LOOSE CANNON: Report In Opposition To The Confirmation Of Janice Rogers Brown To The United States Court Of Appeals For The DC Circuit

Privacy and Family Rights and Reproductive Freedom

In her time on the California Supreme Court, Justice Brown has only issued one opinion dealing with the issue of abortion. Nevertheless, her opinion in that case certainly does not demonstrate a commitment to women’s constitutional right to privacy and reproductive freedom, and instead raises serious concerns in this area. Brown recently filed a partial dissent from an important ruling upholding the validity of second-parent adoptions in California.

American Academy of Pediatrics v. Daniel E. Lungren, 940 P.2d 797 (Cal. 1997).

This case considered the constitutionality of a law requiring minors to obtain a parent’s permission to obtain an abortion. The law included a judicial bypass provision allowing a minor to obtain an abortion without parental consent if a judge determined either that the child was sufficiently mature to make the decision, or that the abortion without parental consent was in the best interest of the child. The plurality of opinion of the California Supreme Court considered the law under the state constitution which, unlike the federal Constitution, contains an explicit provision protecting citizens’ privacy. The plurality held, based on past court precedent, that the privacy protection contained in the California Constitution was broader than that found in the U.S. Constitution and that the parental consent law was unconstitutional, even with the judicial bypass provision.

Brown dissented from the court’s opinion on a number of grounds. Perhaps most startling was Brown’s argument that the federal Constitution somehow restricts the privacy protections that may be provided by a state constitution. While it is widely accepted that the U.S. Constitution establishes a level of protection for individual rights below which states may not go, it is generally assumed that states can provide greater protections for rights such as privacy if they so choose. Nevertheless, in the case of reproductive freedom for minors, Justice Brown would apparently deny the right of states to provide additional privacy protection.

Justice Brown’s dissent also illustrates a lack of appreciation for the burden that is imposed on a minor when she is forced to seek the permission of a judge to obtain an abortion. At one point in her opinion she noted that in the absence of the parental consent law, minors must still convince physicians that they are capable to give informed consent for the procedure. Inexplicably, however, Brown seems not to understand that a private discussion between a young woman and her doctor is an interaction of a completely different type than the quite public process of negotiating the court system and convincing a judge of her maturity. She writes: “If requiring an unemancipated minor to convince a physician that she has the requisite understanding and maturity to give informed consent to an abortion does not offend the Constitution, I cannot fathom how it can be unconstitutional to require her to convince a disinterested judicial officer of the same fact or, alternatively, to seek parental consent.” 940 P.2d at 882. As the plurality noted, “A physician must also determine that an adult woman has the capacity to give informed consent before performing an abortion at her request, or – for that matter – any medical procedure. That does not mean, however, that the state constitutionally may require all pregnant women, before they may obtain an abortion, to secure a court order certifying that they are competent to provide informed consent.” 940 P.2d at 831.

Brown’s dissent also claimed that the law should survive a federal constitutional challenge because it is “not unconstitutional in all its applications,” 940 P. 2d at 874, directly contradicting Supreme Court decisions that the unconstitutionality of restrictive abortion laws is established where many of their applications are unconstitutional. She used extremely caustic language in her dissent, noting at one point that the majority’s legal approach allows courts to “topple every cultural icon, to dismiss all societal values, and to become final arbiters of traditional morality.” 940 P.2d at 887. Brown listed her dissent in this case as one of her ten most significant opinions.

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Sharon S. v. Superior Court of San Diego County, No. S102671 (Cal. Aug. 4, 2003)

Justice Brown recently filed a partial dissent from a decision upholding the validity of second-parent adoptions, thus recognizing as many as 20,000 adoptions in California, including many by same-sex couples. The majority explained that its ruling on the validity of such adoptions, under which a biological parent’s child is also adopted by a second person to provide two parents, would “prevent uncertainty, conflict, and protracted litigation in this area, all of which plainly are harmful to children caught in the middle.” Slip. Op. at 24-25. Justice Brown’s partial dissent claimed that the ruling “trivializes family bonds” and that it contradicted a “legislature’s insistence that the adopting parent have a legal relationship with the birth parent.” Concurring and dissenting opinion of Brown, J., at 8, 10. The majority strongly disagreed, pointing out that Brown had cited “no authority” for such a requirement, and that its decision “encourages” and strengthens family bonds. Slip. Op. at 26. Indeed, the majority pointed out that Brown’s view appeared to contradict even the view expressed by Justice Scalia that the “family unit accorded traditional respect in our society…includes the household of unmarried parents and their children.” Id., citing Michael H. v. Gerald D., 491 U.S. 110, 123 n.3 (1989).

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