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California pledges abortion protection

By Malcolm Maclachlan | May 4, 2022


May 4, 2022

California pledges abortion protection

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When news broke Monday night of a leaked U.S. Supreme Court opinion overturning Roe v. Wade, Gov. Gavin Newsom and Democratic leaders quickly announced they would introduce a voter initiative to enshrine abortion access into the state Constitution.

Can California lawmakers “build a firewall” around abortion rights in a post-Roe world?

When news broke Monday night of a leaked U.S. Supreme Court opinion overturning Roe v. Wade, Gov. Gavin Newsom and Democratic leaders quickly announced they would introduce a voter initiative to enshrine abortion access into the state Constitution.

While polling suggests such an initiative would probably win, there are always risks in going to the voters. Meanwhile, the abortion question could set up a fresh round of battles in federal court between California and other states — and potentially with a future Republican administration in Washington.

“If Congress passes a law outlawing abortions, that would preempt any California law — whether statutory or California Constitution — allowing abortion,” said UC Berkeley Dean Erwin Chemerinsky in an email.

“There would be questions about the power of Congress to do that, but presuming it did have the power to do it, yes, federal law is supreme,” said McGeorge School of Law professor Leslie Gielow Jacobs.

The questions, Jacobs added, would hinge on what exactly such a law said. Congress “doesn’t have a general welfare power,” she said. Instead, it often exercises its powers over commerce in areas ranging from environmental laws to outlawing child pornography. This means Congress could, for instance, outlaw doctors providing abortions for pay or prevent people from crossing state lines to receive or perform abortions. But people who provide free abortion services within California might have more leeway.

On the other hand, she noted the Supreme Court upheld a partial birth abortion ban passed by Congress. If the Supreme Court were to go a step beyond the leaked decision in Whole Woman’s Health v. Jackson, 2021 DJDAR 12557, and declare fetuses were protected people, there would be little a state like California could do about it.

If a future Congress did outlaw abortion nationwide, the Supreme Court would quickly find itself evaluating that law, said Loyola Law School professor Jessica A. Levinson — and it could find itself in a bind.

“That’s supposedly the rationale behind this decision, ‘Let’s just leave it to the states,’” she said.

She added, “Would the Supreme Court codify that law?…Congress has to have a source for that power.”

At a news conference Tuesday, California Senate President Pro Tempore Toni Atkins, D-San Diego, said lawmakers would hash out the details of a proposed November constitutional amendment by the end of May. Atkins is a former abortion clinic administrator.

“California has long, long recognized the fundamental right to privacy and to control over one’s own body, and now we are going to make sure that right is enshrined in our Constitution,” Atkins said.

Jodi Hicks, president and CEO of Planned Parenthood Affiliates of California, followed Atkins. She said the voters are on their side.

“Eighty percent of people do not believe Roe v. Wade should be overturned, but they’re doing this anyway,” Hicks said.

A July statewide survey by the Public Policy Institute of California found 79% of Californians did not want Roe v. Wade overturned. California’s largely Democratic electorate has surprised election watchers in the past, however, such as in 2008 when Black and Hispanic voters backed the Proposition 8 gay marriage ban in large numbers. This happened in the same election where the state chose Democratic presidential nominee Barack Obama by 24 points.

However, the electorate has also grown more liberal in the years since. For instance, according to other Public Policy Institute of California polls, support for same sex marriage in the state jumped from 44% in 2008 to 61% five years later.

In the near term, California’s main battles will likely be the same as they were before Justice Samuel A. Alito Jr.’s draft opinion leaked, said Mika Fernandez, vice president of policy and strategic engagement for Lawyers for Good Government in Washington, D.C. She called bills like AB 1666, “the wave of the future.”

That bill seeks to allow residents of other states to come to California for an abortion without suffering legal consequences. It was the first of 13 current abortion rights bills the chair of the California Legislative Women’s Caucus, Assemblywoman Cristina Garcia, D-Bell Gardens, mentioned at the Tuesday morning press conference.

Antiabortion groups say the law violates the full faith and credit clause of the U.S. Constitution.

“There are many areas of the law where states can provide further protections than federal law,” Fernandez said. “Labor law is a perfect example. You can have a federal minimum wage that’s $7 or $8 an hour, and California can have a much higher wage.”

The Legislature is trying to turn California into a “sanctuary jurisdiction” not just for abortion but for gay and transgender rights. SB 107 would provide similar protections as AB 1666, except for “gender affirming care.”

“That’s the future if we live in a world where the Alito decision becomes law,” Fernandez said. “Pre-Roe, your rights were decided based on where you lived.”

Levinson agreed, adding that other states are likely to challenge AB 1666 and similar laws if passed.

“The next battles are not going to be between state and federal but between state and state,” she said. “I personally think that law would stand on firm ground. States have enormous discretion on what happens within their borders.”


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