A Deeper Dive Into the California Constitution's Protection of a Woman's Right to Choose

Answering questions posed of my previous article regarding California’s Constitutional Right Protecting a Woman’s Right to Choose

Since writing my initial Substack piece on why the California Constitution already contains a right to abortion, I have received responses and I would like to respond to a few of them questioning my previous claims about abortion rights.¹

To reiterate, Article I, Section 1 of the California Constitution (Article I, Section 1) provides that “All people are by nature free and independent and have inalienable rights. Among these are enjoying and defending life and liberty, acquiring, possessing, and protecting property, and pursuing and obtaining safety, happiness, and privacy.”² As the California Supreme Court has held, “under article I, section 1 of the California Constitution all women in this state -- rich and poor alike -- possess a fundamental constitutional right to choose whether or not to bear a child.”³

As held, “the electorate’s adoption of an explicit California constitutional right of privacy in November 1972, provided additional protection of a pregnant individual’s right to choose whether to continue or terminate her pregnancy.”⁴ “Past California cases firmly and unequivocally establish that the interest in autonomy privacy protected by the California constitutional privacy clause includes a pregnant woman’s right to choose whether or not to continue her pregnancy.”⁵ “The right of a woman to choose whether or not to bear a child and thus to control her social role and personal destiny, is a fundamental right protected by [Article I, Section 1 of the California Constitution].”⁶

Some, however, have raised a number of concerns, doubting the independence of California’s judiciary. They argue that if the right to privacy under the United States Constitution does not protect a woman’s right to choose, the right to privacy under California’s Constitution will similarly be interpreted to not protect a woman’s right to choose.

1. Won’t the California Supreme Court simply accept the United States Supreme Court’s determination that there is no right to abortion if Roe and Casey are overturned?

In 1986, the United States Supreme Court rendered one of its worst decisions in history, Bowers v. Hardwick.⁷ In Bowers, a 5-4 decision, the United States Supreme Court upheld a Georgia law making all anal and oral sex between consenting adults illegal.⁸ The Court held that the constitutional right to privacy that protected rights such as use of contraception and abortion did not extend to private consensual conduct between gay and lesbian adults.⁹

Chief Justice Warren Burger, in a separate concurrence wrote “there is no such thing as a fundamental right to commit homosexual sodomy.”¹⁰ He added “To hold that the act of homosexual sodomy is somehow protected as a fundamental right would be to cast aside millennia of moral teaching.”¹¹

The decision, in which five Justices could not bring themselves to use the word “sex”, was a laughingstock in the legal profession, which rightfully looked upon the decision as backwards.¹² However, the decision, which has since been repudiated by the United States Supreme Court (though many fear it could be revived if Roe and Casey are overturned), devastated civil rights of gay and lesbian Americans.

Bowers was used by numerous courts to uphold anti-gay laws and policies.¹³ After all, if you could criminalize the very act of being gay, there was no reason that the government could not discriminate against gays and lesbians.¹⁴ And while there were a few judges who vehemently disagreed with Bowers v. Hardwick, they could not apply the Constitution in a way that would bar homophobic discrimination by the government.¹⁵

Did Bowers influence the California Supreme Court?

No. Just a year later in 1987, the California Supreme Court, in Vinson v. Superior Court, quietly repudiated Bowers. “[The constitutional right to privacy] protects both the marital relationship and the sexual lives of the unmarried. More significantly, California accords privacy the constitutional status of an ‘inalienable right,’ on a par with defending life and possessing property. California’s privacy protection similarly embraces sexual relations.”¹⁶ The opinion was unanimous and nowhere references or mentions Bowers.¹⁷

The decision just as the California Supreme Court had shifted far right court due to the 1986 judicial retention elections, where voters removed Chief Justice Rose Bird, Justice Cruz Reynoso, and Justice Joseph Grodin. Republican Governor George Deukmejian appointed noted conservative Justice Malcolm Lucas as the new Chief Justice and appointed three conservative Justices.

Yet, rather than embrace Bowers, this newly conservative court essentially flipped the middle finger at the United States Supreme Court. Bowers would be repudiated and overturned in 2003.¹⁸ But California courts never followed Bowers; they instead followed Vinson v. Superior Court.¹⁹

California Supreme Court Justice Raymond Sullivan once wrote that “Homosexual behavior has long been contrary and abhorrent to the social mores and moral standards of the people of California as it has been since antiquity to those of many other peoples.”²⁰

But that opinion was a dissent. He wrote it when a majority of the California Supreme Court that in 1969 reversed the Los Angeles Unified School District’s decision to fire a teacher solely because he was gay – a brave act demonstrating judicial independence.²¹

After Bowers, the California Supreme Court could have adopted Justice Sullivan’s position. The United States Supreme Court had given them license. Instead, they unanimously declined. Our privacy clause is independent of the federal constitution. Badly reasoned and backwards decisions by the United States Supreme Court will not nullify our constitutional right to privacy.

2. Are there any other instances where the California Constitution has been consistently interpreted differently than the federal courts have interpreted the federal constitution?

Many actually. But one highlight is the Equal Protection Clause.

Article I, Section 7 of the California Constitution provides “A person may not be deprived of life, liberty, or property without due process of law or denied equal protection of the laws.”²² It also provides that “A citizen or class of citizens may not be granted privileges or immunities not granted on the same terms to all citizens.”²³ The Fourteenth Amendment Equal Protection Clause of the United States Constitution provides that “No State shall . . . deny to any person within its jurisdiction the equal protection of the laws.”²⁴

Both the California Equal Protection Clause and the Fourteenth Amendment Equal Protection Clause prohibit nearly all racial discrimination by the government and makes all governmental racial discrimination presumptively unconstitutional.²⁵ However, this assumption does not apply to other types of discrimination such as discrimination on the basis of gender, sexual orientation, gender identity, immigration status, and religion, which under federal constitutional law, receive varying forms of a more deferential standard of review.²⁶

However, while textually similar, the equal protection clauses of the United States Constitution and the California Constitution are interpreted differently. Sexual orientation discrimination and gender identity discrimination receive absolute strict scrutiny under the California Constitution.²⁷ Discrimination based on gender, alienage, legitimacy, and religion also receive strict scrutiny under Article I, Section 7.²⁸

Thus, whenever the government discriminates on these bases in California, the laws are evaluated the same as they would be under the Fourteenth Amendment if they discriminate on the basis of race.²⁹ The California courts understand that this is different from federal courts but it makes no difference to them because Article I, Section 7 of the California Constitution is independent of the federal constitution.³⁰ The Court’s history of invalidating gender discrimination demonstrates this.

In 1971, prior to Ruth Bader Ginsburg’s victories against laws that discriminated on the basis of gender at the United States Supreme Court, the California Supreme Court unanimously held that sex discrimination was subject to strict scrutiny under the state’s equal protection clause.³¹ Later that year, using the less deferential rational basis review standard, the United States Supreme Court struck down a sex discriminatory law for the first time in its history.³²

In 1973, the United States Supreme Court struck down a sex discriminatory law, but only a plurality agreed to apply strict scrutiny like the California Supreme Court had done.³³ The rest of the United States Supreme Court agreed that the law was unconstitutional but wanted to apply rational basis review.³⁴

A majority of the Court finally agreed on applying intermediate scrutiny, a more stringent form for reviewing the constitutionality of laws in 1976.³⁵ With some enhancement, that has remained the current standard of constitutional review for gender discrimination by the government.³⁶

With the United States Supreme Court holding that gender discrimination would be subjected to a lower standard of review than race discrimination, did the California Supreme Court switch?

No.

In 1977, the California Supreme Court referenced the various developments on gender discrimination in federal courts but reaffirmed that gender was still a suspect classification under the California Constitution Equal Protection Clause.³⁷ And a year later in 1978, the California Supreme Court once again reaffirmed the principle.³⁸ And California courts have continued to unflinchingly enforce the constitutional interpretation of equal protection under the California Constitution.³⁹

3. Is a woman’s right to terminate her pregnancy really in existence if the word “abortion” is not specifically mentioned and instead relies upon “right to privacy”?

Yes. This argument would suggest that the Constitution does not protect interracial marriages since the word “marriage” is not expressly mentioned in the Constitution. But no one would doubt that the right to interracial marriage is protected by both the federal constitution and California constitution as a fundamental right.⁴⁰ It would suggest that there is no such thing as parental rights. Yet clearly, the constitution protects parental rights.⁴¹

And specificity is not required for constitutional law. Specific constitutional language may even be unnecessarily limiting of personal rights. The First Amendment provides a good example. The First Amendment provides that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”⁴²

Instead of simply just protecting verbal speech, the Supreme Court has held that the First Amendment protects films, television programs, American flag burning, musicals, campaign contributions and campaign expenditures, expressive conduct, websites, video games, and much more.⁴³ Had the First Amendment been written narrowly, referring only to specific types speech known to be in existence at that time (or even different types of printed language), courts would be able to ignore new technology and render the First Amendment far less protective than it currently is.⁴⁴

Since the California Supreme Court first held that abortion was a constitutionally protected right in 1969 and since voters amended the Constitution in 1972 to include a right to privacy, the technology of both abortion and birth control has changed. There are different kinds of abortions, different kinds of birth control, new medical health uses for birth control that have almost nothing to do with stopping pregnancies, and new birth procedures related to surrogacy.

It seems almost certain that there will be future scientific developments that we cannot possibly foresee. And any number of these scientific developments that could offend religious sensibilities. If we were to be specific as to what abortion rights are protected, new types of abortion and birth control could fall into unprotected areas. We should avoid doing that when the right to privacy is so clearly protective of a woman’s right to choose.

4. Doesn’t the California Constitutional Right to Privacy protect informational privacy? And if so, doesn’t that mean that it doesn’t protect a woman’s right to choose?

Yes, the California Constitution’s right to privacy does protect a private citizen’s informational privacy.⁴⁵ No, that doesn’t mean that the right to privacy does not protect abortion and contraception rights.⁴⁶ It serves both purposes.⁴⁷ And it protects personal autonomy even more strongly than other types of informational privacy invasions.⁴⁸

5. How can we be so sure that conservatives on the California Supreme Court won’t change their minds?

Nothing in life is certain except for death and taxes. But it bears repeating that in fifty years, not one single Justice on the California Supreme Court has argued that the right to privacy does not protect a woman’s right to choose. No serious legal scholar has ever argued this point. But perhaps returning to American Academy of Pediatrics v. Lungren is important.

In 1996, the California Supreme Court, held 4-3, that the parental consent law was constitutional under the California Constitution.⁴⁹ The outcome was shocking because every single trial court and appellate court had held the law was unconstitutional.⁵⁰

But perhaps most surprising about this opinion was the author of the opinion, the California Supreme Court’s most liberal member and only Democratic appointment, Stanley Mosk.⁵¹ After all, this was the Justice who once wrote “I yield to no one in demanding respect for the tranquility of the fireside and the inviolability of the person.”⁵² He had meant it too, joining every other pro-choice decision of the California Supreme Court.⁵³ He had even authored a previous decision in the early 1970’s holding that the Therapeutic Abortion Act of 1967 did not require minors seeking an abortion to seek parental consent.⁵⁴

For whatever reason, he joined with the most conservative members of the Court (Chief Justice Malcolm Lucas, Justice Armand Arabian, and Justice Marvin Baxter) to write a majority opinion upholding the restriction. Although the opinion was immediately withdrawn, it would be important to evaluate what a majority of the Court actually held to gain a better idea of the most conservative and most pro-life arguments that can be made under the California Constitution.

First the Court reaffirmed the principle that the California Constitution is a document of independent force.⁵⁵ The Court reaffirmed its past precedent where it had held that California’s Constitutional right to privacy protected a woman’s right to choose and required Medi-Cal to pay for abortion services.⁵⁶ The Court also reaffirmed that the constitutional right to privacy under the California Constitution was broader than the federal right.⁵⁷ However, the Court explained that whether minors could seek an abortion was one of first impression.⁵⁸

As the Court held, “with respect to whether an unemancipated minor has a legally protected privacy interest concerning procreative choice, we conclude that she has such an interest but it is neither coequal with that of an adult, nor, in the case of an immature unemancipated minor, absolute even in the early stages of pregnancy.”⁵⁹

And the Court made an analogous argument to the protected liberty interests of children, which existed but did not apply as equally to minors as they did to adults.⁶⁰[ Looking back at the constitutional amendment to enshrine the right of privacy into the California Constitution, the Court held that the voters had not intended to abrogate traditionally understood parental rights and limitations on the individual rights of minors.⁶¹

Moreover, as the Court explained, the law was constitutional because it “does not effectively nullify the constitutional right to abortion”.⁶² Minors still had the ability to get abortions without parental consent if they used the judicial bypass.⁶³ Accordingly, the Court upheld the law’s constitutionality of the parental consent law.⁶⁴

I bring up the partisan and ideological breakdown of the majority of the Court because this is the MOST conservative ruling on abortion or interpretation to the Constitutional Right to Privacy in the California Constitution. There is no argument that a woman does not right have a right to choose under the California Constitution. There is only an argument over whether the California Constitution provides GREATER protection. Actually, the majority accepted that the California Constitution offers greater protection than the federal constitution. It just declined to extend that full protection to minors.

Certainly, any Justice arguing that there is no more right for a woman to terminate her own pregnancy would be charting brand new legal ground. In the subsequent case reversing the previous one, Justice Janice Rogers Brown, one of the most conservative Justices ever appointed, acknowledged that the State Constitution had a right to privacy that protected a woman’s right to choose.⁶⁵ Even she understood that the California Constitution was an independent document that does not rely upon interpretations of the United States Supreme Court of similar constitutional provisions.⁶⁶

An important point should be made about originalism in the context of interpreting the California Constitution since most legal advocates of allowing the government to be involved in every woman’s vajayjay often cite to originalism as their justification. The most conservative judge, making the most conservative ruling on California’s constitutional right to privacy does not get to relate back to what the law may have been in the original 13 states in 1791 when the Bill of Rights was enacted. That judge does not get to relate back to 1868 and the common understandings of liberty at the time of the enactment of the Fourteenth Amendment. That judge does not get to do as Justice Alito does, relate back to what the law on abortion was in 13th century England, to determine the current contours of the constitutional right of abortion.

California legalized abortion in 1967 (a law written by State Senator Anthony Beilenson and signed into law by Governor Ronald Reagan). The California Supreme Court held that law was unconstitutional in People v. Belous in 1969. Even if a judge thought that People v. Belous was wrongly decided, the voters ratified that decision in 1972 by voting to make privacy as a fundamental right in the California Constitution.

Most think that the leaked draft opinion of the United States Supreme Court overturning Roe and Casey is ridiculous for looking at sources of law and common understandings about abortion from the 1700’s, 1800’s, and 13th Century England to render decisions on women’s personal bodily autonomy in 21st century United States. To be sure, it IS ridiculous. Perhaps Justice William Brennan said it best when he said that “Originalism was arrogance cloaked in humility”.

But the history of California remains the same. As understood by the voters in 1972, California enacted a constitutional right to protect a woman’s right to choose to terminate her pregnancy. The most conservative argument that can be made is that voters had intended to protect a legalized abortion right as they understood the extent of that right in 1972, when abortion in California was legal and assumed to be constitutionally protected.

Hence, some Justices have argued that the voters in 1972 did not intend to require the California government to pay for medical services for abortion.⁶⁷ Some Justices have argued that voters in 1972 did not intend to abrogate parental consent laws for abortion as understood at the time.⁶⁸ And fortunately, a majority of the Court ultimately disagreed. But the courts were unanimous in that the California Constitution protected a woman’s right to choose.

6. Does having an enumerated privacy right really provide more protection than an unenumerated right?

Yes. A good example would be the constitutionally protected right of flag burning, which the United States Supreme Court held was protected by the First Amendment.⁶⁹ Both those cases split 5-4 and not along typical ideological lines, with conservative Justices Antonin Scalia and Anthony Kennedy joining the majority. Justice Kennedy wrote separately to explain the judicial philosophy driving his decision since he made it readily clear that he disliked burning the American flag. “The hard fact is that sometimes we must make decisions we do not like.”⁷⁰ “We make them because they are right, right in the sense that the law and the Constitution, as we see them, compel the result.”⁷¹

As Justice Kennedy made clear, he loved the American flag.⁷² But as he so poignantly wrote, “With all respect to those views, I do not believe the Constitution gives us the right to rule as the dissenting Members of the Court urge, however painful this judgment is to announce.”⁷³ “But whether or not he could appreciate the enormity of the offense he gave, the fact remains that his acts were speech, in both the technical and the fundamental meaning of the Constitution. So I agree with the Court that he must go free.”⁷⁴ If there was no First Amendment, if there was only a general protection of liberty, perhaps the Court could have ruled differently. But with the principles expressed, Justices, felt compelled to rule in favor of something they did not like.

The same has been said about California’s Constitutional right to privacy. “Is the right of privacy ‘good policy’? Is it ‘bad policy’? It simply does not matter. To be sure, the right of privacy reflects a choice of policy. But it is a choice that has already been made--by the people, in their capacity as sovereign, in the California Constitution. It is therefore a choice that we as judges must accept and respect regardless of personal beliefs or predilections.”⁷⁵ Ultimately, in affirming the constitutional right of a minor to obtain an abortion without parental consent, four Republican appointed Justices reached that conclusion. Because ultimately, however, they felt about the issue personally or politically, they realized that they could not ignore textual provisions of the California Constitution.⁷⁶

7. If the United States Supreme Court overturns Roe and Casey but still holds that there is a constitutional right of privacy, won’t that mean that our right to privacy is useless as a protector of a woman’s right to choose?

As previously explained, Roe and Casey do not govern California. Thus, it is highly unlikely that Roe and Casey being overturned would lead to the state constitution no longer guaranteeing an independent right to abortion. As explained, the California Supreme Court did not accept Bowers. California has not backtracked on equal protection jurisprudence despite what the United States Supreme Court has declared.

Interpretations of the California Constitution are not dependent on the decisions of federal courts.⁷⁷ The story of our campaign finance laws demonstrates this. California law currently bans public financing of political campaigns.⁷⁸ In 1988, Californians passed two different campaign finance reform laws.⁷⁹ Problematically, the two campaign finance laws conflicted with one another, with one law creating a public campaign finance system and the other law banning all public financing of political campaigns.⁸⁰ There was an attempt to mesh the two laws together, determining which provisions could be valid and which ones were not.⁸¹ However, the California Supreme Court struck down the public financing campaign finance law because although voters had passed it into law, it received fewer votes.⁸² The result was seemingly harsh but constitutionally required.⁸³ The California Constitution clearly provided that if two similar ballot measures passed in the same election, the measure receiving the most votes became the law.⁸⁴

However, an interesting post-script followed that further tested this constitutional theory. The prevailing campaign finance reform law was struck down by a federal court as a violation of the First Amendment.⁸⁵ This raised an important question. The California Supreme Court had struck down a campaign finance reform law for public financing because it received fewer votes than a competing campaign finance reform law that banned public financing of campaigns. Since that law had been struck down as unconstitutional, didn’t that mean that the other law should be revived? Seems logical, right?

The California Supreme Court rejected this argument.⁸⁶ As the Court held, when the Court evaluated the two competing measures, they evaluated them solely on the basis of the California Constitution.⁸⁷ Furthermore, interpreting the law in that manner would create an unworkable approach that would undermine the California Constitution.⁸⁸ The bottom line is that the California Constitution is not determined by federal constitutional rulings.

And it matters in the fight to protect abortion rights should Roe and Casey be overturned. In Michigan, there is no state constitutional right to privacy. But there is a pre-Roe law on the books that criminalizes abortion. In the Rhode Island Constitution, the equal protection and due process clauses specifically exclude a right of a woman to have an abortion. The California Constitution protects the right to choose and should not be altered.

1. The author of this article is an attorney licensed to practice in the State of California and the District of Columbia. This article and all of the works on this Substack page are statements of the opinions of the author, only, and do not constitute legal advice; they are not intended to be relied upon by any individual or entity in any transaction or other legal matter, past, pending, or future. A paid subscription to this Substack page supports the author’s scholarship and provides access to research that the author has compiled, but does not establish an attorney-client relationship. The author does not accept unsolicited requests for legal advice or representation, and this Substack page is not intended as legal advertising. The opinions expressed on this Substack page reflect the personal views of the author only.

2. Cal. Const. Art. I, § 1(emphasis added).