BROWN, J., Dissenting. I. Introduction
Today, the court invalidates the Legislature’s effort to increase the involvement of parents in the abortion decisions of their unemancipated minor daughters, concluding the enactment cannot survive the exacting scrutiny of a compelling state interest test. To reach this result, the plurality must ignore the historic limits of the federal Constitution, rewrite the privacy provision of the state Constitution, and abrogate the constitutional interests of parents in an opinion that cannot survive any level of scrutiny, much less strict scrutiny.
In 1987, our Legislature enacted Assembly Bill No. 2274, 1987-1988 Regular Session (hereafter Assembly Bill 2274), which prohibits a physician from performing an abortion on an unemancipated minor without either the written consent of one of her parents or judicial authorization. Assembly Bill 2274 embodies a legislative effort to accommodate the competing interests [419]involved in an unemancipated minor’s abortion decision—the minor’s interests, the interests of her parents, and the state’s interest in her health and welfare. As this court and the United States Supreme Court have repeatedly cautioned, when dealing with the sensitive subject of abortion, “[o]ur obligation is to define the liberty of all, not to mandate our own moral code.” (Planned Parenthood of Southeastern Pa. v. Casey (1992) 505 U.S. 833, 850 [112 S.Ct. 2791, 2806, 120 L.Ed.2d 674] (hereafter Casey).)1
In our assessment of liberty interests, we would do well to heed the advice of Justice Holmes: “[T]he word ‘liberty’ ... is perverted when it is held to prevent the natural outcome of a dominant opinion, unless it can be said that a rational and fair man necessarily would admit that the statute proposed would infringe fundamental principles as they have been understood by the traditions of our people and our law.” (Lochner v. New York (1905) 198 U.S. 45, 76 [25 S.Ct. 539, 547, 49 L.Ed. 937] (dis. opn. of Holmes, J.).) “The best that can be said is that through the course of this Court’s decisions it has represented the balance which our Nation, built upon postulates of respect for the liberty of the individual, has struck between that liberty and the demands of organized society. If the supplying of content to this Constitutional concept has of necessity been a rational process, it certainly has not been one where judges have felt free to roam where unguided speculation might take them. ... No formula could serve as a substitute, in this area, for judgment and restraint.” (Poe v. Ullman (1961) 367 U.S. 497, 542 [81 S.Ct. 1752, 1776, 6 L.Ed.2d 989] (dis. opn. of Harlan, J.).)
This is such a case. Its resolution demands delicate balance and exquisite restraint. We are faced with one of the most troubling paradoxes of human endeavor. Although liberty may find “no refuge in a jurisprudence of doubt” (Casey, supra, 505 U.S. at p. 844 [112 S.Ct. at p. 2803]), “[t]he spirit of liberty is the spirit which is not too sure that it is right” (Hand, The Spirit of Liberty, in The Spirit of Liberty (Dilliard edit. 1974) p. 190), for too much certainty is the surest way to extinguish liberty altogether. (Cf. Washington v. Glucksberg (1997) _ U.S. _, _ [117 S.Ct. 2258, 2275, 138 L.Ed.2d 772] [“Throughout the Nation, Americans are engaged in an earnest and profound debate about the morality, legality, and practicality of physician-assisted suicide. Our holding permits this debate to continue, as it should in a democratic society.”].)
Courts must speak with clarity and precision when the available tools are adequate to the task at hand, but when the claim at issue involves fundamentally moral and philosophical questions as to which there is no clear answer, [420]courts must remain tentative, recognizing the primacy of legislative prerogatives. The temptation always exists for judges to “wrap up their veto” of a legislative policy in a “protective veil of adjectives such as . . . ‘reasonable,’ ‘inherent,’ [or] ‘fundamental,’ . . . whose office usually, though quite innocently, is to disguise what they are doing and impute to it a derivation far more impressive than their personal preferences, which are all that in fact lie behind the decision.” (Hand, The Bill of Rights (Harv.U. Press 1958) p. 70.) Whether judges act innocently or deliberately, the harm to the body politic is the same. The very real danger we face when “courts foreclose ordinary politics in one area after another” is that the “democratic elements in our republican experiment will wither away, while new forms of tyranny by the powerful few arise.” (Scalia, Comment by Glendon in A Matter of Interpretation (Princeton U. Press 1997) p. 113.) “Whom should we fear more: an aroused populace, or the vanguard who know better than the people what the people should want?” (Ibid.)
The danger is most acute when the language to be interpreted is amorphous, vague, or general enough to provide broad scope for judicial policy-making and the court insists on creating its own standard, untethered to either the language, as used by its authors or, in the case of a constitution, the apparent intent of those who ratified it. The word “privacy” as used in the California Constitution, for example, has a meaning which can easily be derived from its history, context, and text. The controlling opinion reads this history backwards to infuse “privacy” with a meaning it did not clearly possess at the time of its enactment. As Jefferson warned us, “Laws are made for men of ordinary understanding, and should, therefore, be construed by the ordinary rules of common sense. Their meaning is not to be sought for in metaphysical subtleties, which may make anything[] mean everything or nothing, at pleasure.” (15 The Writings of Thomas Jefferson (Lipscomb edit. 1903) p. 450.)
The plurality goes to extraordinary lengths to declare Assembly Bill 2274 unconstitutional. The fundamental flaw running throughout its analysis is the utter lack of deference to the ordinary constraints of judicial decisionmaking—deference to state precedent, to federal precedent, to the collective judgment of our Legislature, and, ultimately, to the people we serve. The plurality begins by reinventing the legal standards governing facial constitutional challenges and proceeds to misapply its own new standards. Then, without any analytical foundation, it invokes the doctrine of independent state grounds, thereby disposing of two decades of highly pertinent United States Supreme Court precedent. Next, the plurality all but eliminates the threshold elements of a state privacy cause of action and misanalyzes what little remains of the elements. Finally, it subjects Assembly Bill 2274 to an [421]inherently insurmountable level of scrutiny, expressly disavowing any requirement of deference to the Legislature along the way.
A justice “is not to innovate at pleasure. He is not a knight-errant, roaming at will in pursuit of his own ideal of beauty or of goodness.” (Cardozo, The Nature of the Judicial Process, in Selected Writings of Benjamin Nathan Cardozo (Hall edit. 1947) p. 164.) It is impossible to know the motives of any other judge. I do not purport to do so here. It is fair, however, to criticize the reasoning and justifications presented in a judicial opinion. In this case, the court’s reliance on highly questionable premises to invalidate so eminently reasonable a statute invites cynicism.
I dissent.
II. Facial Constitutionality of Assembly Bill 2274
Not until two-thirds of the way through its opinion does the plurality address a dispositive procedural fact—namely, that this case involves a facial challenge to Assembly Bill 2274. “To support a determination of facial unconstitutionality, voiding the statute as a whole, [plaintiffs] cannot prevail by suggesting that in some future hypothetical situation constitutional problems may possibly arise as to the particular application of the statute .... Rather, [plaintiffs] must demonstrate that the act’s provisions inevitably pose a present total and fatal conflict with applicable constitutional prohibitions.” (Pacific Legal Foundation v. Brown (1981) 29 Cal.3d 168, 180-181 [172 Cal.Rptr. 487, 624 P.2d 1215], second italics added; see also Superior Court v. County of Mendocino (1996) 13 Cal.4th 45, 60-61 [51 Cal.Rptr.2d 837, 913 P.2d 1046]; Tobe v. City of Santa Ana (1995) 9 Cal.4th 1069, 1084 [40 Cal.Rptr.2d 402, 892 P.2d 1145]; Arcadia Unified School Dist. v. State Dept. of Education (1992) 2 Cal.4th 251, 267 [5 Cal.Rptr.2d 545, 825 P.2d 438].) In order to succeed on a facial challenge, plaintiffs must show that a statute or ordinance is unconstitutional “under any and all circumstances.” (Superior Court v. County of Mendocino, supra, 13 Cal.4th at p. 60, original italics; see also Tobe v. City of Santa Ana, supra, 9 Cal.4th at p. 1111 (conc. opn. of Werdegar, J.) [“in all its possible applications.”].) Plaintiffs have failed to make the requisite showing in this case.
There can be no question that Assembly Bill 2274 is constitutional as to minors who lack the capacity to give informed consent. As the plurality acknowledges (see plur. opn., ante, at pp. 355, 357), under our decision in Ballard v. Anderson (1971) 4 Cal.3d 873 [95 Cal.Rptr. 1, 484 P.2d 1345, 42 A.L.R.3d 1392], “there is an additional limitation implicit in each of the medical emancipation statutes: the minor must be of sufficient maturity to [422]give an informed consent to any treatment procedure. [Citation.] A minor of any age who is unable to convince competent medical authorities that she has the requisite understanding and maturity to give an informed consent for any medical treatment, including a therapeutic abortion, will be denied such treatment without the consent of either a parent or legal guardian” (Id. at p. 883, second italics added & fn. omitted.) Subsequent to our decision in Ballard, the United States Supreme Court held that a minor’s federal constitutional right to an abortion includes a right to nontherapeutic abortions and requires that, in lieu of parental consent, “the State must provide an alternative procedure whereby a pregnant minor may demonstrate that she is sufficiently mature to make the abortion decision herself or that, despite her immaturity, an abortion would be in her best interests.” (Akron v. Akron Center for Reproductive Health (1983) 462 U.S. 416, 439-440 [103 S.Ct. 2481, 2497-2498, 76 L.Ed.2d 687].) Thus, as the plurality must ultimately concede, the bypass procedure established by Assembly Bill 2274 is not only constitutional but constitutionally mandated for minors who are not capable of giving informed consent. (See plur. opn., ante, at p. 359, fn. 34.) The state must provide such a minor with a bypass option in addition to parental consent. (See People v. Brisendine (1975) 13 Cal.3d 528, 548 [119 Cal.Rptr. 315, 531 P.2d 1099 [state court’s interpretation of state law cannot “restrict the liberties guaranteed the entire citizenry under the federal charter”].)2 Because Assembly Bill 2274 is not unconstitutional in all its possible applications, it clearly survives a facial constitutional challenge.
Since Assembly Bill 2274 does not inevitably pose a present total and fatal conflict with applicable constitutional prohibitions, the plurality must resort to an overbreadth analysis. According to the plurality, such an analysis is required when “a statute, as written, broadly impinges upon fundamental constitutional privacy rights in its general, normal, and intended application.” (Plur. opn., ante, at p. 343; see also ibid, [direct and substantial impingement]; id. at p. 348 [broad and direct impingement].) Whatever the merits of this assertion in the abstract, there is no basis for resorting to the doctrine of overbreadth in this case. At the very most, the evidence at trial established what Assembly Bill 2274 was “likely” to do, “in some instances,” “at least to some extent.” (Plur. opn., ante, at pp. 355, 359; see also post, [423]at p. 439.) The statute does not impose a broad, direct, and substantial impingement in its general, normal, and intended application.3 (See post, at pp. 429-439.)
Moreover, as one of the plurality’s principal authorities explains, before a court declares a statute to be unconstitutional on overbreadth grounds, it must be “convinced that the [legislative] purpose can be achieved by regulations drawn more narrowly and precisely than is attempted by the statute [at issue].” (City of Carmel-by-the-Sea v. Young (1970) 2 Cal.3d 259, 270 [85 Cal.Rptr. 1, 466 P.2d 225, 37 A.L.R.3d 1313].) Although the plurality suggests “there may be a small subclass of persons covered by [Assembly Bill 2274] as to whom a similar but much more narrowly drawn statute constitutionally could be applied” (plur. opn., ante, at p. 343), in fact, the line drawn by the statute—age 18—is the only sensible one to draw. Plaintiffs themselves concede that the capacity to give informed consent varies in the case of each individual unemancipated minor. Thus, in response to our inquiry whether a 17-year-old girl is capable of giving informed consent, counsel answered, “Maybe, maybe not.” (See Bellotti v. Baird (1979) 443 U.S. 622, 643-644, fn. 23 [99 S.Ct. 3035, 3048, 61 L.Ed.2d 797] (plur. opn. of Powell, J.) (hereafter Bellotti II) [“[T]he peculiar nature of the abortion decision requires the opportunity for case-by-case evaluations of the maturity of pregnant minors.”]; see also Akron v. Akron Center for Reproductive Health, supra, 462 U.S. at pp. 441-442 [103 S.Ct. at pp. 2498-2499] [same]; Stanford v. Kentucky (1989) 492 U.S. 361, 396 [109 S.Ct. 2969, 2989, 106 L.Ed.2d 306] (dis. opn. of Brennan, J.) [“. . . 18 is the dividing line that society has generally drawn, the point at which it is thought reasonable to assume that persons have an ability to make, and a duty to bear responsibility for[,] their[] judgments. . . . [A]ge 18 is a necessarily arbitrary social choice as a point at which to acknowledge a person’s maturity and responsibility[.] [G]iven the different developmental rates of individuals, it is in fact ‘a conservative estimate of the dividing line between adolescence and adulthood. Many of the psychological and emotional changes that an adolescent experiences in maturing do not actually occur until the early 20s.’ ”].)
[424]Assembly Bill 2274 does not inevitably pose a present total and fatal conflict with applicable constitutional prohibitions, and there is no basis for applying an overbreadth analysis in this case. Plaintiffs’ facial challenge to the statute should be rejected on this basis alone.
III. Independent State Grounds
The plurality candidly acknowledges that the Legislature drafted Assembly Bill 2274 to comply with well-established United States Supreme Court precedent. (See plur. opn., ante, at pp. 324-325.) Nevertheless, the plurality, without any analysis or discussion, relegates nine United States Supreme Court decisions addressing the validity of parental involvement statutes to a single footnote (see id. at p. 324, fn. 11), resurrecting their language out of context only when necessary to reach its ultimate destination. (See, e.g., id. at pp. 333, 336, 337-338, fn. 22, 344, 350, fn. 26, 354, 359, fn. 34.) The plurality’s wholesale departure from more than 20 years of high court precedent is itself wholly unprecedented.
In an attempt to justify the departure, the plurality relies on the fact that under the California Constitution the right to privacy is explicit whereas under the United States Constitution the right is implicit. (See plur. opn., ante, at p. 326.) Granted. The express phrase “and privacy” was added to article I, section 1 of the California Constitution by an initiative adopted by the voters on November 7, 1972 (hereafter the Privacy Initiative). But it does not follow that we should ignore United States Supreme Court precedent in defining the state right. To the contrary, one of the principal sources we look to in order to discern the meaning of “privacy” as used in the Privacy Initiative is the “federal constitutional right, derived from various provisions of the Bill of Rights, that took distinct shape in United States Supreme Court decisions in the 1960’s safeguarding the rights of individuals and private entities from government invasion.” (Hill v. National Collegiate Athletic Assn. (1994) 7 Cal.4th 1, 23 [26 Cal.Rptr.2d 834, 865 P.2d 633] (hereafter Hill).) “The ballot arguments refer to the right to privacy as ‘an important American heritage and essential to the fundamental rights guaranteed by the First, Third, Fourth, and Ninth Amendments to the U.S. Constitution,’ thereby invoking the federal constitutional right to privacy as recognized in decisions of the United States Supreme Court. [Citation.] [^D The Privacy Initiative was placed before the voters following a two-thirds vote of each house of the Legislature. (Cal. Const., art. XVIII, § 1.) Testimony before the Assembly Constitution Committee, together with staff reports and analyses prepared for that committee and the Senate Constitution Committee, makes explicit reference to the federal constitutional right to privacy, particularly as it developed beginning with Griswold v. Connecticut (1965) 381 U.S. 479 [14 L.Ed.2d 510, 85 S.Ct. 1678].” (Hill, supra, 7 Cal.4th at p. 28.)
[425]Where, as here, a state constitutional protection was modeled on a federal constitutional right, we should be extremely reticent to disregard United States Supreme Court precedent delineating the scope and contours of that right. As this court unanimously recognized in Raven v. Deukmejian (1990) 52 Cal.3d 336 [276 Cal.Rptr. 326, 801 P.2d 1077], relied on by the plurality, “[a]s early as 1938, we stated that ‘cogent reasons must exist before a state court in construing a provision of the state Constitution will depart from the construction placed by the Supreme Court of the United States on a similar provision in the federal Constitution.’ [Citations.] [T [Our cases] acknowledge and support a general principle or policy of deference to United States Supreme Court decisions, a policy applicable in the absence of good cause for departure or deviation therefrom.” (Id. at p. 353, italics omitted; see also id. at p. 356 (conc. and dis. opn. of Mosk, J.) [joining the majority opinion on this issue].)
In the context of an unemancipated minor’s abortion decision, it is particularly appropriate to seek guidance from the high court and to follow this general policy of deference. The nine decisions addressing the constitutionality of parental involvement statutes reflect the collective wisdom of sixteen Supreme Court justices gleaned over the course of more than two decades. In Casey, the most recent parental consent decision, eight of the court’s nine justices concluded that parental consent statutes such as California’s were constitutional. (See Casey, supra, 505 U.S. at pp. 899-900 [112 S.Ct. at p. 2832] (plur. opn. of O’Connor, Kennedy, and Souter, JJ.); id. at p. 922, fn. 8 [112 S.Ct. at pp. 2843-2844] (conc. and dis. opn. of Stevens, J.); id. at pp. 970-971 [112 S.Ct. at pp. 2868-2869] (conc. and dis. opn. of Rehnquist, C. J.).) As I explain in greater detail below (see post, at pp. 429-439), the Supreme Court’s decisions in this area reflect a delicate balancing of a number of competing interests.
The only “cogent reason” the plurality articulates for departing from federal precedent is that the plurality opinion in Committee to Defend Reproductive Rights v. Myers (1981) 29 Cal.3d 252 [172 Cal.Rptr. 866, 625 P.2d 779] (hereafter Myers), “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.” (Plur. opn., ante, at p. 327, italics added.) Myers does not support this proposition. The Myers opinion concluded only that “the protection afforded the woman’s right of procreative choice as an aspect of the right of privacy under the explicit provisions of our Constitution is at least as broad as that described in Roe v. Wade [(1973) 410 U.S. 113 (93 S.Ct. 705, 35 L.Ed.2d 147)].” (Myers, supra, 29 Cal.3d at p. 281, italics added (plur. opn. of Tobriner, J.); see also Conservatorship of Valerie [426]N. (1985) 40 Cal.3d 143, 163 [219 Cal.Rptr. 387, 707 P.2d 760] [state and federal Constitutions afford “similar protection” to procreative choice].) Only by broadly misreading Myers can the plurality here avoid the analytical force of federal authority.
Assuming arguendo the state Constitution does afford greater protection to procreative choice, United States Supreme Court precedent surely remains relevant.4 More importantly, in the context of this case, the fact that the state right to privacy may afford greater protection does not alter the fundamental nature of the interests to be balanced. Rather, to the extent the state right to privacy affords greater protection to an unemancipated minor’s procreative choice, it affords at least commensurate protection to her family’s right to privacy. (See Ballot Pamp., Proposed Amends, to Cal. Const, with arguments to voters, Gen. Elec. (Nov. 7, 1972), argument in favor of Prop. 11, p. 27 [“The right of 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.” (Italics added.)].)
This explicit reference to “our homes” and “our families” demonstrates that the voters did not intend the Privacy Initiative to erect a barrier between an unemancipated minor and her own parents. To the contrary, the voters intended to incorporate well-established state and federal precedent affording a sphere of constitutional protection to our homes and families, a sphere that encompasses the right of parents to direct the moral and spiritual upbringing of their own children. (See, e.g., Moore v. East Cleveland (1977) 431 U.S. 494, 503-504 & fn. 12 [97 S.Ct. 1932, 1937-1938, 52 L.Ed.2d 531] (plur. opn. of Powell, J.); Ginsberg v. New York (1968) 390 U.S. 629, 639 [88 S.Ct. 1274, 1280, 20 L.Ed.2d 195]; see generally post, at pp. 429-432.) In other words, the same Constitution that protects an unemancipated minor’s privacy also protects “the private realm of family life which the state [427]cannot enter.” (Prince v. Massachusetts (1944) 321 U.S. 158, 166 [64 S.Ct. 438, 442, 88 L.Ed. 645].)
IV. Elements of a State Law Privacy Cause of Action
Having dramatically expanded the scope of the plurality holding in Myers, supra, 29 Cal.3d 252, the plurality here turns to our recent decision in Hill, supra, 1 Cal.4th 1. In Hill, following an extended discussion of the state constitutional right to privacy, this court held that “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; see also Heller v. Norcal Mutual Ins. Co. (1994) 8 Cal.4th 30, 42-43 [32 Cal.Rptr.2d 200, 876 P.2d 999] [same].)
Today, in a sentence whose length is exceeded only by its circuity, the plurality offers the following gloss on our holding in Hill: “ ‘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 diminish 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.’ ” (Plur. opn., ante, at pp. 330-331, original italics, quoting Loder v. City of Glendale (1997) 14 Cal.4th 846, 891 [59 Cal.Rptr.2d 696, 927 P.2d 1200] (lead opn. of George, C.J.) (hereafter Loder).) Amazingly, according to the plurality, the 58-page opinion in Hill, supra, 7 Cal.4th 1, did not establish any “significant new requirements.”
Again quoting from Loder, supra, 14 Cal.4th at page 893, the plurality tells us that the three elements established in Hill “ ‘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.’'' (Plur. opn., ante, at p. 331, italics added.) Instead, we are told, the [428]elements were designed simply to “ ‘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.’ ” (Ibid., italics added, quoting Loder, supra, 14 Cal.4th at p. 893 (lead opn. of George, C. J.).)
This strained interpretation of Hill has never been endorsed by a majority of this court. And with good reason. It is inconceivable that when the court in Hill required and in Heller reiterated that “[a]ctionable invasions of privacy must be sufficiently serious in their nature, scope, and actual or potential impact to constitute an egregious breach of the social norms underlying the privacy right” (Hill, supra, 7 Cal.4th at p. 37; Heller v. Norcal Mutual Ins. Co., supra, 8 Cal.4th at p. 44), it really meant the invasions need only be “nontrivial”—that is, not “insignificant” or “de minimis.” (See Hill, supra, 7 Cal.4th at pp. 67-68 & fn. 1 (conc. and dis. opn. of George, J.).) Only Lewis Carroll could countenance this sleight of hand.5
“There is enough confusion in the law. We should say what we mean and mean what we say.” (Hill, supra, 7 Cal.4th at p. 57.) Courts should guard against the appearance of “limitless manipulation” lest they “endanger the very legitimacy that has been the great accomplishment of American constitutionalism.” (Casper, Constitutionalism, in 2 Encyclopedia of the American Const. (Levy et al. edits. 1986) p. 480.)
V. Presence of Requisite Elements in this Case
The plurality purports to find that plaintiffs meet the Hill criteria. It does so only by a determinedly superficial application of its elements.
A. Legally Protected Privacy Interest
“The first essential element of a state constitutional cause of action for invasion of privacy is the identification of a specific, legally protected privacy interest. Whatever their common denominator, privacy interests are best assessed separately and in context. Just as the right to privacy is not absolute, privacy interests do not encompass all conceivable assertions of individual rights.” (Hill, supra, 7 Cal.4th at p. 35.) “Whether established [429]social norms safeguard a particular type of information or protect a specific personal decision from public or private intervention is to be determined from the usual sources of positive law governing the right to privacy— common law development, constitutional development, statutory enactment, and the ballot arguments accompanying the Privacy Initiative.” (Id. at p. 36.)
1. The Unique Status of Unemancipated Minors
The plurality correctly concludes “there can be no question but that minors, as well as adults, possess a constitutional right of privacy under the California Constitution.” (Plur. opn., ante, at p. 334.) This conclusion, however, marks only the beginning, not the end, of the analysis. The fact that minors enjoy a state constitutional right to privacy does not mean that their privacy interests are coextensive with those of adults. (Cf. In re Roger S. (1977) 19 Cal.3d 921, 927-928 [141 Cal.Rptr. 298, 569 P.2d 1286] [“ ‘Constitutional rights do not matine and come into being magically only when one attains the state-defined age of majority. Minors, as well as adults, are protected by the Constitution and possess constitutional rights.’ [Citation.] [1 It is equally well established, however, that the liberty interest of a minor is not coextensive with that of an adult.”].)
The law has long recognized the unique status of minors. “As Mr. Justice Frankfurter aptly put it: ‘Children have a very special place in life which law should reflect. Legal theories and their phrasing in other cases readily lead to fallacious reasoning if uncritically transferred to determination of a State’s duty towards children.’ May v. Anderson, 345 U.S. 528, 536 [73 S.Ct. 840, 844-845, 97 L.Ed. 1221] (1953) (concurring opinion). The unique role in our society of the family, the institution by which ‘we inculcate and pass down many of our most cherished values, moral and cultural,’ Moore v. East Cleveland, 431 U.S. 494, 503-504 [97 S.Ct. 1932, 1937-1938, 52 L.Ed.2d 531] (1977) (plurality opinion), requires that constitutional principles be applied with sensitivity and flexibility to the special needs of parents and children. . . . [T]hree reasons justify[] the conclusion that the constitutional rights of children cannot be equated with those of adults: the peculiar vulnerability of children; their inability to make critical decisions in an informed, mature manner; and the importance of the parental role in child rearing.” (Bellotti II, supra, 443 U.S. at pp. 633-634 [99 S.Ct. at p. 3043] (plur. opn. of Powell, J.).)
“[I]t has been of profound importance in all legal inquiries involving children that minors are presumed by all phases of the law (and by the culture reflected by our law) not to have the same basic capacities as adults.” (Hafen, Children’s Liberation and the New Egalitarianism: Some Reservations About Abandoning Youth to Their “Rights” (1976) BYU L.Rev. 605, [430646]-647.) The courts have generally recognized the prevailing understanding in our society that the typical child is not possessed of full capacity for individual choice. “ ‘[M]inors are treated differently from adults in our laws, which reflects the simple truth derived from communal experience, that juveniles as a class have not the level of maturation and responsibility that we presume in adults and consider desirable for full participation in the rights and duties of modem life.’ ” (Hodgson v. Minnesota (1990) 497 U.S. 417, 459 [110 S.Ct. 2926, 2949, 111 L.Ed.2d 344] (conc. opn. of O’Connor, J., quoting Stanford v. Kentucky, supra, 492 U.S. at p. 395 [109 S.Ct. at pp. 2988-2989] (dis. opn. of Brennan, J.).) The fact there may be exceptions only serves to validate this truism.
The privacy interests of an unemancipated minor are particularly limited vis-á-vis her own parents. “Parents, of course, have powers greater than that of the state to curtail a child’s exercise of the constitutional rights he may otherwise enjoy, for a parent’s own constitutionally protected ‘liberty’ includes the right to ‘bring up children’ [citation], and to ‘direct the upbringing and education of children.’ ” (In re Roger S., supra, 19 Cal.3d at p. 928.) Thus, in the closely related context of liberty, we have observed, “[t]he liberty interest of a minor is qualitatively different than that of an adult, being subject both to reasonable regulation by the state to an extent not permissible with adults [citations], and to an even greater extent to the control of the minor’s parents unless ‘it appears that the parental decisions will jeopardize the health or safety of the child or have a potential for significant social burdens.’ ” (Id. at p. 934.)
A parent’s interest in directing his child’s upbringing is firmly rooted in both the state and federal Constitutions. It is “a compelling one, ranked among the most basic of civil rights.” (In re B.G. (1974) 11 Cal.3d 679, 688 [114 Cal.Rptr. 444, 523 P.2d 244]; see also In re Roger S., supra, 19 Cal.3d at p. 934.) As Justice Powell explained in Bellotti II, supra, 443 U.S. 622:
“[T]he guiding role of parents in the upbringing of their children justifies limitations on the freedoms of minors. The State commonly protects its youth from adverse governmental action and from their own immaturity by requiring parental consent to or involvement in important decisions by minors. But an additional and more important justification for state deference to parental control over children is that ‘ [t]he child is not the mere creature of the State; those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations.’ Pierce v. Society of Sisters, 268 U.S. 510, 535 [45 S.Ct. 571, 573-574, 69 L.Ed. 1070, 39 A.L.R. 468] (1925). ‘The duty to prepare the child for “additional obligations” . . . must be read to include the [431]inculcation of moral standards, religious beliefs, and elements of good citizenship. Wisconsin v. Yoder, 406 U.S. 205, 233 [92 S.Ct. 1526, 1544, 32 L.Ed.2d 15] (1972). This affirmative process of teaching, guiding, and inspiring by precept and example is essential to the growth of young people into mature, socially responsible citizens.
“We have believed in this country that this process, in large part, is beyond the competence of impersonal political institutions. Indeed, affirmative sponsorship of particular ethical, religious, or political beliefs is something we expect the State not to attempt in a society constitutionally committed to the ideal of individual liberty and freedom of choice. Thus, ‘[i]t is cardinal with us that the custody, care and nurture of the child reside first in the parents, whose primary function and freedom include preparation for obligations the state can neither supply nor hinder.' Prince v. Massachusetts, supra, [321 U.S.] at [p.] 166 [64 S.Ct. at p. 442] (emphasis added).
“Unquestionably, there are many competing theories about the most effective way for parents to fulfill their central role in assisting their children on the way to responsible adulthood. While we do not pretend any special wisdom on this subject, we cannot ignore that central to many of these theories, and deeply rooted in our Nation’s history and tradition, is the belief that the parental role implies a substantial measure of authority over one’s children. Indeed, ‘constitutional interpretation has consistently recognized that the parents’ claim to authority in their own household to direct the rearing of their children is basic in the structure of our society.’ Ginsberg v. New York, [390 U.S.] at [p.] 639 [88 S.Ct. at p. 1280].
“Properly understood, then, the tradition of parental authority is not inconsistent with our tradition of individual liberty; rather, the former is one of the basic presuppositions of the latter. Legal restrictions on minors, especially those supportive of the parental role, may be important to the child’s chances for the full growth and maturity that make eventual participation in a free society meaningful and rewarding. Under the Constitution, the State can ‘properly conclude that parents and others, teachers for example, who have [the] primary responsibility for children’s well-being are entitled to the support of laws designed to aid discharge of that responsibility.’ Ginsberg v. New York, 390 U.S., at 639 [88 S.Ct. at p. 1280].” (Bellotti II, supra, 443 U.S. at pp. 637-639 [99 S.Ct. at pp. 3045-3046], fns. omitted (plur. opn. of Powell, J.).)
Because it fails to consult “the usual sources of positive law governing the right to privacy” (Hill, supra, 7 Cal.4th at p. 36), the plurality does not acknowledge, much less justify, its decision to infringe on a liberty interest [432]historically more sacrosanct than a minor’s right to privacy. There is no solace in the knowledge that the plurality’s decision does not prohibit minors from confiding in their parents. It does prohibit this legislative attempt to encourage minors to confide, and this prohibition cannot be altered without a constitutional amendment. We ought to think long and hard before constructing a virtually impregnable citadel. “By extending constitutional protection to an asserted right or liberty interest, we, to a great extent, place the matter outside the arena of public debate and legislative action. We must therefore ‘exercise the utmost care whenever we are asked to break new ground in this field,’ [citation] lest the liberty protected ... be subtly transformed into the policy preferences of the members of this Court.” (Washington v. Glucksberg, supra, _ U.S. at p. _ [117 S.Ct. at pp. 2267-2268].) Scholar Raoul Berger asks the rhetorical question: “How long can public respect for the Court, on which its power ultimately depends, survive if the people become aware that the tribunal which condemns the acts of others as unconstitutional is itself acting unconstitutionally? Respect for the limits on power are the essence of a democratic society; without it the entire democratic structure is undermined.” (Berger, Government by Judiciary (2d ed. 1997) pp. 459-460.)
2. The Unique Context of Abortion
The plurality does not seriously dispute any of these fundamental principles. Indeed, it acknowledges that “[a]s 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." (Plur. opn., ante, at pp. 335-336.) According to the plurality, however, “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.” (Id. at p. 336.)
The plurality’s conclusion that in the abortion context—and possibly only in the abortion context—an unemancipated minor’s privacy interests are coextensive with those of an adult (plur. opn., ante, at p. 337 & fn. 21) is indefensible. Ironically, in attempting to justify its decision to treat abortion differently, the plurality quotes extensively from Justice Powell’s plurality opinion in Bellotti II, supra, 443 U.S. 622, observing, among other things, that “ ‘[t]he abortion decision differs in important ways from other decisions that may be made during minority’ ” and that “ ‘there are few situations in which denying a minor the right to make an important decision will have consequences so grave and indelible.’ ” (Plur. opn., ante, at p. 336, italics [433]added, quoting Bellotti II, supra, 443 U.S. at p. 642 [99 S.Ct. at p. 3047] (plur. opn. of Powell, J.).)
What the plurality fails to appreciate is that, unlike the Massachusetts statute at issue in Bellotti II, Assembly Bill 2274 does not deny a mature unemancipated minor the right to make her own abortion decision. Rather, our Legislature has established precisely the procedure approved in Bellotti II and in several subsequent decisions of the United States Supreme Court. Specifically, although Assembly Bill 2274 requires an unemancipated minor to obtain the written consent of one of her parents, it also “provide[s] an alternative procedure whereby authorization for the abortion can be obtained. [^0 A pregnant minor is entitled in such a proceeding to show either: (1) that she is mature enough and well enough informed to make her abortion decision, in consultation with her physician, independently of her parents’ wishes; or (2) that even if she is not able to make this decision independently, the desired abortion would be in her best interests. The proceeding in which this showing is made . . . assure[s] that a resolution of the issue, and any appeals that may follow, will be completed with anonymity and sufficient expedition to provide an effective opportunity for an abortion to be obtained. In sum, the procedure . . . ensure[s] that the provision requiring parental consent does not in fact amount to the ‘absolute, and possibly arbitrary, veto’ that was found impermissible in [Planned Parenthood of Missouri v.] Danforth [(1976) 428 U.S. 52 (96 S.Ct. 2831, 49 L.Ed.2d 788)].” (Bellotti II, supra, 443 U.S. at pp. 643-644 [99 S.Ct. at p. 3048], fns. omitted (plur. opn. of Powell, J.); see also Akron v. Akron Center for Reproductive Health, supra, 462 U.S. at pp. 439-440 [103 S.Ct. at pp. 2497-2498].)
The plurality’s statement that Assembly Bill 2274 “restricts a pregnant individual’s ability to decide on her own whether to continue or to terminate her pregnancy” (plur. opn., ante, at p. 334) fails to account for the differences between unemancipated minors who are capable of giving informed consent and those who are not. Under Assembly Bill 2274, only unemancipated minors who lack the capacity to give informed consent are restricted in their ability to decide on their own whether to continue or terminate their pregnancies. (See former Health & Saf. Code, § 25958, subd. (c)(2), now § 123450, subd. (c)(2) [“If the court finds that the minor is not sufficiently mature and sufficiently informed to make the decision on her own regarding an abortion, the court shall then consider whether performance of the abortion would be in the best interest of the minor. In the event that the court finds that the performance of the abortion would be in the minor’s best interest, the court shall grant the petition ordering the performance of the abortion without consent of, or notice to, the parents or guardian. In the [434]event that the court finds that the performance of the abortion is not in the best interest of the minor, the court shall deny the petition.” (Italics added.)].) As to such immature unemancipated minors, Assembly Bill 2274 establishes the constitutionally mandated bypass procedure. (See ante, at pp. 421-423.) Unemancipated minors who are capable of giving informed consent, by contrast, are not restricted in their ability to decide on their own whether to continue or terminate their pregnancies. (See former Health & Saf. Code, § 25958, subd. (c)(1), now § 123450, subd. (c)(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.” (Italics added.)].)
The plurality significantly downplays the difficulties with its approach when it acknowledges, “[t]he 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.” (Plur. opn., ante, at p. 335, italics added.) Since Assembly Bill 2274 contains a judicial bypass procedure, under which an unemancipated minor need never consult her parents at all, it is a gross mischaracterization of the statute to say that it “condition[s] the minor’s exercise of his or her constitutional privacy right upon parental consent.” (Ibid.) As noted above, our cases establish that an implicit limitation in any medical emancipation statute is that “[a] minor of any age” must “convince competent medical authorities that she has the requisite understanding and maturity to give an informed consent for any medical treatment, including a[n] . . . abortion.” (Ballard v. Anderson, supra, 4 Cal.3d at p. 883; see also plur. opn., ante, at p. 355.) In other words, someone must determine whether an individual unemancipated minor, regardless of her age, has the capacity to give informed consent.
Properly viewed, Assembly Bill 2274 simply shifts the determination of whether an individual unemancipated minor has the capacity to give informed consent from a physician to a disinterested judicial officer. In the alternative, the statute gives an unemancipated minor the option of seeking the consent of one of her parents. If requiring an unemancipated minor to convince a physician that she has the requisite understanding and maturity to give informed consent to an abortion does not offend the Constitution, I cannot fathom how it can be unconstitutional to require her to convince a disinterested judicial officer of the same fact or, alternatively, to seek parental consent.
The plurality mistakenly responds that there is no indication in the record that the Legislature was concerned with the potential for physician bias [435]when it enacted Assembly Bill 2274. (Plur. opn., ante, at pp. 357-358.) But that is beside the point. There is also no proof the Legislature concluded these concerns were irrelevant. In fact, the potential for physician bias was brought to the attention of the Senate Committee on Health and Human Services by outside proponents of the bill, who were dissatisfied with the bill analysis prepared by committee staff. They submitted an alternative legislative analysis to the committee, which specifically observed that “[m]any of the opponents of AB 2274 are engaged in the business of offering abortion services and giving ‘counsel’ to pregnant women, including teenagers. Obviously, they have a direct conflict-of-interest (profit) when it comes to giving counsel to frightened teenagers who have unplanned pregnancies.” (See Legis. Analysis Supporting Assem. Bill No. 2274, Sen. Com. on Health & Human Services, Aug. 19, 1987, p. 28.) Moreover, as the plurality recognizes, one of the primary reasons for requiring “parental or other legally authorized consent” as a precondition to medical treatment for unemancipated minors is to “safeguard[] them from the potential overreaching of third parties.” (Plur. opn., ante, at p. 315; see also Bellotti II, supra, 443 U.S. at p. 641, fn 21 [99 S.Ct. at p. 3047] (plur. opn. of Powell, J.) [Minors “are less likely than adults to know or be able to recognize ethical, qualified physicians.”].) Finally, as the plurality freely admits, the Legislature drafted Assembly Bill 2274 with United States Supreme Court precedent in mind. (Plur. opn., ante, at pp. 324-325.) The high court’s decisions question the advisability of relying on physicians to counsel minors on their abortion decisions. (See, e.g., H. L. v. Matheson (1981) 450 U.S. 398, 409-410 [101 S.Ct. 1164, 1171, 67 L.Ed.2d 388] [““‘There can be little doubt that the State furthers a constitutionally permissible end by encouraging an unmarried pregnant minor to seek the help and advice of her parents in making the very important decision whether or not to bear a child. That is a grave decision, and a girl of tender years, under emotional stress, may be ill-equipped to make it without mature advice and emotional support. It seems unlikely that she will obtain adequate counsel and support from the attending physician at an abortion clinic, where abortions for pregnant minors frequently take place.” ’ ”]; Bellotti II, supra, 443 U.S. at pp. 640-641 [99 S.Ct. at pp. 3046-3047] (plur. opn. of Powell, J.) [same]; Planned Parenthood of Missouri v. Danforth (1976) 428 U.S. 52, 91 [96 S.Ct. 2831, 2851, 49 L.Ed.2d 788] (conc. opn. of Stewart, J.) [same].)
Nor is it dispositive that “in numerous analogous contexts the Legislature has authorized minors to obtain medical care without parental consent or judicial authorization, thus recognizing the general competence of health care professionals to determine whether a minor is capable of giving informed consent. (See, e.g., Fam. Code, §§ 6925 [prenatal care], 6926 [care for communicable disease], 6927 [care for rape], 6928 [care for sexual [436]assault], 6929 [care for drug or alcohol related problem].)” (Plur. opn., ante, at p. 358.) Unlike prenatal care, unlike care for communicable disease, unlike care for rape, unlike care for sexual assault, and unlike care for drug or alcohol related problems, abortion “ ‘is a subject upon which reasonable people can, and do, adhere to vastly divergent convictions and principles.’ ” (Id. at p. 313, quoting Myers, supra, 29 Cal.3d at p. 284 (plur. opn. of Tobriner, J.).) Since “ ‘[t]he abortion decision differs in important ways from other decisions that may be made during minority’ ” (plur. opn., ante, at p. 336), it was certainly not unreasonable for the Legislature to conclude that, in the unique context of abortion, it wanted a disinterested judicial officer, rather than a physician in the business of performing abortions, to make the informed consent determination.
3. The Relevance of Social Norms
Finally, the plurality maintains that “the circumstances that the statute involves minors rather than adults, and is concerned with furthering the parent-child relationship” are relevant only when “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.” (Plur. opn., ante, at p. 337; see also id. at pp. 334, 341-342.) My disagreement with this conclusion could not be more profound. The one factor common to each of the three threshold elements of a cause of action for violation of the state constitutional right to privacy is the incorporation of social norms. (See Hill, supra, 7 Cal.4th at pp. 35-36 [existence of a “legally protected privacy interest” turns on “established social norms”]; id. at pp. 36-37 [existence of a “reasonable expectation of privacy” turns on “broadly based and widely accepted community norms”]; id. at p. 37, italics omitted [existence of a “[s]erious invasion of [a] privacy interest” turns on “an egregious breach of the social norms underlying the privacy right”].) To say that the social norms underlying the incapacity of unemancipated minors in general and the parent-child relationship in particular are not relevant until “a subsequent stage of the analysis” (plur. opn., ante, at p. 337) is revisionist legal history at its best and judicial activism at its worst. By deferring consideration of these factors, the plurality condemns to second-class status the protections expressly afforded to “our homes” and “our families” by the Privacy Initiative. (See ante, at p. 426.)
B. Reasonable Expectation of Privacy
“The second essential element of a state constitutional cause of action for invasion of privacy is a reasonable expectation of privacy on plaintiff’s part.” (Hill, supra, 7 Cal.4th at p. 36.)
[437]The plurality summarily addresses this element as follows: “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.” (Plur. opn., ante, at pp. 338-339, original italics.)
The plurality’s analysis is circular, referencing a “reasonable expectation of privacy” without explaining what that term means legally. As we explained in Hill, supra, 1 Cal.4th at page 37, “[a] ‘reasonable’ expectation of privacy is an objective entitlement founded on broadly based and widely accepted community norms. (See, e.g., Rest.2d Torts, [] § 652D, com. c [‘The protection afforded to the plaintiff’s interest in his privacy must be relative to the customs of the time and place, to the occupation of the plaintiff and to the habits of his neighbors and fellow citizens.’].)” (See also Heller v. Norcal Mutual Ins. Co., supra, 8 Cal.4th at pp. 43-44 [same]; cf. Washington v. Glucksberg, supra, _ U.S. at p. _ [117 S.Ct. at p. 2268] [“Our Nation’s history, legal traditions, and practices . . . provide the crucial ‘guideposts for responsible decisionmaking.’ ”].) Under Hill and its progeny, the social norms reflected in both case law and statutory law—the nine decisions of the United States Supreme Court (plur. opn., ante, at pp. 324-325, fn. 11), the “numerous abortion/parental consent statutes in other states” (id. at p. 339), and “the general statutory rule requiring a minor to obtain parental consent for medical care” (id. at p. 338)—clearly demonstrate that Assembly Bill 2274 does not implicate any “reasonable expectation of privacy.”
Indeed, it was a concept of privacy consonant with community norms that the drafters invoked when they authored the Privacy Initiative, and we must conclude this commonly understood meaning is what the electorate ratified. As Justice Story recognized, “[constitutions are not designed for metaphysical or logical subtleties.” (3 Story, Commentaries on the Constitution of the United States (Rotunda et al. edits. 1987) § 210, p. 157.) Constitutions are “instruments of a practical nature, founded on the common business of human life, adapted to common wants, designed for common use, and fitted for common understandings. The people make them; the people adopt them; the people must be supposed to read them, with the help of common sense; and cannot be presumed to admit in them any recondite meaning, or any extraordinary gloss.” (Id. at pp. 157-158.)
[438]The plurality’s assertion that plaintiffs have demonstrated a “reasonable expectation of privacy” because “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” (plur. opn., ante, at p. 338, original italics) is disingenuous. The fact that Assembly Bill 2274 applies only to unemancipated minors and not to emancipated minors or adults is a specific setting and a limited context. Like the parental involvement statutes of most other states and in line with the requirements set out in nine high court decisions, Assembly Bill 2274 encourages but does not mandate that an unemancipated minor consult her parents prior to obtaining an abortion. (See, e.g., H. L. v. Matheson, supra, 450 U.S. at pp. 409-410 [101 S.Ct. at pp. 1171-1172]; Bellotti II, supra, 443 U.S. at pp. 640-641, 648 [99 S.Ct. at pp. 3046-3047, 3050-3051] (plur. opn. of Powell, J.).) The bypass procedure established by Assembly Bill 2274 reflects a delicate, time-honored balancing of the privacy interests of the unemancipated minor, the liberty interests of her parents, and the state’s compelling interest in her health and welfare, both physical and emotional. For these reasons, it does not implicate any “reasonable expectation of privacy.”
C. Serious Invasion of a Privacy Interest
The third essential element of a state constitutional cause of action for invasion of privacy is a “[s]erious invasion of [a] privacy interest[.]” (Hill, supra, 7 Cal.4th at p. 37, italics omitted.) “Actionable invasions of privacy must be sufficiently serious in their nature, scope, and actual or potential impact to constitute an egregious breach of the social norms underlying the privacy right. Thus, the extent and gravity of the invasion is an indispensable consideration in assessing an alleged invasion of privacy.” (Ibid.; see also Heller v. Norcal Mutual Ins. Co., supra, 8 Cal.4th at p. 44 [same].)
The plurality begins its analysis of this element by reiterating “ ‘that this element is intended simply to screen out intrusions on privacy that are de minimis or insignificant.’ ” (Plur. opn., ante, at p. 339, quoting Loder, supra, 14 Cal.4th at p. 895, fn. 22 (lead opn. of George, C. J.).) As noted earlier, this reincarnation of Hill eviscerates the requirement that an actionable invasion of privacy constitute an “egregious breach of . . . social norms.” (See ante, at pp. 427-428.) The plurality’s analysis of this element is faulty in a number of other respects as well.
For instance, the plurality asserts that Assembly Bill 2274 “significantly intrudes upon autonomy privacy” by “den[ying] a pregnant minor, who believes it is in her best interest to temínate her pregnancy rather than have a child at such a young age, control over her own destiny.” (Plur. opn., ante, [439]at p. 339.) As explained above, however, the statute merely shifts the determination of whether an individual unemancipated minor has the capacity to give informed consent from a physician to a disinterested judicial officer. Far from denying a mature unemancipated minor “control over her own destiny” (ibid.), the statute actually guarantees her the right to make her own abortion decision. (See ante, at pp. 433-434.) As such, Assembly Bill 2274 surely does not effect a serious invasion of a privacy interest. (See Washington v. Glucksberg, supra, _ U.S. at p. _ [117 S.Ct. at p. 2271] [“That many of the [constitutionally protected] rights and liberties . . . sound in personal autonomy does not warrant the sweeping conclusion that any and all important, intimate, and personal decisions are so protected.”].)
The plurality also maintains that “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.” (Plur. opn., ante, at p. 339.) Once again, the plurality fails to appreciate the nature of a facial challenge to a statute. The fact that “in many instances” the statute may increase “at least to some extent” the health risks associated with an abortion (ibid.) is insufficient to establish the facial unconstitutionality of the statute. (See ante, at pp. 421-424.) In fact, the United States Supreme Court has considered and rejected this very line of argument. In Ohio v. Akron Center for Reproductive Health (1990) 497 U.S. 502 [110 S.Ct. 2972, 111 L.Ed.2d 405], the plaintiffs argued that a judicial bypass procedure was inadequate because, under certain circumstances, it could result in a three-week delay, which “could increase by a substantial measure both the costs and the medical risks of an abortion.” (Id. at p. 513 [110 S.Ct. at p. 2980].) The high court rejected this argument, reasoning as follows: “[B]ecause [plaintiffs] are making a facial challenge to a statute, they must show that ‘no set of circumstances exists under which the Act would be valid.’ [Citation.] The Court of Appeals should not have invalidated the Ohio statute on a facial challenge based upon a worst-case analysis that may never occur. [Citation.] Moreover, under our precedents, the mere possibility that the procedure may require up to 22 days in a rare case is plainly insufficient to invalidate the statute on its face.” (Id. at p. 514 [110 S.Ct. at pp. 2980-2981].)
VI. Appropriate Level of Scrutiny
In my view, plaintiffs have failed to establish each of the three requisite elements of a state constitutional cause of action for invasion of privacy, and, for that reason alone, defendants should prevail. (See Hill, supra, 7 Cal.4th at p. 40.) Because the plurality concludes otherwise, it is necessary [440]to examine the state’s affirmative defense. (Ibid.) Thus, I turn to the appropriate level of scrutiny to which Assembly Bill 2274 should be subjected.
The plurality concludes that the statute must be subjected to strict scrutiny. The significance of the plurality’s decision to apply a “compelling interest” test cannot be overstated. Whether an interest is protected, what level of scrutiny is appropriately applied to any infringement, and who has the burden of proof depend on how the interest is characterized in the first instance. As we recognized in Hill, “strict scrutiny generally functions as a judicial ‘trump card,’ invalidating any attempt at state regulation.” (Hill, supra, 7 Cal.4th at p. 30; see also id. at p. 37.) It also shifts the burden of proof. Instead of deferring to legislative findings of fact, the analysis begins by assuming the interest in question is constitutionally protected and requires the state to prove normative presuppositions that are incapable of objective proof. (Hafen, The Constitutional Status of Marriage, Kinship, and Sexual Privacy—Balancing the Individual and Social Interests (1983) 81 Mich. L.Rev. 463, 548-550; see also Dunn v. Blumstein (1972) 405 U.S. 330, 363-364 [92 S.Ct. 995, 1013, 31 L.Ed.2d 274] (dis. opn. of Burger, C. J.) [“Some lines must be drawn. To challenge such lines by the ‘compelling state interest’ standard is to condemn them all. So far as I am aware, no state law has ever satisfied this seemingly insurmountable standard, and I doubt one ever will, for it demands nothing less than perfection.”].) The plurality’s decision to apply a “compelling interest” test is thus tantamount to declaring Assembly Bill 2274 unconstitutional. (See Kurland, The Supreme Court, Compulsory Education, and the First Amendment’s Religion Clauses (1973) 75 W.Va. L.Rev. 213, 232 [The “compelling interest” test imposes such a severe burden of justification on the state as to be “a statement of a conclusion rather than a measure of constitutionality.”].)
The plurality justifies its decision to apply a “compelling interest” test, the highest level of constitutional scrutiny, by quoting the following passage from Hill: “ ‘[[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.’ ” (Plur. opn., ante, at p. 340, adding italics, quoting Hill, supra, 7 Cal.4th at p. 34; see also plur. opn., ante, at pp. 329-330.)
Based on the italicized portion of the quotation, the plurality concludes that a “compelling interest” test is required whenever an interest fundamental to personal autonomy is at stake. The full passage from Hill does not [441]support this proposition. Rather, it requires that “the nature and seriousness of the invasion and any countervailing interests” also be taken into account in determining the appropriate level of scrutiny. (Hill, supra, 7 Cal.4th at p. 34.) Significantly for the present purposes, where the privacy interest at stake is “in bona fide dispute,” a general balancing test is employed. (Ibid.)
As discussed above, Assembly Bill 2274 burdens an unemancipated minor’s privacy interest only by requiring her to convince a disinterested judicial officer, rather than a physician, that she has the capacity to give informed consent. The statute guarantees a mature unemancipated minor the right to make her own abortion decision. (See ante, at pp. 433-434.) Under these circumstances, “the nature and seriousness of the invasion” do not warrant the application of a “compelling interest” test. (Hill, supra, 7 Cal.4th at p. 34; see also id. at p. 79 (dis. opn. of Mosk, J.) [“[C]onduct adversely affecting, but not abridging, an established right of privacy may be allowed if reasonable.”]; id. at pp. 85, 107.) Nor does the fact that Assembly Bill 2274 encourages an unemancipated minor to consult with her parents warrant the application of a “compelling interest” test. Rather, in this regard, the statute effects a reasonable accommodation of “countervailing interests.” (Hill, supra, 7 Cal.4th at p. 34.) To put it another way, at most the privacy interest at stake in this case is “in bona fide dispute,” and, hence, a general balancing test ought to apply. (Ibid.)
The fundamental problem with the plurality’s approach to constitutional jurisprudence is that it allows the courts to topple every cultural icon, to dismiss all societal values, and to become the final arbiters of traditional morality in a context in which their view of wisdom cannot be challenged. “[T]he judiciary can change the most fundamental patterns of our social character with no real proof that the change will be for the better—or, in the long run, even tolerable.” (Hafen, The Constitutional Status of Marriage, Kinship, and Sexual Privacy—Balancing the Individual and Social Interests, supra, 81 Mich. L.Rev. at p. 550.) That is why legislatures must be accorded broad deference on issues as to which reasonable minds can differ and why courts must exercise reasoned judgment and self-restraint.
Balance is the Holy Grail for courts in a constitutional system: to strike a balance between the will of majorities, the rights of minorities, and the insatiable appetite of political institutions for power. To preserve a healthy equilibrium in a world hell-bent for absolutes, that is the judiciary’s crucial and difficult role. Today, the plurality abandons this historic and irreplaceable legacy with a shrug and without a backward glance.
[442]VII. Review of Assembly Bill 2274 Under the Appropriate Level of Scrutiny
A. Deference to the Legislative Process
If there were any doubt that a “compelling interest” test functions as a judicial trump card, the plurality promptly dispels it by expressly disavowing any requirement of deference to the legislative process. Thus, the plurality explains, “ ‘[[t]]he ordinary deference a court owes to any legislative action vanishes when constitutionally protected rights are threatened.’ ” (Plur. opn., ante, at p. 349, italics added, quoting Spiritual Psychic Science Church v. City of Azusa (1985) 39 Cal.3d 501, 514 [217 Cal.Rptr. 225, 703 P.2d 1119].) “Vanishing” acts may be appropriate to the lexicon of a magician whose task is to make things disappear. It cannot seriously be used to describe the work of a judiciary cognizant of the inherent limits of our constitutional scheme. Smoke and mirrors should be no part of our repertoire.
Even if this sweeping principle of “vanishing” deference were correct in the First Amendment context, no rationale justifies extending the principle beyond that limited realm. (See Professional Engineers v. Department of Transportation (1997) 15 Cal.4th 543, 577-578 [63 Cal.Rptr.2d 467, 936 P.2d 473] (dis. opn. of Baxter, J.); see also id. at p. 605 (dis. opn. of Ardaiz, J.).) As we recently observed in Amwest Surety Ins. Co. v. Wilson (1995) 11 Cal.4th 1243, 1252 [48 Cal.Rptr.2d 12, 906 P.2d 1112], “‘[i]n considering the constitutionality of a legislative act we presume its validity, resolving all doubts in favor of the Act. Unless conflict with a provision of the state or federal Constitution is clear and unquestionable, we must uphold the Act. [Citations.]”’ (Italics added; see also People v. Sanders (1990) 51 Cal.3d 471, 495 [273 Cal.Rptr. 537, 797 P.2d 561]; County of Sonoma v. State Energy Resources Conservation etc. Com. (1985) 40 Cal.3d 361, 368 [220 Cal.Rptr. 114, 708 P.2d 693]; California Housing Finance Agency v. Elliott (1976) 17 Cal.3d 575, 594 [131 Cal.Rptr. 361, 551 P.2d 1193]; Eye Dog Foundation v. State Board of Guide Dogs for the Blind (1967) 67 Cal.2d 536, 544-545 [63 Cal.Rptr. 21, 432 P.2d 717].) “ ‘ “All presumptions and intendments favor the validity of a statute and mere doubt does not afford sufficient reason for a judicial declaration of invalidity. Statutes must be upheld unless their unconstitutionality clearly, positively and unmistakeably appears. [Citations.]” ’ ” (In re Ricky H. (1970) 2 Cal.3d 513, 519 [86 Cal.Rptr. 76, 468 P.2d 204], italics added.) Likewise, courts “presume that the legislature acted with integrity, and with an honest purpose to keep within the restrictions and limitations laid down by the constitution. The legislature is a coordinate department of the government, invested with high and responsible duties, and it must be presumed that it has considered and discussed the [443]constitutionality of all measures passed by it.” (Beach v. Von Detten (1903) 139 Cal. 462, 465 [73 P. 187].)6
Deference is especially warranted in this case. First, the Legislature drafted Assembly Bill 2274 to comply with the guidelines set out in several United States Supreme Court decisions and heeded that court’s advice to act with “particular sensitivity” in this arena. (Bellotti II, supra, 443 U.S. at p. 642 [99 S.Ct. at pp. 3047-3048] (plur. opn. of Powell, J.).) “[O]ur past cases establish that the presumption of constitutionality accorded to legislative acts is particularly appropriate when the Legislature has enacted a statute with the relevant constitutional prescriptions clearly in mind. (See, e.g., San Francisco v. Industrial Acc. Com. (1920) 183 Cal. 273, 279 [191 P. 26].) In such a case, the statute represents a considered legislative judgment as to the appropriate reach of the constitutional provision. Although the ultimate constitutional interpretation must rest, of course, with the judiciary (see Marbury v. Madison (1803) 5 U.S. (1 Crunch) 137, 176-180 [2 L.Ed. 60, 73-74]), a focused legislative judgment on the question enjoys significant weight and deference by the courts.” (Pacific Legal Foundation v. Brown, supra, 29 Cal.3d at p. 180.)
Second, before enacting Assembly Bill 2274, the Legislature considered and evaluated much of the same conflicting empirical evidence the trial court later purported to resolve. The Senate Committee on Health and Human Services, for example, considered competing legislative analyses. One lambasted the failure of parental involvement statutes in states such as Massachusetts and Minnesota; the other praised their success. (Compare Legis. Analysis Supporting Assem. Bill No. 2274, Sen. Com. on Health & Human Services, Aug. 19, 1987, pp. 5-7, with Staff Analysis of Assem. Bill No. 2274, Sen. Com. on Health & Human Services, July 15, 1987, pp. 4-5.) Because much of the evidence related to normative presuppositions not subject to objective proof, resolution of any conflicts lay within the province of the Legislature, a collective and accountable body.
[444]“It is not for us to resolve empirical uncertainties underlying state legislation, save in the exceptional case where that legislation plainly impinges upon rights protected by the Constitution itself.” (Paris Adult Theatre I v. Slaton (1973) 413 U.S. 49, 60 [93 S.Ct. 2628, 2936-2937, 37 L.Ed.2d 446], italics added & fn. omitted; see also Hill, supra, 7 Cal.4th at p. 47 [“Plaintiffs cite no authority imposing a ‘scientific’ burden of proof on a defendant in an invasion of privacy case; we have located none.”].) Unless such an impingement plainly appears, “a legislative choice is not subject to courtroom factfinding and may be based on rational speculation unsupported by evidence or empirical data.” (FCC v. Beach Communications, Inc. (1993) 508 U.S. 307, 315 [113 S.Ct. 2096, 2102, 124 L.Ed.2d 211].) “[T]he proper course is to recognize that a state legislature can do whatever it sees fit to do unless it is restrained by some express prohibition in the Constitution of the United States or of the State, and . . . Courts should be careful not to extend such prohibitions beyond their obvious meaning by reading into them conceptions of public policy that the particular Court may happen to entertain.” (Tyson & Brother v. Banton (1927) 273 U.S. 418, 446 [47 S.Ct. 426, 433-434, 71 L.Ed. 718, 58 A.L.R. 1236] (dis. opn. of Holmes, J.).)
Finally, in addition to the state’s compelling interest in the health and welfare of an unemancipated minor, this case implicates other, competing constitutional interests—specifically, the minor’s privacy interest and the liberty interests of her parents. “[H]ow are competing interests to be assessed? Since they are not subject to quantitative ascertainment, the issue necessarily resolves itself into asking, who is to make the adjustment?—who is to balance the relevant factors and ascertain which interest is in the circumstances to prevail? Full responsibility for the choice cannot be given to the courts. Courts are not representative bodies. . . . History teaches that the independence of the judiciary is jeopardized when courts become embroiled in the passions of the day and assume primary responsibility in choosing between competing political, economic and social pressures. [*][] Primary responsibility for adjusting the interests which compete in the situation before us of necessity belongs to the [legislature].” (Dennis v. United States (1951) 341 U.S. 494, 525 [71 S.Ct. 857, 875, 95 L.Ed. 1137] (conc. opn. of Frankfurter, J.).)
“Our right to pass on the validity of legislation is now too much part of our constitutional system to be brought into question. But the implications of that right and the conditions for its exercise must constantly be kept in mind and vigorously observed. Because the Court is without power to shape measures for dealing with the problems of society but has merely the power of negation over measures shaped by others, the indispensable judicial requisite is intellectual humility, and such humility presupposes complete [445]disinterestedness.” (A. F. of L. v. American Sash Co. (1949) 335 U.S. 538, 556-557 [69 S.Ct. 258, 267, 93 L.Ed. 222, 6 A.L.R.2d 481] (conc. opn. of Frankfurter, J.).) “Courts can fulfill their responsibility in a democratic society only to the extent that they succeed in shaping their judgments by rational standards, and rational standards are both impersonal and communicable. Matters of policy, however, are by definition matters which demand the resolution of conflicts of value, and the elements of conflicting values are largely imponderable. Assessment of their competing worth involves differences of feeling; it is also an exercise in prophecy. Obviously the proper forum for mediating a clash of feelings and rendering a prophetic judgment is the body chosen for those purposes by the people. Its functions can be assumed by this Court only in disregard of the historic limits of the Constitution.” (Id. at p. 557.)
B. The Court as a Super-Legislature
The plurality presumes to disregard the limits of its constitutional role because numerous “analogous” statutes authorize a minor to obtain medical care or make other fundamental decisions for herself and her child without parental consent. Based on these statutes, the plurality concludes Assembly Bill 2274 is not necessary either to protect the health of a pregnant minor or to protect the minor’s relationship with her parents. (See plur. opn., ante, at pp. 353-354.) I cannot agree with this mode of analysis.
The plurality itself acknowledges abortion is fundamentally different in that it includes a unique moral and philosophical dimension: “[T]he decision whether to continue or terminate [a] pregnancy has ... a substantial effect on a pregnant minor’s control over her personal bodily integrity, has . . . serious long-term consequences in determining her life choices, [and] is . . . central to the preservation of her ability to define and adhere to her ultimate values regarding the meaning of human existence and life.” (Plur. opn., ante, at p. 337; see also id. at pp. 313-314, 332-334; ante, at pp. 433-436.) “Though [a mature unemancipated minor] has a right to choose to terminate or continue her pregnancy before viability, it does not at all follow that the State is prohibited from taking steps to ensure that this choice is thoughtful and informed. ... It follows that States are free to enact laws to provide a reasonable framework for [her] to make a decision that has such profound and lasting meaning.” (Casey, supra, 505 U.S. at pp. 872-873 [112 S.Ct. at p. 2818] (plur. opn. of O’Connor, Kennedy, and Souter, JJ.).) “What is at stake is the [mature unemancipated minor’s] right to make the ultimate decision, not a right to be insulated from all others in doing so. Regulations which do no more than create a structural mechanism by which the State, or the parent or guardian of a minor, may express [their views] are permitted, if they are [446]not a substantial obstacle to [her] exercise of the right to choose.” (Id. at p. 877 [112 S.Ct. at p. 2821].)
Even the decisions to bear a child or to put a child up for adoption— decisions that implicate similar concerns—are not truly analogous, for a state has an independent and compelling interest in the health and welfare of the unemancipated minor’s child. In order to further this interest, our Legislature could reasonably conclude that it was necessary to ensure an unemancipated minor unrestricted access to prenatal care and the ability to give her child up for adoption if, for whatever reason, she deems herself unable or unwilling to care for it. In fact, plaintiffs’ own expert testified that “entry into early prenatal care is absolutely critical for a healthy outcome of [a] pregnancy.”
This case is an excellent example of the folly of courts in the role of philosopher kings. Here, the trial court “found” there is no difference in the decisionmaking capacities of minors and adults. Under the usual rules, this conclusion would be insulated from appellate review if the record provides any support for the finding. There is only one problem. The “finding” is contrary to what every adult in the country knows from experience. The greatest distance between two points is time. Information is not the same thing as knowledge. Knowledge is not wisdom. And wisdom we gain only with time. We have a vastly richer perspective from which to judge our actions at 45 than at 15.
A trial judge may “find” that ages 15 and 45 are indistinguishable, but that will never make it true.
This is not to say that such truths are capable of proof. Does the death penalty deter? Does pornography deform? Does a terminally ill patient have a right to die? Our laws reflect, as they must, working assumptions on which there is a general consensus. These broadly conceived principles, captured under the rubric of culture and tradition, are not empirically determined. They represent value judgments growing out of the collective conscience of the people, taking authority from custom itself. The proponents of these traditional understandings—including the general incapacity of minors— cannot prove their truth. But neither can their opponents prove their falsity; they can only impose the tyranny of the anecdote.
Certainly, in matters of normative judgment, no court should be in the position to supplant a society’s collective understanding, distilled through experience and expressed in legislative enactments, on the basis of the evidence presented in a single case. “Experience is the oracle of truth; and where its responses are unequivocal, they ought to be conclusive and [447]sacred.” (Madison et al., The Federalist No. 20 (Rossiter edit. 1961) p. 138.) But, as this case demonstrates, truth is not the same thing as proof. Apparently, the court believes profound questions about the way we live our lives together should be resolved not on the basis of collective experience but on the basis of expert testimony.
When fundamentally moral and philosophical issues are involved and the questions are fairly debatable, the judgment call belongs to the Legislature. The reasons are both pragmatic and political. Legislatures are in the business of accommodating interests and building consensus. They represent the will of the people. Courts are in the business of articulating inviolable rights that cannot be accommodated and are shielded from the will of the majority.
The government may not extinguish constitutional rights. But, when the Legislature accommodates competing constitutional claims in a way that is appropriate to the historical and cultural context, congruent with longstanding tradition and respectful of all interests, courts have nothing more to say.
VIII. Conclusion
“A free and enlightened society may decide that each of its members should attain a clearer, more tolerant understanding of the profound philosophic choices confronted by a woman who is considering whether to seek an abortion. Her decision will embrace her own destiny and personal dignity, and the origins of the other human life that lie within the embryo. The State is entitled to assume that, for most of its people, the beginnings of that understanding will be within the family, society’s most intimate association. It is both rational and fair for the State to conclude that, in most instances, the family will strive to give a lonely or even terrified minor advice that is both compassionate and mature. The statute in issue here is a rational way to further those ends. It would deny all dignity to the family to say that the State cannot take this reasonable step in regulating its health professions to ensure that, in most cases, a young woman will receive guidance and understanding from a parent.” (Ohio v. Akron Center for Reproductive Health, supra, 497 U.S. at p. 520 [110 S.Ct. at pp. 2983-2984] (plur. opn. of Kennedy, J.).)
I dissent.
Unless otherwise indicated, all further undesignated citations to Casey are to portions of the plurality opinion reflecting the views of a majority of the United States Supreme Court. (See Casey, supra, 505 U.S. at p. 922 [112 S.Ct. at pp. 2843-2844] (conc. and dis. opn. of Stevens, J.) [joining portions of the plurality opinion]; ibid. (conc. and dis. opn. of Blackmun, J.) [same].)
At oral argument, plaintiffs’ counsel suggested that when a minor is not capable of giving informed consent and does not want to seek parental consent, her physician should initiate a child protective services investigation. This suggestion is both grossly overintrusive and legally insufficient to comply with the governing federal constitutional mandate. The plurality’s suggestion that a common law judicial bypass procedure could be invoked for such immature minors (plur. opn., ante, at p. 359, fn. 34) is equally unworkable. How a minor who is too immature to give informed consent can possibly be expected to navigate the perils of an uncodified judicial bypass procedure escapes me. Assembly Bill 2274, by contrast, assists such a minor by authorizing the appointment of a guardian ad litem and by guaranteeing the right to court-appointed counsel. (See former Health & Saf. Code, § 25958, subd. (b), now § 123450, subd. (b).)
Nor does federal law support the use of an overbreadth analysis. Although the plurality asserts that Casey, supra, 505 U.S. 833, extended the overbreadth doctrine to the abortion context (see plur. opn., ante, at pp. 345-346), in reality this is an open question. (See Washington v. Glucksberg, supra, __ U.S. at p. __ [117 S.Ct. at p. 2275] (conc. opn. of Stevens, J.) [the issue is “the subject of debate” within the high court].) In any event, even if the passage the plurality quotes from Casey could somehow be deemed to have extended the doctrine, the very next paragraph of Casey, which the plurality fails to quote, explicitly limits the extension to adult women: “This conclusion is in no way inconsistent with our decisions upholding parental notification or consent requirements. [Citations.] Those enactments, and our judgment that they are constitutional, are based on the quite reasonable assumption that minors will benefit from consultation with their parents and that children will often not realize that their parents have their best interests at heart. We cannot adopt a parallel assumption about adult women.” (Casey, supra, 505 U.S. at p. 895 [112 S.Ct. at p. 2830].)
An examination of the plurality’s selective quotation from the case law is telling. The plurality quotes Urbaniak v. Newton (1991) 226 Cal.App.3d 1128 [277 Cal.Rptr. 354] for the proposition that “ ‘the state right of privacy has been held to be broader than the federal right.’ ” (Plur. opn., ante, at p. 327.) The complete passage from the case states that “[although the state right of privacy has been held to be broader than the federal right [citation], California courts construing article I, section 1, have looked for guidance to federal precedents." (Urbaniak v. Newton, supra, 226 Cal.App.3d at p. 1136, italics added.) Likewise, the plurality quotes American Academy of Pediatrics v. Van de Kamp (1989) 214 Cal.App.3d 831 [263 Cal.Rptr. 46] for the proposition that “ ‘the California Constitution . . . expressly recognizes a right to privacy . . . which is broader than the federal right to privacy.’ ” (Plur. opn., ante, at pp. 327-328.) The very next paragraph of the case explains that the state right “is to be construed by our courts ‘ “informed but untrammeled by the United States Supreme Court’s reading of parallel federal provisions. [Citations.]” ’ ” (American Academy of Pediatrics v. Van de Kamp, supra, 214 Cal.App.3d at p. 839, italics added.)
“ ‘When I use a word,’ Humpty Dumpty said, in rather a scornful tone, ‘it means just what I choose it to mean—neither more nor less.’
“ ‘The question is,’ said Alice, ‘whether you can make words mean so many different things.’
“ ‘The question is,’ said Humpty Dumpty, ‘which is to be master—that’s all.’ ” (Carroll, The Annotated Alice: Alice’s Adventures in Wonderland & Through the Looking Glass (Gardner edit. 1960) p. 269, original italics.)
The plurality mischaracterizes Gregg v. Georgia (1976) 428 U.S. 153 [96 S.Ct. 2909, 49 L.Ed.2d 859] as an example of the deference courts owe legislatures in nonconstitutional cases (plur. opn., ante, at p. 349, fn. 25), suggesting such deference does not extend to constitutional cases. Gregg actually addressed an Eighth Amendment claim that capital punishment amounted to cruel and unusual punishment because it did not deter crime. The court acknowledged that “there is no convincing empirical evidence either supporting or refuting this view” (Gregg v. Georgia, supra, 428 U.S. at p. 185 [96 S.Ct. at p. 2930] (plur. opn. of Stewart, Powell, and Stevens, JJ.)), but nonetheless rejected the claim. “The value of capital punishment as a deterrent of crime is a complex factual issue the resolution of which properly rests with the legislatures, which can evaluate the results of statistical studies in terms of their own local conditions and with a flexibility of approach that is not available to the courts. [Citation.].... [^Q In sum, we cannot say that the judgment of the Georgia Legislature that capital punishment may be necessary in some cases is clearly wrong." (Id. at p. 186 [96 S.Ct. at p. 2931], italics added.)