SAN FRANCISCO — The right to privacy is at the center in the current battle between two candidates for governor over whether a proposed criminal law reform initiative could end up making abortion a crime.
The wide-ranging Crime Victims' Justice Reform Initiative contains a section saying a defendant's right to privacy--among several other rights--"shall not be construed" to provide greater protections than those granted by the federal Constitution.
State Atty. Gen. John K. Van de Kamp, seeking the Democratic gubernatorial nomination, says the provision could result in criminal prosecutions for abortion. His Republican rival, U.S. Sen. Pete Wilson, a prime backer of the initiative, says the measure is aimed at changing criminal law procedure and has no effect on the civil right of women to seek abortion.
Legal experts differ over the validity of the attorney general's analysis of the initiative. But they do agree that a number of things would have to happen before the right to abortion could be restricted under the measure.
The initiative would have to pass; the U.S. Supreme Court would have to abandon Roe vs. Wade, its 1973 landmark ruling legalizing abortion, or otherwise free states to make abortion a crime; the Legislature would have to enact criminal penalties for abortion or prosecutors would have to try to resurrect old and possibly unenforceable criminal abortion laws still on the books; and, finally, the courts would have to rule that the initiative did indeed strip away existing rights to privacy and abortion under the state Constitution. Without taking sides in the dispute, Phillip Johnson, a UC Berkeley law professor, observes that if the initiative does present a threat to abortion, "that danger appears to be based on a highly unlikely combination of circumstances."
Jennifer Friesen, a professor at Loyola Law School in Los Angeles, cites the controversy as an example of the difficulty of interpreting initiatives. With initiatives, courts can examine their wording and, if necessary, look to ballot arguments. Laws passed by the Legislature, she points out, are generally better drafted and there are legislative reports and other data that help judges determine the meaning of the laws.
"One of the unfortunate consequences of the initiative process is that the drafting of the measure is so imprecise," Friesen said. "This puts the courts in a difficult position--and an unfair position."