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State High Court Takes New Look at Abortion Law

Hearing: Justices seem to be split on requirement that underage girls get parental consent.


SAN FRANCISCO — In a heated exchange before a packed courtroom, the California Supreme Court appeared closely divided Wednesday over whether to uphold a state law that would require minors to obtain parental permission before having an abortion.

Justice Ming W. Chin, who appears to be the swing vote in the case, asked only two questions during oral arguments before the court. One indicated possible opposition to the law. The second suggested qualms about overriding the state legislators who passed the never-enforced consent requirement in 1978.

The court voted 4 to 3 last year to uphold the abortion law, which requires unmarried minor girls to obtain permission from a parent, guardian or judge to have an abortion. But two of the four justices who favored the requirement retired before the decision became final, and the justices who replaced them--Chin and Janice Rogers Brown--voted with the dissenters to reconsider the case. A decision is expected within 90 days.

Brown, Gov. Pete Wilson's former legal affairs secretary, appeared sympathetic to the consent requirement as attorneys on both sides argued the case. Her questions suggested that she could not accept at least part of the American Civil Liberties Union's rationale for rejecting the law, which has been blocked by lower courts.

"Isn't the law just acknowledging less capacity on the part of minors than adults, and isn't that rational?" she asked.

The court has spent a year weighing the case since voting to reconsider it. The hearing attracted an overflow crowd, many of them activists in the abortion debate. Security was unusually tight, and the court rejected a request to allow the deliberations to be broadcast.

The former court majority held that the law did not violate state constitutional guarantees of privacy because minors have fewer legal rights than adults. The two justices who remain from that majority, Stanley Mosk, who wrote the original ruling, and Marvin Baxter, indicated by their questions Wednesday that they continue to believe the law is constitutional.

The three dissenting justices--Ronald M. George, Joyce L. Kennard and Kathryn Mickle Werdegar--had suggested that the law would endanger pregnant girls by prompting them to delay abortions or seek illegal abortions. These justices also appeared not to have changed their positions.

Abortion opponents have suggested that they might target justices who vote against their agenda. Justices Chin, Brown and Mosk and Chief Justice George will appear for confirmation on the November 1998 ballot.

Chin, viewed as an independent conservative, has said he personally supports a woman's right to choose an abortion. That statement, made when Wilson announced his appointment to the court last year, incited a parade of abortion opponents to denounce him at his confirmation hearing.

The activists also castigated George when he was elevated to chief justice last year after the retirement of Chief Justice Malcolm Lucas. Brown has refused to discuss her personal feelings about abortion.

Chin, in a question to Deputy Atty. Gen. Ralph Johnson, asked at Wednesday's hearing whether state law requires pregnant girls who want to give birth to obtain a parent's permission for medical attention.

The question reflected a key argument by opponents of consent: They maintain that it is inconsistent to allow a girl to carry a child and receive medical attention for the pregnancy without parental permission but require consent for an abortion.

Johnson replied that permission is not required for a minor to receive prenatal care but argued that minors will be better off if they consult with parents about abortions.

"We are, after all, talking about our mothers and fathers," Johnson said. "That is what this statute is all about. We don't see this as an abortion rights case."

ACLU lawyer Margaret Crosby stressed that opponents of the law do not want to exclude parents. She said most pregnant girls seek advice from parents, but victims of incest and girls in troubled families may feel it would be unsafe to tell a parent.

Citing a 1978 legislative analyst's estimate, she said the law would bring 11,000 girls into courtrooms each year to obtain permission for abortions, creating "a teenage abortion docket" and forcing the girls to undergo "a burdensome, humiliating and stressful" court procedure.

Baxter raised the specter of a 10-year-old pregnant girl who lacks the maturity to decide whether to have an abortion and refuses to consult with a parent.

"What all this boils down to is whether the Legislature has the authority to decide whether a neutral judge should make the decision . . . or whether the judgment should rest with the abortion provider," Baxter said.

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