AMERICAN ACADEMY OF PEDIATRICS et al., Plaintiffs and Respondents, v. DANIEL E. LUNGREN, as Attorney General, etc., et al., Defendants and Appellants, 16 Cal. 4th 307

Opinion GEORGE, C. J. In this case we must determine the validity, under the California Constitution, of a statutory provision that requires a pregnant minor (whether just short of her 18th birthday, or several years younger) to secure parental consent or judicial authorization before she may obtain an abortion. The trial court, after a lengthy court trial, concluded that the statute was unconstitutional, and the Court of Appeal unanimously agreed with that ruling and affirmed the judgment.

As in past cases involving the controversial subject of abortion, we emphasize at the outset that the morality of abortion is not at issue in this case. “The morality of abortion is not a legal or constitutional issue; it is a matter of philosophy, of ethics, and of theology. It is a subject upon which reasonable people can, and do, adhere to vastly divergent convictions and principles.” (Committee to Defend Reproductive Rights v.

Myers (1981) 29 Cal.3d 252, 284 [172 Cal.Rptr. 866, 625 P.2d 779, 20 A.L.R.4th 1118].) Our decision in this case does not turn upon the personal views of any justice with regard to that moral issue. Nor is the desirability of parental involvement in a minor’s decision whether to obtain an abortion or instead to give birth to a child in question here. No one would doubt the value to a pregnant minor of wise and caring parental guidance and support as she confronts a decision that will affect the rest of her life, assuming such support is available and the minor is willing to seek it.

The statute at issue, however, applies not only to a pregnant minor who is willing to seek parental advice and consent, but rather has its most significant impact in those instances in which a pregnant minor is too frightened or too embarrassed to disclose her condition to a parent (or to a court). The question before us is not whether, as a matter of policy, the challenged statute is wise or beneficial, but instead whether it is constitutional.

We determine the validity of the legislative measure by applying the relevant legal principles embodied in the California Constitution, the preeminent expression of California law enacted by the people. For the reasons explained hereafter, we conclude that both the trial court and the Court of Appeal correctly determined that the statute at issue violates the right of privacy guaranteed by

article I,

section 1, of the California Constitution. Accordingly, we shall affirm the judgment rendered by the Court of Appeal. I The statutory provision in question—Assembly Bill No. 2274, 1987-1988 Regular Session (hereafter Assembly Bill 2274)—was enacted in 1987, but it has never been enforced because its application has been stayed by the lower courts pending determination of its validity. This measure constitutes just one part of a comprehensive statutory scheme governing the conditions and circumstances under which medical, surgical, and hospital care may be provided to minors in California.

To place the challenged legislation in proper perspective, we review the history and evolution of the related California statutory provisions in this area. At common law, minors generally were considered to lack the legal capacity to give valid consent to medical treatment or services, and consequently a parent, guardian, or other legally authorized person generally was required to provide the requisite consent.

In the absence of an emergency, a physician who provided medical care to a minor without such parental or other legally authorized consent could be sued for battery. (See generally, IJA-ABA Joint Com. on Juvenile Justice Standards, Standards Relating to Rights of Minors (1984) std. 4.1, com., p. 51.) As with other common law rules relating to the legal “disability” of minority, the purpose of the general common law rule regarding medical care was to protect the health and welfare of minors, safeguarding them from the potential overreaching of third parties or thé improvidence of their own immature decisionmaking, and leaving decisions concerning the minor’s medical care in the hands of his or her parents, who were presumed to be in the best position to protect the health of their child. (See, e.g., Bonner v.

Moran (D.C. Cir. 1941) 126 F.2d 121, 122-123 [75 App.D.C. 156, 139 A.L.R. 1366].) The requirement that medical care be provided to a minor only with the consent of the minor’s parent or guardian remains the general rule, both in California and throughout the United States. (See, e.g., Cobbs v. Grant (1972) 8 Cal.3d 229, 243-244 [104 Cal.Rptr. 505, 502 P.2d 1]; Rainer v.

Community Memorial Hosp. (1971) 18 Cal.App.3d 240, 251, fn. 14 [95 Cal.Rptr. 901]; see generally, Annot. (1989) 67 A.L.R.4th 511, 516-517.) Over the past half-century, however, a number of significant statutory developments in California have modified the general rule relating to the provision of medical care to minors.

One development involves the Legislature’s enactment of a number of discrete, so-called “medical emancipation” statutes, each of which has designated a general category of minors who—although not legally emancipated for all purposes—nonetheless are authorized to obtain medical, surgical, or hospital care in all contexts, without parental consent.

In 1961, the Legislature enacted statutory provisions authorizing (1) any lawfully married minor, and (2) any minor on active duty with any of the United States armed services, to consent to all hospital, medical, and surgical care without parental approval. (Stats. 1961, ch. 1407, § 1, p. 3212 [enacting former Civ. Code, § 25.6]; Stats. 1961, ch. 1407, §2, p. 3213 [enacting former Civ.

Code, § 25.7].) And in 1968, the Legislature adopted a somewhat broader medical emancipation statute, providing that “a minor 15 years of age or older who is living separate and apart from his parents or legal guardian, whether with or without the consent of a parent or guardian and regardless of the duration of such separate residence, and who is managing his own financial affairs, regardless of the source of his income,” may consent to any hospital, medical, or surgical care without parental approval. (Stats. 1968, ch. 371, § 1, p. 785 [enacting former Civ. Code, § 34.6, now Fam. Code, § 6922]; see Carter v.

Cangello (1980) 105 Cal.App.3d 348 [164 Cal.Rptr. 361].) In addition to this first category of what might be characterized as “general medical emancipation” statutes, California has adopted a considerable number of additional statutory provisions that fall within a second category of what might be termed “limited medical emancipation” statutes, i.e., statutes that authorize minors, without parental consent, to obtain medical care only for specific, designated conditions, without authorizing the minor to consent to medical care for other medical needs.

These limited medical emancipation statutes identify circumstances in which a minor in need of medical care may be reluctant, for a variety of reasons, to inform his or her parents of the situation or condition that has created the minor’s need for such care, and in which, because of such reluctance, there is a substantial risk that minors would fail to seek medical care—“to the detriment of themselves, their families, and society” (Wadlington, Medical Decision Making for and by Children: Tensions Between Parent, State and Child (1994) 1994 U.Ill.L.Rev. 311, 323-324)—were minors required to inform their parents and obtain parental consent before being allowed to receive medical care. (See generally, Wadlington, Consent to Medical Care for Minors, in Children’s Competence to Consent (Melton et al. edits. 1983) pp. 61-64.) Over the past 40 years, California has enacted a variety of such limited medical emancipation statutes.

The initial statute falling within this category—the amended version of which is challenged in this case—was enacted in 1953 and authorized an unmarried pregnant minor, without parental consent, to obtain hospital, medical, and surgical care related to pregnancy. (Stats. 1953, ch. 1654, § 1, p. 3383, enacting former Civ. Code, § 34.5, now Fam.

Code, § 6925.) (We shall review the specific language and evolution of this statute in more detail below.) In 1968, the Legislature adopted a similar provision authorizing any minor, 12 years of age or older, to obtain, without parental consent, medical care related to the diagnosis or treatment of any infectious, contagious, or communicable disease, including a sexually transmitted disease. (Stats. 1968, ch. 417, § 1, p. 859, enacting former Civ. Code, § 34.7, now Fam.

Code, § 6926.) In 1977, an analogous provision was adopted authorizing any minor, 12 years of age or older, to obtain, without parental consent, medical care related to the diagnosis and treatment of rape. (Stats. 1977, ch. 354, § 1, p. 1325, enacting former Civ. Code, § 34.8, now Fam. Code, § 6927.) That same year, the Legislature adopted another statute authorizing a minor (of any age) to obtain, without parental consent, medical care relating to sexual assault. (Stats. 1977, ch. 935, § 1, p. 2859, enacting former Civ. Code, § 34.9, now Fam.

Code, § 6928.) And in 1977 the Legislature also adopted a statute authorizing any minor, 12 years or older, without parental consent, to obtain medical care and counseling relating to the diagnosis and treatment of a drug or alcohol related problem. (Stats. 1977, ch. 979, § 1, p. 2953, enacting former Civ. Code, § 34.10, now Fam.

Code, § 6929.) Finally, in 1979, another, somewhat comparable statute was adopted by the Legislature, authorizing a minor, 12 years or older, to obtain, without parental consent, mental health treatment or counseling on an outpatient basis. (Stats. 1979, ch. 832, § 1, p. 2887, enacting former Civ. Code, § 25.9, now Fam. Code, § 6924.) As this list demonstrates, over the past four decades the Legislature has recognized that, in a variety of specific contexts, the protection of the health of minors may best be served by permitting a minor to obtain medical care without parental consent.

These statutes do not reflect a legislative determination that a minor who, for example, has been raped or has contracted a sexually transmitted disease would not benefit from the consultation and advice of a supportive parent.

Indeed, as noted, a few of the statutes specifically call upon the treating physician or health care provider to notify and attempt to involve the minor’s parents in the treatment process, so long as the circumstances suggest to the health care provider that such involvement will not be detrimental to the health or interests of the minor. (See ante, fhs. 3, 4.) Nor do these statutes imply that a minor who, for example, has been sexually assaulted or has a drug or alcohol abuse problem is more mature or knowledgeable than other minors of similar age; a minor who may obtain medical care for such conditions still must obtain parental consent before she or he may obtain, for example, an appendectomy.

Instead, each of these statutory provisions embodies a legislative recognition that, particularly in matters concerning sexual conduct, minors frequently are reluctant, either because of embarrassment or fear, to inform their parents of medical conditions relating to such conduct, and consequently that there is a considerable risk that minors will postpone or avoid seeking needed medical care if they are required to obtain parental consent before receiving medical care for such conditions.

To protect their health in these particular circumstances, the statutes authorize minors to receive medical care for these designated conditions without parental consent. As already noted, the present case involves the constitutional validity of a legislative measure that amends the oldest of California’s limited medical emancipation statutes, the one pertaining to a minor’s access to medical care relating to pregnancy. We now proceed to review the history of that measure in some detail. As originally enacted in 1953, former Civil Code

section 34.5 provided in full: “Notwithstanding any other provision of the law, an unmarried, pregnant minor may give consent to the furnishing of hospital, medical and surgical care related to her pregnancy, and such consent shall not be subject to disaffirmance because of minority.

The consent of the parent or parents of an unmarried, pregnant minor shall not be necessary in order to authorize hospital, medical and surgical care related to her pregnancy.” (Stats. 1953, ch. 1654, § 1, p. 3383.) Under the terms of the statute, an unmarried pregnant minor was authorized to receive, without parental notification or consent, the full range of medical care related to her pregnancy that a pregnant adult could receive. At the time former Civil Code

section 34.5 was enacted in 1953, the applicable California statute narrowly limited the right of any pregnant woman to obtain an abortion, providing that a physician lawfully could perform an abortion only when such a procedure was “necessary to preserve” the life of the pregnant woman. (Former Pen. Code, § 274; see, e.g., People v. Ballard (1959) 167 Cal.App.2d 803, 814 [335 P.2d 204] [interpreting the scope of the statute].) Although no published decision addressed the question, it appears that at this time a pregnant minor, like a pregnant adult, lawfully could obtain an abortion only when the procedure was “necessary to preserve” the minor’s life within the meaning of former Penal Code

section 274. Under the terms of former Civil Code

section 34.5, however, whenever such an abortion lawfully could be performed, a minor could obtain such medical and surgical care without parental involvement. In 1967, the Legislature passed the Therapeutic Abortion Act (Stats. 1967, ch. 327, § 1, p. 1521, enacting former Health & Saf. Code, §§ 25950-25954).

This act expanded the circumstances under which a woman lawfully could obtain an abortion, authorizing such a surgical procedure when (1) there was a substantial risk .that continuation of the pregnancy would gravely impair the woman’s physical or mental health, or (2) the pregnancy was the result of rape or incest. (Under the Therapeutic Abortion Act, the determination whether a woman was eligible for an abortion was to be made by a committee composed of members of the medical staff of the hospital at which the abortion was to be performed.) In Ballard v.

Anderson (1971) 4 Cal.3d 873 [95 Cal.Rptr. 1, 484 P.2d 1345, 42 A.L.R.3d 1392], this court was presented with the question whether a pregnant minor, by virtue of former Civil Code

section 34.5, was authorized to consent to the same medical and surgical procedures relating to her pregnancy to which a pregnant adult could consent under the Therapeutic Abortion Act. Finding nothing in the language of the act that would preclude a pregnant minor from consenting to an abortion under the conditions set forth in the act, the court in Ballard concluded that because an abortion constituted surgical care related to pregnancy within the meaning of former Civil Code

section 34.5, under that provision a pregnant minor lawfully could consent to a therapeutic abortion. The court in Ballard declared: “There is no rational basis for discriminatorily singling out therapeutic abortion as the only type of pregnancy-related surgical care which requires parental consent.” (4 Cal.3d at p. 883.) Thus, the decision in Ballard confirmed that, under the then existing provisions of former Civil Code

section 34.5, a pregnant minor could obtain, without parental consent, the full range of medical care relating to her pregnancy that a pregnant adult lawfully could obtain. Shortly after the Ballard decision, judicial decisions in this court and the United States Supreme Court (People v. Barksdale (1972) 8 Cal.3d 320, 332 [105 Cal.Rptr. 1, 503 P.2d 257]; Roe v. Wade (1973) 410 U.S. 113 [93 S.Ct. 705, 35 L.Ed.2d 147]; Doe v.

Bolton (1973) 410 U.S. 179 [93 S.Ct. 739, 35 L.Ed.2d 201]), as well as the electorate’s adoption of an explicit California constitutional right of privacy in November 1972, provided additional protection of a pregnant individual’s right to choose whether to continue or terminate her pregnancy. Because the provisions of former Civil Code

section 34.5 remained unchanged in all relevant respects, California law continued to afford pregnant minors the right to obtain, without parental consent, the same, full range of medical and surgical care relating to pregnancy that a pregnant adult could obtain. From its enactment in 1953 until its amendment in 1987, former Civil Code

section 34.5 drew no distinction on the basis of whether or not a pregnant minor chose to continue or to terminate her pregnancy. The statute provided simply that a minor could obtain medical and surgical care “relating to pregnancy” without parental consent, affording a pregnant minor unencumbered access to medical care relating to her pregnancy without regard to whether the minor chose to continue or to terminate her pregnancy. In 1987, the Legislature enacted Assembly Bill 2274 (Stats. 1987, ch. 1237, §§ 1-7, pp. 4396-4399), which left unchanged the general language of former Civil Code

section 34.5 (“Notwithstanding any other provision of law, an unemancipated minor may give consent to the furnishing of hospital, medical and surgical care related to the prevention or treatment of pregnancy . . . [and t]he consent of the parent or parents of such minor shall not be necessary in order to authorize the hospital, medical, and surgical care”), but added a concluding clause that declares the

section shall not be construed “to authorize an unemancipated minor to receive an abortion without the consent of a parent or guardian other than as provided in

Section 25958 of the Health and Safety Code.” Former

section 25958 of the Health and Safety Code (now § 123450), which was added by Assembly Bill 2274, in turn provides that (1) “[e]xcept in a medical emergency requiring immediate medical action, no abortion shall be performed upon an unemancipated minor unless she first has given her written consent to the abortion and also has obtained the written consent of one of her parents or legal guardian,” and (2) “[i]f one or both of an unemancipated, pregnant minor’s parents or her guardian refuse to consent to the performance of an abortion, or if the minor elects not to seek the[ir] consent. . . , an unemancipated pregnant minor may file a petition with the juvenile court[,]. . . setting] forth with specificity the minor’s reasons for the request.” Declaring that the minor’s identity is to be treated as confidential in such a proceeding, Health and Safety Code former

section 25958 goes on to provide that (1) if the court finds that the minor “is sufficiently mature and sufficiently informed to make the decision on her own regarding an abortion, and that the minor has, on that basis, consented thereto, the court shall grant the petition,” and (2) if the court finds that the minor is not sufficiently mature and informed, “the court shall then consider whether performance of the abortion would be in the best interest of the minor,” and shall grant the petition if the court finds that the performance of an abortion would be in the minor’s best interest and deny the petition if it finds that the performance of an abortion would not be in the minor’s best interest.

The

section also includes a number of provisions intended to ensure that the so-called “judicial bypass” proceeding is held and decided expeditiously, and, if the trial court denies the petition, that the denial is subject to expedited appellate review. Finally, the

section provides that any person who knowingly performs an abortion on a minor without complying with the section’s provisions is guilty of a misdemeanor (punishable by a fine or incarceration). Accordingly, as revised by Assembly Bill 2274, the applicable California statutes continue to authorize a pregnant minor to obtain medical care relating to her pregnancy without parental consent or judicial authorization so long as the minor chooses to continue her pregnancy, but provide that the minor may obtain a medically safe abortion only if she first obtains parental consent or judicial authorization.

II Plaintiffs filed the present action challenging the constitutionality of Assembly Bill 2274 in November 1987, shortly after the statute was enacted and before it was scheduled to go into effect on January 1, 1988 Plaintiffs contended that the statute violated the right of privacy secured by

article I,

section 1, of the California Constitution and denied them equal protection of the laws in violation of

article I,

section 7, of the California Constitution, and sought a preliminary injunction to enjoin its operation. In December 1987, the superior court issued a preliminary injunction prohibiting state officials from enforcing the newly enacted legislation pending the resolution of plaintiffs’ constitutional challenge. Defendants appealed from the order granting a preliminary injunction, and further proceedings with regard to the merits of the action were stayed pending that appeal.

In October 1989, the Court of Appeal affirmed the trial court’s order, concluding that in view of the substantiality of plaintiffs’ constitutional challenge and the balance of relative hardships, the trial court did not err in granting the preliminary injunction. (American Academy of Pediatrics v.

Van de Kamp (1989) 214 Cal.App.3d 831 [263 Cal.Rptr. 46] (American Pediatrics I).) In reaching this conclusion, the Court of Appeal in American Pediatrics I determined that the provisions of Assembly Bill 2274 represented a significant infringement on a pregnant minor’s intimate and fundamental constitutional right to choose whether or not to continue her pregnancy, and that to sustain the constitutionality of the provision “the burden at trial will be upon the People to prove they have a compelling interest in the regulation of unemancipated minors’ consent to an abortion . . . [and] that this legislation is the least intrusive alternative available and is so narrowly drawn as to impinge upon the constitutionally protected area no more than is necessary to accomplish the state’s legitimate goals.” (214 Cal.App.3d at pp. 846-847.) The Court of Appeal in American Pediatrics I further held that, in view of this court’s decision in Committee to Defend Reproductive Rights v.

Myers, supra, 29 Cal.3d 252, “[t]he court at trial will have to determine if minors who have abortions have needs different from those of minors choosing to carry to term and, if not, whether legislation reasonably can be drafted which does not impermissibly discriminate between classes of minors.” (214 Cal.App.3d at p. 848.) The matter then was returned to the superior court for further proceedings. In October and November 1991, the case was tried to the superior court, sitting without a jury. At trial, 25 witnesses testified, and the deposition testimony of 6 other witnesses was admitted into evidence.

The witnesses represented a broad spectrum of experts with training and experience in the fields of health care, adolescent development, and the application of judicial bypass procedures in other states. The testimony covered a wide range of subjects, including the relative medical and psychological risks posed to pregnant minors by abortion and childbirth, the general maturity of minors seeking abortion, the existing guidelines and practices with regard to the counseling provided to minors seeking abortion, and the general efficacy (or lack thereof) of the judicial bypass process in other jurisdictions.

At the conclusion of the trial, the court issued a lengthy opinion, reviewing the evidence that had been presented at trial and making extensive findings on the basis of the evidence presented.

The trial court concluded that although the two interests upon which the state relied to support the legislation—namely, the protection of the physical, emotional, and psychological health of minors, and the furtherance of the parent-child relationship —constituted “compelling state interests” for purposes of the relevant constitutional analysis, the state had failed to prove that the challenged legislation would, in fact, further these interests.

Indeed, the trial court found that the evidence at trial overwhelmingly established that the legislation would not advance these worthy objectives, but rather would be counterproductive and detrimental both to the health of pregnant minors and to the parent-child relationship.

In addition, the trial court found that defendants had failed to justify the distinction drawn by the legislation between pregnant minors who choose to undergo abortions and pregnant minors who choose to carry to term, i.e., by requiring minors who seek to terminate their pregnancy to obtain parental consent or judicial authorization before they obtain medical care, but permitting pregnant minors who choose to continue their pregnancy to obtain medical care without parental consent or judicial authorization.

On the basis of its factual findings and legal conclusions, the trial court concluded that Assembly Bill 2274 is unconstitutional, violating the right of privacy guaranteed by

article I,

section 1, of the California Constitution and denying the equal protection of the laws guaranteed by

article I,

section 7, of the California Constitution. The court issued a judgment permanently enjoining the statute’s enforcement. Defendants appealed from the judgment. While the appeal was pending in the Court of Appeal, our court decided the case of Hill v. National Collegiate Athletic Assn. (1994) 7 Cal.4th 1 [26 Cal.Rptr.2d 834, 865 P.2d 633], concluding that an athletic drug testing program, administered by a private organization, did not violate the state constitutional right of privacy.

In the course of the decision in Hill, our court addressed a number of issues related generally to the proper scope and application of the state constitutional right of privacy.

Although the trial court’s decision in the present case preceded our decision in Hill, the Court of Appeal concluded that there was no need to remand this matter to the trial court for further proceedings in light of Hill, and further concluded that, on the basis of the trial court record and the applicable privacy principles set forth and reaffirmed in Hill, the trial court correctly had concluded that Assembly Bill 2274 violates the state constitutional right of privacy. Accordingly, the Court of Appeal affirmed the trial court judgment, permanently enjoining the application of Assembly Bill 2274.

We granted defendants’ petition for review in order to consider the important issue presented by this case. III In challenging the decisions of both the trial court and the Court of Appeal, defendants rely heavily upon the circumstance that the United States Supreme Court, in a series of decisions, has upheld the validity under the federal Constitution of abortion/parental consent laws—similar to that embodied in Assembly Bill 2274—that have been enacted in other states.

Indeed, it is quite clear that in drafting and enacting Assembly Bill 2274 in 1987, the California Legislature itself relied heavily upon the prior United States Supreme Court decisions in this area. Most of the express “legislative findings” set forth in

section 1 of Assembly Bill 2274 are either verbatim quotations or close paraphrases of language from opinions of the United States Supreme Court, and the judicial bypass provisions of Health and Safety Code former

section 25958 clearly were drafted to comply with the requirements set forth in the applicable federal decisions. Defendants maintain that just as the United States Supreme Court has found such a statutory scheme permissible under the federal Constitution, we similarly should find the enactment permissible under the California Constitution. As defendants acknowledge, however, it is well established that the California Constitution “is, and always has been, a document of independent force” (People v.

Brisendine (1975) 13 Cal.3d 528, 549-550 [119 Cal.Rptr. 315, 531 P.2d 1099]), and that the rights embodied in and protected by the state Constitution are not invariably identical to the rights contained in the federal Constitution. (See generally, Raven v. Deukmejian (1990) 52 Cal.3d 336, 351-355 [276 Cal.Rptr. 326, 801 P.2d 1077].) California cases long have recognized the independence of the California Constitution (see, e.g., Gabrielli v. Knickerbocker (1938) 12 Cal.2d 85, 89 [82 P.2d 391]), and

article I,

section 24, of the California Constitution expressly confirms that the rights “guaranteed by this Constitution are not dependent on those guaranteed by the United States Constitution.” Past cases make clear that even when the terms of the California Constitution are textually identical to those of the federal Constitution, the proper

interpretation of the state constitutional provision is not invariably identical to the federal courts’

interpretation of the corresponding provision contained in the federal Constitution. (See, e.g., Raven v. Deukmejian, supra, 52 Cal.3d 336, 352-354; People v. Brisendine, supra, 13 Cal.3d 528, 548-551.) Furthermore, with respect to the specific constitutional right at issue in this case—the constitutional right of privacy—there is a clear and substantial difference in the applicable language of the federal and state Constitutions.

The federal Constitution contains no provision expressly setting forth or guaranteeing a constitutional right of “privacy”; the recent federal cases recognizing and protecting an individual’s privacy interest in the area of reproductive rights have found such a right implied within the more general constitutional protection of “liberty” embodied in the Fifth and Fourteenth Amendments. (See, e.g., Casey, supra, 505 U.S. 833, 846-853 [112 S.Ct. 2791, 2804-2808].) The California Constitution, by contrast, contains in

article I,

section 1, an explicit guarantee of the right of “privacy.” This explicit reference to the right of privacy was added to the California Constitution in November 1972, when the electorate approved an initiative measure whose purpose was to provide explicit protection of the right of privacy in the state Constitution. (See Ballot Pamp., Proposed Amends, to Cal. Const, with arguments to voters, Gen.

Elec. (Nov. 7,1972), argument in favor of Prop. 11, pp. 26-27; id., rebuttal to argument against Prop. 11, p. 28.) Finally, and most significantly, not only is the state constitutional right of privacy embodied in explicit constitutional language not present in the federal Constitution, but past California cases establish that, in many contexts, the scope and application of the state constitutional right of privacy is broader and more protective of privacy than the federal constitutional right of privacy as interpreted by the federal courts. (Compare Hill v.

National Collegiate Athletic Assn., supra, 7 Cal.4th 1, 15-20 [state constitutional right of privacy applies to private, as well as to state, action] with Skinner v. Railway Labor Executives’ Assn. (1989) 489 U.S. 602, 614 [109 S.Ct. 1402, 1411-1412, 103 L.Ed.2d 639] [federal privacy right applies only to governmental action]; City of Santa Barbara v. Adamson (1980) 27 Cal.3d 123 [164 Cal.Rptr. 539, 610 P.2d 436, 12 A.L.R.4th 219] [for purposes of determining validity of zoning ordinance, state privacy right protects right to reside with unrelated persons] with Village of Belle Terre v.

Boraas (1974) 416 U.S. 1 [94 S.Ct. 1536, 39 L.Ed.2d 797] [contra].) Indeed, a past decision of this court involving the same aspect of the right of privacy as that involved in the present case—namely, the right of a pregnant woman to choose whether to continue her pregnancy or to have an abortion—clearly demonstrates that the state Constitution has been interpreted to provide greater protection of a woman’s right of choice than that provided by the federal Constitution as interpreted by the United States Supreme Court. In Committee to Defend Reproductive Rights v.

Myers, supra, 29 Cal.3d 252 (Myers), this court was faced with the question of the validity, under the California Constitution, of state Budget Act provisions that afforded full funding of medical expenses incurred by an indigent pregnant woman if she chose to continue her pregnancy and bear a child, but that, at the same time, generally denied public funding of medical expenses to an indigent women if she chose to have an abortion.

In defending the constitutionality of the provisions challenged in Myers, the state relied upon a then recent decision of the United States Supreme Court that had upheld the validity, under the federal Constitution, of a similar funding scheme under which the federal government paid the medical expenses of an indigent pregnant woman if she chose to continue her pregnancy but did not pay for necessary medical expenses if the woman chose to have an abortion. (See Harris v. McRae (1980) 448 U.S. 297 [100 S.Ct. 2671, 65 L.Ed.2d 784]; see also Maher v.

Roe (1977) 432 U.S. 464 [97 S.Ct. 2376, 53 L.Ed.2d 484] [upholding similar state regulation against federal constitutional challenge].) In Myers, this court concluded that the federal precedent was not controlling as to the validity of the challenged funding scheme under the state Constitution, and, applying state constitutional principles, went on to find that the unequal funding scheme violated the protection afforded a pregnant woman’s right of privacy by the privacy provision of

article I,

section 1, of the California Constitution that had been adopted several years earlier. In the more than 15 years that have elapsed since the Myers decision, California courts repeatedly and uniformly have recognized that “our state Constitution has been construed to provide California citizens with privacy protections encompassing procreative decisionmaking—broader, indeed, than those recognized by the federal Constitution.” (Johnson v. Calvert (1993) 5 Cal.4th 84, 100 [19 Cal.Rptr.2d 494, 851 P.2d 776], italics added [citing Myers]; see also Urbaniak v.

Newton (1991) 226 Cal.App.3d 1128, 1136 [277 Cal.Rptr. 354] [“the state right of privacy has been held to be broader than the federal right,” citing Myers]; American Pediatrics I, supra, 214 Cal.App.3d 831, 839 [“the California Constitution . . . expressly recognizes a right to privacy . . . which is broader than the federal right to privacy,” citing Myers]; Chico Feminist Women’s Health Center v. Scully (1989) 208 Cal.App.3d 230, 241 [256 Cal.Rptr. 194] [“our state privacy guaranty is broader than the federal privacy right,” citing Myers]; Planned Parenthood Affiliates v.

Van de Kamp (1986) 181 Cal.App.3d 245, 277 [226 Cal.Rptr. 361] [“[t]he California Supreme Court has declared the state constitutional right to be much broader than the privacy rights guaranteed by the federal Constitution,” citing Myers]; accord, Chico Fem. Women’s Hlth. Cr. v. Butte Glenn Med. S. (E.D.Cal. 1983) 557 F.Supp. 1190, 1203 [“the right of procreative choice protected by

Article I, § 1 has already been established as significantly broader than the comparable federal right,” citing Myers].) Because the applicable California authority establishes that the protection afforded by the California Constitution of a pregnant woman’s right of choice is broader than the constitutional protection afforded by the federal Constitution as interpreted by the United States Supreme Court, the circumstance that the federal high court has concluded that abortion/parental consent statutes similar to Assembly Bill 2274 do not violate the federal Constitution, does not establish that Assembly Bill 2274 is compatible with the governing constitutional privacy principles established by the California Constitution.

To decide that issue, it is necessary for us to evaluate Assembly Bill 2274 under applicable state constitutional principles. IV In determining whether Assembly Bill 2274 violates the state constitutional right of privacy, we examine the challenged statute under the standards and principles set forth in this court’s prior decisions interpreting and applying

article I,

section 1, of the California Constitution. In Hill v. National Collegiate Athletic Assn., supra, 7 Cal.4th 1 (Hill), a case involving a state constitutional challenge to a drug testing program imposed by a private organization (the National Collegiate Athletic Association (NCAA)) upon student athletes engaged in intercollegiate competition sponsored by the organization, our court conducted an exhaustive review of the history and past application of the state constitutional privacy clause, and attempted to clarify a number of issues concerning the proper application of this provision.

Because of the breadth of the inquiry conducted in Hill, we believe that it is helpful to begin our analysis of the state constitutional privacy issue with a discussion of that decision. The initial issue addressed by the court in Hill was whether the state constitutional privacy clause properly should be interpreted to protect individuals only from invasions of privacy by governmental entities or other “state actors,” or instead also protects an individual’s privacy from infringement or invasion by private persons or entities, such as the NCAA.

After reviewing the background of the state constitutional provision, the court in Hill concluded that the state right of privacy, unlike its federal counterpart, is not limited to “state action,” and applies to the actions of the NCAA at issue in Hill. Having found that the state constitutional privacy clause applies to the actions of the NCAA, the court in Hill turned to the question of the appropriate legal standard to be applied in determining whether the challenged drug testing program violated state constitutional privacy principles.

The lower courts in Hill had ruled that the NCAA was required to prove both that its drug testing program was supported by a “compelling state interest” and that there were no less intrusive alternative means by which the interest served by the drug testing program could be achieved. After reviewing the history and background of the state constitutional privacy clause and prior California case law applying the provision, the court in Hill concluded that the lower courts had erred in suggesting “that every assertion of a privacy interest under

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section 1, must be overcome by a ‘compelling interest,’ ” or that a defendant invariably was required to demonstrate that the objective involved could not be met by less intrusive means. (7 Cal.4th at pp. 34-35.) Noting that although some prior California privacy decisions “use ‘compelling interest’ language[,] others appear to rely on balancing tests giving less intense scrutiny to nonprivacy interests,” the court in Hill explained: “The particular context, i.e., the specific kind of privacy interest involved and the nature and seriousness of the invasion and any countervailing interests, remains the critical factor in the analysis.

Where the case involves an obvious invasion of an interest fundamental to personal autonomy, e.g., freedom from involuntary sterilization or the freedom to pursue consensual familial relationships, a ‘compelling interest’ must be present to overcome the vital privacy interest.

If, in contrast, the privacy interest is less central, or in bona fide dispute, general balancing tests are employed.” (7 Cal.4th at p. 34, fn. omitted.) With respect to the particular privacy interests implicated by the athletic drug testing program at issue in Hill, the court ultimately determined that a general balancing test, rather than a compelling interest test, was applicable. (Hill, supra, 7 Cal.4th at pp. 43-44, 53-54.) On the other hand, as the above quotation indicates, the court recognized in Hill that when a challenged action or regulation directly invades “an interest fundamental to personal autonomy, ... a ‘compelling interest’ must be present to overcome the vital privacy interest.” (Id. at p. 34.) As we explain below, the statute at issue in the case now before us intrudes upon just such “an interest fundamental to personal autonomy,” and we conclude that the statute thus is subject to scrutiny under the “compelling interest” test. (See, post, pp. 340-342.) After clarifying that the “compelling interest” test does not apply to all intrusions upon privacy interests protected by the state constitutional right of privacy, the court in Hill went on to consider “the correct legal standard to be applied in assessing plaintiffs’ claims for invasion of privacy” (7 Cal. 4th at p. 35), setting forth three “elements” of a cause of action for violation of the state constitutional right of privacy and discussing the “defenses” that might be raised in opposition to such a claim. (Id. at pp. 35-39.) The court summarized its conclusions as follows: “[A] plaintiff alleging an invasion of privacy in violation of the state constitutional right to privacy must establish each of the following: (1) a legally protected privacy interest; (2) a reasonable expectation of privacy in the circumstances; and (3) conduct by defendant constituting a serious invasion of privacy.” (Id. at pp. 39-40.) “A defendant may prevail in a state constitutional privacy case by negating any of the three elements just discussed or by pleading and proving, as an affirmative defense, that the invasion of privacy is justified because it substantively furthers one or more countervailing interests.” (Id. at p. 40.) The court further explained that “[t]he plaintiff, in turn, may rebut a defendant’s assertion of countervailing interests by showing there are feasible and effective alternatives to defendant’s conduct which have a lesser impact on privacy interests.” (Id. at p. 40.) As explained in the lead opinion in the recent decision in Loder v.

City of Glendale (1997) 14 Cal.4th 846, 891 [59 Cal.Rptr.2d 696, 927 P.2d 1200] (Loder): “The three ‘elements’ set forth in Hill—a legally protected privacy interest, reasonable expectation of privacy, and serious invasion of privacy—should not be interpreted as establishing significant new requirements or hurdles that a plaintiff must meet in order to demonstrate a violation of the right to privacy under the state Constitution—hurdles that would modify substantially the traditional application of the state constitutional privacy provision (and dimmish the protection provided by that provision), by authorizing, in a wide variety of circumstances, the rejection of constitutional challenges to conduct or policies that intrude upon privacy interests protected by the state constitutional privacy clause, without any consideration of the legitimacy or importance of a defendant’s reasons for engaging in the allegedly intrusive conduct and without balancing the interests supporting the challenged practice against the severity of the intrusion imposed by the practice.” (Lead opn. by George, C.

J.) Instead, “the three ‘elements’ set forth in Hill properly must be viewed simply as ‘threshold elements’ that may be utilized to screen out claims that do not involve a significant intrusion on a privacy interest protected by the state constitutional privacy provision. These elements do not eliminate the necessity for weighing and balancing the justification for the conduct in question against the intrusion on privacy resulting from the conduct in any case that raises a genuine, nontrivial invasion of a protected privacy interest.

As we have noted, Hill was the first case in which our court addressed the question whether the state constitutional privacy clause applies to private as well as to governmental entities.

Having concluded that that privacy clause applies to private entities and also that the legal concept of ‘privacy’ potentially has a very broad sweep, the court in Hill determined that it was appropriate to articulate several threshold elements that may permit courts to weed out claims that involve so insignificant or de minimis an intrusion on a constitutionally protected privacy interest as not even to require an explanation or justification by the defendant.

Hill cannot properly be read, however, to have adopted a sweeping new rule under which a challenge to conduct that significantly affects a privacy interest protected by the state Constitution may be rejected without any consideration of either the legitimacy or strength of the defendant’s justification for the conduct.” (Loder, supra, 14 Cal.4th 846, 893-894, fn. omitted (lead opn. by George, C. J.).) We proceed to analyze the validity of Assembly Bill 2274 under the broad general framework discussed in Hill.

V We conclude initially that the state constitutional privacy claim advanced by plaintiffs in this case clearly satisfies the “threshold elements” set forth in Hill in order to screen out claims that do not involve a significant intrusion upon a privacy interest protected by the state constitutional privacy clause.

Indeed, as we shall see, Assembly Bill 2274 intrudes significantly on a privacy interest that past California decisions have identified as “clearly among the most intimate and fundamental of all constitutional rights.” (Myers, supra, 29 Cal.3d 252, 275.) A As the court noted in Hill, “[t]he first essential element of a state constitutional cause of action for invasion of privacy is the identification of a specific, legally protected privacy interest.” (Hill, supra, 7 Cal.4th 1, 35.) Accordingly, we begin by determining whether Assembly Bill 2274 implicates a “protected privacy interest” that falls under the aegis of the state constitutional privacy clause.

As the court in Hill observed, “[l]egally recognized privacy interests are generally of two classes: (1) interests in precluding the dissemination or misuse of sensitive and confidential information (‘informational privacy’); and (2) interests in making intimate personal decisions or conducting personal activities without observation, intrusion, or interference (‘autonomy privacy’).” (Hill, supra, 7 Cal.4th 1, 35.) Because we conclude that Assembly Bill 2274 significantly intrudes upon a fundamental autonomy privacy interest protected by the state privacy clause, and further conclude that defendants have failed to establish that the statute’s intrusion on this autonomy privacy interest is necessary to serve the interests proffered in support of Assembly Bill 2274, we shall confine our analysis to the autonomy privacy interest, and need not determine whether Assembly Bill 2274’s impact on any informational privacy interest is sufficient to satisfy the threshold elements of Hill and, if so, whether the proffered state interests are sufficient to justify any such intrusion on informational privacy.

Past California cases firmly and unequivocally establish that the interest in autonomy privacy protected by the California constitutional privacy clause includes a pregnant woman’s right to choose whether or not to continue her pregnancy. (See, e.g., People v. Belous (1969) 71 Cal.2d 954, 963-964 [80 Cal.Rptr. 354, 458 P.2d 194]; Ballard v. Anderson, supra, 4 Cal.3d 873, 879-881; People v.

Barksdale, supra, 8 Cal.3d 320, 326-327; Myers, supra, 29 Cal.3d 252, 274-275.) As these decisions explain, the right to choose whether to continue or to terminate a pregnancy implicates a woman’s fundamental interest in the preservation of her personal health (and in some instances the preservation of her life), her interest in retaining personal control over the integrity of her own body, and her interest in deciding for herself whether to parent a child.

And our court also has made clear the profound importance of this constitutional right: “This right of personal choice is central to a woman’s control not only of her own body, but also to the control of her social role and personal destiny. . . . ‘The implications of an unwanted child for a woman’s education, employment opportunities and associational opportunities (often including marriage opportunities) are of enormous proportion.’ [Citation.]” (Myers, supra, 29 Cal.3d at p. 275, italics added.) The right of choice may also implicate a woman’s deepest philosophical, moral, and religious concerns, including her personal beliefs regarding the meaning of human existence and the beginning of human life. (Accord, Casey, supra, 505 U.S. 833, 851 [112 S.Ct. 2791, 2807] (lead opn.) [“[P]ersonal decisions relating to . . . procreation . . . involv[e] the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy . . . [and] to the liberty protected by the Fourteenth Amendment.

At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.”].) In Myers, supra, 29 Cal.3d 252, 275, we declared that a pregnant woman’s constitutional right of choice is “clearly among the most intimate and fundamental of all constitutional rights.” All of the fundamental autonomy privacy interests embodied in the constitutional right of choice clearly are implicated by the statute at issue in this case, because the statute prohibits a pregnant minor from obtaining the medical care necessary safely to terminate her pregnancy unless she first obtains either the consent of a parent or judicial authorization.

There would be no question, of course, that a provision applicable to a pregnant adult would impinge upon a woman’s constitutionally protected interest in autonomy privacy if it conditioned her right to obtain the medical care necessary safely to terminate her pregnancy upon the woman’s obtaining the consent of another person (for example, a spouse, parent, or other relative), or obtaining a judicial order authorizing an abortion.

Such a statute clearly would intrude upon the woman’s right, as an individual, to retain personal control over the fundamental autonomy interests involved in the decision whether to continue or to terminate her pregnancy. Defendants contend, however, that because Assembly Bill 2274 applies only to pregnant minors, and requires only parental consent (or judicial authorization), it should not be viewed as intruding upon a protected privacy interest for purposes of determining whether the initial “threshold element” of the Hill analysis is satisfied. We do not agree.

Although the circumstances that Assembly Bill 2274 applies to minors and involves parental consent certainly are relevant considerations in evaluating the adequacy of the justifications for the statute, in our view a statute that restricts a pregnant individual’s ability to decide on her own whether to continue or to terminate her pregnancy unquestionably implicates a constitutionally protected privacy interest of a pregnant minor (as well as a pregnant adult) for purposes of the initial threshold element of Hill.

To begin with, it is well established that, as a general matter, “minors as well as adults are ‘persons’ under the Constitution who are entitled to the protection” provided by our constitutional rights. (In re Roger S. (1977) 19 Cal.3d 921, 927 [141 Cal.Rptr. 298, 569 P.2d 1286]; see also In re Scott K. (1979) 24 Cal.3d 395 [155 Cal.Rptr. 671, 595 P.2d 105].) Furthermore,

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section 1, of the California Constitution specifically declares that “[a]ll people are by nature free and independent and have inalienable rights[, including] enjoying and defending life and liberty, acquiring, possessing, and protecting property, . . . and privacy” (italics added). Significantly, the ballot argument accompanying the measure that added the privacy clause to

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section 1, expressly confirms that the constitutional right of privacy afforded by this provision was intended to apply to “every Californian,” including “every man, woman and child in this state.” (Ballot Pamp., Proposed Amends, to Cal. Const, with arguments to voters, Gen.. Elec. (Nov. 7, 1972), argument in favor of Prop. 11, pp. 26, 27, underlining omitted, italics added.) Accordingly, there can be no question but that minors, as well as adults, possess a constitutional right of privacy under the California Constitution.

Indeed, a few examples will make it clear that the constitutional right of privacy widely has been recognized as applying to minors as well as adults. As numerous decisions have pointed out (see, e.g., White v. Davis (1975) 13 Cal.3d 757, 774-775 [120 Cal.Rptr. 94, 533 P.2d 222]; Hill, supra, 7 Cal.4th 1, 21), the ballot argument supporting the privacy measure establishes that one principal objective of the privacy clause is to protect individuals from the unnecessary collection, and improper use, of personal information about them.

Nothing in the language or history of the privacy provision suggests that minors, unlike adults, do not enjoy constitutional protection with regard to the improper use of such information, and past cases have not drawn any distinction between the informational privacy rights of minors and adults.

Thus, if a governmental entity or business enterprise were to obtain private information concerning a minor for a particular purpose and then use or disclose the information for a different, unauthorized purpose, no one reasonably could maintain that the conduct would not implicate a constitutionally protected privacy interest simply because the privacy of a minor, rather than of an adult, was infringed.

Similarly, if a group or an individual— perhaps motivated by an unusually strong ideological opposition to teenagers becoming mothers—were to compel a pregnant minor to undergo an abortion against her will, there would be no question but that the offending conduct, in addition to violating any number of penal statutes and tort doctrines, also would constitute a direct intrusion upon a constitutionally protected autonomy privacy interest of the minor, Thus, it is clear that the circumstance that Assembly Bill 2274 is directed to minors is not a valid basis for concluding that the statute does not impinge upon a protected privacy interest.

The question whether a statute or rule intrudes upon a minor’s state constitutional right of privacy admittedly becomes more complex when the only effect of the statute or rule is to condition the minor’s exercise of his or her constitutional privacy right upon parental consent.

As a general matter, parents during a child’s minority have the legal right (and obligation) to act on behalf of their child to protect their child’s rights and interests, and in most instances this general rule would apply to interests of the minor that are protected by the state constitutional right of privacy as well as to other rights and interests of the minor. Thus, for example, although past cases have established that the state constitutional right of privacy generally guarantees an individual’s right to consent to, or to refuse to consent to, medical treatment or medication (see, e.g., Thor v.

Superior Court (1993) 5 Cal.4th 725, 733-738 [21 Cal.Rptr.2d 357, 855 P.2d 375]; Bartling v. Superior Court (1984) 163 Cal.App.3d 186, 195 [209 Cal.Rptr. 220]), we believe it is clear that, at least with respect to most medical treatment relating to a minor, the Legislature may grant a parent the authority to make medical decisions on behalf of his or her child. No one reasonably could suggest that a serious state constitutional privacy question would be presented, for example, whenever a parent, over a child’s objection, requires the child to go to the dentist or to take his or her medicine.

But while in most instances a statute that simply recognizes a parent’s authority or responsibility to exercise a child’s privacy right on the child’s behalf (and in his or her interest) would raise no serious constitutional question, that is not the case with respect to the particular privacy right that is here at issue, namely the right to decide whether a pregnant minor will continue or terminate her pregnancy.

As Justice Powell explained in his plurality opinion for the United States Supreme Court in Bellotti II, supra, 443 U.S. 622, 642 [99 S.Ct. 3035, 3047-3048]: “The abortion decision differs in important ways from other decisions that may be made during minority. . . . [¶ The pregnant minor’s options are much different from those facing a minor in other situations, such as deciding whether to marry. A minor not permitted to marry before the age of majority is required simply to postpone her decision. She and her intended spouse may preserve the opportunity for later marriage should they continue to desire it.

A pregnant adolescent, however, cannot preserve for long the possibility of aborting, which effectively expires in a matter of weeks from the onset of pregnancy. m Moreover, the potentially severe detriment facing a pregnant [minor] . . . is not mitigated by her minority. Indeed, considering her probable education, employment skills, financial resources, and emotional maturity, unwanted motherhood may be exceptionally burdensome for a minor. . . . In sum, there are few situations in which denying a minor the right to make an important decision will have consequences so grave and indelible.” We agree.

As we explained in another context in In re Jasmon O. (1994) 8 Cal.4th 398, 419 [33 Cal.Rptr.2d 85, 878 P.2d 1297]: “Children are not simply chattels belonging to the parent, but have fundamental interests of their own that may diverge from the interests of the parent.” (See also In re Roger S., supra, 19 Cal.3d 921, 929-931 [parent may not waive a minor’s right to due process before commitment to a mental hospital]; In re Scott K., supra, 24 Cal.3d 395, 403-404 [parent may not waive a minor’s right to be free of unreasonable search and seizure].) The fundamental values and principles that a parent has transmitted to his or her daughter of course will play a substantial, and often a determinative, role in shaping a minor’s decision in this matter.

Nonetheless, because the decision whether to continue or terminate her pregnancy has such a substantial effect on a pregnant minor’s control over her personal bodily integrity, has such serious long-term consequences in determining her life choices, is so central to the preservation of her ability to define and adhere to her ultimate values regarding the meaning of human existence and life, and (unlike many other choices) is a decision that cannot be postponed until adulthood, we conclude that a minor who is pregnant has a protected privacy interest under the California Constitution in making the decision whether to continue or to terminate her own pregnancy—and that this interest is intruded upon by the provisions of Assembly Bill 2274.

As already noted, our conclusion that Assembly Bill 2274 intrudes upon a pregnant minor’s protected autonomy privacy interest does not mean that the circumstances that the statute involves minors rather than adults, and is concerned with furthering the parent-child relationship, are irrelevant to the ultimate resolution of the constitutional issue presented by this case. These circumstances are in fact directly relevant in assessing the nature and strength of the state interests that may justify the legislation’s impact upon the constitutionally protected privacy interests at issue.

Under the framework established in Hill, however, we consider potential justifications for a challenged statute at a subsequent stage of the analysis, and not in determining the threshold question whether the statute implicates a protected privacy interest.

B We also conclude that plaintiff’s constitutional challenge satisfies the second threshold element of Hill—“a reasonable expectation of privacy.” In discussing the application of this element to the athletic drug testing program challenged in Hill, the court in Hill explained that “the reasonable expectation of privacy of plaintiffs (and other student athletes). . . must be viewed within the context of intercollegiate athletic activity and the normal conditions under which it is undertaken.” (Hill, supra, 7 Cal.4th 1, 41.) Thus, Hill indicates that this element contemplates an inquiry into whether there is something in the particular circumstances in which an alleged intrusion of privacy arises that demonstrates the plaintiff has no reasonable expectation of privacy in that context, so that the alleged intrusion would not violate the state Constitution even if there were no justification for the allegedly intrusive conduct.

In the present case, the challenged statutory requirements apply to all pregnant minors and, unlike the drug testing program in Hill, are not confined to a specific setting or limited context.

Because, as we have explained in the previous section, Assembly Bill 2274 impinges upon a fundamental autonomy privacy interest of pregnant minors protected by the state constitutional privacy clause, and because the statute applies to all such minors (whether 17 years of age, or much younger), there is absolutely nothing in the circumstances of the present case that would support a conclusion that the pregnant minors affected by this legislation do not have a “reasonable expectation of privacy” for purposes of the second element of the Hill test.

Although it has been suggested that, in light of the general statutory rule requiring a minor to obtain parental consent for medical care, and the existence of numerous abortion/parental consent statutes in other states, a minor has no reasonable expectation of privacy in this context, it plainly would defeat the voters’ fundamental purpose in establishing a constitutional right of privacy if a defendant could defeat a constitutional claim simply by maintaining that statutory provisions or past practices that are inconsistent with the constitutionally protected right eliminate any “reasonable expectation of privacy” with regard to the constitutionally protected right.

C Finally, in regard to the threshold elements, we conclude that the constitutional challenge to Assembly Bill 2274 also clearly satisfies the third threshold element of Hill—“a serious invasion of a privacy interest.” As explained in the lead opinion in the recent decision in Loder, the application of this element in Hill demonstrates “that this element is intended simply to screen out intrusions on privacy that are de minimis or insignificant.” (Loder, supra, 14 Cal.4th 846, 895, fn. 22 (lead opn. by George, C.

J.).) In the present case, the effect of Assembly Bill 2274 upon a pregnant minor’s constitutional right of privacy cannot, by any stretch of the imagination, properly be characterized as “de minimis or insignificant.” The statute significantly intrudes upon autonomy privacy by denying a pregnant minor the ability to obtain a medically safe abortion on her own, and instead requiring her to secure parental consent or judicial authorization in order to obtain access to the medical care she needs to terminate her pregnancy safely.

In this respect, the statute denies a pregnant minor, who believes it is in her best interest to terminate her pregnancy rather than have a child at such a young age, control over her own destiny. In addition, the statutory requirement that the minor obtain parental consent or judicial authorization will delay the minor’s access to a medically safe abortion in many instances, and thereby will increase, at least to some extent, the health risks posed by an abortion.

Finally, in some instances, a minor who does not wish to continue her pregnancy but who is too frightened to tell her parents about her condition or go to court may be led by the statutory restrictions to attempt to terminate the pregnancy herself or seek a “back-alley abortion”— courses of conduct that in the past have produced truly tragic results—or, alternatively, to postpone action until it is too late to terminate her pregnancy, leaving her no choice but to bear an unwanted child.

Of course, such consequences unquestionably would represent a most significant intrusion on the minor’s protected privacy interest. D In sum, plaintiffs’ constitutional challenge to Assembly Bill 2274 satisfies the three threshold elements set forth in Hill.

Accordingly, under the Hill framework, to determine the validity of Assembly Bill 2274 we must consider whether the statute’s intrusion on a pregnant minor’s constitutional right of privacy is justified by the state interests relied upon in support of the legislation. (Hill, supra, 7 Cal.4th 1, 38.) VI In analyzing the adequacy of the justifications tendered by defendants to support the challenged legislation, we begin by addressing two preliminary points. First, we determine the appropriate “standard” or “test” that the proffered justifications must satisfy.

Second, we consider how the analysis of defendants’ proffered justifications is affected by the circumstance that the constitutional challenge in this case is a “facial” challenge to the statute as a whole, rather than an “as applied” challenge to the statute’s application to a particular individual or in a particular setting. We turn first to the question of the appropriate constitutional “standard” or “test” that the justifications must satisfy in this case.

A As we already have noted, in discussing the issue of the appropriate “standard” or “test” that a proposed justification must meet, the court in Hill, supra, 7 Cal.4th 1, while “declin[ing] to hold that every assertion of a privacy interest under

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section 1 must be overcome by a ‘compelling interest’ ” (Hill, supra, 7 Cal.4th 1, 34-35, italics added), explained that “[t]he particular context, i.e., the specific kind of privacy interest involved and the nature and the seriousness of the invasion and any countervailing interests, remains the critical factor in the analysis. Where the case involves an obvious invasion of an interest fundamental to personal autonomy, e.g,, freedom from involuntary sterilization or the freedom to pursue consensual familial relationships, a ‘compelling interest’ must be present to overcome the vital privacy interest.

If, in contrast, the privacy interest is less central, or in bona fide dispute, general balancing tests are employed.” (Id. at p. 34, italics added, fn. omitted.) As we have explained, the statute at issue in this case unquestionably impinges upon “an interest fundamental to personal autonomy,” indeed an interest that is “clearly among the most intimate and fundamental of all constitutional rights.” (Myers, supra, 29 Cal.3d 252, 275.) Under Hill and prior decisions of this court (see, e.g., People v.

Belous, supra, 71 Cal.2d 954, 964; Conservatorship of Valerie N. (1985) 40 Cal.3d 143, 164 [219 Cal.Rptr. 387, 707 P.2d 760]), statutory provisions that intrude or impinge upon such a fundamental autonomy privacy interest properly must be evaluated under the “compelling interest” standard, i.e., the defendant must demonstrate “a ‘compelling’ state interest which justifies the [intrusion] and which cannot be served by alternative means less intrusive on fundamental rights.” (White v.

Davis, supra, 13 Cal.3d 757, 772.) Defendants argue that although the “compelling interest” standard may constitute the appropriate test for analyzing a statutory provision that impinges upon a pregnant adult’s constitutional right of choice, a less rigorous standard should apply to a statute—such as Assembly Bill 2274—that affects the right of choice of a pregnant minor. Defendants note that federal decisions have adopted, for purposes of federal constitutional analysis, a less rigorous standard for evaluating the validity of statutes affecting pregnant minors. (See, e.g., Planned Parenthood of Missouri v.

Danforth, supra, 428 U.S. 52, 75 [96 S.Ct. 2831, 2844] [burden on minor’s privacy right may be justified by the state’s showing of “any significant state interest. . . that is not present in the case of an adult”].) On the other hand, at least one other state supreme court, in applying an explicit state constitutional privacy provision to an abortion/parental consent statute, has concluded that its state constitutional provision mandates application of the compelling interest standard to a statute that impinges upon fundamental, constitutionally protected privacy rights of minors as well as to a statute that impinges upon similar rights of adults. (In re T.W. (Fla. 1989) 551 So.2d 1186, 1195.) We conclude that, under the California constitutional privacy clause, the statute here at issue must be evaluated under the “compelling interest” standard.

When a statute significantly intrudes upon a fundamental, autonomy privacy interest of a minor, we believe that proper respect for a minor’s state constitutional right of privacy requires a showing that the intrusion upon such a basic and fundamental right is necessary to further a “compelling”—i.e., an extremely important and vital—state interest. (See American Pediatrics I, supra, 214 Cal.App.3d 831, 843-845; accord, Conservatorship of Valerie N., supra, 40 Cal.3d 143, 164 [applying “compelling interest” standard in evaluating validity of statute restricting fundamental, autonomy privacy interest of incompetent adult].) As Hill indicates, under

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section 1, of the California Constitution a statutory intrusion upon an autonomy privacy interest of such a fundamental nature may not be justified simply by showing that the statute serves a legitimate “competing interest” sufficient to justify an impingement upon a “less central” privacy interest. (Hill, supra, 7 Cal.4th at p. 34.) In applying a test less rigorous than the “compelling interest” standard to evaluate statutes that impinge upon a minor’s privacy right, the federal decisions have relied upon a state’s “somewhat broader authority to regulate the activities of children . . . .” (Planned Parenthood of Missouri v.

Danforth, supra, 428 U.S. 52, 74 [96 S.Ct. 2831, 2843].) As we already have indicated, the circumstance that the statute at issue is directed at minors unquestionably is relevant in determining the nature and strength of the state interests that defendants contend are served by Assembly Bill 2274. Numerous California decisions recognize that the state has a special and particularly compelling interest in protecting the health and welfare of children. (See, e.g., Michael M. v. Superior Court, supra, 25 Cal.3d 608, 611-612; People v.

Stritzinger (1983) 34 Cal.3d 505, 512 [194 Cal.Rptr. 431, 668 P.2d 738].) As these decisions demonstrate, a statute’s relationship to minors properly is employed in the constitutional calculus in determining whether an asserted state purpose or interest is “compelling.” Because the statute’s impact on minors is taken into account in assessing the importance of the state interest ostensibly served by the infringement, in our view it is not appropriate additionally to lower the applicable constitutional standard under which the statute is to be evaluated simply because the privacy interests at stake are those of minors.

We conclude that, under the California constitutional privacy clause, a statute that impinges upon the fundamental autonomy privacy right of either a minor or an adult must be evaluated under the demanding “compelling interest” test. B Next, we consider the effect of the circumstance that this case involves a challenge to the constitutionality of the statute “on its face,” rather than to the constitutionality of the statute “as applied” to a particular person, group of persons, or setting covered by the statute.

Defendants contend that because this case involves a facial challenge to the statute, their burden of justification may be satisfied simply by demonstrating that the provisions of the statute constitutionally may be applied in even a single circumstance covered by the statute.

Thus, defendants maintain that this facial challenge to the statute must be rejected if they are able to establish, for example, that the statutory requirement for parental consent or judicial authorization is justified as applied to the relatively small subclass of pregnant minors who lack the mental capacity to give informed consent to an abortion, even though the statute is not limited to this class of minors—and even if the statute is invalid as to all other pregnant minors. As we shall explain, defendants’ contention lacks merit.

If the analytical approach proposed by defendants were valid, even the broadest statutory prohibition on abortion—a statute that, for example, prohibited abortion under all circumstances—could not be found unconstitutional on its face, because the statute would encompass some circumstances—for example, a late-term abortion completely unrelated to the protection of the life or health of the pregnant woman—in which an abortion constitutionally could be prohibited.

Similarly, a statute that prohibited all adult women from obtaining an abortion without first securing either the consent of a spouse, parent, or guardian, or authorization from a court, likewise could not be found unconstitutional on its face, because such a law might be valid as applied to the small class of pregnant adult women who are legally incompetent to give informed consent to the procedure.

No California decision has taken such a restrictive approach in evaluating a facial constitutional challenge to a law, such as that at issue here, that directly and substantially impinges upon fundamental constitutional privacy rights in the vast majority of its applications.

On the contrary, under the constitutional analysis traditionally applied in past California privacy cases, when, as here, a statute, as written, broadly impinges upon fundamental constitutional privacy rights in its general, normal, and intended application, a court, in assessing the statute’s constitutionality, must determine whether the justifications for the statute outweigh its impingement on privacy rights and the statute is narrowly drawn to avoid unnecessary impingement on such rights.

A statute that imposes substantial burdens on fundamental privacy rights with regard to a large class of persons may not be sustained against a facial constitutional attack simply because there may be a small subclass of persons covered by the statute as to whom a similar but much more narrowly drawn statute constitutionally could be applied.

Thus, contrary to defendants’ contention, a facial challenge to a statutory provision that broadly impinges upon fundamental constitutional rights may not be defeated simply by showing that there may be some circumstances in which the statute constitutionally could be applied, when, as here, there is nothing in the language or legislative history of the provision that would afford a reasonable basis for severing the asserted constitutionally permissible applications of the statute from the provision’s unconstitutional applications. Past California cases make this point clear.

For example, in City of Carmel-by-the-Sea v. Young (1970) 2 Cal.3d 259 [85 Cal.Rptr. 1, 466 P.2d 225, 37 A.L.R.3d 1313], one of this court’s earliest decisions affording explicit protection to a constitutional right of privacy, the court concluded that the financial disclosure statute at issue in that case, which applied to an extremely broad range of local and state public officers (as well as candidates for such offices) and required extensive disclosure of private financial information, was unconstitutional as a violation of the constitutional right of privacy.

Although the court in City of Carmel-by-the-Sea explicitly acknowledged that “[i]t may well be that such extensive disclosure rules [as those embodied in the challenged statute] may appropriately be imposed by the Legislature upon its own members” and “may also be appropriate for other public officials or employees” (2 Cal.3d at p. 272)—classes of public officials that fell within the scope of the challenged statute—the court nonetheless determined that the statute properly should be held unconstitutional on its face, explaining: “When, as here, a statute contains unconstitutionally broad restrictions and its language is such that a court cannot reasonably undertake to eliminate its invalid operation by severance or construction, the statute is void in its entirety regardless of whether it could be narrowly applied to the facts of the particular case before the court.

The only way in which the statute now at issue could be limited to a proper scope with respect to the officials and employees of plaintiff city would be by reading into it numerous qualifications and exceptions, thereby performing a wholesale rewriting of the statute which the courts cannot reasonably be expected to undertake. [Citations.] We conclude that the statute is unconstitutional in its entirety.” (ibid., italics added.) In like manner, this court’s decision in Myers, supra, 29 Cal.3d 252 found that a statute that provided public funding for the medical expenses of an indigent pregnant woman who chose to bear a child, but denied similar funding for medical expenses if such a woman chose to have an abortion, was unconstitutional on its face, even though some indigent women covered by the statute may have been able to obtain funding for an abortion from private charitable sources. (See 29 Cal.3d at pp. 275-276; accord, e.g., Blair v.

Pitchess (1971) 5 Cal.3d 258, 282 [96 Cal.Rptr. 42, 486 P.2d 1242, 45 A.L.R.3d 1206] [“It is, of course, an accepted principle of judicial review that ‘courts will limit the operation of a statute by construction or severance of the language to avoid unconstitutionality.

Where, however, unconstitutionality cannot reasonably be avoided in this way, a statute cannot be upheld merely because a particular factual situation to which it is applicable may not involve the objections giving rise to its invalidity. [Citations.] If the rule were otherwise, the determination of constitutionality would be a piecemeal and unpredictable process. [Citations.]” (Italics added.)]; Mulkey v.

Reitman (1966) 64 Cal.2d 529, 543-545 [50 Cal.Rptr. 881, 413 P.2d 825]; In re Blaney (1947) 30 Cal.2d 643, 655-656 [184 P.2d 892].) Thus, past California cases do not support defendant’s claim that a statute whose broad sweep directly impinges upon the fundamental constitutional privacy rights of a large class of persons may not be found invalid on its face so long as there are any circumstances in which the statute’s restrictions constitutionally may apply. The United States Supreme Court has followed a similar approach in addressing facial constitutional challenges to statutory restrictions on abortion.

In Roe v.

Wade, supra, 410 U.S. 113, for example, the court invalidated in its entirety a Texas statute, concluding that it “sweeps too broadly [because it] makes no distinction between abortions performed early in pregnancy and those performed later, and . . . limits to a single reason, ‘saving’ the mother’s life, the legal justification for the procedure.” (Id. at p. 164 [93 S.Ct. at p. 732].) Thus, even though, under the principles enunciated in Roe, the Texas statute constitutionally could have been applied to at least some pregnant women who fell within the statute’s coverage (i.e., those women in their last trimester for whom an abortion was not necessary to preserve their life or health), the court nonetheless invalidated the law in its entirety, rejecting the argument—explicitly advanced in a dissenting opinion—that because the restrictions imposed by the law constitutionally could be applied to some women covered by the statute, the court was precluded from striking down the statute on its face. (Id. at pp. 177-178 [93 S.Ct. at p. 739] (dis. opn. of Rehnquist, J.).) Similarly, in its more recent decision in Casey, supra, 505 U.S. 833, the high court adopted

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