A California state appeals panel has ruled public entities can’t enforce development restrictions prohibiting abortion clinics, because doing so would infringe on the rights of women to obtain abortions, which the state has enshrined as “fundamental” in its civil rights law.
The decision comes as the latest in a court fight dating back to January 2024.
At that time, the Tulare Medical Center Property Owners Association learned Dr. Leopoldo Valdivia and Jennifer Valdivia considered leasing property they owned in Tulare to Family Planning Associates Medical Group.
That February, the Property Owners Association told the Valdivias its covenants, codes and restrictions (CC&R), which had been adopted in 1991 by the Tulare Local Hospital District, didn’t allow for construction or operation of a clinic providing abortions.
Family Planning Associates’ chief executive officer responded to that notice with a letter acknowledging the group does perform surgical abortion services at some of its 24 California locations, but didn’t plan to do so at the Tulare site. The Property Owners Association (POA), however, asserted the prohibition would apply to any facility that provides any abortion services.
The Tulare POA also said the prospect of an FPA office created a nuisance for other association members due to possible pickets and protests from abortion opponents.
In September 2024, FPA posted an announcement on Instagram, saying it would begin seeing patients in Tulare on Oct. 1. The post listed abortion first among the services the clinic would offer.
At the end of that month the POA asked a judge to issue an injunction against FPA and the Valdavias. The FPA and the Valdavias filed a cross complaint.
In mid-December, Tulare County Superior Court Judge Bret Hillman denied the preliminary injunction request. Though he agreed allowing FPA to perform abortions on the site would violate the covenant, he also said the POA hadn’t shown it was likely to prevail in litigation “because the court believes it is an open question, given the apparent absence of clearly relevant prior authority, whether restrictions on the operation of abortion clinics on private property, as in the subject CC&Rs, run afoul of the Unruh Civil Rights Act.”
Judge Hillman also “the Association fails to show that the balance of harms supports the issuance of a preliminary injunction” and, although he said his ruling didn’t require resolving whether the covenants violated a state constitutional clause regarding reproductive freedom, he did write that constitutional provision “appears, on its face, to limit solely state action and not the actions of private parties.”
The POA asked the California Fifth District Appellate Court to review the situation. Justice Donald Franson wrote the panel’s opinion, filed April 7; justices Brad Hill and Arlan Harrell concurred.
On appeal, however, the justices said the POA must lose the case because they and the Tulare Local Hospital District should be considered a public entity under California law, not a private landowner.
So, they said, the recording of the CC&Rs by the Hospital District amounted to a “state action that interfered with the rights of privacy and procreative choice contained in … the California Constitution.”
The appellate panel also rejected arguments from the Association that the panel couldn’t make such a determination, because it marked the first time questions about the public vs private nature of the POA and the Hospital District had been raised in the proceedings. They noted Judge Hillman didn’t make such a finding and the plaintiffs never raised the legal theory a public entity wasn’t allowed to adopt an abortion prohibition. So, they argued, it would be improper for the appeals court to deal with such a question now.
But the panel said a 1994 California Supreme Court ruling, Nahrstedt v. Lakeside Village Condominium Association, established land use restrictions are enforceable unless they violate public policy, have no rational relationship to the land itself or otherwise impose burdens disproportionate to the realized benefits.
Further, that opinion rejected case-by-case inquiries and found the reasonableness of use restrictions doesn’t rely on facts specific to an objecting property owner. As such, the burden is on the Valdivias and FPA to show the POA’s limitations are unreasonable.
“The inquiry into whether a land use restriction, such as the prohibition of abortion clinics, violates a fundamental public policy raises a question of law about how courts identify a public policy that is fundamental,” Justice Franson wrote.
After explaining the history of California establishing the right to abortion as a fundamental public policy, the panel then noted the POA conceded the Tulare Local Hospital District was a public entity upon adopting the land use limits in 1991.
“A question of state constitutional law not resolved in an appellate decision is whether the right to procreative choice, like the right to privacy, is protected from infringement by private entities,” Franson wrote.
Justice Franson added the current opinion didn’t resolve that question.
He said it was sufficient to find the existence of government action without a compelling public interest to take such action. The combination of those factors established a constitutional violation justifying Judge Hillman’s choice to deny the preliminary injunction, the appeals court said.
“The undisputed evidence shows the initial recording of the CC&Rs was done by the Tulare Local Hospital District’s president and the property became subject to the abortion clinic prohibition in the CC&Rs as a result of the district’s voter-elected board of directors unanimously approving the declaration of annexation and the subsequent recording of that declaration,” Franson wrote. “But for the actions of the Tulare Local Hospital District, the prohibition would not exist.”
The panel said the POA’s injunction request framed the restriction as a private contractual matter and, as such, didn’t try to identify the compelling public interest justifying the abortion clinic prohibition.
Remanding the injunction dispute to the Tulare County court for further proceedings wouldn’t change the outcome, Franson explained. And giving the association another chance to request an injunction would delay an ultimate resolution. The appeals justices said it would be better to let the lower court develop evidence and allow the parties to present arguments during a summary judgment motion or at trial to produce a final resolution on the question.
Franson also explained the FPA and the Valdivias have standing under the civil rights law since they argue that the restriction “interferes with the constitutional rights of third parties who might patronize the business being operated on the property,” meaning women seeking abortions.
The panel further said the defendants also have standing under a Civil Code section explicitly dealing with the enforceability of certain restrictions written into real estate documents.
“The Association had the burden of proving a legitimate business interest justified the prohibition,” Franson wrote. “There is nothing in the record suggesting that treating women who consider or decide to have an abortion as ‘a protected class under the (Unruh) Act … would open the door for a seemingly endless stream of new cases.’ Given the many statutes that address abortion and the private nature of the right to choose an abortion, it is unlikely the Legislature would condone discrimination against this class of women.”
The panel also rejected the POA’s suggestion a ruling against it would mean private landowners could be required to make their land available for abortion services.
“The prohibition in the CC&Rs is not an individual choice,” Franson wrote. “Rather, the CC&Rs were the hospital district’s attempt to take the choice away from the individual who own or rent units within the medical center. A statutory interpretation that voids the land use prohibition of abortion clinics means that the creator of CC&Rs, equitable servitudes, or restrictive covenants cannot impose that prohibition on subsequent owners and thereby deprive them of the choice.”
The association is represented by the Braun Gosling firm as well as Catherine Short and Corrine Konczal.
The Valdivias and FPA are represented by Herr Pedersen & Berglund.
Jonathan Bilyk contributed to this report.
