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Full Opinion
Conservatorship of the Person of VALERIE N.
MILDRED G., as Conservator, etc., et al., Petitioners and Appellants,
v.
VALERIE N., Objector and Respondent.
Supreme Court of California.
*146 COUNSEL
Allen H. Fleishman and Fleishman & Jensen for Petitioners and Appellants.
Frank O. Bell, Jr., and Quin Denvir, State Public Defenders, under appointment by the Court of Appeal, Paul D. Fogel and Ezra Hendon, Deputy State Public Defenders, for Objector and Respondent.
Eric R. Gelber and Carolyn Schneider as Amici Curiae on behalf of Objector and Respondent.
OPINION
GRODIN, J.
Mildred and Eugene G., her mother and stepfather, are coconservators of the person of their adult developmentally disabled daughter *147 Valerie.[1] They appeal from a judgment of the probate court denying their petition for authorization to have a tubal ligation (salpingectomy) performed on Valerie. The primary purpose of the proposed operation is habilitation. Any therapeutic benefit would be incidental. The probate court, while agreeing with appellants that the procedure was medically safe and would enhance the quality of Valerie's life, concluded that it lacked jurisdiction to grant the petition.
We are asked to determine whether section 2356, subdivision (d),[2] upon which the trial court relied, precludes the sterilization of a severely retarded conservatee[3] in all circumstances and, if so, whether application of that *148 prohibition to Valerie denies her the benefits of state and/or federal constitutional guarantees of privacy, equal protection, and due process.
We shall conclude that the Legislature, in enacting subdivision (d) of section 2356, while contemporaneously repealing Welfare and Institutions Code section 7254, intended to discontinue the longstanding, but discredited, practice of eugenic sterilization,[4] and to deny guardians and conservators authorization to have the procedure performed on their wards and conservatees. The judgment must be affirmed because the record does not support a conclusion that sterilization is necessary to Valerie's habilitation and does not support the trial court's implicit conclusion that less intrusive means by which to avoid conception are unavailable to Valerie. We shall also conclude, however, that the present statutory scheme denies incompetent developmentally disabled persons rights which are accorded all other persons in violation of state and federal constitutional guarantees of privacy. Our affirmance of the judgment therefore is without prejudice to a renewed petition and hearing at which the requisite showing may be made.
I.
Valerie was born on July 13, 1955, apparently a victim of Downs Syndrome as a result of which she is severely retarded. Her IQ is estimated to be 30. She is now 29 years old. She lives with her mother and stepfather. Although she has no comprehension of the nature of these proceedings, she has expressed her wish to continue to have her parents care for her. Her parents' long range plan for Valerie is that she will move to a residential home should they become mentally or physically unable to care for her. She has received therapy and training for behavior modification which was not successful in eliminating her aggressive sexual advances toward men. Her parents are attempting to prepare her for the time when they can no longer care for her, and to broaden her social activities as an aspect of this preparation. They have concluded that other methods of birth control are inadequate in Valerie's case.
On September 5, 1980, appellants filed their petition to be named conservators of Valerie's person in the Santa Clara County Superior Court pursuant to section 1820. In the same petition they sought the additional power to authorize "a Salpingectomy or any other operation that will permanently sterilize" Valerie. The petition was supported by the declaration *149 of Valerie's personal physician who stated that the tubal ligation procedure is "advisable and medically appropriate."
On September 25, 1980, after review of a court investigator's report which stated that Valerie had no comprehension of the proceedings, could not complete an affidavit of voter registration, and gave no pertinent response when asked if she objected to being disqualified from voting, the probate court granted the petition insofar as it sought appointment of appellants as coconservators. The court continued the hearing on the request for additional powers, however, and appointed counsel to represent Valerie.[5]
On December 10, 1980, when the hearing resumed, appellants submitted a declaration by a physician who had treated Valerie from the time she was 10 years old. He stated that in his opinion a tubal litigation procedure was "advisable and medically appropriate in that a potential pregnancy would cause psychiatric harm to VALERIE." A second declaration, this by a licensed marriage, family and child counselor having a masters degree in developmental psychology, was also submitted. This declarant had worked with Valerie on a weekly basis for a year during 1977-1978. She believed that a tubal ligation was "an appropriate means of guarding against pregnancy," and had observed that Valerie acted "affectionately" toward adult men and made "inappropriate" sexual advances toward them. This declarant was of the opinion that because Valerie's parents had found it necessary to be overly restrictive in order to avoid a possible pregnancy which would have "severe psychologically damaging consequences" to Valerie, close monitoring had severely hampered Valerie's ability to form social relationships. She also believed that the level of Valerie's retardation meant that no alternative birth control methods were available that would ensure against pregnancy.
Valerie's mother testified that Valerie had not been sexually active, apart from masturbation, because she had been closely supervised. She was aggressive and affectionate toward boys. On the street she approached men, hugged and kissed them, climbed on them, and wanted to sit on their laps. Valerie had been given birth control pills in her early teens, but she rejected them and became ill. Her doctor then recommended the tubal ligation. Valerie was unable to apply other methods of birth control such as a diaphragm, and would not cooperate in a pelvic examination for an intrauterine device which the witness believed was unsafe in any event.
*150 No evidence was offered by counsel representing Valerie, although he did argue that less drastic alternatives to sterilization should be used, and also questioned the jurisdiction of the probate court to authorize the surgery. It was conceded that the court had the power to authorize an abortion should Valerie become pregnant.[6]
No evidence was offered to establish that Valerie is capable of conceiving, and other than the opinions of her mother and the family counselor no evidence was offered to establish that alternative less intrusive methods of birth control are unavailable.
The trial judge then denied the request for additional powers, explaining he believed both that sterilization was in order and that subdivision (d) of section 2356 was unconstitutional, but was obliged to follow Guardianship of Tulley (1978) 83 Cal. App.3d 698 [146 Cal. Rptr. 266], which had held that the probate court lacks jurisdiction to authorize the sterilization of a conservatee.
(1) The parties agree that section 2356 bars nontherapeutic sterilization of conservatees. Because that section provides that the procedure may not be authorized "under the provisions of this division," however, we invited additional briefing addressed to whether the Lanterman Developmental Disabilities Services Act (Welf. & Inst. Code, § 4500 et seq.) afforded an alternative source of authority. The parties argue that it does not. We conclude that the history of section 2356 supports the parties.
II.
Statutory Development
A. Involuntary Sterilization in California.
In 1909, California enacted this state's first statute permitting sterilization of developmentally disabled individuals. That authority extended only to *151 persons committed to state institutions or prisons, and provided: "Whenever in the opinion of the medical superintendent of any state hospital, or the superintendent of the California Home for the Care and Training of Feeble-Minded Children, or of the resident physician in any state prison, it would be beneficial and conducive to the benefit of the physical, mental or moral condition of any inmate of said state hospital, home, or state prison, to be asexualized, then such superintendent or resident physician shall call in consultation the general superintendent of state hospitals and the secretary of the state board of health, and they shall jointly examine into all of the particulars of the case with the said superintendent or resident physician, and if in their opinion, or in the opinion of any two of them, asexualization will be beneficial to such inmate, patient, or convict, they may perform the same; ..." (Stats. 1909, ch. 720, § 1, pp. 1093-1094.)
That law was repealed in 1913, and replaced with authority to "asexualize" committed mental patients and developmentally disabled persons prior to their release from state institutions, and developmentally disabled minor and adult patients in state hospitals.[7] In 1917 section 1 of the statute was amended to make it applicable to developmentally disabled adults. It then provided that prior to discharge a person "who is afflicted with mental disease which may have been inherited and is likely to be transmitted to descendants, the various grades of feeble-mindedness, those suffering from perversion or marked departures from normal mentality or from disease of a syphilitic nature," might be asexualized. (Stats. 1917, ch. 489, § 1, p. 571.) No hearing procedure was provided and no judicial approval was required under any of these statutes.
Twenty-two states enacted similar legislation and, as a "pioneer" in the field, California performed the greatest number of sterilization operations. *152 One of the first legal commentaries on the practice noted that "[b]etween 1907 and 1921 California sterilized 2,558 of the 3,233 total for all United States in that period." (Comment, Constitutional Law ... Sterilization of Defectives (1927) 1 So.Cal.L.Rev. 73, 74, fn. 5.) The same author quoting from an article by Popenoe, Eugenic Sterilization in California, published in the Journal of Social Hygiene in May 1927, reported that "`[t]he total number of operations performed to date is more than 5,000, which is four times as many as have been performed for eugenic reasons, in governmental institutions, in all the rest of the world together, so far as known.'" (Id., at p. 74, fn. 5.) Although challenged on a variety of constitutional grounds, principally denial of due process and equal protection, most of these statutes were upheld, if adequate procedural safeguards, including a hearing for the patient, were afforded.[8]
Codified as section 6624 of the Welfare and Institutions Code in 1937 (Stats. 1937, ch. 369, § 6624, p. 1155), the substantive aspects of the California law remained essentially unchanged over the next 40 years.[9] In 1951 *153 significant procedural protections were added, the nomenclature of eligible patients was changed to substitute "mental deficiency" for "feeble-mindedness," and subdivisions (c) and (d) were combined into a single category of persons exhibiting "marked departures from normal mentality."[10] After being renumbered as Welfare and Institutions Code section 7254 in 1967, this authority for nonconsensual sterilization was finally repealed in 1979,[11] operative January 1, 1980.[12]
*154 B. Revision of the Guardianship-Conservatorship Law.
During the 40-year period during which involuntary sterilization was permissible significant advances occurred both in understanding of the causes of mental retardation, and in public awareness that many developmentally disabled persons lead self-sufficient, fulfilling lives, and become loving, competent, and caring marriage partners and parents.[13] In 1978 the California Law Revision Commission submitted to the Legislature a draft of a new guardianship-conservatorship law which expressly denied the probate court jurisdiction to grant conservators the power to cause their wards and conservatees to be sterilized.[14] Affording safeguards, rather than barring sterilization, was the basis for the proposal, however, and sterilization would have been available under this proposal if the conservatee were admitted to a state hospital. As proposed, section 2356, subdivision (d), read: "A ward or conservatee may be sterilized only as provided in Section 7254 of the Welfare and Institutions Code." The comment accompanying the section explained: "Subdivisions (b)-(d) are new and make clear that the provisions of other codes relating to highly intrusive forms of medical treatment are the only provisions under which such treatment may be authorized for a ward or conservatee, thus assuring that the procedural safeguards contained in those provisions will be applied. Subdivision (d) is consistent with Guardianship of Tulley, 83 Cal. App.3d 698, 146 Cal. Rptr. 266 (1978) *155 and Guardianship of Kemp, 43 Cal. App.3d 758, 118 Cal. Rptr. 64 (1974)." (14 Cal. Law Revision Com. Rep. (1978) p. 725, italics added.)
Before enacting the new Guardianship-Conservatorship Law recommended by the Law Revision Commission, however, the Legislature repealed Welfare and Institutions Code section 7254. That section, therefore, no longer afforded authorization for the sterilization of mentally retarded wards or conservatees, even if they were admitted to state institutions and were afforded the procedural protections contemplated by the commission. The intent of the Legislature is clear. Neither the probate court, nor state hospital personnel were to retain authority to permit a nontherapeutic sterilization of a conservatee who is unable to personally consent to the procedure.[15]
C. The Lanterman Developmental Disabilities Services Act.
In 1977, the Legislature, possibly concerned about the rising tide of criticism of compulsory sterilization,[16] and by then fully aware of the importance of providing services to developmentally disabled persons to assist them in remaining in noninstitutional settings, enacted the Lanterman Developmental Disabilities Services Act (LDDSA). (Welf. & Inst. Code, § 4500 et seq.)
The LDDSA reflected a change in legislative attitude toward the mentally retarded, a change which found impetus in the recommendation of the Study *156 Commission on Mental Retardation which reported to the Governor and Legislature in January 1965. The commission proposed a variety of state supported services for the retarded, including rehabilitation and educational services aimed at vocational training, and the creation of regional centers as a means by which services would be brought to the families of mentally retarded children to assist them in making "an appropriate lifetime plan." (See Study Com. on Mental Retardation, The Undeveloped Resource, A Plan for the Mentally Retarded in California (1965) p. 46.)
The centers were to make community services accessible, provide special services where necessary, and provide home services for the "mildly retarded [who] may be enabled to live at home if they receive occasional visits from a public health nurse or homemaker...." (Id., at p. 53.)[17]
The report also recommended that residential facilities be provided for mentally retarded persons who could not live independently, but were not in need of the services of a state hospital which then was the only public institution for the mentally retarded in California. (Id., at pp. 70-71.) These facilities "would reflect a concern with these people as individuals and would make it possible for them to enter into community life insofar as they are able. It would also facilitate normal family and neighborly relationships, which are harder to achieve in a large institution." (Id., at p. 74.) The study commission recommended further study of a proposal that sterilization be made available when necessary to achieve this purpose.
The Legislature undertook to implement the proposed reforms in a series of steps which culminated in the LDDSA. The California Mental Retardation Services Act of 1969 was enacted to restructure the provision of services to the mentally retarded which had been the responsibility of eight state agencies and numerous local programs. That act, former division 25 of the Health and Safety Code (commencing at former § 38000; Stats. 1969, ch. 1594, § 1, p. 3234) provided for regional centers to be operated by private, nonprofit community and local agencies to provide services to the mentally retarded and their families. It prohibited judicial commitment of persons who were not a danger to themselves or others to state hospitals on referral by a regional center, and authorized the regional centers to purchase out-of-hospital care for the mentally retarded.[18]
*157 The final impetus for the LDDSA occurred in 1975 when federal legislation expanded the type of services to be afforded the developmentally disabled by states receiving federal funding for their programs. In that year Congress enacted the Developmental Disabilities Assistance and Bill of Rights Act (DDA) (Pub.L. No. 94-103), included in which was recognition of a right to "treatment, services, and habilitation for a person with developmental disabilities should be designed to maximize the developmental potential of the person and should be provided in the setting that is least restrictive of the person's personal liberty." (42 U.S.C. § 6010(1) & (2).)[19]
When the LDDSA was enacted in 1977 sterilization continued to be available under Welfare and Institutions Code section 7254, the repeal of which did not become effective until January 1, 1980. (Stats. 1979, ch. 552, § 1, p. 1762; Stats. 1979, ch. 730, § 156.5, p. 2540.) Accordingly, the LDDSA contained no provision by which sterilization of a conservatee could be *158 included among the services provided by the regional centers to nonconsenting clients.
Under the LDDSA, regional centers contract with the Department of Developmental Services to seek out and assist developmentally disabled persons within the service area for which they are responsible.[20] Among the services available to persons within a regional center's service area are "preventive services" needed by persons identified as being at risk of parenting a developmentally disabled infant. (Welf. & Inst. Code, § 4644.) The "preventive services" to be provided for such clients may include sterilization of consenting adults.[21] If so, however, the section would authorize sterilization only on request of a client, and only for the purpose of avoiding a high risk of parenting a developmentally disabled infant. Although Valerie might qualify,[22] she is incapable of requesting or consenting to that procedure, and the LDDSA includes no provision for request or consent by a conservator.
*159 The regional center must also undertake activities necessary to the achievement of the goals of the individual program plan (IPP) it devises for a client. Among these activities is "[p]rogram coordination which may include securing, through purchase or referral, services specified in the person's plan, coordination of service programs, information collection and dissemination, and measurement of progress toward objectives contained in the person's plan." (Welf. & Inst. Code, § 4648, subd. (a).)
The Legislature has given high priority to the provisions of services necessary to enable children to remain in the home of their parents when this is a preferred objective in an IPP. (Welf. & Inst. Code, § 4685.)
The regional center is also authorized to purchase out-of-home care for developmentally disabled clients in licensed community care facilities, or assist in placement and follow-along services for those individuals who cannot remain in the home of a parent or relative. (Welf. & Inst. Code, § 4648, subd. (b).) It is the intent of the LDDSA that services for such clients continue to provide "an unbroken chain of experience, maximum personal growth and liberty," under "conditions of everyday life which are as close as possible to the norms and patterns of the mainstream of society." (Welf. & Inst. Code, § 4830; see also § 4501.)
The legislative intent that developmentally disabled persons be assisted in achieving their maximum developmental potential is express in the findings set forth in Welfare and Institutions Code section 4501 which explain that coordinated services are required to "insure that no gaps occur in communication or provision of services" and that "[s]ervices should be planned and provided as part of a continuum ... sufficiently complete to meet the needs of each person with developmental disabilities, regardless of age or degree of handicap, and at each stage of life." It is also express in the legislative statement of the rights of the developmentally disabled to "[t]reatment and habilitation services [to] foster the developmental potential of the person ... provided with the least restrictive conditions necessary to achieve the purposes of treatment" (Welf. & Inst. Code, § 4502, subd. (a)) and in the right to "social interaction and participation in community activities ... to physical exercise and recreational opportunities," and to be "free from ... isolation." (Welf. & Inst. Code, § 4502, subds. (f)(h).) Finally, it appears in the breadth of services which the LDDSA authorizes.[23]
*160 Nonetheless, neither the provision for preventive services nor any other provision of the LDDSA authorizes sterilization of nonconsenting persons even when necessary to achieve these goals, and the Legislature took no action to amend the LDDSA either in conjunction with the enactment of section 2356, subdivision (d) or once the repeal of Welfare and Institutions Code section 7254 became effective. We conclude therefore that this legislation does not presently afford a mechanism by which sterilization of Valerie may be authorized.
III.
Constitutional Rights of the Developmentally Disabled
(2a) Our conclusion regarding the present legislative scheme requires that we confront appellants' contention that the scheme is unconstitutional. Both appellants and counsel for Valerie pose the constitutional question in terms of the right of procreative choice. Appellants argue that subdivision (d) of section 2356 deprives Valerie of that right by precluding the only means of contraception realistically available to her, while counsel for Valerie contends that the legislation furthers that right by protecting her against sterilization forced upon her by the will of others. The sad but irrefragable truth, however, is that Valerie is not now nor will she ever be competent to choose between bearing or not bearing children, or among methods of contraception. The question is whether she has a constitutional right to have these decisions made for her, in this case by her parents as conservators, in order to protect her interests in living the fullest and most rewarding life of which she is capable. At present her conservators may, on Valerie's behalf, elect that she not bear or rear children. As means of avoiding the severe psychological harm which assertedly would result from pregnancy, they may choose abortion should she become pregnant; they may arrange for any child Valerie might bear to be removed from her custody; and they may impose on her other methods of contraception, including isolation from members of the opposite sex. They are precluded from making, and Valerie from obtaining the advantage of, the one choice that may be best for her, and which is available to all women competent to choose contraception through sterilization. We conclude that the present legislative scheme, which absolutely precludes the sterilization option, impermissibly deprives developmentally disabled persons of privacy and liberty interests protected *161 by the Fourteenth Amendment to the United States Constitution, and article I, section 1 of the California Constitution.
(3) The right to marriage and procreation are now recognized as fundamental, constitutionally protected interests. (Loving v. Virginia (1967) 388 U.S. 1, 12 [18 L.Ed.2d 1010, 1018, 87 S.Ct. 1817]; Skinner v. Oklahoma (1942) 316 U.S. 535, 541 [86 L.Ed. 1655, 1660, 62 S.Ct. 1110]; Perez v. Sharp (1948) 32 Cal.2d 711, 714 [198 P.2d 17]; People v. Pointer (1984) 151 Cal. App.3d 1128, 1139 [199 Cal. Rptr. 357].) So too, is the right of a woman to choose not to bear children, and to implement that choice by use of contraceptive devices or medication, and, subject to reasonable restrictions, to terminate a pregnancy. These rights are aspects of the right of privacy which exists within the penumbra of the First Amendment to the United States Constitution (Roe v. Wade (1973) 410 U.S. 113, 154 [35 L.Ed.2d 147, 177, 93 S.Ct. 705]; Eisenstadt v. Baird (1972) 405 U.S. 438, 453 [31 L.Ed.2d 349, 362, 92 S.Ct. 1029]; Griswold v. Connecticut (1965) 381 U.S. 479, 485 [14 L.Ed.2d 510, 515, 85 S.Ct. 1678]), and is express in section 1 of article I of the California Constitution which includes among the inalienable rights possessed by all persons in this state, that of "privacy." (Committee to Defend Reproductive Rights v. Myers (1981) 29 Cal.3d 252, 262 [172 Cal. Rptr. 866, 625 P.2d 779, 20 A.L.R.4th 1118]; see also People v. Belous (1969) 71 Cal.2d 954, 963 [80 Cal. Rptr. 354, 458 P.2d 194]; Carey v. Population Services International (1977) 431 U.S. 678 [52 L.Ed.2d 675, 97 S.Ct. 2010]; Planned Parenthood of Missouri v. Danforth (1976) 428 U.S. 52 [49 L.Ed.2d 788, 96 S.Ct. 2831].) They are also within the concept of liberty protected against arbitrary restrictions by the Fourteenth Amendment.
Although the Supreme Court has not considered the precise question of the right to contraception in the context of an assertion that the right includes sterilization, that sterilization is encompassed within the right to privacy has been acknowledged in this state. (Jessin v. County of Shasta (1969) 274 Cal. App.2d 737, 748 [79 Cal. Rptr. 359, 35 A.L.R.3d 1433].) Since Jessin was decided this court has affirmed the constitutional stature of the right of women to exercise procreative choice "as they see fit." (Committee to Defend Reproductive Rights v. Myers, supra, 29 Cal.3d 252, 263.)
(2b) In its enactment of section 2356, subdivision (d), and the omission of any provision in other legislation authorizing sterilization of incompetent developmentally disabled persons, the Legislature has denied incompetent women the procreative choice that is recognized as a fundamental, constitutionally protected right of all other adult women. We realize that election of the method of contraception to be utilized, or indeed whether to choose contraception at all, cannot realistically be deemed a "choice" available to *162 an incompetent since any election must of necessity be made on behalf of the incompetent by others. The interests of the incompetent which mandate recognition of procreative choice as an aspect of the fundamental right to privacy and liberty do not differ from the interests of women able to give voluntary consent to this procedure, however. That these interests include the individual's right to personal growth and development is implicit in decisions of both the United States Supreme Court and this court.
In Roe v. Wade, supra, 410 U.S. 113, the court concluded that an unmarried woman's fundamental right not to bear children could be found within the right to privacy, whether the privacy right arises out of the penumbra of the First Amendment or the liberty right protected by the Fourteenth Amendment.[24] In so doing the court recognized that this interest is not limited to the intimacy of the marital relationship, but encompasses also the individual's right to determine the course of his or her future life. The court made reference to the impact denial of the right of procreative choice might have in causing a woman a "distressful life and future." (410 U.S. at p. 153 [35 L.Ed.2d at p. 177].)
(4) The liberty interest which the court recognized as a substantive right protected against arbitrary deprivation by the due process clause of the Fourteenth Amendment includes the right of the individual "to be free in the enjoyment of all his faculties; to be free to use them in all lawful ways; to live and work where he will; to earn his livelihood by any lawful calling [and] to pursue any livelihood or avocation...." (Allgeyer v. Louisiana (1897) 165 U.S. 578, 589 [41 L.Ed. 832, 835, 17 S.Ct. 427]; see also Grosjean v. American Press Co. (1936) 297 U.S. 233, 244 [80 L.Ed. 660, 665, 56 S.Ct. 444].) "Liberty means more than freedom from servitude, and the constitutional guarantee is an assurance that the citizen shall be protected in the right to use his powers of mind and body in any lawful calling." (Smith v. Texas (1914) 233 U.S. 630, 636 [58 L.Ed. 1129, 1132, 34 S.Ct. 681].) "Although the Court has not assumed to define `liberty' with any great precision, that term is not confined to mere freedom from bodily restraint. Liberty under law extends to the full range of conduct which the individual is free to pursue, and it cannot be restricted except for a proper governmental objective." (Bolling v. Sharpe (1954) 347 U.S. 497, 499-500 [98 L.Ed. 884, 887, 74 S.Ct. 693].)
(2c) Although denominated "habilitation" in the context of the developmentally disabled, the right in issue, one which we have no doubt is *163 entitled to constitutional protection, is the right of every citizen to have the personal liberty to develop, whether by education, training, labor, or simply fortuity, to his or her maximum economic, intellectual, and social level. That all persons may not seek to exercise this right in no way diminishes its importance. It lies at the core of the liberty interest protected by the Fourteenth Amendment to the United States Constitution, and article I, section 1 of the California Constitution.
An incompetent developmentally disabled woman has no less interest in a satisfying or fulfilling life free from the burdens of an unwanted pregnancy than does her competent sister. Her interest in maximizing her opportunities for such a life through habilitation is recognized and given statutory protection by both the LDDSA and the DDA. If the state withholds from her the only safe and reliable method of contraception suitable to her condition, it necessarily limits her opportunity for habilitation and thereby her freedom to pursue a fulfilling life.[25] Therefore, whether approached as an infringement of the right of privacy under the First Amendment or the privacy right that is found within the liberty protected by the Fourteenth Amendment, and whether analyzed under due process or equal protection principles, the issue is whether withholding the option of sterilization as a method of contraception to this class of women is constitutionally permissible. Because the rights involved are fundamental the permissibility of the restriction must be justified by a "compelling state interest," and may be no broader than necessary to protect that interest. (Roe v. Wade, supra, 410 U.S. at p. 155 [35 L.Ed.2d at p. 178].)
The California Constitution accords similar protection. Article I, section 1, confirms the right not only to privacy, but to pursue happiness and enjoy liberty. (5) The right of a woman to choose whether or not to bear a child and thus to control her social role and personal destiny, is a fundamental right protected by that provision. (Committee to Defend Reproductive Rights v. Myers, supra, 29 Cal.3d 252, 275.) Since the right to elect sterilization *164 as a method of contraception is generally available to adult women in this state, the restriction must be justified by a compelling state interest under either article I, section 1, or under the equal protection guarantee of article I, section 7, of the California Constitution. (Id., at pp. 276-277.)[26] Under equal protection analysis we must determine whether the state has a compelling interest in restricting access to sterilization for incompetent developmentally disabled adults, and, if so, whether banning all such sterilization is necessary to accomplish the state purpose. (Johnson v. Hamilton (1975) 15 Cal.3d 461, 466 [125 Cal. Rptr. 129, 541 P.2d 881].) Similarly, in assessing any restriction on the exercise of a fundamental constitutional right, we must determine whether the state has a compelling interest that is within the police power of the state in regulating the subject, whether the regulation is necessary to accomplish that purpose, and if the restriction is narrowly drawn. (People v. Belous (1969) 71 Cal.2d 954, 964 [80 Cal. Rptr. 354, 458 P.2d 194].)
(2d) Respondent suggests that the interest of the state in safeguarding the right of an incompetent not to be sterilized justifies barring all nontherapeutic sterilization of conservatees who are unable personally to consent. We do not doubt that it is within the police power of the state to enact legislation designed to protect the liberties of its residents. The inquiry does not end there, however, since the means selected are not simply protective of a liberty interest, but restrict the exercise of other fundamental rights by or on behalf of the incompetent. The state has not asserted an interest in protecting the right of the incompetent to bear children. Neither the "involuntary imposition" of other forms of contraception, nor abortion, has been banned. A conservator is permitted to exercise his or her own judgment as to the best interests of the conservatee in these matters, excepting only the election of sterilization as a means of preventing conception.
The state interest therefore must be in precluding the option of sterilization because it is in most cases an irreversible procedure. Necessarily implicit in the interest asserted by the state is an assumption that the conservatee may at some future time elect to bear children. While the prohibition of sterilization may be a reasonable means by which to protect some conservatees' right to procreative choice, here it sweeps too broadly for it extends to individuals who cannot make that choice and will not be able to do so in the future. The restriction prohibits sterilization when this means of contraception is necessary to the conservatee's ability to exercise other fundamental rights, without fulfilling the stated purpose of protecting the *165 right of the conservatee to choose to bear children. That right has been taken from her both by nature which has rendered her incapable of making a voluntary choice, and by the state through the powers already conferred upon the conservator.
Respondent argues that the ban is, nonetheless, necessary because past experience demonstrates that when the power to authorize sterilization of incompetents has been conferred on the judiciary it has been subject to abuse. Again,