People v. Privitera

• Decision Date: 15 March 1979
• Docket Number: Cr. 20340
• Court: California Supreme Court
• Parties: , 591 P.2d 919, 5 A.L.R.4th 178 The PEOPLE, Plaintiff and Respondent, v. James Robert PRIVITERA, Jr., et al., Defendants and Appellants.

Page 431

153 Cal.Rptr. 431

23 Cal.3d 697, 591 P.2d 919, 5 A.L.R.4th 178

The PEOPLE, Plaintiff and Respondent, v. James Robert PRIVITERA, Jr., et al., Defendants and Appellants.

Cr. 20340.

Supreme Court of California, In Bank.

March 15, 1979.

Rehearing Denied April 12, 1979.

[591 P.2d 920] Patrick J. Hennessey, San Diego, under appointment by the Supreme Court, Appellate Defenders, Inc., under appointment by the Court of Appeal, S. J. Sinton, La Jolla, Paul Bell, Jerry W. Kane, Daniel F. Bamberg, Bamberg, Flanigan & Flanigan and Stephen Tornay, San Diego, for defendants and appellants

David H. Gill II, Salciccia, Killen & Gill, San Jose, Greg D. Genochio, San Diego, Steven J. Rosenberg, Trecker & Rosenberg, Arthur M. Sohcot, Mill Valley, Mark I. Soler, Treuhaft & Walker, V. James Jackl, Belzer, Jackl & Lane, Scott Noble, Oakland, George W. Cody, Lynnwood, Wash., and Terrance W. Flanigan, San Diego, as amici curiae on behalf of defendants and appellants.

Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., Daniel J. Kremer, Asst. Atty. Gen., A. Wells Petersen, Harley D. Mayfield, Bernard A. Delaney, Jr., and Robert M. Foster, Deputy Attys. Gen., for plaintiff and respondent.

Hassard, Bonnington, Rogers & Huber, Howard Hassard, Joseph S. Rogers, David E. Willett, Rick C. Zimmerman, Gary A. Gavello, San Francisco, Grace Powers Monaco, Wheatley & Miller, Washington, D. C., John K. Van de Kamp, Dist. Atty., Harry B. Sondheim, Barry R. Levy, Deputy Dist. Attys., Los Angeles, John H. Shenefield, Asst. Atty. Gen. (United States), Barry Grossman, Catherine G. O'Sullivan, Peter L. De La Cruz, Bruce E. Fein, Washington, D. C., Richard M. Cooper, Eugene M. Pfeifer, Rockville, Md., and Arnold I. Friede, Washington, D. C., as amici curiae on behalf of plaintiff and respondent.

CLARK, Justice.

Under California Health and Safety Code section 1707.1, it is a misdemeanor to sell, deliver, prescribe or administer any drug or device to be used in the diagnosis, treatment, alleviation or cure of cancer which has not been approved by the designated federal agency (21 U.S.C. § 355) or by the state board (Health & Saf.Code, § 1704). ¹ Viewed in the light most favorable to the judgments (see People v. Reilly (1970) 3 Cal.3d 421, 425, 90 Cal.Rptr. 417, 475 P.2d 649), the evidence amply supports the jury's conclusion that defendants were involved in a common plan to import, prescribe, sell and distribute laetrile (also referred to as amygdalin or vitamin B-17) to cancer patients. Dr. Privitera prescribed laetrile for cancer patients and referred his patients to Turner and Disney as suppliers of laetrile. Disney referred patients to Dr. Privitera for treatment. Leslie and Disney worked as distributors in various residential areas. Defendants told prospective users that laetrile is an effective treatment or cure for cancer. Laetrile has not been approved for that purpose by one of the designated governmental agencies.

[591 P.2d 921] Defendants James Robert Privitera, Jr., a medical doctor, William David Turner, Phyllis Blanche Disney, Winifred Agnes Davis, and Carroll Ruth Leslie were convicted by jury of the felony of conspiracy to sell and to prescribe an unapproved drug laetrile intended for the alleviation or cure of cancer. (Pen.Code, § 182, subd. 1; Health & Saf.Code, § 1707.1.) Davis and Turner were also convicted of selling laetrile for the alleviation or cure of cancer. (Health & Saf.Code, § 1707.1.)

Defendants appeal on the ground the statute is unconstitutional. They contend the Right of privacy protected by the federal and California Constitutions includes a right to obtain laetrile or, more generally, a right of access to drugs not recognized by the government as effective. Fundamental rights, defendants point out, may be regulated only to the extent necessary to achieve a compelling state interest. Defendants argue the purported right to obtain laetrile is fundamental and therefore the regulation challenged here must be reviewed under the compelling state interest standard. Section 1707.1 is found to be unconstitutional, defendants conclude, when measured against that standard.

We hold the asserted right to obtain drugs of unproven efficacy is Not encompassed by the right of privacy embodied in either the federal or the state Constitutions. The appropriate standard of review, therefore, is the rational basis test, rather than the compelling state interest test. We conclude section 1707.1 amply satisfies the applicable standard by bearing a reasonable relationship to the achievement of the legitimate state interest in the health and safety of its citizens.

THE UNITED STATES CONSTITUTION

The Supreme Court has held that regulations limiting certain fundamental rights may be justified only by a compelling state interest (Kramer v. Union Free School District (1969) 395 U.S. 621, 627, 89 S.Ct. 1886, 23 L.Ed.2d 583; Shapiro v. Thompson (1969) 394 U.S. 618, 634, 89 S.Ct. 1322, 22 L.Ed.2d 600; Sherbert v. Verner (1963) 374 U.S. 398, 406, 83 S.Ct. 1790, 10 L.Ed.2d 965), and that legislative enactments must be narrowly drawn to express only the legitimate state interests at stake (Griswold v. Connecticut (1965)381 U.S. 479, 485, 85 S.Ct. 1678, 14 L.Ed.2d 510; Aptheker v. Secretary of State (1964) 378 U.S. 500, 508, 84 S.Ct. 1659, 12 L.Ed.2d 992; Cantwell v. Connecticut (1940) 310 U.S. 296, 307-308, 60 S.Ct. 900, 84 L.Ed. 1213). The right of privacy, founded in the Fourteenth Amendment's concept of personal liberty and restriction upon state action, has been declared a fundamental right. (Roe v. Wade (1973) 410 U.S. 113, 152-155, 93 S.Ct. 705, 35 L.Ed.2d 147.) Thus, if the right of privacy were implicated in this case the challenged statute would, arguably, be judged under the compelling state interest standard. ²

However, a fundamental privacy right is not at stake here. The interest For this reason defendants' reliance on Roe v. Wade, supra, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147, is misplaced. In that case a majority of the high court held the decision to have an abortion falls within the right of privacy, a conclusion following from the court's earlier decisions that activities relating to procreation (Skinner v. Oklahoma (1942) 316 U.S. 535, 541-542, 62 S.Ct. 1110, 86 L.Ed. 1655) and contraception (Eisenstadt v. Baird (1972) 405 U.S. 438, 453-454, 92 S.Ct. 1029, 31 L.Ed.2d 349) were also protected by that right. (410 U.S. at pp. 152-153, 93 S.Ct. 705.) However, emphasizing that this privacy right is not absolute, the court stated: "The Court's decisions recognizing a right of privacy also acknowledge that some state regulation in areas protected by that right is appropriate. As noted above, a State may properly assert important interests in safeguarding health, in maintaining medical standards, and in protecting potential life. . . . The privacy right involved, therefore, cannot be said to be absolute." (410 U.S. at pp. 153-154, 93 S.Ct. at p. 727.)

defendants allege is, apparently, "the interest in independence in making certain kinds of important decisions." (Whalen v. Roe [591 P.2d 922] (1977) 429 U.S. 589, 599-600, 97 S.Ct. 869, 876, 51 L.Ed.2d 64.) But the kinds of "important decisions" recognized by the high court to date as falling within the right of privacy involve " 'matters relating to marriage, procreation, contraception, family relationships, and child rearing and education' " (Whalen v. Roe, supra, 429 U.S. at p. 600, fn. 26, 97 S.Ct. at p. 877, fn. 26, quoting Paul v. Davis (1976) 424 U.S. 693, 713, 96 S.Ct. 1155, 47 L.Ed.2d 405), but do not include medical treatment.

Significantly, when danger to health exists Roe v. Wade indicates that state regulation shall be tested under the Rational basis standard. (410 U.S. at p. 163, 93 S.Ct. 705.) Indeed, the high court held in Roe v. Wade that a state may without encroaching upon any right of privacy further its important interests "in the areas of health and safety" by requiring abortions be performed at licensed institutions which "insure maximum safety for the patient" and prohibiting performance of abortion by a person not a physician as defined by state law. (410 U.S. at pp. 149, 150, 163-165, 93 S.Ct. at p. 725.) The lesson of Roe v. Wade for our case is that a requirement that a drug be certified effective for its intended use is a reasonable means to "insure maximum safety for the patient."

In Planned Parenthood of Central Missouri v. Danforth (1976) 428 U.S. 52, 96 S.Ct. 2831, 49 L.Ed.2d 788, the high court struck down a state prohibition of a particular abortion procedure on the ground the prohibition did not reasonably relate to preservation and protection of maternal health. Significantly, in discussing the validity of the statutory prohibition of the medical procedure, the court did not refer to any constitutional considerations of privacy. Rather the procedure was evaluated by the court on the basis of medical evidence of its safety and effectiveness under the rational basis standard. Planned Parenthood thus stands for the proposition that although the decision to have an abortion may be within the constitutional zone of privacy deserving the protection provided by the compelling interest standard, the selection of a particular procedure is a medical matter to which privacy status does not attach and which may be regulated by the government, providing a rational basis for such regulation exists.

Whalen v. Roe, supra, 429 U.S. 589, 97 S.Ct. 869, 51 L.Ed.2d 64, provides additional support for our conclusion that the appropriate standard for reviewing section 1707.1 is the rational basis test. In Whalen v. Roe the high court upheld a New York statute requiring that the patient's name, address and age among other information be filed with the state department of health whenever a "Schedule II" drug is prescribed. ³ Finding the state "had been unable Although recognizing that, "(u)nquestionably, some individuals'...