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Legal Dispute Over Abortion May Hinge on Privacy Issue

August 07, 1989|PHILIP HAGER | Times Staff Writer

But other authorities see a much more limited right to privacy--one that must be balanced against competing rights and important state interests.

Deputy Atty. Gen. Elisabeth C. Brandt, the lawyer representing the state in defense of the parental-consent law, contends in that case that on the question of abortion, the state Constitution does not provide any greater privacy rights than those accorded under the federal Constitution and interpreted by the U.S. Supreme Court.

The 1981 ruling, she said, did not establish a right to abortion that went beyond Roe vs. Wade, but merely recognized a state right equal to the federal right.

"It's clear that the state Supreme Court has invoked the state right to privacy extensively in other areas," Brandt said. "But on abortion, the court has not yet gone beyond where the U.S. Supreme Court has gone."

The 1972 amendment explicitly establishing a right to privacy followed widespread concern among legislators and others over the growing collection of confidential data of individual citizens.

Ballot arguments by proponents of the measure focused largely on the "proliferation of governmental snooping and data collection" and the compilation of unnecessary information by credit companies and other businesses. Other language was less specific: "The right to privacy is the right to be left alone," proponents declared.

Opponents said there were already sufficient legal restraints on the invasion of privacy by government and businesses. The danger in the amendment, opponents said, was that it would make it far more difficult to investigate fraud among recipients of welfare and other governmental assistance.

In the current debate, anti-abortion forces say the privacy amendment has been misconstrued in the courts and applied improperly to establish a "right" far beyond that envisioned by the voters.

"The whole aim of the amendment clearly was to protect the citizen from computer-snooping--it had nothing to do with abortion," said Cyrus Zal, a Folsom attorney representing Americans United for Life. "It was even supported by many pro-life legislators at the time. Unfortunately, the court under Rose Bird read into the right to privacy something that was never intended."

Other lawyers disagree, saying the voters did intend that the right to privacy be applied on a wide front, going well beyond a limited right to so-called "informational privacy."

"The voter pamphlet specifically cited the 'right to be left alone' as one of the most important rights in a civilized society," said Edward M. Chen, staff counsel for the American Civil Liberties Union of Northern California. "The broad right to privacy has been accepted now for so long and is so much in the fabric of our life that it's too late in the day to come up with a revisionist interpretation of the amendment."

In any event, that question is likely to be resolved in these cases now before the courts that, along with other issues, involve the right to privacy:

PARENTAL CONSENT

State attorneys last month asked an appeals panel in San Francisco to uphold the constitutionality of the 1987 parental consent law, contending it meets standards established by the U.S. Supreme Court and does not conflict with state court rulings. Any rights of minors must be balanced against parental rights and the state's interest in protecting young people from making impulsive and ill-advised decisions, state lawyers say.

Attorneys for medical and civil rights groups challenging the law asked the panel to leave intact a lower-court injunction barring the statute from taking effect pending a trial on its validity.

ABORTION FUNDING

Another appellate panel here has been asked by lawyers for the ACLU and other groups to strike down the Legislature's most-recent limitations on abortion-funding under the Medi-Cal program. The restrictions--similar to those previously invalidated in court for 11 straight years--allow funding for abortions only when the mother's life is in danger, a pregnancy has resulted from rape or incest, the unborn child is severly deformed or an unmarried minor has notified her parents.

Lawyers for the state say that in the wake of the latest U.S. Supreme Court ruling on abortion, the time is ripe for the California Supreme Court to reconsider its 1981 decision invalidating funding restrictions as a violation of the right to privacy and equal protection of the law.

But the case also involves another legal issue that could well determine the result. Challengers contend the restrictions conflict with another state constitutional provision requiring that bills passed by the Legislature be limited to a "single subject." The opponents of the restrictions say the lawmakers improperly used the Budget Act, which involves appropriations, to make substantive changes in separate statutes that authorize abortions in the Medi-Cal program.

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