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California Abortion & Privacy Law

Chronology of Key Cases

(+California Supreme Court)

*+People v. Belous, 17 Cal.2d 954 (1969): Criminal penalties for physician who performed abortion were improper.   Outlining circumstances when an abortion could lawfully be performed was unconstitutionally vague. Affirmed that the fundamental right of a woman to choose whether to bear children follows from the Supreme Court’s repeated acknowledgment of a “right of privacy” or “liberty” in matters related to marriage, family, and sex. That such a right is not enumerated in either the United States or California Constitutions is no impediment to the existence of the right.

City of Carmel-By-The-Sea v. Young, 466 P.2d 225 (Cal. 1970): Statute requiring every public officer and each candidate for state or local public office to file, as a public record, a statement describing the nature and extent of his investments and those owned by either spouse or by a minor child was unconstitutional because the statute undertook an overbroad intrusion into the right of privacy and thereby restricted the right to seek public office or employment.

1972: California Constitution amended to add constitutional right to privacy (Art. I, § 1)

+White v. Davis, 13 Cal.3d 757 (1975): A principal aim of Cal. Const. art. 1, § 1. is to limit the infringement upon personal privacy arising from the government's increasing collection and retention of data relating to all facets of an individual's life. However, an individual must suffer more specific harm than the mere subjection to governmental scrutiny as the basis for his First Amendment legal challenge.

Britt v. Superior Court, 20 Cal.3d 844 (1978): California constitutional right to privacy creates a zone of privacy which protects against unwarranted compelled disclosure of certain private information. In this case, broad discovery order requiring disclosure of extensive details of activities in local political associations violated parties’ constitutional right of association.  Such an order could only be sustained with demonstration of compelling state interest and narrow circumscription of the scope of compelled disclosure to avoid undue interference with private associational rights.  Court also found strong privacy rights in medical history, and limited disclosure to just those medical conditions that were directly relevant to the case.

Central Valley Chapter of 7th Step Foundation, Inc. v. Younger, 95 Cal. App. 3d 212 (1979): Violation of the state constitutional right to privacy occurred where public employers were authorized to receive criminal offender record information, which involved arrests that did not result in convictions.

Division of Medical Quality v. Gherardini, 93 Cal. App. 3d 669 (1979): Patient health records constituted a privileged area, an area of reasonably expected privacy, and state Medical Board’s desire to investigate a physician for malpractice was not sufficient to overcome the articulated purposes of Cal. Const. art. I, § 1.

The People v. Brown, 88 Cal. App. 3d 283 (1979): Defendant did not have an expectation of privacy in his hospital room, where the officers only intended to question him regarding a murder and did not intend to search his room, but saw evidence in plain sight that was then admissible against him.

Jones v. Superior Court of Alameda County, 119 Cal. App. 3d 534 (1981): Questions posed in discovery concerning medical history were proper because whatever minimal privacy interest they might have had was waived by their disclosures concerning the subject matter. Cal. Evid. Code § 994 provides, subject to statutory exceptions, that a patient, whether or not a party, has a privilege to refuse to disclose, and to prevent another from disclosing, a confidential communication between patient and physician. To the extent that the privilege applies, it operates as a bar to discovery of even relevant information.

*Committee to Defend Reproductive Rights v. Myers, 625 P.2d 779 (Cal. 1981): Plaintiff indigent women contended that the challenged California Budget Act funding restrictions constituted a selective and discrimination public funding scheme that violated plaintiffs' constitutional right to privacy. The court found that the funding restrictions were antithetical to the purpose of the Medi-Cal program; that the benefits of the funding restrictions did not manifestly outweigh the impairment of the constitutional right to privacy; that the fiscal advantages of the restrictions were illusory; that the asserted state interest in protecting fetal life was subordinate to a woman's fundamental right of procreative choice; and that the Medi-Cal program, as qualified by the funding restrictions, did not aid poor women who chose to bear children in a manner least offensive to the rights of those who chose abortion.

Sasson v. Katash, 146 Cal. App. 3d 119 (1983): subpoenaed documents were within the Cal. Civ. Proc. Code § 1985.3 definition of "personal records" and that appellant's admitted failure to follow the notice and time procedures set forth in that section justified the exclusion of the requested documents.

Robbins v. The Superior Court of Sacramento County, 695 P.2d 695 (Cal. 1985): The right to privacy is the right to be left alone. It is a fundamental and compelling interest. It protects our homes, our families, our thoughts, our emotions, our expressions, our personalities, our freedom of communion, and our freedom to associate with the people we choose. By requiring recipients of county general assistance to live in a certain place, policy violated the goals of the state’s welfare statutes as reflected in Cal. Welf. & Inst. Code § 10000 and unconstitutionally violated their right to privacy.

Planned Parenthood v. Van De Kamp, 181 Cal. App. 3d 245 (1986): The court weighed privacy rights versus governmental interests and ruled that implementation of an Attorney General opinion would have resulted in the reporting of voluntary behavior, a result both inconsistent with the intent of the Legislature and in violation of the California Constitution's privacy guarantees. Issued a peremptory writ of mandate restraining the Attorney General of the State of California, and all California district attorneys, from henceforth and forever enforcing, implementing and administering the child abuse reporting law insofar as that law applies to voluntary, consensual sexual behavior among minors under the age of 14, bearing no indicia of actual sexual or other abuse in the judgment of the reporting professional involved.

Urbaniak v. Newton, 226 Cal. App. 3d 1128 (1991): Valid claim of invasion of privacy existed, since decedent reasonably anticipated that his HIV status would not be disclosed and that respondent doctor's disclosure of that information was not privileged as a matter of law, so raised an issue for trial. While an examining physician may incur liability by disclosing confidential information irrelevant to the purpose of the examination undertaken in connection with litigation, such liability cannot be predicated on invasion of privacy in the absence of special circumstances indicating that the information was given in a confidential communication between patient and physician.

1994: California enacts California FACE Act “to safeguard the privacy of patients, licensed health care practitioners, and health care facility employees, clients and customers.”

+Heller v. Norcal Mutual Ins. Co., 8 Cal.4th 30 (1994): In order to violate Cal. Civ. Code § 56 et seq., a provider of health care must make an unauthorized, unexcused disclosure of privileged medical information. A provider is relieved from liability under the act if it can show that the disclosure is excepted either by the mandatory, Cal. Civ. Code § 56.10(b), or permissive, Cal. Civ. Code § 56.10(c)(4), provisions of the act, allowing disclosure of medical information under specified circumstances.

+Hill v. National Collegiate Athletic Ass’n, 7 Cal.4th 1 (1994): Defendant athletic association had not violated plaintiffs' privacy rights through its use of a drug testing program that was reasonably calculated to further defendant's legitimate interest in safeguarding intercollegiate athletic competition.

Rains v. Belshe, 32 Cal. App. 4th 157 (1995): Cal. Health & Safety Code § 1418.8 was enacted to allow certain incompetent patients residing in skilled nursing facilities or intermediate care facilities to receive medical treatment, after a physician had determined a patient's incapacity to give informed consent to such treatment and an interdisciplinary review team had determined the treatment was medically appropriate. Statute did not violate the constitutional privacy rights or due process rights of those nursing home patients who are determined by a physician to lack capacity to give informed consent to recommended medical intervention, and who did not have another person with legal authority to give that consent.

Pettus v. Cole, 49 Cal. App. 4th 402 (1996): Release of medical information compiled during a psychiatric examination of appellant without his authorization or consent violated the Confidentiality of Medical Information Act, and that release and his subsequent discharge violated his state constitutional right to privacy.

Planned Parenthood v. Operation Rescue, 50 Cal. App. 4th 290 (1996): residential privacy interest is particularly potent in the context of a dispute relating to the ability of women to seek and obtain lawful services related to pregnancy.  Upholds residential buffer zone against anti-choice protestors.

*+American Academy of Pediatrics v. Lungren, 16 Cal.4th 307 (1997): A statute requiring a pregnant minor to obtain parental consent or judicial authorization for an abortion was properly determined to be unconstitutional because the law infringed upon a minor's fundamental right to privacy guaranteed by the California Constitution.  California Supreme Court found that the state constitutional right to privacy is broader and more protective of privacy than the implied federal constitutional right of privacy.

Kraslawsky v. Upper Deck Co., 56 Cal. App. 4th 179 (1997): The test for evaluating whether a plaintiff has stated a cause of action for violation of privacy under the California Constitution places the burden on a plaintiff to prove three elements: (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. The primary focus of a state constitutional privacy claim in the employee drug testing context is a reasonableness balancing test - balancing the drug test's intrusion on the reasonable expectations of the employee against the drug test's promotion of the employer's legitimate interests.

+Loder v. City of Glendale, 14 Cal.4th 846 (1997): Because it is clear that the collection and testing of urine intrudes upon expectations of privacy that society has long recognized as reasonable, these intrusions are deemed searches under U.S. Const. amend. IV.  Defendant's city's drug and alcohol testing program was unconstitutional in the pre-promotional context, but defendant was free to establish a new pre-promotional program in light of subsequent statutory and constitutional authority. The program was constitutional for job applicants.

Lorig v. Medical Board, 78 Cal. App. 4th 462 (2000): individuals have a substantial interest in privacy of their homes.

Planned Parenthood Golden Gate v. Superior Court, 83 Cal. App. 4th 350 (2000): California privacy laws preclude discovery of (1) identity of staff and volunteers of Planned Parenthood who have refused to consent to disclosure and (2) home addresses and telephone numbers of Planned Parenthood staff and volunteers.

TBG Ins Services v. Superior Court of LA, 96 Cal. App. 4th 443 (2002): Given an employee's consent to his employer's monitoring of both home and office computers owned by employer, the employee had no reasonable expectation of privacy when he used the home computer for personal matters.

Garrett v. Young, 109 Cal. App. 4th 1393 (2003): Court of Appeal held plaintiff did not prove non-statutory  cause of action for invasion of privacy against physician, when plaintiff did not show expectation of privacy related to information physician disclosed to plaintiff's supervisor. Mansell v. Otto, 108 Cal. App. 4th 265 (2003): Claim for invasion of constitutional right of privacy based on the unauthorized reading of defendant crime victim’s mental health records by defendants and other members of the defense team was not sustainable because Defendants obtained her medical and psychiatric records through the trial court's normal processes, including a court order. 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.

Colleen M. v.  Fertility and Surgical Assoc. of Thousand Oaks, 132 Cal. App. 4th 1466 (2005): When a woman used ex-fiancé’s credit card to pay for medical services, Civ. Code, § 56.10, subd. (c)(2), permitted disclosure of the patient's medical information to the ex-fiancé without her consent. The ex-fiancé qualified as someone responsible for paying for health care services rendered to the patient and was entitled to receive limited information necessary to allow his responsibility for payment to be determined and payment made.

California Cons. Health Care Council v. Kaiser Foundation Health, 142 Cal. App. 4th 21 (2006): Once a patient signaled his intention to bring a malpractice claim against a health care provider, he simply could not reasonably expect to keep the details of his professional relationship with that health care provider a secret from the attorney employed as an agent of the health care provider to defend that liability claim. By placing one's physical condition in issue via medical malpractice litigation, a person has his or her expectation of privacy regarding that condition substantially lowered by the very nature of the action.

+Commission of Peace Officer Standards and Training v. Superior Court, 42 Cal.4th 278 (2007): The California Public Records Act, Gov. Code, § 6250 et seq., contains numerous exceptions to the requirement of public disclosure, many of which are designed to protect individual privacy. However, the privacy and safety interests of peace officers in general did not outweigh the public's interest in the disclosure of the information sought by the newspaper. The information that petitioner, the Commission on Peace Officer Standards and Training, was ordered to disclose was not personal data within the meaning of Pen. Code, § 832.8, subd. (a). Although the safety of peace officers and their families was a legitimate concern, the Commission's claim that peace officers in general would be threatened by the release of the information in question was purely speculative.

+Jacob B. v. County of Shasta, 40 Cal.4th 948 (2007): The court of appeal held that the litigation privilege of Civ. Code, § 47, subd. (b), applied to all the causes of action, including the constitutional right of privacy claim. In affirming, the court determined that the letter (describing the molestation claim, which was presented in the family law proceeding as an attachment to a declaration opposing a request to modify visitation) fit within the privilege because it was a communication permitted by law that was made in the context of a judicial proceeding. Holding that the litigation privilege applied to a constitutionally based privacy cause of action, the court disapproved Jeffrey H. v. Imai, Tadlock & Keeney, 85 Cal. App. 4th 345 (2000), and Cutter v. Brownbridge, 183 Cal. App. 3d 836 (1986).

+Pioneer Electronics (USA), Inc. v. The Superior Court of Los Angeles County, 40 Cal.4th 360 (2007): A privacy claimant must possess a legally protected privacy interest; a privacy claimant must possess a reasonable expectation of privacy under the particular circumstances, including customs, practices, and physical settings surrounding particular activities. Assuming that a claimant has met the criteria for invasion of a privacy interest, that interest must be measured against other competing or countervailing interests in a balancing test. Conduct alleged to be an invasion of privacy is to be evaluated based on the extent to which it furthers legitimate and important competing interests. Protective measures, safeguards, and other alternatives may minimize the privacy intrusion. In the present case, the named plaintiff's interest in obtaining contact information regarding the complaining customers outweighed the possibility that some of the customers might fail to receive their notice and thus lose the opportunity to object to disclosure. Contact information regarding the identity of potential class members is generally discoverable.

+Sheehan v. The San Francisco 49ers, 45 Cal.4th 992 (2009): In reviewing a private entertainment venue's security arrangements that implicate California's constitutional right of privacy, Cal. Const., art. I, § 1, a court does not decide whether every measure is necessary, merely whether the policy is reasonable. The state constitutional right of privacy does not grant courts a roving commission to second-guess security decisions at private entertainment events or to micromanage interactions between private parties. The elements to be considered in assessing claims for invasion of privacy under Cal. Const., art. I, § 1, 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.

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