California

California

The pre-Roe abortion statutes were based upon § 230.3 of the Model Penal Code.^¹ The California Penal Code prohibited abortions not performed in compliance with the “Therapeutic Abortion Act” of 1967,^² and made a woman’s participation in her own abortion a criminal offense (subject to the same exception).^³ The Therapeutic Abortion Act authorized the performance of an abortion on a pregnant woman if the procedure was performed by a licensed physician and surgeon in an accredited hospital, and was unanimously approved in advance by a medical staff committee.^⁴ An abortion could not be approved unless the committee found that there was a “substantial risk that continuance of the pregnancy would gravely impair the physical or mental health of the mother,” or that “[t]he pregnancy resulted from rape or incest.”^⁵ An abortion could not be performed on grounds of rape or incest unless there was probable cause to believe that the pregnancy resulted from rape or incest.^⁶ No abortion could be approved after the twentieth week of pregnancy for any reason.^⁷

In a pre-Roe decision, the California Supreme Court declared substantial provisions of the Therapeutic Abortion Act unconstitutional on state and federal due process grounds (vagueness).^⁸ Sections 274 and 275 of the Penal Code were repealed in 2000;^⁹ the Therapeutic Abortion Act was repealed in 2002.^¹⁰ None of these statutes would be revived by a decision overruling Roe v. Wade.^¹¹ Abortions could be performed for any reason before viability, and for virtually any reason after viability.^¹²

Finally, regardless of Roe, any attempt to enact meaningful restrictions on abortion in California would be precluded by the California Supreme Court’s 1981 decision in Committee to Defend Reproductive Rights v Myers.^¹³ In Myers, the state supreme court struck down restrictions on public funding of abortion on state constitutional grounds (privacy). In the course of its decision, the court stated that under the privacy guarantee of the state constitution, “all women in this state–rich and poor alike–possess a fundamental constitutional right to choose whether or not to bear a child.”^¹⁴

^¹ Cal. Health & Safety Code § 25950 et seq. (West Supp. 1971), renumbered as § 123400 et seq. in 1995. See Cal. Health & Safety Code § 123400 et seq. (West 1996).

^² Cal. Pen. Code § 274 (West Supp. 1971).

^³ Id. § 275. No prosecutions were reported under this statute.

^⁴ Cal. Health & Safety Code § 25951 (West Supp. 1971), renumbered as

§ 123405 in 1995.

^⁵ Id. Unlike other statutes based upon § 230.3 of the Model Penal Code, the California Therapeutic Abortion Act did not expressly authorize an abortion for reasons of genetic defect. Alone among pre-Roe statutes with a mental health exception, California attempted to define what would qualify as a mental health related abortion in terms at least as strict as the standard for civil commitment, i.e., that the pregnant woman “would be dangerous to herself or to the person or property of others or is in need of supervision or restraint.” Id. § 25954, renumbered as § 123415 in 1995. Notwithstanding that narrow definition, more than 60,000 abortions were performed in California in 1970, 98.2% of which were performed for mental health reasons. People v. Barksdale, 503 P.2d 257, 265 (Cal. 1972). In Barksdale, the California Supreme Court expressed “[s]erious doubt . . . that such a considerable number of pregnant women could have been committed to a mental institution” as the result of becoming pregnant. Id. The experience in California strongly suggests that mental health exceptions in abortion statutes are inherently manipulable and subject to abuse.

^⁶ Id. § 25952, renumbered as § 123407 in 1995.

^⁷ Id. § 25953, renumbered as § 123410 in 1995.

^⁸ See People v. Barksdale, supra, n. 5.

^⁹ 2000 Cal. Stat. ch. 692, § 2.

^¹⁰ 2002 Cal. Stat. ch. 385, §§ 2-7.

^¹¹ In repealing the Therapeutic Abortion Act, California enacted the “Reproductive Privacy Act.” Id. § 8, codified as Cal. Health & Safety Code § 123460 et seq. (West Supp. 2005). The Act declares that “every individual possesses a fundamental right of privacy with respect to personal reproductive decisions.” Id. § 123462. Consistent with that declaration, the Act expresses the public policy of the State of California that, “Every woman has the fundamental right to choose to bear a child or to choose and to obtain an abortion, except as specifically limited by this article,” id.. § 123462(b), and that “The state shall not deny or interfere with a woman’s fundamental right to choose to bear a child or to choose to obtain an abortion, except as specifically limited by this article.” Id. § 123462(c). In repealing their pre-Roe statutes, several other States have enacted similar expressions of public policy. No such statement of public policy is required to make abortion legal. In the absence of specific legislation making abortion criminal (either pre- or post-Roe), abortion would remain legal even if Roe v. Wade were overruled.

^¹² Because of its undefined health exception, the California post-viability statute, see Cal. Health & Safety Code § 123468 (West Supp. 2005), would not effectively prohibit post-viability abortions. In interpreting the undefined health exception in the pre-Roe District of Columbia abortion statute, the Supreme Court held that “the general usage and modern understanding of the word ‘health’ . . . includes psychological as well as physical well-being.” United States v. Vuitch, 402 U.S. 62, 72 (1971). See also Doe v. Bolton, 410 U.S. 179, 192 (1973) (in determining whether an abortion is medically necessary, “all factors– physical, emotional, psychological, familial, and the woman’s age–relevant to the well-being of the patient” may be considered). There would be few, if any, abortions that could not be justified on psychological or emotional grounds.

^¹³ 625 P.2d 779 (Cal. 1981).

^¹⁴ Id., 625 P.2d at 784. In a decision striking down California’s parental consent statute sixteen years later, the California Supreme Court reaffirmed this holding. See American Academy of Pediatrics v. Lungren, 940 P.2d 797, 809-10 (Cal. 1997) (“the protection afforded by the California Constitution of a pregnant woman’s right of choice is broader than the constitutional protection afforded by the federal Constitution as interpreted by the United States Supreme Court”).