The Story of Minors' Access to Reproductive Freedom in California
Important Lessons for Future Battles
In The Heart’s Invisible Furies, the poignant and gripping novel by John Boyne, an unmarried 16 year old girl in 1950’s Ireland is publicly shamed by her local Catholic Church priest in front of her entire village for having become pregnant out of wedlock. She has sinned by having pre-marital sex. Refusing to reveal the father, her family disowns her, and she is exiled from her native village.
Because abortion is illegal in 1950’s Ireland (as it was then in the United States), this 16 year old woman has no option of a safe and legal abortion to terminate an unwanted pregnancy and avoid the public shame and subsequent hardship. She will ultimately have the child but be forced to give him up for adoption, a decision she lives with for the rest of her life.
The story is rather poignant because while it is fictional, the choice faced by the 16 year old woman in The Heart’s Invisible Furies is one that many young women have faced in real life when confronted with an unwanted pregnancy.1
A woman faced with an unwanted pregnancy who is deprived of her right to obtain a safe and legal abortion is either forced to give birth against her will or attempt a back alley abortion that could result in severe injury, lifelong sterilization, or even death.2
For a woman beneath the age of majority, the risks and consequences from the deprivation of the right to a safe and legal abortion are only exacerbated. Imagine a 16 year old who becomes permanently sterilized from a botched back alley abortion. She loses her ability to be a mother in the future, a lifelong consequence for things that occurred when she was still a teenager.
Even when Roe v. Wade was in effect and even today in many states where abortion remains legal, many young women still face the same terrible choices as the 16 year old in The Heart’s Invisible Furies.
That’s because even under Roe, it was constitutional to legally require that a minor seeking an abortion obtain parental consent in order to have an abortion.3 Even in most states where abortion remains legal, this remains the law.4 And it is a very popular restriction among the public that even a majority of those who consider themselves strongly pro-choice fully support.5
It’s easy to understand why this abortion restriction has strong public support. Minors tend to be fairly immature and are still learning about the world. Most parents, even the flawed ones, deeply love their children and care about their well-being.6 Most parents reasonably expect to be involved in their children’s medical decision making. In the United States, we also have constitutionally protected parental rights.7
However, requiring a minor to notify her parents and obtain their consent before having an abortion is still a restriction on the right to an abortion.8 Because while the option of a safe and legal abortion is theoretically available, it is not a decision that the pregnant minor ultimately gets to make for herself. It is instead a decision made by another party.
A minor who wishes to terminate her pregnancy can be forced to give birth against her will if her parents want her to have the child. A minor who cannot obtain the consent of her parents to an abortion may resort to extra-legal means that could result in severe injury, lifelong sterilization, and even death.
In some cases, where the minor was impregnated by a relative or trusted family acquaintance, a minor might risk severe bodily injury or death as a result of simply having to obtain parental consent for an abortion.
While minors usually lack the same maturity possessed by an adult, a pregnant minor still faces the same issues that all women face from pregnancy.9 The lifelong consequences from that pregnancy will also follow that minor in her life long after she reaches the age of majority.10
Thus, allowing a pregnant minor to obtain an abortion but predicating it upon parental consent does not really give a pregnant minor a right to obtain an abortion.11
If John Boyne’s novel brought a tear to my eye, reflecting on the sadness of the real-world situation faced by so many, a different story uplifts my spirits.
Last year, Governor Gavin Newsom signed SB-345, which repealed a defunct law purporting to require minors in California to obtain parental consent in order to have a legal abortion.12 This repeal was long overdue but make no mistake, it did not change any existing law. That law has been unconstitutional since 1997 and superseded by other statute since 2003.
In fact, in California, minors have been able to access safe and legal abortions without parental consent since 1971.
The story of how this came to be has more twists and turns than a good crime action mystery drama written by Hollywood’s best screen writers. But it’s one that all should know, especially as new fights to protect abortion rights take place across the country. It’s also important in the context of other fights regarding the medical decision making rights of minors.
Pre 1967 - Abortion is illegal in California, as it is everywhere else in the United States.13
1967 - Then State Senator Anthony Beilenson (D-Beverly Hills), who has documented the horrendous effects of illegal abortion in California through copious investigative hearings across the state, authors the first bill in United States history legalizing abortion.14 He persuades his constituent, then-Governor Ronald Reagan, to sign the bill into law.15 The law does not address any age restrictions on abortion.
1969 - The California Supreme Court vacates the conviction of Dr. Leon Phillip Belous for helping arrange an abortion of a young woman who suffered panic attacks over her pregnancy.16 The Court holds that the new law, despite being the first to legalize abortion, is too restrictive, and as such violates an unenumerated constitutional right to privacy in the California Constitution.17
1971 - The California Supreme Court holds that the Therapeutic Abortion Act does not require minors to obtain parental consent for an abortion.18 There, the Los Angeles County University of Southern California Medical Center (“LA County USC Medical Center”) denied a 20 year old woman (then considered underage) an abortion because she had not obtained her mother’s consent.19
Although the Therapeutic Abortion Act did not specify an age restriction to obtain an abortion, the LA County USC Medical Center argued that a different pre-existing law requiring minors to obtain parental consent for medical procedures applied to abortion services.20
Citing the legislative history of the Therapeutic Abortion Act, the LA County USC Medical Center argued that the law omitted age requirements because the authors of the Therapeutic Abortion Act believed that a pre-existing law requiring minors to obtain parental consent for medical procedures applied to abortion services as well.21
In response, Senator Anthony Beilenson signed a sworn declaration that in authoring the Therapeutic Abortion Act, he did not contemplate the other law restricting minors obtaining access to medical care but had that law been considered, he would have specifically included a protection for minors in the Therapeutic Abortion Act.22 The Court sides with Senator Beilenson.23
While a major victory for the rights of minors to access abortion, the case is one of statutory interpretation, not constitutional law.24 The Court even suggests that California’s abortion law could be changed to require parental consent.25
1972 - Nearly 63% of California voters pass Proposition 11,26 which enacts an explicit right to privacy in the California Constitution, formally codifying the California Supreme Court’s previous decision in People v. Belous, protecting abortion rights, into the state constitution.27
1973 - The United States Supreme Court issues its decision in Roe v. Wade.
1980 - The United States Supreme Court holds that the federal government may prohibit public funding for abortion related care consistently with the United States Constitution.28
1981 - The California Supreme Court declines to follow the United States Supreme Court and holds that Medi-Cal, unlike Medicaid, must pay for abortion care, holding that what the United States Constitution does not require, the California Constitution does.29
1987 - The Democratic controlled State Legislature passes legislation requiring parental consent for minors to obtain an abortion and it is signed into law by Republican Governor George Deukmejian. However, the law technically never goes into effect as it’s blocked by superior courts issuing temporary restraining orders.30
1989 - The California Court of Appeals affirms the trial court’s temporary restraining order against enforcement of the parental consent requirement for minors seeking abortions.31
1991 - After a trial in San Francisco Superior Court, Judge Maxine Chesney strikes down the parental consent requirement for minors seeking abortions as a violation of the right to privacy under the California Constitution.32
1994 - Judge Chesney is affirmed by the California Court of Appeals.33 This occurs even though the United States Supreme Court has repeatedly upheld the constitutionality of laws requiring parental consent for minors seeking abortions.34
1996 - On April 4, 1996, the California Supreme Court, in a surprising 4-3 decision, upholds the parental consent requirement for minors seeking abortions as constitutional, reversing the lower courts.35 Curiously, the decision is authored by the same Justice who authored the 1971 California Supreme Court decision holding that minors could access abortion without parental consent.
1996 - The decision upholding the parental consent requirement for minors seeking abortions never went into effect. On May 22, 1996, the Court votes to rehear the case and withdraws the April 4, 1996 opinion.36
1996 - In between the time of the decision and a motion to rehear the case, Chief Justice Malcolm Lucas and Associate Justice Armand Arabian, who both voted in the majority of the case to uphold parental consent requirement for minors seeking abortions, had both retired.
In the meantime, Republican Governor Pete Wilson makes two new appointments to the California Supreme Court, Justice Ming Chin, and Justice Janice Rogers Brown, who are confirmed to the Court. Both vote with the three dissenting Justices to rehear the case. Ironically, Pete Wilson fully supported the parental consent requirement.37
1997 - The California Supreme Court reverses itself. In a 4-3 opinion, authored by Chief Justice Ronald M. George, the Court strikes down the law, holding that the constitutional right to privacy in the California Constitution protects the right of minors to obtain abortions.38
It’s not the first time Chief Justice George has taken bold action as a judge to protect women, having been the judge who infamously refused to grant the Los Angeles County District Attorney’s motion to dismiss charges against the Hillside Stranglers, which, if granted, would have set the serial killers free.39
2002 - The Reproductive Privacy and Freedom Act, authored by State Senator Sheila Keuhl (D-Santa Monica) passes the State Legislature and is signed into law by Democratic Governor Gray Davis.40 This law abrogates the statute requiring a minor to seek parental consent for an abortion.41
2005 - Proposition 73, supported by Republican Governor Arnold Schwarzenegger, is placed on the ballot in a special election which will amend the state constitution to require that minors must obtain parental consent for abortions. It is expected to pass in a landslide and help drive up conservative voter-turnout to support his other five ballot initiatives.
In a surprise, however, Proposition 73 is narrowly defeated, 52.8%-47.2%, along with all other initiatives supported by Governor Schwarzenegger. Even though it passes in most of these jurisdictions, higher opposition than expected to Proposition 73 is seen in several reliably Republican counties and cities (it surprisingly loses in deep red Del Norte, Trinity, and San Luis Obispo Counties).42
Despite its defeat, Proposition 73 receives more votes in favor than any other measure on the ballot in the special election.43
2006 - A new constitutional amendment to restrict the right of minors to access abortion without parental consent, Proposition 85, is placed on the ballot once more for the general election. This time, in a higher turnout election, Proposition 85 loses by a larger margin, 54.2%-45.8%. It is also clear that an even larger number of Republican voters defect to vote against it.
Normally red Amador, Butte, Calaveras, Del Norte, Inyo, Mariposa, Nevada, Plumas, San Luis Obispo, Sierra, Siskiyou, and Trinity Counties join San Francisco, Berkeley, Los Angeles, and Oakland in voting against. So do local Republican strongholds in Southern California including Huntington Beach, Newport Beach, Simi Valley, Rancho Mirage, and the Palos Verdes Peninsula.44
2008 - A new constitutional amendment to restrict the right of minors to access abortion without parental consent, Proposition 4, is placed on the ballot for the general election. Proposition 4 is supported by an even larger amount of money and is expected to fair better due to more conservative Democrats having higher turnout in the Presidential Election year.
Proposition 4 narrowly loses 52%-48% statewide. Once again, a large number of Republican voters defect to vote against. Normally red Amador, Butte, Calaveras, El Dorado, Inyo, Nevada, Plumas, San Luis Obispo, Trinity, and Tuolumne Counties join San Francisco, Berkeley, Los Angeles, and Oakland in voting against. So do local Republican strongholds in Southern California including Aliso Viejo, Dana Point, Huntington Beach, Newport Beach, and the Palos Verdes Peninsula.45
This proves to be the final showdown. The right of minors to access safe and legal abortions remains protected.
2022 - California voters pass Proposition 1 in the November general election. This re-affirms the existing constitutional law by expressly including language that the right to privacy includes the right to abortion.46
2023 - Defunct legislation requiring parental consent for abortion is formally repealed by SB-345. Forgotten about, it had existed merely as a zombie law, not enforceable in any sense.
While successful, the fight to protect the abortion rights of minors in California provides a cautionary tale.
First, the issue of protecting the abortion rights of minors is a narrowly decided one in California. Given how passionately people feel about this issue, efforts to take away the right of minors to obtain abortions could always resurface.
Second, there are currently misguided pushes to abrogate parental rights in other medical decision making areas that abortion rights supporters should be weary of. Allowing minors access to abortion rights without parental consent is a rare exception to the rule that parents generally make medical decisions for their children, not a general rule to be applied to all areas of medical decision making.
Third, the push to abrogate parental rights in other medical decision making areas ultimately puts abortion rights in jeopardy. Because when cornered, parents who do not want Senator Scott Wiener (D-San Francisco) substituting his judgment for their own in how to raise their children will push back and support reinstituting parental consent in all areas of medical decision making, including abortion.
Finally, while it is very easy to demonize Republicans and conservatives (many of our journalists and elected officials often encourage it), many of them may be needed to defect if this issue ever arises again. Had Republicans in California voted strictly along party lines in the previous referendums to require parental consent, the California Constitution would have been changed.
It shouldn’t be lost on anyone that in 2008, the same percentage of voters in Los Angeles County and Plumas County (a small, heavily Republican county in rural Northern California) voted against Proposition 4. Coalitions to protect the rights of minors to obtain abortions in the future will necessarily include those who strongly disagree with other progressive and liberal positions.
I read The Heart’s Invisible Furies in the aftermath of the United States Supreme Court overturning Roe v. Wade. It made me bitterly sad to think about how easily individual rights could be rolled back and how situations we thought something of the past could once again become a reality.
However, I took some solace that the sad fate of the teenage character in The Heart’s Invisible Furies would not happen today in California. I could also take some solace that someone in that tragic position today in a state that outlawed abortion would at least have someplace to flee to.
For abortion rights supporters in California who are fighting to protect abortion rights in parts of the country where they are under attack and restore abortion rights where they have been taken away, we cannot forget our own fight to protect abortion rights of minors. We need to remain vigilant to protect these existing rights and use the lessons from our success here to guide our fights elsewhere.
(Me with former Assemblyman, State Senator, and Congressman Tony Beilenson (D-Beverly Hills), the author of the original law legalizing abortion, and his wife, Dolores, in January 2015.)
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