People v. Privitera ( 1979 )

Opinion

CLARK, J.

Under California Health and Safety Code section 1707.1, it is a misdemeanor to sell, deliver, prescribe or administer any drug or device to be used in the diagnosis, treatment, alleviation or cure of cancer which has not been approved by the designated federal agency (21 U.S.C. § 355) or by the state board (Health & Saf. Code, § 1704).¹

Defendants James Robert Privitera, Jr., a medical doctor, William David Turner, Phyllis Blanche Disney, Winifred Agnes Davis, and Carroll Ruth Leslie were convicted by jury of the felony of conspiracy to sell and to prescribe an unapproved drug—laetrile—intended for the alleviation or cure of cancer. (Pen. Code, § 182, subd. 1; Health & Saf. Code, § 1707. L) Davis and Turner were also convicted of selling laetrile for the alleviation or cure of cancer. (Health & Saf. Code, § 1707.1.)

Viewed in the light most favorable to the judgments (see People v. Reilly (1970) 3 Cal.3d 421, 425 [90 Cal.Rptr. 417, 475 P.2d 649]), the evidence amply supports the jury’s conclusion that defendants were involved in a common plan to import, prescribe, sell and distribute laetrile (also referred to as amygdalin or vitamin B-17) to cancer patients. Dr. Privitera prescribed laetrile for cancer patients and referred his patients to Turner and Disney as suppliers of laetrile. Disney referred patients to Dr. Privitera for treatment. Leslie and Disney worked as distributors in various residential areas. Defendants told prospective users that laetrile is an effective treatment or cure for cancer. Laetrile has not been approved for that purpose by one of the designated governmental agencies.

Defendants appeal on the ground the statute is unconstitutional. They contend the right of privacy protected by the federal and California Constitutions includes a right to obtain laetrile or, more generally, a right of access to drugs not recognized by the government as effective. Fundamental rights, defendants point out, may be regulated only to the extent necessaiy to achieve a compelling state interest. Defendants argue the purported right to obtain laetrile is fundamental and therefore the regulation challenged here must be reviewed under the compelling state interest standard. Section 1707.1 is found to be unconstitutional, defendants conclude, when measured against that standard.

We hold the asserted right to obtain drugs of unproven efficacy is not encompassed by the right of privacy embodied in either the federal or the state Constitutions. The appropriate standard of review, therefore, is the rational basis test, rather than the compelling state interest test. We conclude section 1707.1 amply satisfies the applicable standard by bearing a reasonable relationship to the achievement of the legitimate state interest in the health and safety of its citizens.

The United States Constitution

The Supreme Court has held that regulations limiting certain fundamental rights may be justified only by a compelling state interest (Kramer v. Union School District (1969) 395 U.S. 621, 627 [23 L.Ed.2d 583, 589-590, 89 S.Ct. 1886]; Shapiro v. Thompson (1969) 394 U.S. 618, 634 [22 L.Ed.2d 600, 615, 89 S.Ct. 1322]; Sherbert v. Verner (1963) 374 U.S. 398, 406 [10 L.Ed.2d 965, 971-972, 83 S.Ct. 1790]), and that legislative enactments must be narrowly drawn to express only the legitimate state interests at stake (Griswold v. Connecticut (1965) 381 U.S. 479, 485 [14 L.Ed.2d 510, 515-516, 85 S.Ct. 1678]; Aptheker v. Secretary of State (1964) 378 U.S. 500, 508 [12 L.Ed.2d 992, 998-999, 84 S.Ct. 1659]; Cantwell v. Connecticut (1940) 310 U.S. 296, 307-308 [84 L.Ed. 1213, 1219-1220, 60 S.Ct. 900, 128 A.L.R. 1352]). The right of privacy, founded in the Fourteenth Amendment’s concept of personal liberty and restriction upon state action, has been declared a fundamental right. (Roe v. Wade (1973) 410 U.S. 113, 152-155 [35 L.Ed.2d 147, 176-178, 93 S.Ct. 705].) Thus, if the right of privacy were implicated in this case the challenged statute would, arguably, be judged under the compelling state interest standard.²

However, a fundamental privacy right is not at stake here. The interest defendants allege is, apparently, “the interest in independence in making certain kinds of important decisions.” (Whalen v. Roe (1977) 429 U.S. 589, 599-600 [51 L.Ed.2d 64, 73, 97 S.Ct. 869].) But the kinds of “important decisions” recognized by the high court to date as falling within the right of privacy involve “ ‘matters relating to marriage, procreation, contraception, family relationships, and child rearing and education’ ” (Whalen v. Roe, supra, 429 U.S. at p. 600, fn. 26 [51 L.Ed.2d at p. 74], quoting Paul v. Davis (1976) 424 U.S. 693, 713 [47 L.Ed.2d 405, 420-421, 96 S.Ct. 1155]), but do not include medical treatment.

For this reason defendants’ reliance on Roe v. Wade, supra, 410 U.S. 113, is misplaced. In that case a majority of the high court held the decision to have an abortion falls within the right of privacy, a conclusion following from the court’s earlier decisions that activities relating to procreation (Skinner v. Oklahoma (1942) 316 U.S. 535, 541-542 [86 L.Ed. 1655, 1660-1661, 62 S.Ct. 1110]) and contraception (Eisenstadt v. Baird (1972) 405 U.S. 438, 453-454 [31 L.Ed.2d 349, 362-363, 92 S.Ct. 1029]) were also protected by that right. (410 U.S. at pp. 152-153 [35 L.Ed.2d at pp. 176-177].) However, emphasizing that this privacy right is not absolute, the court stated: “The Court’s decisions recognizing a right of privacy also acknowledge that some state regulation in areas protected by that right is appropriate. As noted above, a State may properly assert important interests in safeguarding health, in maintaining medical standards, and in protecting potential life. . . . The privacy right involved, therefore, cannot be said to be absolute.” (410 U.S. at pp. 153-154 [35 L.Ed.2d at p. 177].)

Significantly, when danger to health exists Roe v. Wade indicates that state regulation shall be tested under the rational basis standard. (410 U.S. at p. 163 [35 L.Ed.2d at pp. 182-183].) Indeed, the high court held in Roe v. Wade that a state may—without encroaching upon any right of privacy—further its important interests “in the areas of health and safety” by requiring abortions be performed at licensed institutions which “insure maximum safety for the patient” and prohibiting performance of abortion by a person not a physician as defined by state law. (410 U.S. at pp. 149, 150, 163-165 [35 L.Ed.2d at pp. 175, 182-184].) The lesson of Roe v. Wade for our case is that a requirement that a drug be certified effective for its intended use is a reasonable means to “insure maximum safety for the patient.”

In Planned Parenthood of Missouri v. Danforth (1976) 428 U.S. 52 [49 L.Ed.2d 788, 96 S.Ct. 2831], the high court struck down a state prohibition of a particular abortion procedure on the ground the prohibition did not reasonably relate to preservation and protection of maternal health. Significantly, in discussing the validity of the statutory prohibition of the medical procedure, the court did not refer to any constitutional considerations of privacy. Rather the procedure was evaluated by the court on the basis of medical evidence of its safety and effectiveness under the rational basis standard. Planned Parenthood thus stands for the proposition that although the decision to have an abortion may be within the constitutional zone of privacy deserving the protection provided by the compelling interest standard, the selection of a particular procedure is a medical matter to which privacy status does not attach and which may be regulated by the government, providing a rational basis for such regulation exists. .

Whalen v. Roe, supra, 429 U.S. 589 provides additional support for our conclusion that the appropriate standard for reviewing section 1707.1 is the rational basis test. In Whalen v. Roe the high court upheld a New York statute requiring that the patient’s name, address and age—among other information—be filed with the state department of health whenever a “Schedule II” drug is prescribed.³ Finding the state “had been unable to demonstrate the necessity for the patient-identification requirement on the basis of its experience during the first 20 months of administration of the new statute,” the district court held that “ ‘the doctor-patient relationship is one of the zones of privacy accorded constitutional protection’ and that the patient-identification provisions of the Act invaded this zone with ‘a needlessly broad sweep.’ ” (429 U.S. at p. 596 [51 L.Ed.2d at p. 71].) Rejecting the standard employed by the district court, the high court reaffirmed that “State legislation which has some effect on individual liberty or privacy may not be held unconstitutional simply because a court finds it unnecessary, in whole or in part. For we have frequently recognized that individual States have broad latitude in experimenting with possible solutions to problems of vital local concern.” (Id., at p. 597, fns. omitted [51 L.Ed.2d at p. 72].)

Although recognizing that, “[unquestionably, some individuals’ concern for their own privacy may lead them to avoid or to postpone needed medical attention” (id., at p. 602 [51 L.Ed.2d at p. 75]), the Supreme Court upheld the patient-identification requirement under the rational basis test. “The New York statute challenged in this case represents a considered attempt to deal with [a problem of vital local concern]. It is manifestly the product of an orderly and rational legislative decision. . . . There surely was nothing unreasonable in the assumption that the patient-identification requirement might aid in the enforcement of laws designed to minimize the misuse of dangerous drugs. For the requirement could reasonably be expected to have a deterrent effect on potential violators as well as to aid in the detection or investigation of specific instances of apparent abuse. At the very least, it would seem clear that the State’s vital interest in controlling the distribution of dangerous drugs would support a decision to experiment with new techniques for control. For if an experiment fails—if in this case experience teaches that the patient-identification requirement results in the foolish expenditure of funds to acquire a mountain of useless information—the legislative process remains available to terminate the unwise experiment. It follows that the legislature’s enactment of the patient-identification requirement was a reasonable exercise of New York’s broad police powers.” (Id., at pp. 597-598 [51 L.Ed.2d at pp. 72-73].)

Finally, the high court reiterated: “It is, of course, well settled that the State has broad police powers in regulating the administration of drugs by the health professions. Robinson v. California, 370 U.S. [660], at 664-665; Minnesota ex rel. Whipple v. Martinson, 256 U.S. [41], at 45; Barsky v. Board of Regents, 347 U.S. 442, 449.” (Whalen v. Roe, supra, at p. 603, fn. 30 [51 L.Ed.2d at p. 75].) Although it had not done so, the court observed, “the State no doubt could prohibit entirely the use of particular Schedule II drugs.” (Id., at p. 603 [51 L.Ed. at p. 75].) If the state has the power to ban a drug with a recognized medical use because of its potential for abuse, then—given a rational basis for doing so—the state clearly has the power to ban a drug not recognized as effective for its intended use.

The legitimate state interest expressed in the challenged statute is set forth- in the legislative findings recited in section 1700. “The effective diagnosis, care, treatment or cure of persons suffering from cancer is of paramount public importance. Vital statistics indicate that approximately 16 percent of the total deaths in the United States annually result from one or another of the forms of cancer. It is established that accurate and early diagnosis of many forms of cancer, followed by prompt application of methods of treatment which are scientifically proven, either materially reduces the likelihood of death from cancer or may materially prolong the useful life of individuals suffering therefrom. [U] Despite intensive campaigns of public education, there is a lack of adequate and accurate information among the public with respect to presently proven methods for the diagnosis, treatment, and cure of cancer. Various persons in this State have represented and continue to represent themselves as possessing medicines, methods, techniques, skills, or devices for the effective diagnosis, treatment, or cure of cancer, which representations are misleading to the public, with the result that large numbers of the public, relying on such representations, needlessly die of cancer, and substantial amounts of the savings of individuals and families relying on such representations are needlessly wasted.” (Health & Saf. Code, § 1700.)

These findings were recently echoed by the Commissioner of the federal Food and Drug Administration with specific reference to laetrile. “In the Commissioner’s opinion, the use of Laetrile in the United States has become a genuine public health problem. Increasingly, doctors dealing with cancer patients are finding that the patients are coming to legitimate therapy too late, having delayed while trying Laetrile. It seems clear that another substantial group of persons afflicted with cancer is avoiding effective therapy altogether and using Laetrile instead. The question has become one of life and death for these patients and for others who may be convinced to use Laetrile in the future.” (42 Fed.Reg. 39769.)

The commissioner rendered his opinion at the conclusion of a rulemaking proceeding undertaken in compliance with the opinion of the court of appeals in Rutherford v. United States (10th Cir. 1976) 542 F.2d 1137, and the order of the district court in Rutherford v. United States (W.D.Okla. 1977) 424 F.Supp. 105. “Based upon a careful review of the administrative record,” the commissioner found that “Laetrile is not generally recognized by qualified experts as a safe and effective cancer drug.” (42 Fed.Reg. 39775.) The commissioner further found laetrile does not qualify for exemption from the new drug provision of the Federal Food, Drug, and Cosmetic Act (21 U.S.C. § 301 et seq.) by virtue of compliance with the 1962 grandfather clause of the act. (42 Fed.Reg. 39795.) Distribution of laetrile in interstate commerce, the commissioner concluded, is thus illegal and subject to regulatory activity by the Food and Drug Administration.

Because of defendants’ reliance on it, subsequent developments in the Rutherford case will now be considered. In Rutherford v. United States (W.D.Okla. 1977) 438 F.Supp. 1287, the district court set aside the commissioner’s action and enjoined federal authorities from interfering with distribution of laetrile in interstate commerce or with use of laetrile for the treatment of cancer. The decision was based on two grounds: First, contrary to the conclusion reached by the commissioner, the court held that laetrile is exempt from the premarket approval requirement for new drugs by virtue of compliance with the 1962 grandfather clause. (438 F.Supp. at pp. 1294-1298.) Second, contrary to the conclusion we reach today, the court concluded the federal right of privacy encompasses a “right to use a nontoxic substance in connection with one’s own personal health-care.” (Id., at p. 1301.)

On appeal by the government, the court of appeals addressed neither the grandfather clause question nor the right of privacy issue. Instead, the court held that “the ‘safety’ and ‘effectiveness’ terms used in the statute have no reasonable application to terminally ill cancer patients.” “We are considering only cancer patients who are terminally ill and only their intravenous use of Laetrile. Thus in this context, what can ‘generally recognized’ as ‘safe’ and ‘effective’ mean as to such persons who are so fatally stricken with a disease for which there is no known cure? What meaning can ‘effective’ have in the absence of anything which may be used as a standard? Under this record Laetrile is as effective as anything else. What can ‘effective’ mean if the person, by all prevailing standards ... is going to die of cancer regardless of what may be done.” The permanent injunction granted by the district court was continued but limited only to permit procurement of intravenous injections of laetrile administered by a licensed medical practitioner to persons who are certified by a licensed medical practitioner to be terminally ill of cancer in some form. (Rutherford v. United States (10th Cir. 1978) 582 F.2d 1234.)⁴

Defendants can take no comfort in the court of appeals’ decision for, unlike Rutherford, this case is not an action on behalf of the class of terminally ill cancer patients. Whatever may be said in favor of permitting “terminal” cancer patients access to laetrile, there is no indication in the record that defendants sought to restrict their activities to that class when prescribing, distributing and administering laetrile. Indeed, the record reflects that Dr. Privitera sometimes neither took a medical history from nor personally examined the patients for whom he prescribed laetrile. The lay defendants, of course, were not qualified to diagnose cancer, much less to determine whether a cancerous condition was “terminal.”

Moreover, we are not prepared to reject as unreasonable the explanation given by the commissioner for the Food and Drug Administration’s refusal to approve laetrile for use by “terminal” cancer patients.⁵ The commissioner concluded: “[A]pproval of Laetrile restricted to ‘terminal’ patients would lead to needless deaths and suffering among (1) patients characterized as ‘terminal’ who could actually be helped by legitimate therapy and (2) patients clearly susceptible to the benefits of legitimate therapy who would be misled as to Laetrile’s utility by the limited approval program or who. would be able to obtain the drug through the inevitable leakage in any system set up to administer such a program.” (42 Fed.Reg. 39805.) Substantial evidence in the administrative record appears to support the conclusion reached by the commissioner.⁶ Certainly the record in this case does not inspire one with confidence that advocates of laetrile would cooperate with a regulation restricting it to “terminal” cancer patients. In studied defiance of current law, Dr. Privitera prescribed and administered the drug as a cancer cure, advised his patients to discontinue conventional treatment, and warned them not to let their regular physicians know they were taking laetrile.

In conclusion, we emphasize we are not taking sides on the fiercely contested medical questions regarding laetrile’s safety or efficacy as a cancer drug. Laetrile advocates may yet be vindicated in the court of scientific opinion, for even as this is being written the National Cancer Institute is seeking approval from the Food and Drug Administration to test laetrile on advanced cancer patients. (Cancer Institute Seeks to Test Laetrile, L.A. Times (Sept. 28, 1978) pt. I, p. 14, cols. 1-6.) Nor are we endorsing the decision the Legislature has made on the basis of existing scientific evidence. Whether cancer patients—especially advanced cancer patients who have unsuccessfully sought relief from conventional therapy and who are fully informed as to the consensus of scientific opinion concerning the drug—should have access to laetrile is clearly a question about which reasonable persons may differ. It is not our function to render scientific or legislative judgments. Rather, we must resolve a narrow question: Does the challenged legislation bear a reasonable relationship to the achievement of the legitimate state interest in the health and safety of its citizens? We conclude section 1707.1 does satisfy this standard and that it therefore does not encroach upon the federal constitutional right of privacy.

The State Constitution

Having determined the federal constitutional right of privacy does not encompass a right of access to drugs of unproven efficacy, we next determine whether the voters of California intended to create such a right in November 1972 when they amended article I, section 1 of our Constitution to include among the various “inalienable” rights of “all people” the right of “privacy.”⁷

There is simply no evidence of such intent. To the contrary, in White v. Davis (1975) 13 Cal.3d 757 [120 Cal.Rptr. 94, 533 P.2d 222], we observed “the moving force behind the new constitutional provision was a more focussed privacy concern, relating to the accelerating encroachment on personal freedom and security caused by increased surveillance and data collection activity in contemporary society. The new provision’s primary purpose is to afford individuals some measure of protection against this most modern threat to personal privacy.” (Id, at p. 774.) As we further observed, “[t]he principal objectives of the newly adopted provision are set out in a statement drafted by the proponents of the provision and included in the state’s election brochure,” the beginning paragraphs of which we then quoted: “ ‘The proliferation of government snooping and data collecting is threatening to destroy our traditional freedoms. Government agencies seem to be competing to compile the most extensive sets of dossiers of American citizens. Computerization of records makes it possible to create “cradle-to-grave” profiles of every American. [1Í] At present there are no effective restraints on the information activities of government and business. This amendment creates a legal and enforceable right ofprivacy for every Californian.’ (Italics in the original.)” (13 Cal.3d at p. 774.)

The election brochure argument by the proponents of the provision “represents, in essence, the only ‘legislative history’ of the constitutional amendment available to us.” (Id., at p. 775.) In the absence of any evidence that the voters in amending the California Constitution to create a right of privacy intended to protect conduct of the sort engaged in by defendants, we have no hesitation in holding that section 1707.1 does not offend that constitutional provision.

Failure to Preserve Search and Seizure Issue

Defendants finally contend that the trial court erred in denying their motion to suppress certain evidence obtained on execution of a telephonic search warrant.

Subdivision (b) of section 1528 of the Penal Code provides in pertinent part that a magistrate may orally authorize a peace officer to sign the magistrate’s name on a duplicate original search warrant. Defendants argue that attempted action under this provision failed here because the person authorized to sign the magistrate’s name—a federal customs service special agent—was not a “peace officer” under California law.

The People correctly respond that defendants are precluded from raising this issue by their failure to preserve it by appropriate objection below. “[T]he general rule [is] that questions relating to the admissibility of evidence will not be reviewed on appeal in the absence of a specific and timely objection in the trial court on the ground sought to be urged on appeal. (See Evid. Code, § 353; People v. Welch (1972) 8 Cal.3d 106, 114-115 [104 Cal.Rptr. 217, 501 P.2d 225]; People v. De Santiago (1969) 71 Cal.2d 18, 22 [76 Cal.Rptr. 809, 453 P.2d 353].) The contrary rule would deprive the People of the opportunity to cure the defect at trial and would ‘permit the defendant to gamble on an acquittal at his trial secure in the knowledge that a conviction would be reversed on appeal.’ (Coy v. Superior Court (1959) 51 Cal.2d 471, 473 [334 P.2d 569].)” (People v. Rogers (1978) 21 Cal.3d 542, 548 [146 Cal.Rptr. 732, 579 P.2d 1048].)

The reason for the rule is well illustrated here. While conceding a federal customs agent is not, per se, a “peace officer” under California law (see Pen. Code, § 7, subd. 8, and § 830 et seq.), the People suggest Agent Nadel may nevertheless have acquired such status by a process of cross-deputization. As the issue was not raised below, the People had no occasion to pursue the point and, therefore, defendants may not raise it now.

We have considered defendants’ remaining contentions and find them to lack merit.

The judgments of conviction are affirmed.

Tobriner, J., Mosk, J., Richardson, J., and Manuel, J., concurred.

1 Section 1707.1 provides: “The sale, offering for sale, holding for sale, delivering, giving away, prescribing or administering of any drug, medicine, compound or device to be used in the diagnosis, treatment, alleviation or cure of cancer is unlawful and prohibited unless (1) an application with respect thereto has been approved under Section 505 of the Federal Food, Drug and Cosmetic Act, or (2) there has been approved an application filed with the board setting forth: [11] (a) Full reports of investigations which have been made to show whether or not such drug, medicine, compound or device is safe for such use, and whether such drug, medicine, compound or device is effective in such use: [11] (b) A full list of the articles used as components of such drug, medicine, compound or device; [H] (c) A full statement of the composition of such drug, medicine, compound or device; (d) A full description of the methods used in, and the facilities and controls used for, the manufacture, processing and packing of such drug, medicine or compound or in the case of a device, a full statement of its composition, properties and construction and the principle or principles of its operation; [11] (e) Such samples of such drug, medicine, compound or device and of the articles used as components of the drug, medicine, compound or device as the board may require; and [11] (f) Specimens of the labeling and advertising proposed to be used for such drug, medicine, compound or device.”

2 However, as we shall see, even statutes restricting exercise of a right found by the United States Supreme Court to be a fundamental privacy right are reviewed under the rational basis standard when the danger to health is significant. (Roe v. Wade, supra, 410 U.S. 113, 163 [35 L.Ed.2d 147, 182-183].)

3 The New York statute classified potentially harmful drugs in five schedules. Drugs, such as heroin, which are highly abused and have no recognized medical use, are in schedule I. Schedules II through V include drugs which have a progressively lower potential for abuse but also have a recognized medical use. Schedule II includes the most dangerous of the legitimate drugs. (Id., at pp. 592-593 [51 L.Ed.2d at pp. 69-70].)

4 On 22 January 1979 certiorari was granted in Rutherford. (— U.S. — [59 L.Ed.2d 87, 99 S.Ct. 1042].)

5 The court of appeals did not mention or discuss the reasons given by the commissioner.

6 For example, with regard to the impossibility of determining “who is terminal,” the commissioner cited Dr. Peter H. Wiernik, chief of the clinical" oncology branch of the National Cancer Institute’s Baltimore Cancer Research Center, who stated “One major difficulty in making a particular chemical available for terminal patients only is that no one can prospectively define the term ‘terminal’ with any accuracy. A patient can be said to be terminal only after he dies. Many patients who are critically ill respond to modern day management of cancer.” This opinion was shared by Dr. Joseph F. Ross, professor of medicine at the University of California School of Medicine at Los Angeles. Dr. Ross stated “[T]he distinction of ‘terminal’ patients from ‘nonterminal’ may not be reliably determined and an assumption that Laetrile may be given to such patients with impunity may deprive such patients of therapeutic measures which could help them.” As Helene Brown, executive director of Cancer Control/Los Angeles, put it, “No one knows if and when any patient is going to die.” (42 Fed.Reg. 39805.)

7 Article I, section 1 (as reworded by constitutional amendment in Nov. 1974) now reads: “All people are by nature free and independent, and have inalienable rights. Among these are enjoying and defending life and liberty, acquiring, possessing, and protecting property, and pursuing and obtaining safety, happiness, and privacy.”