Committee to Defend Reproductive Rights v. Myers

• Decision Date: 29 May 1979
• Citation: 156 Cal.Rptr. 73,93 Cal.App.3d 492
• Parties: COMMITTEE TO DEFEND REPRODUCTIVE RIGHTS et al., Plaintiffs and Appellants, v. Beverlee A. MYERS, Director, Department of Health, Defendant and Respondent. Civ. 45066.
• Court: California Court of Appeals Court of Appeals

Page 73

156 Cal.Rptr. 73

93 Cal.App.3d 492

COMMITTEE TO DEFEND REPRODUCTIVE RIGHTS et al., Plaintiffs and Appellants, v. Beverlee A. MYERS, Director, Department of Health, Defendant and Respondent.

Civ. 45066.

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

May 29, 1979.

Rehearing Denied June 28, 1979.

For Opinion on Hearing, see 172 Cal.Rptr. 866, 625 P.2d 779.

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 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. ¹

Both appellants and respondent agree that the effect of the Budget Act will be to reduce Medi-Cal reimbursed abortions by approximately 95 percent.

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. ² (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.

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.)

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...