Committee To Defend Reproductive Rights v. Cory

• Decision Date: 16 June 1982
• Citation: 183 Cal.Rptr. 475,132 Cal.App.3d 852
• Court: California Court of Appeals Court of Appeals
• Parties: COMMITTEE TO DEFEND REPRODUCTIVE RIGHTS et al., Petitioners, v. Kenneth CORY, as State Controller, et al., Respondents. Civ. 53393.

Page 475

183 Cal.Rptr. 475

132 Cal.App.3d 852

COMMITTEE TO DEFEND REPRODUCTIVE RIGHTS et al., Petitioners, v. Kenneth CORY, as State Controller, et al., Respondents.

Civ. 53393.

Court of Appeal, First District, Division 3, California.

June 16, 1982.

Margaret C. Crosby, Alan L. Schlosser, Amitai Schwartz, American Civil Liberties Union Foundation of Northern California, Inc., Nancy L. Davis, Donna J. Hitchens, Judith E. Kurtz, Equal Rights Advocates, Inc., Vilma Martinez, Carmen Estrada, Mexican American Legal Defense and Education Fund, Ralph Santiago Abascal, California Rural Legal Assistance, Pauline Tesler, San Francisco, Diamond, Bennington & Simborg, Corte Madera, Joan Messing Graff, Legal Aid Society of San Francisco, San Francisco, Fred Okrand, ACLU Foundation of Southern California, Los Angeles, for petitioners.

Lawrence E. Gercovich, D. Robert Shuman, Sacramento, for respondent Kenneth Cory.

Richard H. Koppes, Chief Counsel, David F. Keast, Asst. Chief Counsel, Tod Beach, Staff Counsel, Dept. of Health Services, Sacramento, for respondent Beverlee A. Myers.

George Deukmejian, Atty. Gen., Richard D. Martland, Asst. Atty. Gen., Jeffrey J. Fuller, Deputy Atty. Gen., Sacramento, for intervenor.

SCOTT, Associate Justice.

Petitioners are a coalition of organizations, health care providers, and taxpayers who represent the interests of indigent women throughout the state. Petitioners filed an original petition for writ of mandate with the California Supreme Court, seeking to compel respondents State Controller Kenneth Cory, State Treasurer Jesse M. Unruh, and Director of the State's Department of Health Beverlee A. Myers to refrain from enforcing those provisions of item 426-101-001 through item 426-101-890 of the Budget Act of 1981 which limit the funding of abortions sought by Medi-Cal recipients. Pursuant to that court's order, the proceeding was transferred to this court, and we have issued an alternative writ. The Supreme Court has also directed respondents to refrain from implementing the provisions at issue, pending determination of the petition for mandamus.

The abortion funding restrictions in the 1981 Budget Act are identical with those in the Budget Acts of 1979 and 1980 which the California Supreme Court has already declared invalid under the California Constitution. ¹ (Committee to Defend Reproductive Rights v. Myers (1981) 29 Cal.3d 252, 172 Cal.Rptr. 866, 625 P.2d 779.) In that case, the Supreme Court acknowledged that the state has no constitutional obligation to provide medical services for the poor. However, once the state has decided to make such benefits available, it cannot selectively withdraw part of that care solely because a woman exercises her constitutional right to choose to have an abortion. (Id., at p. 285, 172 Cal.Rptr. 866, 625 P.2d 779.)

We need not recapitulate the Supreme Court's lengthy analysis in that case. However, we note that the court focused on the purpose of the Medi-Cal program, which is to alleviate the hardship and suffering incurred by those who cannot afford needed medical care by enabling them to obtain such medical treatment. The court held that abortion funding restrictions would impede rather than enhance that purpose. (Committee to Defend, supra, 29 Cal.3d at p. 272, 172 Cal.Rptr. 866, 625 P.2d 779.)

The court also emphasized the "fundamental and intimate nature" of a woman's constitutional rights to life and the preservation of her health, and of procreative choice, and the severe practical impairment of those rights which would result from the funding restrictions. (29 Cal.3d at pp. 274-275, 172 Cal.Rptr. 866, 625 P.2d 779.) The utility of imposing the funding restrictions did not "manifestly outweigh" that impairment. (Id., at p. 282, 172 Cal.Rptr. 866, 625 P.2d 779.) The court rejected the argument that the restrictions would curtail state expenditures, and concluded that whatever money would be saved by refusing to fund abortions would be spent many times over paying maternity care and childbirth expenses. (Id., at p. 277, 172 Cal.Rptr. 866, 625 P.2d 779.) The court also pointed out that while the restrictions may have been intended in part to protect the potential life of the fetus, the state had made no effort to protect the potential life of all fetuses. Instead, the state had singled out poor women only, thereby impermissibly interfering with their constitutional right of procreative choice. (Id., at pp. 278-281, 172 Cal.Rptr. 866, 625 P.2d 779.)

Respondents Myers and Cory recognize the Supreme Court's decision in Committee to Defend, but state that the Budget Act of 1981 is a new enactment, and that they have no power to refuse to enforce such an enactment as unconstitutional unless an appellate court has determined that unconstitutionality. Respondent Myers also argues that Committee to Defend was wrongly decided. We are obligated to follow the decisions of our Supreme Court. Accordingly, the funding restrictions of the Budget Act of 1981 are unconstitutional according to the California Constitution. (Committee to Defend, supra, 29 Cal.3d at p. 285, 172 Cal.Rptr. 866, 625 P.2d 779; Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455, 20 Cal.Rptr. 321, 369 P.2d 937.)

Respondent Myers concedes that if the restrictive language is declared unconstitutional, abortions must be financed out of the money allocated to the Medi-Cal program through the Budget Act of 1981. Respondent Cory expresses no position on this question. The Senate of the State of California, appearing as amicus curiae in this proceeding, is of a different view.

Amicus does not argue that the Budget Act restrictions at issue are constitutional. Instead, amicus urges that the Legislature did not intend to appropriate funds for Medi-Cal funded abortions except under a few circumstances, and that there are no funds appropriated for abortions except under those limited circumstances. Amicus argues that any order directing a state officer to ignore those restrictions would amount to a court-ordered appropriation, in violation of the constitutional separation of powers doctrine.

The separation of powers doctrine restricts a court from directly ordering the Legislature to enact a specific appropriation. However, that doctrine does not preclude the judiciary from ordering that funds which have been appropriated should be paid without regard to an invalid legislative restriction. "If, in the absence of such invalid restriction, appropriated funds are reasonably available for the expenditures in question, the separation of powers doctrine poses no barrier to a judicial order directing the payment of such funds." (Mandel v. Myers (1981) 29 Cal.3d 531, 542, 174 Cal.Rptr. 841, 629 P.2d 935.)

In Mandel, the expenditure at issue was a payment to satisfy final judgment awarding attorney fees against various state agencies and officers. After the state did not voluntarily comply with the judgment, the trial court ordered the State Controller to pay the award out of the funds appropriated in the 1978-79 Budget Act for the operating expenses of the Department of Health Services, the principal defendant in the underlying case.

The Supreme Court rejected the Attorney General's argument that the trial court's order violated constitutional separation of powers principles. The court looked to the terms of the Budget Act itself, and to past administrative practice, and concluded that the general operating expense appropriation was a category broad enough to encompass court-awarded attorney fees. The court recognized that the Legislature intended to deny payment of this award: a legislative committee had deleted from the act an express line-item appropriation for the fee, and the act itself provided that no appropriation made therein was to be used to achieve any purpose which had been denied by any formal action of the Legislature. Nevertheless, the question was whether such an exclusion of a particular award from the general appropriation provided in the agency operating expense budget was valid. The exclusion was unlawful, the court concluded, because it amounted to a legislative readjudication of the merits of a final court judgment, an impermissible usurpation of traditional judicial authority. (Mandel, supra, 29 Cal.3d at p. 552, 174 Cal.Rptr. 841, 629 P.2d 935.)

Legislative intent to deny payment is apparent in this case, as well. However, as we have stated, our Supreme Court has already declared identical funding restrictions to be unconstitutional, and we repeat that amicus does not contend otherwise. Consequently, the only question remaining is whether funds already appropriated are generally available to pay for abortions obtained by Medi-Cal recipients. (Mandel, supra, 29 Cal.3d at p. 542, 174 Cal.Rptr. 841, 629 P.2d 935.) When there is an unconstitutional restriction in an existing appropriation, it offends no constitutional principle to direct that the disputed payments be made from funds already appropriated for the same general purpose. (See id., at p. 558, 174 Cal.Rptr. 841, 629 P.2d 935 (dis. opn. of Richardson, J.).)

An appropriation need not specifically refer to the particular expenditure in question to be available for its payment. (Mandel, supra, 29 Cal.3d at pp. 543-544, 174 Cal.Rptr. 841, 629 P.2d 935.) That portion of the Budget Act of 1981 which appropriates funds for health services to be provided under the Medi-Cal Act does not enumerate all the specific services for which payment is available. Instead, item 426-101-001 of that act appropriates $2,450,333,143 for "local assistance, Department of Health Services, Medical Assistance Program." Of that sum, $2,317,249,570 are allocated for the broad category of "Benefits (Medical Care and Services)." (Stats.1981, ch. 99, § 2, p. 194.) Funds so appropriated are deposited in the state's Health Care Deposit Fund. (Welf. & Inst.Code, § 14158.) Section 14157 of that code provides that all...