The Situation

The right to privacy, including the right to decide whether to give birth, has been largely eliminated at the Federal level by a recent U.S. Supreme Court decision. There is concern that the right to obtain and use contraceptives under the U.S. Constitution’s implied right to privacy may also be under similar threat.

Currently, the California Constitution provides that all people are by nature free and independent and have inalienable rights, including, among others, the right to privacy. It also provides that a person may not be deprived of life, liberty, or property without due process of law or denied equal protection of the laws. There is a California Supreme Court case which holds that the state Constitution’s express right to privacy extends to an individual’s decision about whether or not to have an abortion.

Existing California statutory law also provides, under the Reproductive Privacy Act, that the Legislature finds and declares every individual possesses a fundamental right of privacy with respect to personal reproductive decisions; therefore, it is the public policy of the State of California that every individual has the fundamental right to choose or refuse birth control, and every individual has the fundamental right to choose to bear a child or to choose to obtain an abortion.

The State can only restrict abortions when needed to meet certain state interests such as public health and safety. State statute says abortions can only be performed on a viable fetus if the pregnancy puts the health or life of the pregnant person at risk. Under state law, a fetus is considered viable if the fetus likely would be able to survive outside the uterus.

However, in light of the above-mentioned U.S. Supreme Court’s recent decision, concerns have been expressed as to whether a future California court might overturn existing case law or statutory law to eliminate the right to reproductive choice.