The Right to Privacy in California

A.   The California Constitution

The California Constitution contains an explicit right of privacy.  Article I, Section 1 states:

“All people are by nature free and independent and have inalienable rights.   Among these are enjoying and defending life and liberty, acquiring, possessing, and protecting property, and pursuing and obtaining safety, happiness, and privacy.”[1]

California’s state constitution provides greater protection for privacy and abortion rights than the federal constitution.[2]  This includes the right to funding for abortion services for eligible women under California’s Medi-Cal program,[3] as well as a minor’s right to obtain an abortion without parental involvement.[4]


B.  The Reproductive Privacy Act

In 2002, the California legislature enacted the Reproductive Privacy Act,[5] which codified key protections outlined in Roe v. Wade.[6]  The law states:

The legislature finds and declares that every individual possesses a fundamental right of privacy with respect to personal reproductive decisions …. Every individual has the fundamental right to choose or refuse birth control …. Every woman has the fundamental right to choose to bear a child or to choose and to obtain an abortion ….The state shall not deny or interfere with a woman’s fundamental right to choose to bear a child or to choose to obtain an abortion.[7]

[1]   Cal. Const. art. I, § 1 (The explicit right of privacy was added to the California Constitution by public vote on Proposition 11 in 1972.).

[2]   The California Constitution provides an independent avenue for challenging state restrictions on the right of privacy and abortion, even where similar state restrictions have been upheld under the federal constitution.  Californians were able to challenge state laws restricting minors’ ability to consent to abortion and barring state funding for abortion under the state constitution.  Because the Partial-Birth Abortion Act is a federal law, Californians had no recourse to challenge the legislation under their state constitution.

[3]   See Comm. to Defend Reprod. Rights v. Myers, 29 Cal. 3d 252 (1981) (holding that California’s Budget Act provisions that provided public funding for pregnancy care but not abortion violated the state Constitution); but see Harris v. McRae, 448 U.S 297 (1980) (holding that federal funding restrictions on abortion do not violate the Fifth Amendment equal protection and liberty guarantees, nor the First Amendment Establishment Clause under U.S. Constitution).

[4]   Compare Am. Acad. of Pediatrics v. Lungren, 16 Cal. 4th 307 (1997) (holding California’s parental consent law unconstitutional under the state Constitution) with Planned Parenthood v. Casey, 505 U.S. 833 (1992) (upholding a provision that required parental consent or judicial authorization before an abortion could be provided to a minor).

[5]   Cal. Health & Safety Code §§ 123460-123468; Cal. Bus. & Prof. Code § 2253 (2011).

[6]   410 U.S. 959 (1973).

[7]   Cal. Health & Safety Code § 123462 (2011).