How to fight anti-abortion laws
The right to choose is under assault. Texas’ new “heartbeat” statute bars all abortions after six weeks of pregnancy. This includes those in cases of rape or incest. It also grants $10,000 and up to bounty hunters who can bring legal action against anyone who helps a woman in defiance of the statute.
In its Whole Women’s Health v. Jackson decision on Sept. 1, the Supreme Court’s “Radical Five” majority summarily greenlighted the law. Other red states have already begun copy-cat efforts.
Pro-choice Californians — 70% of the state — support a woman’s right to choose. That majority surely to want to do something to fight to preserve that right across America. And we can. Here are four things California’s Legislature can do right now to put a wrench in Texas’ efforts to destroy the right to choose.
Make it a felony to impede reproductive rights
In 1969, three years before the Supreme Court’s Roe decision, the California Supreme Court held that our state’s constitution protects a woman’s right to choose. There’s nothing the Supreme Court can do to change this part of our state’s constitutional protection, regardless of what happens to Roe. Access to abortion is a civil right in California.
Current California law makes it a misdemeanor, punishable by a year in county jail, to physically obstruct a woman’s access to reproductive rights. That is an important deterrent in preventing anti-choice activists from hindering abortions in-state. But an even stronger, clearer law is needed to help ensure those energized by the Texas legislation don’t ramp up their actions.
The Legislature could enhance existing penalties so that anyone who harasses, impedes or threatens a person seeking their constitutional right to an abortion is subject to five years in a state penitentiary. These protections would apply to visitors who come to California to seek an abortion from states like Texas that have antiabortion laws.
Provide state funding to promote abortion rights and counseling
The fight to preserve the right to choose in America — and to protect and counsel those ensnared by the legal web of anti-choice laws — needs cash. The California Legislature could budget funds to help reimburse state organizations
who are spending to support and counsel women directly affected by Texas’ and other states’ harsh crackdown on abortion.
Offer refuge to Texas abortionseekers and their supporters
It’s not far-fetched to imagine a scenario where the neighbor of a 10-weeks pregnant woman needs money and follows her as she and her husband drive to an abortion clinic. After a bit of investigation, the neighbor brings an action and secures a $10,000 judgment against the husband under the Texas law. The couple decides to move to California. Without a change in law, the neighbor can trace them and collect his money using California courts.
California can and should make itself a safe harbor for anyone escaping draconian state anti-choice laws. Our legislators can accomplish this by adopting a statute that says California courts have no jurisdiction to enforce any judgment obtained under a statute that provides a “bounty” for individuals bringing enforcement actions that are the domain of official state authorities.
Though the ultimate viability of a
statute denying enforcement to a Texas judgment is no slam dunk under this Supreme Court, Article IV of the Constitution is meant to establish “equal treatment” for citizens of all states. The Supreme Court has long held that state legislatures have full control of the jurisdiction they establish for their courts; that is, the kinds of cases courts may entertain. So long as the citizens of the “home” state can’t use their courts for a specified purpose, neither should citizens of other states.
Add another protection for Californians from bounty hunters
California’s Legislature could also amend the state’s debtor-creditor laws to allow Californians to exempt their property from claims that arise from Texas’ or other states’ copy-cat legislation. Imagine an Oakland resident hires a bodyguard to protect her pregnant sister in Texas as she gets an abortion after the six-week threshold. A Texas bounty hunter who tries to collect against the Oakland resident on this abortion would now have a second legal hurdle to jump — a claim that the $10,00 debt is unenforceable under
California law.
Of course, all of these ideas to expand and protect the right to choose will be moot should voters recall prochoice Gov. Gavin Newsom in the Sept. 14 election. Republican Larry Elder, the runaway leading candidate to replace Newsom with only 26% of polled voters’ support, believes that Roe v. Wade was a “bad decision.” Were he to become governor, he could veto any new pro-choice legislation and “slow-walk” enforcement of current protections.
To bolster existing abortion safeguards, and to add new ones in opposition to Texas’ law, Californians need to vote “no” on recall.
The term states’ rights was long the cynical battle cry of the Jim Crow South. Those efforts, however, were highly successful in manipulating the laws of this country for ill. They still are. It’s time for California harness those techniques to fight for civil rights instead, especially the right to an abortion.