San Francisco Chronicle

How to fight anti-abortion laws

- By Dennis Aftergut Dennis Aftergut is a former federal prosecutor and former chief assistant city attorney in San Francisco. He practices law at Renne Public Law Group.

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.

 ?? Gabrielle Lurie / The Chronicle 2017 ?? Polls indicate a majority of California­ns are pro-choice with one showing 70% support for the right to have an abortion.
Gabrielle Lurie / The Chronicle 2017 Polls indicate a majority of California­ns are pro-choice with one showing 70% support for the right to have an abortion.

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