Opinion
Rehearing Denied June 28, 1979.
Opinions on pages 475-520 omitted.
HEARINGS GRANTED [*]
For Opinion on Hearing, see 172 Cal.Rptr. 866, 625 P.2d 779.
[156 Cal.Rptr. 76]Patti Roberts, Tamara Dahn, Michelle Murphy, Barbara Weiner, Women's Litigation Unit, San Francisco Neighborhood Legal Assistance Foundation, San Francisco, Abigail English, Pauline Tesler, National Center for Youth Law, San Francisco, Vilma Martinez, Carmen Estrada, Mexican American Legal Defense and Education Fund, San Francisco, Nancy L. Davis, Joan Messing Graff, Equal Rights Advocates, Inc., San Francisco, Margaret C. Crosby, Alan L. Schlosser, Amitai Schwartz, American Civil Liberties Union Foundation of Northern California, Inc., San Francisco, Fred Okrand, Mark D. Rosenbaum, Terry Smerling, American Civil Liberties Union Foundation of Southern California, Los Angeles, for plaintiffs and appellants.
Evelle J. Younger, Atty. Gen. of the State of California, Asher Rubin, Deputy Atty. Gen., San Francisco, for defendant and respondent.
Jan G. Levine, Alletta d'A. Belin, Timothy B. Flynn, Carlyle W. Hall, Jr., A. Thomas Hunt, John R. Phillips, Center for Law in the Public Interest, Los Angeles, David E. Willett, Hassard, Bonnington, Rogers & Huber, San Francisco, for amicus curiae.
SCOTT, Acting Presiding Justice.
The principal issue presented here is whether the state must pay for elective abortions for indigent women. We conclude that the Budget Act of 1978 excluding [156 Cal.Rptr. 77] funds for payment of elective abortions is not unconstitutional. However, that act does conflict with federal law to the extent that it does not fund certain abortions where severe and long-lasting physical health damage to the mother would result if a pregnancy were carried to term.
Appellants, various welfare and health care rights organizations, three physicians, one patient, and one taxpayer, brought this action to challenge implementation of provisions of the state's Budget Act of 1978 which restrict the circumstances under which public funds will be authorized to pay for abortions for Medi-Cal recipients. The principal defendant is Beverlee A. Myers, Director, State Department of Health Services. The trial court granted a temporary restraining order against implementation of those provisions, but then denied a preliminary injunction; this court issued a writ of supersedeas staying the denial of the preliminary injunction pending the determination of this appeal.
The state's "Medi-Cal" program provides basic health care benefits to recipients of public assistance and others declared eligible pursuant to the provisions of the Welfare and Institutions Code ( § 14000.4). Prior to the passage of the Budget Act of 1978, funds were available generally for all abortions, whether elective or medically necessary, for Medi-Cal eligible women. According to legislative analyst William G. Hamm, in the fiscal year 1977-1978 approximately 104,003 abortions were funded by Medi-Cal.
The Budget Act of 1978, effective July 6, 1978 (Stats.1978, ch. 359, § 2) provides that none of the funds appropriated thereunder shall be used to pay for abortions, except where the life of the mother would be endangered if the fetus were carried to full term; or where the pregnancy results from rape, unlawful intercourse, or incest and the act is promptly reported to the appropriate agency; or where amniocentesis indicates the child is likely to suffer from certain genetic or congenital abnormalities; or where severe and long-lasting health damage to the mother would result if the pregnancy were carried to term, on account of any of ten specified conditions.
The Budget Act of 1978 provides:
In doing so, the people of California were continuing a tradition as old as the Republic. As one who was present at the creation, Chief Justice John Marshall, described it, "Each state established a constitution for itself, and in that constitution, provided such limitations and restrictions on the power of its particular government as its judgment dictated . . . . In their several constitutions, they have imposed such restrictions on their respective governments, as their own wisdom suggested; such as they deemed most proper for themselves." (Barron v. Baltimore (1833) 7 Pet. 243, 246-247, 32 U.S. 243, 247-248, 8 L.Ed. 672.)
Both appellants and respondent agree that the effect of the Budget Act will be to reduce Medi-Cal reimbursed abortions by approximately 95 percent.
[156 Cal.Rptr. 78]Appellants contend the Budget Act restrictions are both unconstitutional and incompatible with federal law.
I. FEDERAL CONSTITUTION: EQUAL PROTECTION
Appellants challenge the constitutionality of the Budget Act's provisions on several grounds. Appellants first contend that the elimination of funding for elective abortions denies indigent women equal protection of the laws as guaranteed by both the United States and California Constitutions, and impermissibly infringes their constitutionally protected right of privacy.
Initially, we emphasize that the right of a woman to choose to terminate her pregnancy is well settled. The right of personal privacy implicit in the federal Constitution encompasses the abortion decision (Roe v. Wade (1973) 410 U.S. 113, 153, 93 S.Ct. 705, 35 L.Ed.2d 147); the California Supreme Court has also recognized the fundamental right of a woman to choose whether to bear children as following from the right of privacy then only implicit in both the state and federal Constitutions. (People v. Belous (1969) 71 Cal.2d 954, 963, 80 Cal.Rptr. 354, 458 P.2d 194.) It is the impact of the Legislature's funding decision on that right that is the issue here.
In November of 1974 the California Constitution was amended by the electorate to expressly declare privacy an inalienable right of all people. (Art. I, § 1.)
The United States Supreme Court, in Wyman v. James (1971) 400 U.S. 309, 91 S.Ct. 381, 27 L.Ed.2d 408, came to the opposite conclusion, thus indicating, before Maher v. Roe, supra, 432 U.S. 464, 97 S.Ct. 2376, 53 L.Ed.2d 484, that a welfare recipient's right of privacy receives greater protection under the California Constitution than under the federal Constitution.
Respondent argues that the state is under no obligation to fund the exercise of a fundamental right. For example, while the right to travel interstate is constitutionally protected (Shapiro v. Thompson (1969) 394 U.S. 618, 89 S.Ct. 1322, 22 L.Ed.2d 600), states are not constitutionally compelled to pay the transportation costs of indigents who wish to travel from state to state. (See Maher v. Roe (1977) 432 U.S. 464, 474, fn. 8, 97 S.Ct. 2376, fn. 8, 53 L.Ed.2d 484, fn. 8.)
Appellants acknowledge that the state is under no constitutional obligation to fund any medical care for indigent pregnant women. However, appellants argue that once the state elects to pay the medical expenses incidental to childbirth, it is a denial of equal protection to deny funds to an indigent pregnant woman who desires an abortion. Appellants contend that the state's refusal to pay for the indigent woman's elective abortion is in effect an infringement on her fundamental right to have that abortion, and that therefore the Budget Act funding restrictions must be subjected to strict judicial scrutiny.
In Maher v. Roe (1977) 432 U.S. 464, 97 S.Ct. 2376, 53 L.Ed.2d 484, the United States Supreme Court was squarely confronted with the question whether the federal Constitution requires a state to pay for nontherapeutic abortions if that state funds childbirth, when the court considered the validity of a Connecticut regulation limiting state benefits for first trimester abortions to those that were "medically necessary." Because we conclude that Maher is dispositive of appellants' constitutional claims, we will discuss that decision at some length.
The Maher court first declared that the constitution imposes no obligation on the states to pay the pregnancy related expenses of indigent women, or indeed any of the medical expenses of the indigent. However, the court acknowledged that when a state decides to relieve some of the hardships of poverty by providing medical care, the manner in which it dispenses benefits is subject to certain constitutional limitations. The court summarized the pertinent equal protection analytical framework, by now a well settled formula. If legislation operates to the disadvantage of a suspect class, or impinges upon a fundamental right implicitly or expressly protected by the constitution, strict judicial scrutiny is required. The constitutionality of such legislation will be sustained only if that legislation is Necessary to further a Compelling state interest. If strict scrutiny is not required, the legislative scheme must still be examined to determine whether it rationally furthers some legitimate, articulated state purpose. (432 U.S. at p. 470, 97 S.Ct. 2376.)
[156 Cal.Rptr. 79]The court first rejected the argument that the state's refusal to provide funds for elective abortions involved discrimination against a suspect class. Acknowledging that every denial of welfare to an indigent could be said to create a wealth classification as compared to non-indigents, the court nonetheless declared that financial need alone does not identify a suspect class for purposes of equal protection analysis. (432 U.S. at pp. 470, 471, 97 S.Ct. 2376.)
The court then concluded that the funding scheme did not impermissibly infringe on the fundamental right of a woman to choose to terminate a pregnancy. Emphasizing that the right to an abortion is not unqualified (Roe v. Wade, supra, 410 U.S. at p. 154, 93 S.Ct. 705), the court stated that a woman is constitutionally protected from "unduly burdensome interference" with her freedom to decide whether to terminate her pregnancy. Connecticut's decision to allocate public funds for childbirth but not for elective abortions was not an unconstitutional interference with the abortion decision. (Maher, 432 U.S. at p. 474, 97 S.Ct. 2376.) Recognizing that the state may make childbirth a more attractive financial alternative, the court commented that the state imposed no restrictions on access to abortion that were not already there. "The indigency that may make it difficult and in some cases, perhaps impossible for some women to have abortions is neither created nor in any way affected by the Connecticut regulation." (432 U.S. at p. 474, 97 S.Ct. at p. 2383.)
As the Connecticut regulation did not involve a suspect class and did not impermissibly interfere with a woman's qualified fundamental right to terminate her pregnancy, the court evaluated its constitutionality by the rational basis test, and concluded that Connecticut's restrictions on abortion funding were rationally related to the state's strong interest in protecting the potential life of the fetus, and its " 'strong and legitimate interest in encouraging normal childbirth.' " (Maher, at pp. 478-479, 97 S.Ct. at p. 2385.)
Appellants first attempt to distinguish Maher by arguing that while the Connecticut regulation imposed no obstacles in the pregnant woman's "path to an abortion" (at p. 474, 97 S.Ct. 2376), the California Budget Act restrictions in combination with the state's Aid to Families With Dependent Children laws, do create an insurmountable obstacle. Appellants contend that the AFDC recipient who uses part of her AFDC grant or an unreported gift or loan to pay for an elective abortion is subject to the risk of certain criminal penalties. Thus, appellants argue, an AFDC recipient faces the barrier of criminal prosecution if she tries to finance an elective abortion privately.
It is not at all clear from the record before us that an AFDC recipient who arranged to privately finance an elective abortion would be subject to criminal prosecution. However, notwithstanding the remoteness of that possibility, any such prosecution would itself undoubtedly be subject to a constitutional challenge as an impermissible interference with the right to an abortion as articulated in Roe and clarified in Maher. Should such a case arise, the appropriate remedy would be to prohibit the prosecution as unconstitutional, not to require the state to pay for the abortion.
II. STATE CONSTITUTION
In the alternative, appellants argue that if Maher is dispositive of their federal Constitution claims, the California Constitution offers broader protection under the circumstances here, requiring strict scrutiny and obligating the state to demonstrate that the legislative classification is necessary to further a compelling state interest.
We disagree. We recognize that while our state equal protection provisions are "substantially the equivalent of" the guarantees contained in the Fourteenth Amendment to the United States Constitution (Dept. of Mental Hygiene v. Kirchner (1965) 62 Cal.2d 586, 588, 43 Cal.Rptr. 329, 400 P.2d 321), they are also possessed of "an independent vitality which, in a given case, may demand an analysis different from that which would obtain if only the federal standard were applicable." (Serrano v. [156 Cal.Rptr. 80] Priest (1976) 18 Cal.3d 728, 764, 135 Cal.Rptr. 345, 366, 557 P.2d 929, 950.) However, as subsequent discussion will indicate, we do not agree with appellants that a departure from the United States Supreme Court's sound reasoning and persuasive authority is warranted here.
Appellants first rely on Serrano v. Priest to urge that the funding limitations here result in the type of wealth classification which California courts must subject to strict scrutiny. Appellants' reliance on Serrano is misplaced. The wealth classification triggering strict scrutiny in Serrano was clearly not simply a classification resulting from a legislative decision not to provide a particular benefit for the poor. Instead, the wealth classification at issue in Serrano was both Established and Perpetuated by the state's public school financing system, which encompassed all school districts in the state. (18 Cal.3d at p. 768, 135 Cal.Rptr. 345, 557 P.2d 929.) First, because the major source of public school revenues under that system was the local property tax, the amount of revenue a district could raise depended largely on the assessed valuation of real property within its borders. Certain provisions of the financing system then exacerbated the inherent inequities resulting from these tax base differentials (i. e., the availability of district tax override elections, allowing a high wealth district to raise substantial revenue with only a slight tax rate increase; the grant of a uniform basic aid allotment for every pupil regardless of district wealth). Because the ability to generate revenue was a function of district wealth, the overall effect of the state created system was to benefit high wealth districts.
The Legislature's decision not to fund certain abortions cannot be equated with this statewide taxing and school financing system. The funding scheme embodied in the Budget Act does not result in a subsidy or a reduction in the cost of elective abortions for the wealthy, nor does it provide any benefit, direct or indirect, for the wealthy. Instead, the restrictions mean that the state will finance abortions for indigent women under some, but not all, circumstances. No wealth classification as defined in Serrano is involved here.
It is also significant that strict scrutiny of the school financing system was required in Serrano not only because that system established and perpetuated a classification based on district wealth, but because the resulting financial disparity among districts had an impact on the constitutionally guaranteed fundamental interest in education (Serrano, 18 Cal.3d at p. 766, 135 Cal.Rptr. 345, 557 P.2d 929), an interest described by appellants themselves as the right to a Public school education. As appellants acknowledge, the fundamental right protected by the California Constitution is the right to choose to terminate one's pregnancy, not the right to have that choice subsidized by public funds.
Appellants then argue that because the right of privacy is now explicit in the California Constitution, its scope has been expanded beyond that of the right only implicit in the federal Constitution. Therefore, appellants argue, notwithstanding Maher, the funding cut-off amounts to a coercive intrusion into an indigent woman's State protected right of privacy which cannot withstand the required strict scrutiny.
We disagree. We first note that when the California Supreme Court recognized as fundamental a woman's right to choose whether to have children in People v. Belous (1969) 71 Cal.2d 954, 963, 80 Cal.Rptr. 354, 359-60, 458 P.2d 194, 199-200, the court explained the source of that right as following " 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. (Citations.) That such a right is not enumerated in either the United States or California Constitutions is no impediment to the existence of the right." That the California right to privacy As it relates to a woman's right to terminate her pregnancy is coextensive with that guaranteed by the federal Constitution is suggested by the fact that both the California court in Belous and the United States Supreme Court in Roe v. Wade rely on the same cases in support of the conclusions that such a right exists and [156 Cal.Rptr. 81] is constitutionally protected: Skinner v. Oklahoma (1942) 316 U.S. 535, 62 S.Ct. 1110, 86 L.Ed. 1655; Pierce v. Society of Sisters (1925) 268 U.S. 510 (45 S.Ct. 571, 69 L.Ed. 1070); Meyer v. Nebraska (1923) 262 U.S. 390, 43 S.Ct. 625, 67 L.Ed. 1042; Loving v. Virginia (1967) 388 U.S. 1, 87 S.Ct. 1817, 18 L.Ed.2d 1010; Griswold v. Connecticut (1965) 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510.
In 1974 the California Constitution was amended by the voters of California to add the right of "pursuing and obtaining . . . privacy" as an " inalienable right" of all people. (Art. I, § 1, adopted Nov. 4, 1974.) While the scope of that amendment has not been fully outlined, the moving force behind the amendment was a "focussed privacy concern, relating to the accelerating encroachment on personal freedom and security caused by increased surveillance and data collection activity in contemporary society. The new provision's primary purpose is to afford individuals some measure of protection against this most modern threat to personal privacy." (White v. Davis (1975) 13 Cal.3d 757, 774, 120 Cal.Rptr. 94, 105, 533 P.2d 222, 233; see also People v. Privitera (1979) 23 Cal.3d 697, 153 Cal.Rptr. 431, 591 P.2d 919.) In light of this statement of its purpose, appellants' argument that the amendment expanded the right of privacy as it relates to a woman's right to terminate her pregnancy is unpersuasive.
We recognize, as did the court in White v. Davis, the broad scope of the concept of privacy:
10 The breadth of the concept of privacy is illustrated by the wide variety of contexts in which the constitutional privacy analysis has been employed. (See, e. g., Griswold v. Connecticut (1965) 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (privacy of marital relationship); Stanley v. Georgia (1969) 394 U.S. 557, 564, 565, 89 S.Ct. 1243, 22 L.Ed.2d 542, 549, 550 (privacy of one's personal library); City of Carmel-By-The-Sea v. Young (1970) 2 Cal.3d 259, 266-268, 85 Cal.Rptr. 1, 466 P.2d 225 (37 A.L.R.3d 1313) (privacy of personal financial affairs); In re Lifschutz (1970) 2 Cal.3d 415, 431-432, 85 Cal.Rptr. 829, 467 P.2d 557 (44 A.L.R.3d 1) (privacy of psychotherapist-patient relationship).)
(13 Cal.3d at p. 774, fn. 10, 120 Cal.Rptr. at p. 105, fn. 10, 533 P.2d at p. 233, fn. 10.) Common to the cases cited above is the notion that the right of privacy is the right to be free from unwarranted governmental intrusion or unnecessarily broad regulation. Accordingly, to argue that when the Legislature decided not to pay for elective abortions, that lack of governmental involvement impermissibly invaded an indigent woman's right to privacy is to turn the concept of privacy upside down and inside out, transmitting it into a right To governmental participation in one's life rather than a right to be free From such involvement.
Appellants next offer a separate yet closely related argument in support of their contention that Maher is not fatal to their constitutional claims. Appellants argue that according to California law, the state cannot condition the grant of a public benefit on the recipient's waiver of a fundamental right, absent some compelling state interest. (See Danskin v. San Diego Unified Sch. Dist. (1946) 28 Cal.2d 536, 171 P.2d 885; Bagley v. Washington Township Hospital Dist. (1966) 65 Cal.2d 499, 55 Cal.Rptr. 401, 421 P.2d 409; Finot v. Pasadena City Bd. of Education (1967) 250 Cal.App.2d 189, 58 Cal.Rptr. 520; King v. California Unemployment Ins. Appeals Bd. (1972) 25 Cal.App.3d 199, 101 Cal.Rptr. 660.) Appellants then characterize the benefit granted by the state here as medical care for pregnancy, and contend that although the state need not provide any such care, once it elects to do so, it cannot, without a compelling justification, condition eligibility for that care on the forced waiver of the fundamental right to an abortion.
We do not quarrel with the principle underlying appellants' argument. However, appellants misstate the nature of the benefit provided by the state. That benefit can only be accurately defined Not as medical care for pregnancy, but as funding for prenatal care and childbirth, for the woman [156 Cal.Rptr. 82] who has already chosen to carry her pregnancy to term. A woman who decides to carry a pregnancy to term may make that choice for any number of reasons, not the least of which may be that she wants a child. Once her decision has been made, if she is indigent she may receive financial aid from the state for the medical costs associated with childbirth.
The Maher court rejected an argument similar to that raised here by appellants, and distinguished between a state's direct interference with a protected activity and a state's encouragement of an alternate activity consonant with legislative policy. In an instructive analogy, the court noted that parents have a constitutionally protected right to send their children to private schools, and that states cannot prohibit the maintenance of private schools. However, a state has power to fund public education, incidentally making public education at least financially a more attractive choice for parents. Nonetheless, the state's financial support of public education does not directly interfere with a parent's right to choose private education. (Maher v. Roe, supra, 432 U.S. at p. 476, 97 S.Ct. 2376.) Furthermore, the alternatives are obviously mutually exclusive; a parent cannot exercise his right to send his child to a private school and simultaneously accept the benefits of public education.
Similarly, a woman has a qualified constitutionally protected right to terminate a pregnancy; states cannot prohibit first trimester abortion, and have only limited power to regulate abortions beyond the first trimester. Nonetheless, the state may fund medical care associated with childbirth, incidentally making childbirth at least financially a more attractive choice for the pregnant woman. The state's financial support of childbirth does not directly interfere with a woman's right to choose an abortion. Of course, the alternatives are mutually exclusive; a woman obviously cannot exercise her right to terminate her pregnancy and simultaneously accept state provided funding for prenatal care and childbirth.
Recognizing both the fallibility and the undesirable side effects of available methods of contraception, we nonetheless note that in reality, for many women the choice between alternatives begins not with the choice between childbirth and abortion, but with an initial decision to risk pregnancy. Appellants argue that the funding restrictions mean that indigent women will lose control of their reproductive capacity; that argument ignores this reality.
The majority disposes of Parrish with the observation that "if the state here were arbitrarily declaring ineligible for any medical benefits women on welfare who had abortions, serious constitutional problems would be raised. However, the state is not denying such benefits; rather, the state is merely not paying for elective abortions." The majority's point, if I understand it, is the very one rejected in Danskin v. San Diego Unified Sch. District (1946) 28 Cal.2d 536, 171 P.2d 885, where the district unsuccessfully argued that by prohibiting "subversives" from using a publicly financed forum available to other organizations, it was not prohibiting "subversives" from speaking elsewhere; it was "merely not paying" for the propagation of views uncongenial to the community.
Insisting nonetheless that the state must remain neutral with respect to the exercise of the fundamental right of privacy, appellants rely on Parrish v. Civil Service Commission (1967) 66 Cal.2d 260, 57 Cal.Rptr. 623, 425 P.2d 223, and Atkisson v. Kern County Housing Authority (1976) 59 Cal.App.3d 89, 130 Cal.Rptr. 375. Appellants' reliance is misplaced.
In Parrish v. Civil Service Commission, the court concluded on the facts before it that there was no compelling justification for conditioning the receipt of welfare benefits on the waiver of Fourth Amendment rights. However, at issue in Parrish was welfare eligibility in general, not particular funding for a specific purpose. The Supreme Court in Maher described the denial of general welfare benefits as akin to criminal sanctions, and indicated that strict scrutiny might be required if women otherwise eligible for welfare who obtained abortions were denied general welfare benefits. Accordingly, if the state here were arbitrarily declaring ineligible for any medical benefits women on welfare who had abortions, serious constitutional problems would be raised. However, the state is not denying such benefits; rather, the state is merely not paying for elective abortions.
Atkisson v. Kern County Housing Authority involved a challenge to the validity of the housing authority's policy of excluding from its housing projects families whose heads of household were not related by blood, marriage, or adoption. The court held that the policy violated HUD regulations, created an unconstitutional irrebuttable presumption of immorality and irresponsibility from the fact of unmarried cohabitation, and violated equal protection, as it had no rational basis. The court then added that the policy was also an unwarranted invasion into privacy rights.
[156 Cal.Rptr. 83]Appellants see as implicit in Atkisson the principle that the state cannot provide a benefit, public housing, and then condition that benefit on the waiver of one's constitutionally protected right of privacy. The court did not articulate the rationale expressed by appellants, and cited no cases decided on the basis of the "waiver of a fundamental right" principle. However, whether or not Atkisson can be read as authority for that rule is unimportant here, as we note that the benefit in Atkisson was public housing; nothing inherent in the nature of that benefit limits its usefulness to couples who are married. In contrast, as we have stated, the benefit at issue here, a subsidy of the medical costs of prenatal care and childbirth, is simply of no use to the woman who has decided to terminate her pregnancy.
We conclude, as did the court in Maher, that the state is not required to show a compelling state interest to justify its policy choice to favor normal childbirth. We further conclude that the distinction drawn between childbirth and elective abortion by the Budget Act's funding restrictions is rationally related to the state's "strong and legitimate interest in encouraging normal childbirth." (Beal v. Doe (1977) 432 U.S. 438, 446, 97 S.Ct. 2366, 2372, 53 L.Ed.2d 464; Maher v. Roe, supra, 432 U.S. at p. 478, 97 S.Ct. at p. 2385, 53 L.Ed.2d at p. 497.)
III. FIRST AMENDMENT: ESTABLISHMENT & FREE EXERCISE OF RELIGION CLAUSE
Appellants contend that the state's decision not to fund elective abortions violates both the free exercise and the establishment of religion clauses of the First Amendment to the United States Constitution.
"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof." (U.S.Const., 1st Amend.)
The United States Supreme Court vacated Kirchner with the observation that "(t)he California Supreme Court did not state whether its holding was based upon the Equal Protection Clause of the Fourteenth Amendment to the Constitution of the United States or the equivalent provisions of the California Constitution, or both. . . ." (380 U.S. at 196, 85 S.Ct. at 873.) On remand, the Supreme Court of California held that it was "independently constrained" by the California Constitution to reiterate its opinion whatever the scope of the Fourteenth Amendment. (62 Cal.2d at 588, 43 Cal.Rptr. 329, 400 P.2d 321.)
Appellants argue that the funding decision in effect establishes a religious definition of life, and thus impermissibly advances the cause of a particular religion. Underlying this argument is appellants' insistence that the failure to fund amounts to a prohibition on elective abortions for indigent women.
When a law is attacked on establishment of religion grounds, the court must consider whether it furthers any of the primary evils which the clause was intended to forestall, i. e., the " ' "sponsorship, financial support, and active involvement of the sovereign in religious activity. " ' " (California Educational Facilities Authority v. Priest (1974) 12 Cal.3d 593, 599, 116 Cal.Rptr. 361, 365, 526 P.2d 513, 517, quoting from Committee for Public Education v. Nyquist (1973) 413 U.S. 756, 772, 93 S.Ct. 2955, 37 L.Ed.2d 948.) We perceive no impermissible sponsorship, financial support, or involvement in a religious activity in the Legislature's funding decision. The state has neither provided financial aid to a secular organization (see Committee for Public Education v. Nyquist, supra ), nor denied an individual benefits because of his religious principles) see Sherbert v. Verner (1963) 374 U.S. 398, 83 S.Ct. 1790, 10 L.Ed.2d 965). We reiterate: the Legislature has not prohibited elective abortions; rather, the Legislature has decided not to use pubic funds to pay for the elective abortions of any women, whatever their religious persuasion.
In a related argument, appellants suggest that this funding decision was the result of pressures on legislators by members of particular religious denominations which oppose abortion on religious grounds. However, it is a long established and well settled legal principle that the constitutionality of legislation must be measured by the terms of the legislation itself, and not by the motives of or influences upon legislators who enacted the measure. (Palmer v. Thompson (1971) 403 U.S. 217, 224, 91 S.Ct. 1940, 29 L.Ed.2d 438.) Courts repeatedly emphasized the impracticality of ascertaining the assortment of motives that may lie behind a legislative action. (Palmer, supra, at p. 224, 91 S.Ct. at p. 1944; City and County of San Francisco v. Cooper (1975) 13 Cal.3d 898, 913-914, 120 Cal.Rptr. 707, 534 P.2d 403.) Our task here is to assess the constitutionality of the funding itself, not [156 Cal.Rptr. 84] to attempt to probe the multiplicity of motives and influences which may have led to that decision.
We find no merit in appellants' contention that the decision not to pay for elective abortions infringes on the religious beliefs of indigent women who desire such abortions.
IV. MINORS' RIGHT TO PRIVACY
According to Budget Act provision (d), funds are available for an abortion for a female under 16 years of age whose pregnancy results from an act of unlawful intercourse (Pen.Code, § 261.5); the parent or guardian of the minor must be notified five days prior to the abortion.
Appellants first contend the notification requirement is in a practical sense a consent requirement, and as such is constitutionally impermissible.
It is clear that the state may not constitutionally require the Consent of a parent or person In loco parentis as a condition for an abortion performed on an unmarried minor during the first 12 weeks of her pregnancy. (Planned Parenthood of Missouri v. Danforth (1975) 428 U.S. 52, 56, 75, 96 S.Ct. 2831, 49 L.Ed.2d 788.) However, a lesser restriction inhibiting privacy rights of minors may be valid if it serves " 'any significant state interest . . . that is not present in the case of an adult.' " (Carey v. Population Services International (1977) 431 U.S. 678, 693, 97 S.Ct. 2010, 2021, 52 L.Ed.2d 675, quoting Planned Parenthood v. Danforth, 428 U.S. at p. 75, 96 S.Ct. 2831.) The court in Carey noted that states have greater latitude to regulate the conduct of children than that of adults, and that "the law has generally regarded minors as having a lesser capability for making important decisions." (431 U.S. at p. 693, fn. 15, 97 S.Ct. at p. 2021, fn. 15.)
See also Ballard v. Anderson (1971) 4 Cal.3d 873, 884, 95 Cal.Rptr. 1, 484 P.2d 1345, construing California Civil Code section 34.5 to permit minors to seek therapeutic abortions without parental consent.
While allowing a parental veto of a minor's decision to terminate her pregnancy is not constitutional, encouraging an unmarried pregnant minor to seek the help and advice of her parents in making the important decision whether or not to bear a child is a constitutionally permissible end. (Planned Parenthood, supra, 428 U.S. at p. 91, 96 S.Ct. 2831, conc. opn. of Stewart, J.)
We view the Budget Act's notification requirement as the state's constitutionally permissible attempt to insure that the pregnant indigent minor has sufficient guidance to make more likely the probability that her decision will be made wisely.
Appellants also contend that the funding of abortions pursuant to provision (d) only for minors under age 16 amounts to an unjustifiable denial of equal protection to minors 16 and 17 years of age.
It is well settled that the Legislature is free to exercise its judgment in fixing the age limits of minority for particular purposes. It is a matter of practical necessity and one of legislative discretion to fix theoretical lines where there are no real ones, and there is no abuse of discretion when the theoretical lines are not unreasonable. (In re Herrera (1943) 23 Cal.2d 206, 213, 143 P.2d 345.)
We interpret the Budget Act provisions as reflecting a legislative decision to pay for the abortions of indigent young women age 15 and under, whatever the circumstances leading to their pregnancies. That decision may reflect legislative concern with the health risk or the socioeconomic impact of childbirth on very young teenagers, or with the rate of mortality of infants born to very young mothers, all legitimate and reasonable state concerns.
We conclude that the Legislature was free to exercise its judgment in fixing 15 as the maximum age for which it will fund abortions for all pregnancies; we perceive no forbidden discrimination in that decision.
V. TITLE XIX OF THE SOCIAL SECURITY ACT
Appellants contend the abortion funding restrictions of the Budget Act of 1978 violate [156 Cal.Rptr. 85] title XIX of the federal Social Security Act (42 U.S.C. § 1396 et seq.) which establishes the Medicaid program. Specifically, appellants contend title XIX mandates that participating states must provide all Medically necessary services to eligible individuals; appellants then argue that Budget Act restriction (g), specifying an exclusive list of conditions under which an abortion is permissible to prevent damage to the mother's health, fails to provide funding for a significant number of medically necessary abortions.
We conclude that provision (g) fails to comply with express funding requirements now part of title XIX as a result of the so-called "Hyde Amendment."
Medicaid is a cooperative federal-state medical assistance program operated under state direction, subject to extensive federal statutory and regulatory guidelines. (Aitchison v. Berger (S.D.N.Y.1975) 404 F.Supp. 1137, 1141.) Under the Medicaid program, federal funding is offered to participating states. While state participation is voluntary, once a state elects participation, its health care plans must meet certain federal statutory requirements and be approved by the Secretary of Health, Education and Welfare for funding. (42 U.S.C. § 1396a(b); Rush v. Parham (N.D.Ga.1977) 440 F.Supp. 383, 385.) California's plan is embodied in the "Medi-Cal Act," set forth in Welfare and Institutions Code section 14000 et seq.
We note that although HEW approval of a state's plan is some evidence of its validity, that approval is not controlling. Numerous courts have entertained actions for declaratory and injunctive relief to consider whether a state's standards of care conflict with the governing federal regulations. (See e. g., Aitchison v. Berger, supra, 404 F.Supp. at p. 1148; Beal v. Doe (1977) 432 U.S. 438, 97 S.Ct. 2366, 53 L.Ed.2d 464; Preterm, Inc. v. Dukakis (1st Cir. 1979) 591 F.2d 121; Zbaraz v. Quern (7th Cir. 1979) --- F.2d ----.)
The cases involving challenges to the validity of state plans have been in federal courts, with few exceptions. While it may seem more appropriate for a federal court to evaluate a state's compliance with federal law, there is no impediment to such an action in state court in California.
In Conover v. Hall (1974) 11 Cal.3d 842, 114 Cal.Rptr. 642, 523 P.2d 682, a trial court enjoined implementation of a provision of the Welfare and Institutions Code which established a standard $50 monthly work expense allowance for AFDC recipients, after finding the set amount incompatible with federal law mandating a flexible standard. (Id., p. 846, 114 Cal.Rptr. 642, 523 P.2d 682.) Upholding the grant of the preliminary injunction, the Supreme Court acknowledged that an injunction cannot be granted to prevent the execution of a public statute, unless the statute is unconstitutional or Invalid. Because state law was not in compliance with federal law, the court had full authority to enjoin its execution. (Id., p. 850, 114 Cal.Rptr. 642, 523 P.2d 682.) Consequently, this court has power both to consider the state's compliance with federal law, and to enjoin a state provision found to violate that federal law.
Title XIX does not catalog particular medical treatments which must be provided by participating states, nor does it expressly declare that state plans must supply all medically necessary treatment for eligible individuals. Instead, the federal statute requires that state plans Must provide for making "medical assistance" available to certain eligible individuals, and may elect to [156 Cal.Rptr. 86] offer such assistance to others. (See 42 U.S.C. § 1396a(a)(10); see also 42 C.F.R. § 449.10.) "Medical assistance" is defined as payment of part or all of the cost of certain enumerated services, among them inpatient and outpatient hospital services, laboratory and X-ray services, skilled nursing services, and physicians' services ( § 1396d(a)). Nowhere does the statutory language explicitly delineate a state's obligations under the circumstances here.
The "medically necessary" language relied on by appellants appears in 42 U.S.C. section 1396, in effect a preamble, which proclaims the purpose of the Medicaid program: "For the purpose of enabling each State, as far as practicable under the conditions in such State, to furnish (1) medical assistance on behalf of families with dependent children and of aged, blind, or disabled individuals, Whose income and resources are insufficient to meet the costs of necessary medical services, and (2) rehabilitation and other services to help such families and individuals attain or retain capability for independence or self-care . . ." (Emphasis added.)
One parameter of the relationship between title XIX and a participating state's obligation to fund abortions was clarified in Beal v. Doe, supra, 432 U.S. 438, 97 S.Ct. 2366, 53 L.Ed.2d 464, in which the Supreme Court held that title XIX did not require states to fund the cost of all abortions permissible under state law (at p. 444, 97 S.Ct. 2366). However, left unanswered by Beal was precisely to what extent title XIX did mandate abortion funding.
That question has since been answered. In the appropriations bills funding the Department of Health, Education and Welfare and the Labor Department for the fiscal years 1977, 1978, and 1979, Congress inserted language restricting the use of federal funds for abortions. The present version of that language, known as the Hyde Amendment, provides:
"None of the funds provided for in this Act shall be used to perform abortions except where the life of the mother would be endangered if the fetus were carried to term; or except for such medical procedures necessary for the victims of rape or incest, when such rape or incest have been reported promptly to a law enforcement agency or public health service; or except in those instances where severe and long-lasting physical health damage to the mother would result if the pregnancy were carried to term when so determined by two physicians."
(Pub.L. No. 95-480, § 210, 92 Stat. 1586 (Oct. 18, 1978).)
The federal circuit courts of appeal have recently held that the Hyde Amendment substantively altered title XIX such that participating states may, but are not required to fund abortions other than those which would be funded pursuant to the Hyde Amendment. (Preterm, Inc. v. Dukakis, supra, 591 F.2d 121; Zbaraz v. Quern, supra, --- F.2d ----.)
The court in Preterm considered the compliance with title XIX of a Massachusetts appropriations provision limiting the expenditure of state funds for abortions to those " 'necessary to prevent the death of the mother' " and " 'necessary for the proper treatment of victims of forced rape or incest,' " who properly reported the incident. The court enjoined implementation of that statute insofar as it prohibited state reimbursement for abortions which would qualify for federal reimbursement under the terms of the Hyde Amendment (591 F.2d at p. 122). In Zbaraz, the court was faced with an even more restrictive Illinois statute, withdrawing medical assistance funding for All abortions except those " 'necessary for the preservation of the life of the pregnant woman.' " The court concluded that state was required to fund medical services to indigent pregnant women for those abortions fundable under the Hyde Amendment (--- F.2d at p. ----).
We note that the courts in both Preterm and Zbaraz remanded for a consideration of the constitutionality of the Hyde Amendment itself. (Preterm, 591 F.2d p. 134; Zbaraz, --- F.2d p. ----.)
Budget Act provision (g) more severely restricts abortion funding than does title XIX as modified and clarified by the Hyde Amendment, insofar as it authorizes payment for an abortion where severe physical health damage would result without that abortion Only for those women suffering from one of a narrow list of conditions. Therefore, we conclude that provision (g) is invalid to the extent that it prohibits state reimbursement for abortions which would qualify for federal reimbursement according to the Hyde Amendment. To cure that invalidity, we find it necessary to excise from provision (g) all words beginning with and including "on account of any of the following conditions" through and including [156 Cal.Rptr. 87] the words "and placentia previa," so that provision (g) reads: "Where severe and long-lasting physical health damage to the mother would result if the pregnancy were carried to term, when so certified under penalty of perjury by two physicians, one of whom, where practicable, is a specialist in the affected medical discipline, and documentation thereof is provided with the claim for payment."
Judgment is reversed, and the cause remanded with directions that implementation of the Budget Act of 1978 be enjoined only to the extent necessary to conform with the views herein expressed.
FEINBERG, J., concur.
HALVONIK, Associate Justice, dissenting.
"If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein." (West Virginia Board of Education v. Barnette (1943) 319 U.S. 624, 642, 63 S.Ct. 1178, 1187, 87 L.Ed. 1628.
Today this court unhinges that star. It holds that the state may establish an orthodoxy respecting a woman's fundamental right to decide whether to terminate a pregnancy or carry it to term and that state funds may be used to induce conformity with that orthodoxy. The practical consequence is that poor women must, as the price for medical care, bring unwanted children into their financially bleak worlds or, if they insist on exercising their constitutional right, seek their remedy from the unskilled and unclean in California's back alleys and byways. To reach this unwholesome result the court has had to deflect conventional constitutional principles a bit. It has had to deflect them to the same degree and exact angle as it would were it to hold that, though we are free to marry whomever we please the state may, nevertheless, provide uncostly marriages for the racially homogenous while scornfully directing interracial couples to a marketplace they cannot afford. The rule the court announces would also permit the state to flip the coin and provide the pregnant poor with medical services only if they agreed to abort, disdaining and discouraging those who wished to give birth. "The law, in its majestic equality," said Anatole France, "forbids the rich as well as the poor to sleep under bridges, to beg in the streets, and to steal bread." If those hostile on principle to abortion do not realize that today's decision permits the state to manipulate the poor into abortion, as well as away from it, then they misapprehend the issue that has been tendered.
The question is not whether women have a fundamental right to decide whether to nurture a fetus or not. That the right to privacy encompasses such a decision is settled and undisputed. (See Roe v. Wade (1973) 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147; People v. Belous (1969) 71 Cal.2d 954, 80 Cal.Rptr. 354, 458 P.2d 194.) Nor is there any question that the right to privacy, guaranteed by California's Constitution, is not coterminus with the federal right to privacy as interpreted by the United States Supreme Court, in Maher v. Roe (1977) 432 U.S. 464, 97 S.Ct. 2376, 53 L.Ed.2d 484. The people of California placed the right to privacy in our Constitution (Cal.Const. art. I, sec. 1) after the United States Supreme Court in Griswold v. Connecticut (1965) 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510, found such a right implicit in the federal Constitution. It cannot be presumed that the voters were engaging in an idle and superfluous act. Should there be any doubt, they added article I, section 24 to California's Declaration of Rights: "Rights guaranteed by this Constitution are not dependent on those guaranteed by the United States Constitution." 1 And the question is [156 Cal.Rptr. 88] not whether the state is required to furnish medical assistance to the pregnant poor. The question, rather, is whether the state, once it provides such assistance, may condition its receipt on the waiver of a constitutional right; whether, in other words, the state may withhold its bounty and, in effect, substitute its judgment about the proper way to exercise a constitutional right for that of the individual?
If individual rights mean anything; if individual rights are to be exercised in spite of popular and governmental hostility, then the question must be answered negatively. Speaking over a half-century ago, Justice Sutherland said for the court: "It would be a palpable incongruity to strike down an act of state legislation which, by words of express divestment, seeks to strip the citizen of rights guaranteed by the federal Constitution, but to uphold an act by which the same result is accomplished under the guise of a surrender of a right in exchange for a valuable privilege which the state threatens otherwise to withhold. . . . If the state may compel the surrender of one constitutional right as a condition of its favor, it may, in like manner, compel a surrender of all." (Frost & Frost Trucking Co. v. Railroad Comm'n (1926) 271 U.S. 583, 593-594, 46 S.Ct. 605, 607, 70 L.Ed. 1101.)
The theory that the state, because it has the greater power not to extend benefits at all, may employ the "lesser" power to extend them only to those willing broadly to waive their fundamental rights was expressly repudiated by the California Supreme Court in Bagley v. Washington Township Hospital Dist. (1966) 65 Cal.2d 499, 504, 55 Cal.Rptr. 401, 405, 421 P.2d 409, 413: "Today courts and commentators alike recognize without question that the power of government, federal or state, to withhold benefits from citizens does not encompass a supposed 'lesser' power to grant such benefits upon an arbitrary deprivation of constitutional right." (Footnote omitted.)
Bagley held unconstitutional the withdrawal of public employment from persons engaged in "any political activity." Bagley's holding, however, is not limited to cases where the right is one of free expression and the benefit is public employment. The constitutional principle announced in Bagley applies with equal force when the state attempts to control the exercise of the right of privacy by requiring its waiver as the price for welfare benefits. That was settled in Parrish v. Civil Service Commission (1967) 66 Cal.2d 260, 57 Cal.Rptr. 623, 425 P.2d 223. There the county argued that since it was not required to provide welfare benefits at all, it could condition their receipt on a waiver of the right of privacy, thus justifying warrantless searches of the recipients' homes for the purpose of insuring compliance with welfare regulations. The Supreme Court disagreed: "In Bagley v. Washington Township Hospital Dist. (1966) 65 Cal.2d 499, 55 Cal.Rptr. 401, 421 P.2d 409, and Rosenfield v. Malcolm (1967) 65 Cal.2d 559, 55 Cal.Rptr. 505, 421 P.2d 697, this court recently reviewed the so-called 'doctrine of unconstitutional conditions,' concluding that the power of government to decline to extend to its citizens the enjoyment of a particular set of benefits does not embrace the supposedly 'lesser' power to condition the receipt of those benefits upon any and all terms. (P) When, as in the present case, the conditions annexed to the enjoyment of a public conferred benefit require a waiver of rights secured by the Constitution, however well-informed and voluntary that waiver, the governmental entity seeking to impose those conditions must establish: (1) that the conditions reasonably relate to the purposes sought by the legislation which confers the benefit; (2) that the value accruing to the public from imposition of those conditions manifestly outweighs any resulting impairment of constitutional rights; and (3) that there are available no alternative means less subversive of constitutional right, narrowly drawn so as to correlate more closely with the purposes contemplated by conferring the benefit." (66 Cal.2d at 271, 57 Cal.Rptr. at 630, 425 P.2d at 230, fn. omitted.) 2
[156 Cal.Rptr. 89]For the state to condition the receipt of medical benefits upon whether the pregnant woman chooses to terminate or carry to term unquestionably intrudes on the exercise of that right. (Cf. Sherbert v. Verner (1963) 374 U.S. 398, 403, 83 S.Ct. 1790, 10 L.Ed.2d 965.) Indeed, the intrusion on the right of privacy is, if anything, greater here than it was in Parrish. Parrish involved a one-night raid. Here, the state extends its medical benefits only if the woman agrees to let her body be used to nurture something she does not wish to nurture. If the government, in Parrish, had proposed to camp in the recipient's house for nine months, the intrusion would still be less than that involved here.
The state's conditioning of the receipt of its benefits on the surrender of the exercise of choice can only be sustained if it satisfies the test limned in Parrish. 3
According to the majority, the legitimate interest being advanced by denying abortion to Medi-Cal recipients is its interest in "normal childbirth." For those who choose childbirth, that is indeed a legitimate interest. For those who do not choose childbirth, it begs the question. What is the state's interest in forcing those who do not want children to have them? Just to show the poor who's boss?
Instead of answering the question "why?" with a "because!" I suggest frankly stating what the Legislature has been up to here. It is all very well to say that we cannot look to legislative motives, but when the state seeks to inhibit the exercise of constitutional rights and can support its action with nothing but platitudes, non sequiturs and eyebrow-raising pretexts, a different rule takes over. At that point, " 'we cannot shut our eyes to matters of public notoriety and general cognizance. When we take our seats on the bench we are not struck with blindness, and forbidden to know as judges what we see as men.' " (Parr v. Municipal Court (1971) 3 Cal.3d 861, 866, 92 Cal.Rptr. 153, 156, 479 P.2d 353, 356; quoting from Justice Stephen J. Field's opinion in Ho Ah Kow v. Nunan (D.Cal.1879) 12 Fed.Cas.No. 6,546, pp. 252, 255-256 (5 Sawy. 552).) Why not simply say what everybody knows? That there are a number of people who do not want women to exercise their right to privacy if they are going to decide on abortion and, since these people can control the decisions of no one else, they are using the state to control the decisions of the poor. This is the truth but it does not demonstrate the existence of any legitimate state interest because the state is supposed to protect us from those hostile to the exercise of our constitutional rights, not join them. (Cf. Cohen v. California (1971) 403 U.S. 15, 22, 91 S.Ct. 1780, 29 L.Ed.2d 284; Edwards v. South Carolina (1963) 372 U.S. 229, 236-238, 83 S.Ct. 680, 9 L.Ed.2d 697; Terminiello v. Chicago (1949) 337 U.S. 1, 4, 5, 69 S.Ct. 894, 93 L.Ed. 1131.)
All of this is not to say that there are not circumstances in which the state could have a legitimate interest in a woman's decision to carry or not carry a fetus. Demographics could justify state encouragement of the carrying of a pregnancy to full term. But it cannot seriously be argued that current demographics justify the sweeping intrusion on fundamental rights involved here. The inability of the state to demonstrate [156 Cal.Rptr. 90] any demographically sound reason for restricting the availability of abortion should be fatal to its case for "When the government seeks to require a limitation of constitutional rights as a condition of public (benefits), it bears the heavy burden of demonstrating the practical necessity for the limitation." (Vogel v. County of Los Angeles (1967) 68 Cal.2d 18, 21, 64 Cal.Rptr. 409, 411, 434 P.2d 961, 963.) And even if the government had carried its heavy burden of demonstrating a demographic need for promoting births, still the particular scheme here should fail under Parrish for it cannot satisfy the third prong of the Parrish test "that there are available no alternative means less subversive of constitutional right, narrowly drawn so as to correlate more closely with the purposes contemplated by conferring the benefit."
The alternative means test has its genesis in Schneider v. State (1939) 308 U.S. 147, 60 S.Ct. 146, 84 L.Ed. 155. At issue was the constitutionality of ordinances flatly prohibiting the distribution of handbills. The legitimate governmental interest advanced by the ordinances was the abatement of litter and they doubtless accomplished that purpose. Nevertheless, the court held the ordinances a violation of the First and Fourteenth Amendments. "Mere legislative preferences or beliefs respecting matters of public convenience" were held insufficient to override the right of free expression. (308 U.S. at 161, 60 S.Ct. at 151.) Other means were available for preventing street litter. "There are obvious methods of preventing littering. Amongst these is the punishment of those who actually throw papers on the streets." (Id. at 162, 60 S.Ct. at 151.)
It is equally evident that there are other means (although perhaps less convenient means) for encouraging a larger number of births. The state could encourage more births, as the governments of Germany and France do today, by providing, independent of its medical systems, financial incentives for all women who wish to make the uncoerced choice of having and raising a child. Such an alternative would have two constitutionally significant virtues that the challenged legislative plan lacks. First, the woman's choice would be an uncoerced one, abortion would be available to any woman desiring it. Second, the state's population expansion program would not, as the instant one does, conscript one group in society for reasons unrelated to the objective. Placing the responsibility for population growth exclusively on the poor is not only senseless, it violates the state Constitution's guarantee of equal protection of the laws for "It is established in this state that the mere presence of wealth or of lack thereof in an individual citizen cannot be the basis for valid class discrimination." (Dept. of Mental Hygiene v. Kirchner (1964) 60 Cal.2d 716, 721, 36 Cal.Rptr. 488, 491, 388 P.2d 720, 723, vacated in 380 U.S. 194, 85 S.Ct. 871, 13 L.Ed.2d 753 and reiterated on remand in 62 Cal.2d 586, 43 Cal.Rptr. 329, 400 P.2d 321.) 4
The abortion section of the 1978 Budget Act is a patently overbroad invasion of the right to privacy and should be declared unconstitutional in its entirety. (See Berger v. New York (1967) 388 U.S. 41, 87 S.Ct. 1873, 18 L.Ed.2d 1040.) When a statute is this overreaching, a severance is equivalent to rewriting it, which is not a judicial function. (Cf. In re Berry (1968) 68 Cal.2d 137, 156-157, 65 Cal.Rptr. 273, 436 P.2d 273; Vogel v. County of Los Angeles, supra, 68 Cal.2d 18, 25-26, 64 Cal.Rptr. 409, 434 P.2d 961.) Accordingly, I do not reach the other issues pressed by petitioners.
If this decision stands, the effects on the poor women of this state will be devastating. [156 Cal.Rptr. 91] It will not be too pleasant for us either. In addition to the cases of mindless killings that we now review, we shall once again have cases like that of Birda Johnson, a 26-year-old woman who, after she had borne seven children, went to visit a non-physician abortionist named Powell. He "Put some packs in" her, according to her dying declaration, and "he used a long instrument; when he put it inside of me it hurt so I fainted." The story of her subsequent inability to walk down a flight of stairs, her vomiting, her dehydration and intestinal influenza, her brown fetid discharge, the development of pelvic peritonitis, her transfer from a private to a county hospital because of the need for blood transfusions she could not afford and the autopsy's disclosure of "a necrosis which extended right down into the internal cavity of the uterus . . ." is vividly told in People v. Powell (1949) 34 Cal.2d 196, 208 P.2d 974.
I dissent.
[*] See 26 Cal.3d 792 for Supreme Court opinion in Forsher v. Bugliosi.
(a) Where the life of the mother would be endangered if the fetus were carried to full term.
(b) Where the pregnancy is ectopic.
(c) Where the pregnancy results from an act punishable under Section 261 of the Penal Code, and such act has been reported, within 60 days, to a law enforcement agency or a public health agency which has immediately reported it to a law enforcement agency, and the abortion occurs during the first trimester.
(d) Where the pregnancy results from an act punishable under Section 261.5 of the Penal Code, and the female is under 16 years of age, and the abortion is performed no later than the first trimester, provided the female's parent or guardian or, if none, an adult of the female's choice is notified at least five days prior to the abortion by the physician who performs the abortion. Regulations governing the notice requirement shall be promulgated by the Director of the Department of Health Services.
(e) Where the pregnancy results from an act punishable under Section 285 of the Penal Code, and such act has been reported to a law enforcement agency or a public health agency which has immediately reported it to a law enforcement agency and the abortion occurs no later than during the second trimester.
(f) Where it is determined by fluid obtained through amniocentesis that the mother is likely to give birth to a child with a major or severe genetic or congenital abnormality due to the presence of chromosomal abnormalities, neural tube defects, biochemical diseases, hemoglobinopathies, sex-linked diseases, and infectious processes.
(g) Where severe and long-lasting physical health damage to the mother would result if the pregnancy were carried to term, on account of any of the following conditions: toxemia; renal failure; diabetes with vascular degeneration; thrombosis, Addison's disease; high blood pressure with renal complications; high blood pressure with previous cardio-vascular accident; hydatidiform mole; congestive cardiac failure; and placentia previa, when so certified under penalty of perjury by two physicians, one of whom, where practicable, is a specialist in the affected medical discipline, and documentation thereof is provided with the claim for payment.
It is the limitation to the specified medical conditions set forth in subdivision (g) which we find in conflict with the federal law. (Discussion, Infra.)
While section 1396 includes the words "necessary medical services," the language specifies those eligible for medical assistance, not the services to which they are entitled.