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Supreme Court Asked to Take Over Abortion-Funding Restriction Case

July 18, 1987|PHILIP HAGER | Times Staff Writer

SAN FRANCISCO — The California Supreme Court has been asked by the Deukmejian Administration to intercede in a legal challenge to the Legislature's latest restrictions on Medi-Cal abortion funding and to overrule a 1981 high court ruling declaring such limitations unconstitutional.

The justices were urged to take the unusual step of taking over a case now pending before the state Court of Appeal here because of what the officials called the "indisputable statewide importance" of the issue.

The action was sought in a petition filed by lawyers for the state attorney general's office in behalf of Kenneth W. Kizer, state director of health services and one of the defendants in a suit brought earlier this week by a coalition of civil rights and women's groups seeking to invalidate the new restrictions.

The petition, signed by state Deputy Atty. Gen. Asher Rubin, says the 1981 decision issued by the court under former Chief Justice Rose Elizabeth Bird had "frustrated the people's will to restrict abortion funds."

Acting through the Legislature, Californians "have a right to expect that their desire to restrict abortion funding will be carried out expeditiously," it says.

Appeal to Follow

It could take the Court of Appeal months to decide the case and an appeal to the state Supreme Court would almost certainly follow.

The move to have the top court take the case now drew immediate opposition from Margaret C. Crosby of the American Civil Liberties Union of Northern California, one of the attorneys representing opponents of the restrictions.

"We feel there is no need to take the case out of the Court of Appeal. That really is an extraordinary action," she said.

Crosby said, however, that she is confident that when the issue does reach the high court, the justices will strike down the restrictions. "We do feel the Supreme Court ultimately will rule in our favor, but we think this case should take the normal course through the appellate court first . . . so that the Supreme Court can have the benefit the Court of Appeal's view of the case."

Restrictions on government-funded abortions for low-income women under the Medi-Cal program have been enacted repeatedly but routinely struck down by the courts over the last decade. About 80,000 indigent women have continued to receive tax-paid abortions annually.

Impose Limits

The U.S. Supreme Court has permitted states to impose limits on publicly funded abortions, finding that such restrictions do not violate the federal Constitution. But the Bird court, in the milestone 1981 ruling, held that the Legislature's limitations violated right-to-privacy provisions of the state Constitution.

More recently, with the departure of Bird and two other liberal justices defeated in the November election, there has been considerable speculation that the new and more conservative court, with appointees of Gov. George Deukmejian now in the majority, would be willing to reconsider the 1981 precedent.

In the case at issue, the Legislature, in enacting the 1987-88 state budget, prohibited abortions under the Medi-Cal program except where the mother's life was in danger, a pregnancy resulted from rape or incest, the unborn child was severely abnormal or an unmarried female under 18 gives her parents five days' notice before the operation.

Opponents Act

The opponents of the restrictions filed suit Monday with the state Court of Appeal, saying the new rules violated the 1981 high court ruling just as had previous prohibitions. The same day, the appellate court issued an order blocking implementation of the restrictions pending further review of the case.

The petition filed in behalf of Kizer on Thursday notes that lower courts, being bound by the Supreme Court's 1981 ruling, have little choice but to strike down the restrictions. Only the high court could overturn the 6-year-old precedent, it says.

The 1981 ruling and the lower court decisions that followed "should be re-examined by this court and overruled," the petition concludes.

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