By Carol Hogan
California Catholic Conference
Catholic Online

"Abortion-on-demand" was legal in California before Governor Davis signed SB 1301 on September 5, 2002. It was legal because of the intertwining of statutory and case law, and the relationship between federal and state jurisdiction. However, until SB 1301 became law there was no specific law on the books in California that said that "abortion-on-demand" was legal.

It is important to remember that under our form of government, what is not expressly outlawed is judged legal. However even more important to remember is that because something is legal it does not necessarily follow that it is moral. That is why the abortion issue remains contentious. At some level, even those who defend the right to an abortion will admit that abortion is immoral. Following is an historical overview:

California's Penal Code 274, on the books since 1850, defined abortion as a crime unless a physician determined it was necessary to save the life of the pregnant woman. That law was similar to laws prohibiting abortion in all states.

In 1969, the California Supreme Court, in People v. Belous, ruled that Penal Code 274 was "vague and uncertain," and therefore deprived a person of due process of law. It went on to find a right of privacy or "liberty" in matters related to family and sexual relations and used this right as a springboard to find "the fundamental right of the woman to choose whether to bear children." This decision linked the two rights: that of life itself and that of choice to bear children because childbirth involved risk of death. And more importantly, for case law, this court specifically rejected the argument that the State had a compelling interest in the "embryo and fetus" equal to or greater than the mother's right to choice because "the law has always recognized that the pregnant woman's right to life takes precedence over any interest the state may have in the unborn." This decision was the first in the nation to strike down an abortion statute.

In 1967, the California Legislature enacted The Therapeutic Abortion Act, Health and Safety Code (sections 25950-25958). This statute allowed the termination of pregnancy by a physician, in an accredited hospital, when there was a specific finding that there was a substantial risk that its continuation would "gravely impair the physical or mental health of the mother," or when the pregnancy resulted from rape or incest. Since then, "therapeutic" has become a "loaded" term and in California law connotes "family planning" reasons. However, the law did provide that no termination of pregnancy could be approved after the 20th week of pregnancy.

In 1972, the California Supreme Court invalidated nearly all the provisions of the Therapeutic Abortion Act for many of the same reasons that it had overturned Penal Code 274: the language was vague and due process was not guaranteed. The only part of the law not ruled unconstitutional was the requirement that the abortion be performed by a licensed physician in an accredited hospital.

Later in 1972, three months before Roe v. Wade, the people of California, by initiative, specifically added the right of "privacy" to the other inalienable rights of individuals enumerated in Article I, Section I, of the state constitution and stipulated that the rights in California's constitution are not dependent on those guaranteed in the U.S. constitution. It is interesting to note that Californians were convinced to vote for this amendment using a financial privacy argument. Ironically, following passage, abortion rights were guaranteed and we are still waiting for financial privacy.

In 1973, the decisions of the U. S. Supreme Court in Roe v. Wade and Doe v. Bolton, rendered every state's anti-abortion statutes unconstitutional and established that protection of a nonviable fetus could not be justified as a matter of law. The court added that after viability, a statute could restrict abortions, but only with maximum justification. As a direct result of those abortions rulings, the only part of California's Therapeutic Abortion Act that remained "constitutional" was that a physician must perform the abortion.

In the 1981 California Supreme Court decision, Committee to Defend Reproductive Rights v. Myers, the Medi-Cal ban on funding of abortions (because of the federal ban on Medicare funding) was ruled unconstitutional because California's privacy law was not as narrow as that of the U.S. constitution. The justices in that decision found that the restriction (of not being able to afford to pay for an abortion) to be "an obstacle" to the exercising of the expressed constitutional right. The 1997 Supreme Court decision on parental consent for abortion, American Academy of Pediatrics v. Lungren, also found that a minor's right to privacy superseded her parent's ...