Abortion Fund Limits Rejected by High Court : Action Frustrates Deukmejian Administration Plea to Tightly Restrict Use of State Financing

SAN FRANCISCO — In a surprise move, the California Supreme Court on Thursday rejected an attempt by the Deukmejian Administration to reinstate tight legislative restrictions on state-financed abortions for low-income women.

As a result, state courts now have overturned abortion-funding limitations for the 10th straight year--and an estimated 80,000 women will be permitted to receive abortions under the Medi-Cal program this year.

Refuse to Hear Appeal

The justices refused to hear a state Department of Health Services appeal of a ruling last February that struck down the limitations as unconstitutional.

The Administration, in a petition filed by Kenneth W. Kizer, health services director, also asked the justices to overturn a 1981 ruling by the court under then-Chief Justice Rose Elizabeth Bird declaring that such restrictions violated the right to privacy.

There had been considerable speculation that the new, more conservative court, now led by Chief Justice Malcolm M. Lucas, might reverse the 1981 ruling and permit abortion-funding limitations to go into effect for the first time since the Legislature began enacting them 10 years ago.

Gov. George Deukmejian had backed the curbs on abortion funding, and five of his appointees now serve on the high court.

But in Thursday’s action, taken in a brief order, only two members of the court--Lucas and Justice Edward A. Panelli--voted to hear Kizer’s appeal. Four votes from the seven justices are required for review.

In previous years, Lucas and Panelli, both Deukmejian appointees, had voted to hear the issue in similar cases, but the liberal-dominated court majority refused to go along and grant review.

This time, the governor’s three newest appointees to the court--Justices John A. Arguelles, David N. Eagleson and Marcus M. Kaufman--also refused to vote for review, as did the two other members of the court, Justices Stanley Mosk and Allen E. Broussard.

“We’re just thrilled,” said Marcia Gallo of the American Civil Liberties Union of Northern California, one of several groups that challenged the restrictions in court. “What’s interesting is that the change in the court did not change what has happened in the past. This should send a loud and clear message to those who have been waiting to see what the new court would do.”

State Assistant Atty. Gen. John Davidson, one of the attorneys representing the Department of Health Services in the case, said it would be difficult to speculate about why the court declined to review the issue.

“We were really not all that positive that, even with the change in personnel, the court would want to hear the case . . . ,” Davidson said. “The court has shown in other areas that it may not be as conservative as some thought.”

A spokesman for Kizer said only that “the court has made its decision and we of course will abide by it.” A spokesman for Deukmejian said the governor had no comment.

The Legislature began enacting restrictions on state-financed abortions for the poor in 1978, but every year a state court has invalidated the limitations. In the 1981 ruling, the state Supreme Court concluded that since the state makes Medi-Cal funds available to aid childbirth, it must also provide funds for abortions for low-income women.

Last year, the Legislature again enacted restrictions in the Budget Act that allowed Medi-Cal abortions only when a mother’s life was in danger, when pregnancy resulted from rape or incest, or when the unborn child had a severe abnormality.

The budget provided about $13 million for authorized abortions. It was estimated that unrestricted abortions would cost another $25 million annually.

A coalition of health care and civil rights groups filed suit challenging the new restrictions, and the state Court of Appeal struck them down.

The appeal court held, as it had previously, that the limitations violated the right to privacy and equal protection.

The panel also cited new additional grounds for its ruling, saying that the Legislature improperly used the Budget Act to make changes in Medi-Cal laws, violating a constitutional provision limiting legislation to a “single subject.”

To institute such a change, the Legislature should have acted through a separate bill, rather than using a “rider” attached to budget legislation, the panel said.

In its appeal to the high court, the Administration contended that the 1981 ruling was wrongly decided and that the Legislature could lawfully enact measures designed to encourage childbirth rather than abortion.

While women have a constitutional right to abortion, there is no right to a state-financed abortion, Kizer said in the petition to the justices.