Prohibition on Use of Property for Abortion Is Unenforceable

Thursday, April 9, 2026

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Court of Appeal:

Prohibition on Use of Property for Abortion Is Unenforceable

Opinion Says Local Public Hospital District’s Restriction on Having Abortion Clinics at Medical Center Violates California Constitution, Decision to Have Abortion Is Protected Characteristic Under Unruh Civil Rights Act

By Kimber Cooley, associate editor

A public hospital district’s restriction prohibiting hosting abortion clinics at the group’s medical center violates the fundamental right of procreative choice enshrined in the California Constitution and is unenforceable because the choice to abort is a protected characteristic under the Unruh Civil Rights Act, the Fifth District Court of Appeal has declared.

Concluding that the “compelling interest” standard for evaluating state statutes against the backdrop of fundamental rights also applies to land use limitations in covenants, codes, and restrictions (“CC&Rs”) adopted by a public entity, the court found that the plaintiff did not meet its burden showing a likelihood of prevailing in seeking a preliminary injunction against a property owner that sought to rent a unit to an abortion provider.

In Tuesday’s opinion, authored by Justice Donald R. Franson Jr. and joined in by Presiding Justice Brad Hill andl Justice Arlan L. Harrell, the court also declared that a woman’s decision to have an abortion is a protected characteristic under the Unruh Act, codified at Civil Code §51, even though it is not one of the enumerated categories outlined in the statute, for purposes of Civil Code §53, which provides:

“Every restriction or prohibition, whether by way of covenant, condition upon use or occupation, or upon transfer of title to real property, which restriction or prohibition directly or indirectly limits the acquisition, use or occupation of that property because of any characteristic listed or defined in…Section 51 is void.”

Acknowledging that the case involves an issue of first impression, Franson declared:

“[T]he adoption and recording of the CC&Rs is government action that, in the circumstances of this case, interferes with the fundamental right of procreative choice and, therefore, violates a fundamental public policy expressed in the California Constitution….Civil Code section 53 [also] renders the prohibition ‘void’….”

At issue is §1.1 of Article I of the state Constitution, which was adopted by voters through an initiative process in November 2022, a few months after the U.S. high court decided Dobbs v. Jackson Women’s Health Organization, which established that the federal Constitution does not protect a right to abortion. Sec. 1.1 specifies:

“The state shall not deny or interfere with an individual’s reproductive freedom in their most intimate decisions, which includes their fundamental right to choose to have an abortion….”

Recognizing the impact of Dobbs, Franson said:

“[T]he right to procreative choice discussed in this opinion is derived entirely from California law and the federal constitution plays no role in defining that right.”

Complaint Filed

The dispute erupted after a property owner association responsible for enforcing CC&Rs adopted and recorded in 1991 by the Tulare Local Hospital District, a public entity created under California law to ensure underserved residents have access to healthcare, filed a complaint against the owners of a parcel subject to the restrictions, and an abortion provider seeking to rent space from them, in September 2024.

Dr. Leopoldo Valdivia and Jennifer Valdivia had purchased the property in 2001, and the association learned, in January 2024, that they were planning on leasing a unit to Family Planning Associates Medical Group Inc. (“FPA”), a clinic that offers abortion services.

Unmoved by FPA’s assurances that it would not provide surgical abortion procedures, the association noted a September post on the group’s public Instagram account advertising that the Tulare clinic would open the following month and listing “abortion” as one of the available services. The Valdivias and FPA cross-complained for declaratory and other relief.

After the plaintiff moved for a preliminary injunction, Tulare Superior Court Judge Bret D. Hillman denied the request in December 2024, saying that “this is a case where I think we need some appellate guidance” but that the association had failed to meet its burden of showing a likelihood of prevailing “because…it is an open question…whether restrictions on…abortion clinics on private property…run afoul of the Unruh Civil Rights Act.”

Presumption Favoring Enforcement

Franson pointed out that California jurisprudence has created a presumption favoring enforcement of CC&Rs unless they are shown to be “unreasonable” because they violate public policy or bear no rational relationship to the preservation, operation, or purpose of the affected property.

Saying that a California public policy recognizing “the fundamental right to choose” was “made explicit” by the adoption of Sec. 1.1 of Article I of the state Constitution, the jurist acknowledged that “[t]ensions can arise between a pregnant individual’s right of self-determination and the autonomy interests of healthcare providers.”

However, he noted that the Legislature, while recognizing the right of certain persons and religious hospital groups to refuse to participate in abortion procedures, has “not extended the freedom of choice…to local healthcare districts.” and opined:

“The foregoing [analysis] establish[es] a fundamental public policy of California is (1) to protect an individual’s personal choice on the subject of abortion, which includes a pregnant person’s right to choose to continue a pregnancy or have an abortion…, and (2) to limit government action that unduly intrudes or impinges that choice.”

State Action

The association acknowledged that the hospital district qualified as a public entity at the time the CC&Rs were adopted but disputed that adoption and recording the restrictions amounted to state action.

Rejecting this view, Franson remarked:

“[W]e conclude as a matter of law that the district’s acts of approving the CC&Rs and making the Property subject to the CC&Rs constitute government action for purposes of identifying the appropriate legal standard for determining whether the prohibition of abortion clinics violates the state constitution.”

Adding that “[w]hen a statutory provision intrudes or impinges upon this most intimate and fundamental constitutional right, the California Supreme Court has concluded the intrusion…must be evaluated under the compelling interest standard,” he declared that the “test applies to the CC&Rs’ prohibition of abortion clinics” and not just to statutory enactments.

Because “the Association’s papers requesting a preliminary injunction incorrectly treated the land use restriction as solely a private contractual matter and made no attempt to identify a compelling interest,” the justice reasoned that “the Association’s papers did not demonstrate any likelihood of succeeding in having the prohibition of abortion clinics upheld.”

Unruh Act

Commenting that “Defendants’ alternate ground of unenforceability raises additional issues of first impression involving the Unruh Act and section 53,” he wrote:

“[B]ased on the plain meaning of the statute and the undisputed contents of the CC&Rs, we conclude the land use prohibitions…are subject to section 53. As a result, the statute will render the prohibition of abortion clinics ‘void’ if the prohibition is ‘because of any characteristic listed or defined’ in the Unruh Act.”

He continued: “The Unruh Act’s list of characteristics and the definitions of those characteristics does not explicitly include or exclude the act of operating an abortion clinic and the decision to have an abortion. Consequently, we next consider how to interpret the phrase ‘any characteristic listed or defined in…Section 51.’…It could be interpreted narrowly to mean characteristics expressly listed or defined in the Unruh Act. Alternatively, it could be interpreted liberally to include both expressly listed characteristics and those added by judicial construction.”

Selecting the broader approach, Franson looked to jurisprudence indicating that the kinds of discrimination targeted by the law are meant to be illustrative only and declared that there was “little doubt the decision to have an abortion is a personal ‘choice[] fundamental to a person’s identity, beliefs and self-definition.’ ” He added:

“The fact the [cited cases quote from]…a decision overruled by Dobbs…does not undermine the court’s description of how the choice to continue or terminate a pregnancy is viewed under California law.”

Addressing the standing of the property owners to raise §53 as a defense to the injunctive relief sought, he said:

“[W]e conclude such defendants have standing to argue a restriction violates a fundamental public policy because it interferes with the constitutional rights of third parties who might patronize the business being operated on the property.”

The case is Tulare Medical Center Property Owners Association v. Valdivia, 2026 S.O.S. 966.