Privacy, Family Rights, and Reproductive Freedom

As a state supreme court justice, Brown has issued only one opinion dealing with abortion, but it raises serious concerns about her judicial philosophy concerning women’s constitutional right to privacy and reproductive freedom. In her dissent, Brown argued that the federal Constitution somehow restricts the privacy protections that may be provided by the state constitution, a position far outside the mainstream of judicial thought. She argued that the court majority’s decision ruling unconstitutional a restrictive parental consent law for minors seeking abortions would allow courts to “topple every cultural icon, to dismiss all societal values, and to become final arbiters of traditional morality.”

Brown has also severely criticized the basic constitutional framework that protects fundamental rights like the right to privacy. According to Brown, the “dichotomy between the United States Supreme Court’s laissez-faire treatment of social and economic rights and its hypervigilance with respect to an expanding array of judicially proclaimed fundamental rights is highly suspect, incoherent, and constitutionally invalid.” She claims that the strict scrutiny that is applied to laws that infringe on fundamental rights like privacy is “intolerably strict.” In one dissent, Brown asserted that when “fundamentally moral and philosophical issues are involved and the questions are fairly debatable, the judgment call belongs to the Legislature,” a view that would significantly weaken constitutional protections against legislative restrictions on the right to choose.

Brown partially dissented from an important ruling this year upholding the validity of second-parent adoptions in California, a ruling that was vitally important to children and parents involved in as many as 20,000 adoptions in the state, including many by same-sex couples. Brown said the ruling “trivializes family bonds,” even though the majority explained that it would encourage and strengthen such bonds.

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