented in the trial court sufficient to establish 14 as the age at which adolescents achieve sufficient maturity to give informed consent to medical procedures.
16. In the leading case of Cobbs v. Grant, supra, 8 Cal.3d at page 242, 104 Cal.Rptr. 505, 502 P.2d 1, we held that “a person of adult years and in sound mind” has the right to determine whether to submit to lawful medical treatment. (Italics added; see also Health & Saf.Code, § 7185.5, subd. (a) [“The Legislature finds that an adult person has the fundamental right to control the decisions relating to the rendering of his or her own medical care ․”].) In the case of an unemancipated minor, however, there is no such absolute postulate.
17. In her dissent, Justice Kennard refers to “the majority's low opinion of the professional integrity of physicians.” (Dis. opn. of Kennard, J., post, at p. 235 of 51 Cal.Rptr.2d, p. 1182 of 912 P.2d.) We do not, of course, doubt the professional integrity of conscientious physicians, including obstetricians. That does not mean, however, that the Legislature could not reasonably determine that the legal determination of an unemancipated minor's maturity should be made by judges, who, after all, are professionals of equal integrity.
18. The study involved interviews with a sample of minors from both states—148 in Minnesota and 37 in Wisconsin—who were about to undergo abortions at abortion clinics. More than half were 16 and 17 years old. None of the participants in the study were minors who were deciding to carry their pregnancies to term. The author of the study testified that the small number of minors interviewed in Wisconsin was not even intended to yield data from which to draw any conclusions about the rate of parental consent in Wisconsin. On the limited data, he concluded, however, that the percentage of minors notifying one parent was about the same in both states. Significantly, under the Minnesota statute, enacted in 1981, a minor notifying only one parent must still obtain judicial authorization. (Minn.Stat.Ann. § 144.343, subd. 6 (West 1989); see Hodgson v. Minnesota, supra, 497 U.S. 417, 110 S.Ct. 2926, 111 L.Ed.2d 344 [Minnesota provision requiring two-parent notification of abortion decision of a minor unless she obtains a judicial bypass is constitutional].) The data indicated that the percentage of minors notifying two parents was greater in Minnesota than Wisconsin.
19. Thus, one witness for plaintiffs, Paula Marie Wendt, testified about her personal knowledge of instances in which minors had informed their parents rather than opt for a judicial bypass under the Minnesota law. Another witness for plaintiffs, Jamie Ann Sabino, offered the contrary opinion concerning the Massachusetts law, testifying that she did not believe it has encouraged parental involvement or communication. She also testified, however, that no statistics were kept concerning the number of minors involving their parents in abortion decisions prior to the enactment of the statute. She was also unaware of any study in any other state that has implemented a consent statute concerning the percentage of minors who involve their parents in their abortion decision. The trial court also relied on a Michigan study conducted between 1974 and 1975, before the implementation of a parental consent requirement, indicating that 57 percent involved a parent in the decision, roughly the same percentage who did so in Minnesota according to the results of the Blum study. According to Professor Blum's testimony, however, it would be “plain and simply bad science” to derive any conclusions about the impact of a consent statute by comparing studies involving different time periods and different data sets in that manner.
20. By contrast, a Minnesota judge, who had heard over a thousand petitions between 1981 and 1986, characterized the demeanor of the teenagers as “very calm ․ I didn't really feel they were under a great deal of stress.”
21. It is merely speculative to conclude that the California judicial bypass will resemble those of Minnesota or Massachusetts. First, the applicable statutes are different in crucial ways. Assembly Bill No. 2274 requires the consent of only one parent; the Minnesota statute, as discussed, requires notice to both parents or judicial authorization; the Massachusetts statute requires consent of both parents or judicial authorization. (Minn.Stat.Ann. § 144.343, subd. 6, supra; Mass. Gen. Laws Ann. ch. 112, § 12S (West 1995).) Thus, in both states, as opposed to California, even if one parent is notified and consents, a minor must invoke a judicial bypass. No evidence was presented concerning the judicial bypass in any of the states requiring only one parent's consent. Moreover, we cannot derive a general conclusion from the experience of only two states out of the more than twenty-five with judicial bypass procedures. As one amicus curiae points out, the Indiana judicial bypass procedure (which requires written consent from one parent or judicial authorization) has apparently not operated as a “rubber stamp”: “what is routine in Massachusetts is all but unheard of in Indiana ․” (quoting Lewin, Parental Consent to Abortion: How Enforcement Can Vary, New York Times (May 28, 1992) p. A1, col. 5.)
22. There is, in fact, no empirical evidence before us that the California law will actually result in a greater number of delayed abortions. A study on the impact of the Minnesota parental notification law over the period between August 1981 through March 1986 suggests that parental notification requirements may result in an overall decrease in the number of abortions for unemancipated minors—including late abortions. (Rogers et al., Impact of the Minnesota Parental Notification Law on Abortion and Birth (1991) 81 Am.J.Pub. Health 294, 296.) Thus, over the nearly six-year period covered by the study, “[t]he pre-enactment to post-enactment late abortion rate substantially declines for women of 15–17 years․” (Id. at p. 296.) Although the late-to-early abortion rate increased, “a steep decline in early abortions, not an increase in late abortions, accounts for the increased late-to-early abortion ratio in 15–17 year old women.” (Ibid.) The authors account for the increase in the proportion of late abortions as follows: “First, the law may have been more successful in preventing pregnancy among minors who would have had early abortions than among minors who would have had late abortions. A second possibility is that the law caused delays for a greater percentage of a declining number of minors seeking abortions. Regardless, the claim that the law caused more minors to obtain late abortions is unsubstantiated. In fact, the reverse is true. For ages 15–17, the number of late abortions per 1,000 women decreased following the enactment of the law. Therefore, an increased medical hazard due to a rising number of late abortions was not realized.” (Id. at p. 297.)
23. Plaintiffs' argument both proves too much and too little. Sterilization, which also implicates the right to privacy and to reproductive choice, is unavailable to unemancipated minors regardless of parental consent. (Cal.Code Regs. tit. 22, § 70707.1(a)(1) (1994)); Conservatorship of Valerie N. (1985) 40 Cal.3d 143, 161, 219 Cal.Rptr. 387, 707 P.2d 760 [“[S]terilization is encompassed within the right to privacy,” i.e., “the right of women to exercise procreative choice ‘as they see fit.’ ”].) Yet, if plaintiffs' analysis is carried to its logical extension, the state could not preclude unemancipated minors from consenting to that procedure because it would discriminate on the basis of reproductive choice. On the other hand, although plaintiffs urge that every legislative finding in favor of mandatory parental or judicial consent for abortion applies with greater force to medical care for childbirth, they do not suggest that the Legislature could require a pregnant unemancipated minor to obtain consent from a parent or authorization from a judge to give birth or not to have an abortion. Nor do they suggest that the Legislature must withhold vital prenatal care from a pregnant unemancipated minor in the absence of parental consent if it requires consent for an abortion.
1. Michael Policar, a medical doctor who is board certified in obstetrics and gynecology, and a member of the faculty of the Medical School of the University of California at San Francisco, testified that “abortion is the safest operation which is available in the United States ․ it has the lowest rate of deaths associated with it and also has the lowest rate of serious complications in comparison to any other operation which is widely performed in this country.” He testified that adolescents are even less likely than adults to experience medical complications after abortion.Philip Darney, a medical doctor who is board certified in obstetrics, gynecology and preventative medicine, similarly testified that “[e]lective abortion has a very low complication rate at [San Francisco General Hospital] and at other institutions” and that this low complication rate “applies to teens as well.”In Hodgson v. Minnesota (1990) 497 U.S. 417, 110 S.Ct. 2926, 111 L.Ed.2d 344, Justice Thurgood Marshall cited a study concluding that a “minor's overall risk of dying from childbirth is over nine times greater than risk of dying from legal abortion.” (Id. at p. 467, 110 S.Ct. at p. 2954 (conc. & dis. opn. of Marshall, J.), citing Greydanus & Railsback, Abortion in Adolescence (1985) 1 Seminars in Adolescent Med. 213, 214.)
2. Dr. Darney (see fn. 1, ante ) testified: “I have never in the course of more than 15 years of doing abortions of teenagers and others felt that I didn't get an adequate history from the patient to deal with problems that might come up in the course of an abortion.”Dr. Policar (see fn. 1, ante ) testified that adolescents are able to provide a medical history for abortion “as well as any other group of individuals” but also that teens are reluctant to disclose some relevant facts, such as previous abortions or sexually transmitted diseases, in the presence of their parents.Curtiss Eugene Weidmar, a medical doctor and the Director of Public Health for El Dorado County, testified that a medical history is necessary to determine contraindications before prescribing oral contraceptives, and that this history is routinely taken from the minor without involving the parent.
3. Nancy Adler, a professor of medical psychology in the Department of Psychiatry and Pediatrics of the University of California at San Francisco, testified that she was part of an expert panel appointed by the American Psychological Association to survey the scientific literature on the psychological responses to abortion. This survey resulted in an article of which Dr. Adler was the lead author. (Adler et al., Psychological Responses After Abortions (1990) 248 Science 41.) From the literature review, Dr. Adler concluded that “for the vast majority of women having their first trimester procedure, that there is no hazard to mental health, that the predominant responses to abortion are positive and that the negative responses tend to be mild and transient.” She also found that there was no evidence that adolescents were particularly vulnerable to serious adverse psychological responses to abortion.Nada Logan Stotland, a board certified psychiatrist who is also associate professor of clinical psychiatry and associate professor of clinical obstetrics and gynecology at the University of Chicago, testified that she had reviewed the scientific literature on psychiatric consequences of abortion and “according to the published literature, the majority of women who undergo abortions experience relief afterwards. Some smaller proportion experience loss and some guilt and, again, in the reported literature, the vast majority of those responses are transient and self-limited. That is they don't require intervention by a professional.” She also testified that “[i]n every study, the incidence [of adverse psychiatric sequelae] following childbirth is considerably higher, on the order of four times as high following childbirth as following abortion.” She also testified that age by itself was not a risk factor, that adolescents were no more likely than adults to experience adverse psychiatric effects. These conclusions appear in a chapter she wrote in a peer reviewed book, of which she was the editor, that was published by the American Psychiatric Press, which is the press of the American Psychiatric Association. (Stotland, Psychiatric Issues in Abortion in Psychiatric Aspects of Abortion (Stotland edit. 1991).) She noted that the 1991 literature review published by the American Psychiatric Association reached similar conclusions. (Dagg, The Psychological Sequelae of Therapeutic Abortions—Denied and Completed (1991) 148 Am.J. of Psychiatry 578.)This finding is also supported by the testimony of Laurie Schwab Zabin, Ph.D., an associate professor at Johns Hopkins School of Hygiene and Public Health. In her expert opinion, based on her own research (Zabin et al., When Urban Adolescents Choose Abortion: Effects on Education, Psychological Status and Subsequent Pregnancy (1989) 6 Fam. Planning Perspectives 248) and that of others in the field, abortion does not have any negative psychological effect on adolescents.This conclusion is further supported by the testimony of Dr. Policar (see fn. 1, ante ), who testified that emotional reaction to abortion “serious enough to require consultation with a psychiatrist ․ literally never occurs” and that less serious emotional reactions, which would be referred to a social worker, are rare for all women and even more so for teens.David Elkind, a child psychologist and professor of child study at Tufts University, testified: “In terms of negative impact, I think it's been well-established in studies that there are, so far as we know, no negative sequelae to abortion long-term.”
4. Dr. Adler (see fn. 3, ante ) testified that a woman is more likely to have negative psychological responses following abortion if the woman was coerced by her parents or partner to terminate a pregnancy that she would have preferred to continue.Dr. Stotland (see fn. 3, ante ) testified that lack of autonomy or control over the abortion decision is associated with a negative psychiatric outcome and that pressure from a parent can therefore have a negative impact on the psychiatric outcome of an adolescent's abortion decision.Based on her research, Dr. Laurie Zabin (see fn. 3, ante ) testified that whether an adolescent is later satisfied with her decision to terminate a pregnancy by abortion is not significantly related to whether the adolescent consulted a parent before making the decision. Those who independently made the decision to terminate or not terminate the pregnancy were significantly more likely to be satisfied with the decision than those who succumbed to pressure from a parent or other adult.
5. The evidence supporting this finding is discussed in the text, post, at pages 212 to 213 of 51 Cal.Rptr.2d, pages 1159 to 1160 of 912 P.2d.
6. Dr. Policar (see fn. 1, ante ) testified that the “vast majority” of adolescents are capable of giving informed consent and that he would not perform an abortion on an adolescent or any other patient without informed consent.Adele D. Hofmann, a medical doctor and professor of pediatrics and director of adolescent medicine at the University of California at Irvine, testified that generally adolescents are capable of giving informed consent and that no adolescent can be treated on her own consent unless that consent is informed. Dr. Stotland (see fn. 3, ante ) testified to the same effect.
7. Robert Blum, a medical doctor and professor of pediatrics at the University of Minnesota, testified to a 1984 study based on interviews with minors who were at clinics awaiting abortions in Minnesota (which had a two-parent notification law) and Wisconsin (which had no parental involvement law). The study concluded that the Minnesota law had no effect on the number of minors who consulted one parent, and only a slight effect on the number who consulted both parents. (Blum et al., The Impact of a Parental Notification Law on Adolescent Abortion Decision-making (1987) 77 Am.J.Pub. Health 619.)
8. Based on his study (see fn. 7, ante ), Dr. Blum testified that the most important factors influencing whether a pregnant minor consulted a parent (almost invariably her mother) were the quality of the relationship, the age of the minor (younger minors being far more likely to consult), and the family's socio-economic status.
9. In states with parental involvement laws, the reasons minors give for not consulting their parents include fear of a physically or emotionally abusive parent, fear of being ejected from the home, concern that the parent will not keep the information confidential, and an unwillingness to give upsetting news to a parent who is physically or emotionally fragile.Although the experts who testified did not agree on the percentage of families that qualify as dysfunctional or abusive, they agreed that the number of such families was significant. Moreover, evidence in the record indicates that for teens who become pregnant, the percentage of families that are abusive and/or dysfunctional is much higher than for teens generally.Lenore E.A. Walker, a psychologist specializing in family violence and abuse, testified that approximately 25 to 30 percent of families in the United States “will have some form of domestic or family violence at some part of their life history” and that an adolescent revealing her pregnancy to her parents is likely to trigger violence or some other form of abuse in such families. (See also Hodgson v. Minnesota, supra, 497 U.S. 417, 439, 110 S.Ct. 2926, 2939, 111 L.Ed.2d 344 [referring to “the distressingly large number of cases in which family violence is a serious problem”]; testimony of social worker Jeth Gold stating that some parents “react very violently when they find out their child is sexually active”; testimony of Dr. Adele Hofmann (see fn. 6, ante ) citing instances of a parent inflicting physical injury on the adolescent after learning of her pregnancy.)Charles R. Figley, a psychologist and a professor at Florida State University, testified that approximately 10 percent of families would not have any of the characteristics necessary for providing appropriate support to a pregnant minor. He also testified that forcing a pregnant adolescent to involve her parents in the abortion decision would be inappropriate if the parents are psychologically or physically abusive.W. Robert Beavers, a psychiatrist and clinical professor of psychiatry at the University of Texas, Southwestern Medical Center, testified about a test (the Beavers System Model) he developed to rate family competence. Using this test, he found that 5 percent of families attained the optimal level of competence, 38 percent were judged “adequate,” 38 percent were judged “mid-range,” 16 percent were “borderline,” and 3 percent were “severely dysfunctional.” He also testified that child abuse occurs in 3 to 5 percent of American families. He conceded that some teens cannot involve parents in the abortion decision.
10. Anita Lorraine Nelson, a medical doctor who is board certified in obstetrics and gynecology, an assistant professor at the School of Medicine at the University of California at Los Angeles, and the medical director of women's health clinics in the Los Angeles area, testified that in her opinion implementation of California's parental consent law would cause minors to delay abortions, resulting in significantly increased medical risks. Dr. Adler (see fn. 3, ante ) testified to the same effect, adding that delay increases the psychological as well as the medical risks.Dr. Policar (see fn. 1, ante ) testified that the risk of complications in an abortion increases 50 percent per week for each week after the 10th week of pregnancy.Jamie Ann Sabino, a Massachusetts attorney who is cochair of the Judicial Consent for Minors Lawyer Referral Panel in that state, testified that for minors who use the Massachusetts bypass procedure, “there is at least a week but more like a 2–week delay.”
11. Gerald Martin, a Minnesota district court judge from the Duluth area, testified: “It's clearly a very nerve-racking, tense, stressful experience for them.”Lynne MacBean, the volunteer coordinator of the Guardian Ad Litem Program in Minneapolis, Minnesota, testified that the judicial bypass procedure is very difficult and frightening for minors even though the judges who hear the petitions are careful to act in a nonthreatening manner. (See also Hodgson v. Minnesota, supra, 497 U.S. 417, 441, 110 S.Ct. 2926, 2940, 111 L.Ed.2d 344 [“The court experience produced fear, tension, anxiety, and shame among minors ․”]; testimony of social worker Jeth Gold that “[t]he court system is a fearful, anxiety-producing, intimidating experience for most kids.”)Jamie Ann Sabino (see fn. 10, ante ) testified: “I see a very high level of stress in the young women going to court that I have represented including crying, freezing in court, wringing of their hands, telling me how scared they are, telling me that they have had nightmares, that they can't sleep.”
12. The judges testifying that judicial bypass procedures provide no benefit to minors were Minnesota District Court Judges Gerald Martin and Allen Oleisky, and former Massachusetts Superior Court Judge Rudolph F. Pierce.Lynne MacBean (see fn. 11, ante ) testified that the judicial bypass process does not assist minors in deciding whether to continue or terminate their pregnancies because their decisions have already been made when they seek judicial authorization. Jamie Ann Sabino (see fn. 10, ante ) testified to the same effect. She added that, in her opinion, the Massachusetts parental involvement law “has created a substantial burden for the young women in Massachusetts and that it has not met—it is not substantively working, it has not met any of the stated goals of the statute or the state interests involved.” She noted that during the 10 years the law had been in effect, Massachusetts courts had ruled on approximately 9,000 bypass petitions, of which all but 13 were granted. All 13 denials were appealed and only 1 was affirmed (in that case the parents gave consent and the minor obtained the abortion). The overwhelming majority of petitions (97–98 percent) were granted on the ground of maturity.Paula Marie Wendt, the director of an abortion facility in Minnesota, cited similar statistics for Minnesota: Of 3,000 bypass petitions heard during a five-year period, only nine were initially denied and most of those nine were eventually granted. She also testified that in her opinion the Minnesota parental involvement law did not assist minors' decisionmaking and provided no benefit to minors.In Hodgson v. Minnesota, supra, 497 U.S. 417, 441, footnote 29, 110 S.Ct. 2926, 2940, footnote 29, 111 L.Ed.2d 344, Justice John Paul Stevens cited similar testimony by a judge to the effect that judicial bypass serves no useful public purpose. When judicial bypass is invoked, authorization is granted so routinely that judges view the procedure as a “rubber stamp.” (See id. at p. 436, fn. 21, 110 S.Ct. at p. 2937, fn. 21 (conc. opn. of Stevens, J.) [noting that of 3,573 petitions filed in Minnesota courts, 6 were withdrawn, 9 were denied, and 3,558 were granted]; id. at p. 477, 110 S.Ct. at 2959 (conc. & dis. opn. of Marshall, J.) [citing judge's testimony characterizing the bypass as a “rubber stamp”].)
13. Jamie Ann Sabino (see fn. 10, ante ) testified that “probably under three or four percent” of the adolescents who sought judicial authorization for abortion in Massachusetts were 14 years of age or under.
14. Jeth Gold, a social worker in San Francisco, testified that adolescents find any court appearance stressful because they “perceive court as a place you go when you have committed a crime,” because they may be required to answer questions even if they would prefer not to, because their answers may cause trouble for parents or friends or sexual partners, and because the result of the court proceeding may profoundly affect their lives. He added that the stress would increase if the adolescents expected to be questioned about intimate topics like sexuality. Dr. Anita Nelson (see fn. 10, ante ) testified that in California many Hispanic adolescents have the particular fear that going to court could lead to the deportation of parents or other relatives who are illegal immigrants. Jamie Ann Sabino (see fn. 10, ante ) testified that adolescents seeking judicial authorization for abortion in Massachusetts worry that authorization will be denied, that they will be forced to reveal intimate details of their lives to a stranger, and that confidentiality may be lost if they encounter an acquaintance of their parents at the courthouse. Paula Marie Wendt (see fn. 12, ante ) testified that adolescents seeking abortions in Minnesota “are afraid that they are going to be recognized, that somebody will see them, that their confidentiality will not be protected” and they “feel like they are a criminal if they go to court and that's going to be a record against them or somebody can use it against them in the future.” As a result, she added, “[s]ome are just too afraid to even think about going to court.” Dr. Lenore Walker (see fn. 9, ante ) testified that it would be particularly difficult for adolescents from abusive families to seek judicial authorization because such adolescents have “learned secrecy” and “do not see authority figures as helpful to them.”
15. A number of witnesses at the trial testified about the “options counseling” given at health clinics in California to adolescents who have tested positive for pregnancy. Without exception, they testified that during this counseling adolescents are encouraged to discuss the fact of their pregnancy, and their plans for dealing with it, with their parents. (See, e.g., testimony of Dr. Nelson, Dr. Policar, Dr. Hofmann, Catherine Dodd, Ellen Eidem.)
16. For example, Catherine Dodd, the former director of the Women's Health Center at San Francisco General Hospital, testified that the clinic has prepared a pamphlet entitled, Talk to My Parents? that it provides to teens to assist them in discussing sensitive issues such as contraception and abortion with their parents.
17. See, e.g., Keiter, Privacy, Children, and Their Parents: Reflections On and Beyond the Supreme Court's Approach, supra, 66 Minn.L.Rev. 459; Kfoury, Children Before the Court: Reflections on Legal Issues Affecting Minors (1987) pages 112–113; Schmidt, Where Privacy Fails: Equal Protection and the Abortion Rights of Minors (1993) 68 N.Y.U.L.Rev. 597; Note, Hodgson v. Minnesota: Chipping Away at Roe v. Wade in the Aftermath of Webster, supra, 18 Pepperdine L.Rev. 955; Rhode, Politics and Pregnancy: Adolescent Mothers and Public Policy, supra, 1 S.Cal.Rev.L. & Women's Stud. 99, 123–127; Tribe, Abortion: The Clash of Absolutes, supra, page 203; Calvin, The Constitutionality of California's Parental Consent to Abortion Statute (1991) 21 Golden Gate L.Rev. 591; Comment, Eroding Roe: The Politics and Constitutionality of California's Parental Consent Abortion Statute (1989) 20 Pac.L.J. 1167; Comment, American Academy of Pediatrics v. Lungren: California's Parental Consent to Abortion Statute and the Right to Privacy (1995) 25 Golden Gate L.Rev. 463; Comment, Aborting the Rights of Minors? Questioning the Constitutionality of California's Parental Consent Statute (1988) 19 Pac.L.J. 1487.
1. As the majority notes (see, ante, p. 215, fn. 11 of 51 Cal.Rptr.2d, p. 1162, fn. 11 of 912 P.2d), my separate opinion in Hill criticized the adoption of this element of the Hill standard because I believed some of the language contained in the majority's discussion of this element was susceptible to an improperly rigid and inflexible misinterpretation and misapplication. My separate opinion in Hill also pointed out, however, that the majority in that case had not, in fact, applied the elements of the new test in such an inflexible fashion in analyzing the validity of the specific athletic drug testing program at issue in that case. (See Hill, supra, 7 Cal.4th at p. 68, fn. 1, 26 Cal.Rptr.2d 834, 865 P.2d 633 (conc. & dis. opn. by George, J.).) Thus, in concluding that the intrusion upon privacy resulting from the aspect of the drug testing program that provided for the visual monitoring of urination was sufficiently serious to satisfy the “seriousness of invasion” element, the majority in Hill stated: “Although diminished by the athletic setting and the exercise of informed consent, plaintiff's privacy interests are not thereby rendered de minimis. ․ The NCAA's use of a particularly intrusive monitored urination procedure justifies further inquiry, even under conditions of decreased expectation of privacy.” (Hill, supra, 7 Cal.4th at p. 43, 26 Cal.Rptr.2d 834, 865 P.2d 633, italics added.) And in concluding that the intrusion upon protected privacy interests resulting from the drug test's required disclosure of medications also satisfied the “seriousness of invasion” element, the majority in Hill explained: “Directed and specific inquiries about personal medications (including questions about birth control pills) in the potentially stressful circumstances of a random drug test are undoubtedly significant from a privacy standpoint. Without a correspondingly important “reason to know,” the NCAA would have no right to demand answers to these kinds of questions.” (Id. at p. 53, 26 Cal.Rptr.2d 834, 865 P.2d 633, italics added.) Thus, when the actual application of the Hill standard in the Hill case itself is examined, I believe it is clear that the majority in the present case has applied the “serious invasion of privacy interest” and the other elements of the Hill test in a manner that is neither compelled by, nor consistent with, the decision in Hill.
2. The constitutional requirement of governmental neutrality recognized in Myers properly may be viewed either as an aspect of the equal protection guarantee (because the statute treats the class of minors who choose to terminate a pregnancy differently from the class of minors who choose to carry a fetus to term) or as an aspect of the state constitutional privacy right itself (because the statute accords different treatment to the same minor depending upon whether she chooses to have an abortion or chooses to carry her fetus to term). Because the nature of the particular privacy right here at issue has a bearing upon the government's obligation of equal or evenhanded treatment in this context, it is preferable in my view to analyze the neutrality requirement as an aspect of the right of privacy.The duty imposed upon the government by the California Constitution to act evenhandedly without regard to whether a woman chooses to proceed with, or terminate, her pregnancy is somewhat akin to the state's constitutional obligation, in the free speech area, to refrain from treating persons differently on the basis of the content of their speech or the particular political party they choose to support, and in free speech cases such a duty usually is viewed as an integral aspect of the right of free speech itself.
3. As noted above, the state constitutional requirement of governmental neutrality with regard to an individual's right of reproductive choice is somewhat analogous to the constitutional principle prohibiting the government, in the free speech area, from treating persons unequally on the basis of the content of their speech or on the basis of the particular political party that they may choose to support. (See, ante, p. 248, fn. 2, of 51 Cal.Rptr.2d, p. 1195, fn. 2, of 912 P.2d.) Reference to this analogy may further help illustrate the vice of the unequal treatment inherent in the present statutory scheme.Although the state could choose to impose an evenhanded requirement compelling all political parties to obtain the consent of a minor's parent before permitting a minor under the age of 16 years to work as a paid or voluntary campaign worker (as a means of ensuring, for example, that the minor's work on the campaign would not interfere with his or her schoolwork), it is clear, of course, that the state could not impose such a parental consent requirement only where the minor chose to work for a political party other than the two major parties, leaving the minor free to work for the Republican or Democratic parties without parental consent. Such a selectively imposed parental consent requirement unquestionably would violate the Constitution even if an evenhanded requirement of parental consent would be permissible.The statute here at issue has a similar unequal effect, requiring a pregnant minor to obtain parental consent before obtaining medical care in the event she chooses not to bear a child, but permitting access to medical care without parental consent if the minor chooses to bear the child.
LUCAS, C.J., and BAXTER and ARABIAN,*, JJ., concur.
Response sent, thank you
A free source of state and federal court opinions, state laws, and the United States Code. For more information about the legal concepts addressed by these cases and statutes visit FindLaw's Learn About the Law.
Docket No: No. S041459.
Decided: April 04, 1996
Court: Supreme Court of California
Search our directory by legal issue
Enter information in one or both fields (Required)
FindLaw for Legal Professionals
Search our directory by legal issue
Enter information in one or both fields (Required)