State can be abortion rights leader
Former Gov. Arnold Schwarzenegger often referred to California as a “nation-state.” Like a nation-state, California has often carved its own path on policy matters, coordinating with states like New York or even other countries rather than with the federal government.
California has forged innovative policy by diverging from federal law in many arenas. It has demonstrated time and again the potential of federalism — the division of powers between the states and the federal government — to support left-leaning action. It has crafted environmental policy and cap-and-trade programs in coordination with international governments. It has explicitly resisted contrary federal laws and policies in moving early to legalize medical marijuana and, more recently, to counter Trump-era immigration restrictions through sanctuary city policies.
The Supreme Court’s decision in overturning Roe v. Wade makes abortion the latest area in which California can model a way forward independent of the federal government.
The majority opinion in the case explicitly discusses the possibility of divergent state regulation of abortion, noting that “in some states, voters may believe that the abortion right should be even more extensive than the right” as the Supreme Court had previously recognized it and claims that the decision is returning abortion issues “to the people and their elected representatives,” i.e., state legislatures. Justice Brett Kavanaugh’s concurrence even more explicitly refers to the continued validity of different states’ regulation or protection of abortion.
There are federalism-based reasons why providing abortion might remain a state issue. For example, regulation of public health and safety as well as the medical profession has traditionally been considered part of the states’ police powers. Because of this, there is a constitutional presumption in favor of state rather than federal regulation. The reliance on states for health and safety rules has been clear most recently in the arena of COVID-19 regulations, where mask requirements and other rules diverged widely by state.
But there are two principal ways federal law can limit a state’s police powers — if a federal constitutional right exists, or if federal law preempts or supersedes state law. Neither is the case with abortion now that the Supreme Court has overturned Roe v. Wade.
California’s police powers have sometimes been limited because of conflict with constitutionally protected individual rights. Last year, the Supreme Court rejected a number of California COVID-related restrictions on religious gatherings in public houses of worship and in private homes based on the right to the free exercise of religion under the First Amendment.
The Supreme Court has removed the individual constitutional right to an abortion. In the wake of that determination, regulation of abortion and related medical procedures would presumptively fall under state control.
So how can California use its state authority to lead on reproductive justice?
Pregnancy discrimination offers a powerful example. California was not always at the forefront of reproductive rights. In the early 1970s, California law excluded pregnancy-related work loss from coverage under its disability statute. Carolyn Aiello, a hairdresser who suffered from an ectopic pregnancy and needed surgery to remove it, sued on behalf of a class of women claiming that the law discriminated on the basis of sex in violation of the Equal Protection Clause of the 14th Amendment.
The Supreme Court rejected these women’s claims in 1974 in an opinion full of crabbed reasoning, contending that California law did not discriminate on the basis of sex because not all women would become pregnant. National outrage against this and related decisions mounted, culminating on the federal level in the Pregnancy Discrimination Act of 1978.
Under Gov. Jerry Brown, however, California went even further than the federal government, passing the 1978 Pregnancy Disability Leave Law, which ensured the job security of those unable to work for several months because of pregnancy, childbirth or related medical conditions. This law itself was challenged.
Opponents claimed that California’s law was invalid because it protected pregnant people more than the federal statute did. They argued, in other words, that federal antidiscrimination law furnished the ceiling as well as the floor for available regulation of pregnancy discrimination. The Supreme Court, however, upheld California’s measures, deeming nothing inconsistent with federal legislation.
By overturning the constitutional protection for abortion, the Supreme Court opens the door for California to integrate legislative measures securing the right to abortion within a broader reproductive justice framework that emphasizes equitable access to all resources related to childbearing, including abortion. Putting reproductive freedom on the ballot for California voters in November and launching a multistate coalition to protect reproductive rights are valuable steps already under way toward that goal.
Just as it is guiding the nation and the world on environmental issues, California should take advantage of this opportunity to provide a model for reproductive justice throughout the country.