What happens in California with Roe vs. Wade dead?
SACRAMENTO — Despite the U.S. Supreme Court’s decision Friday to strike down the landmark federal abortion rights case Roe vs. Wade, access to abortion in California will continue to be protected under state law, and those rights likely will be expanded soon by Democratic leaders.
The state has been preparing for an influx of patients from areas of the country where bans will be resurrected for the first time since 1973. Various bills and budget proposals are in the works, calling for millions of dollars to be set aside for abortion services for the uninsured, workforce programs to increase the number of providers and to assist patients with the cost of traveling from other states.
Gov. Gavin Newsom signed a bill Friday that creates immediate protections for abortion providers in California against civil liability when providing care to patients from states where the procedure is prohibited or access is narrowed.
Newsom said Friday that California is working with Oregon and Washington to create “the West Coast offense to protect patients’ access to reproductive care.”
“I’m grateful I represent a state that’s fighting for freedom, fighting for reproductive rights,” Newsom said. “A state that has long stood tall, and I’m sorry that more people do not have those protections today.”
The Guttmacher Institute, a research organization that supports reproductive health and abortion rights, said 26 states will ban all or nearly all abortions now that the landmark case has been overturned.
“You will see the impact of the spillover from these other states,” said Cary Franklin, the faculty director at UCLA’s Center on Reproductive Health, Law, and Policy, which released a report this month estimating that 8,000 to 16,000 more people will travel to California each year for abortion care.
That includes up to 9,400 more people from antiabortion states seeking care in Los Angeles County alone, according to the UCLA report. Such an influx of new patients would put additional pressure on California’s abortion providers, creating a residual effect on residents seeking reproductive care even if the state’s laws remain untouched, Franklin said.
California law grants anyone of reproductive age “the fundamental right to choose to bear a child or to choose and to obtain an abortion.” That includes minors, who under state law can consent to an abortion without a parent’s knowledge.
The state allows a woman to have an abortion until the point that a physician determines “there is a reasonable likelihood of the fetus’ sustained survival outside the uterus without the application of extraordinary medical measures” or if the procedure is necessary in order to “protect the life or health of the woman.”
State law does not stipulate the exact point in a pregnancy when viability occurs, instead allowing a physician to make that determination based on “good faith medical judgment.” In most cases, doctors have considered a fetus viable at 24 weeks.
Most women seek abortions early in their pregnancies, with nearly 93% of procedures in 2019 occurring before 13 weeks’ gestation, while fewer than 1% were performed after 21 weeks, according to federal data from the Centers for Disease Control and Prevention. The data do not designate when an abortion after 21 weeks is the result of a medical condition.
California requires MediCal, the state’s healthcare program for the poor, and private plans to cover the cost of abortion. In March, Newsom signed a bill requiring health insurers licensed by the state to cover the full
cost of an abortion, without a copay, deductible or other cost-sharing. Those out-ofpocket costs, on average, range from $300 for a medication abortion to nearly $900 for a procedural abortion, according to the California Health Benefits Review Program.
“California has robust protections,” Franklin said. “So losing the federal constitutional protection will not strip Californians of needed rights to access.”
Earlier this month, state Senate President Pro Tem Toni Atkins (D-San Diego), introduced a constitutional amendment that would ask voters to enshrine California’s abortion protections in the state Constitution.
Senate Constitutional Amendment 10 would prohibit the state from denying or interfering with a person’s “reproductive freedom in their most intimate decisions, which includes their fundamental right to choose to have an abortion and their fundamental right to choose or refuse contraceptives,” according to the text of the amendment.
SCA 10 cleared the state Senate last week and is expected to be voted on in the Assembly on Monday. The proposal must pass both houses with two-thirds approval before the Thursday
deadline to place a measure on the November statewide ballot.
“I want to be crystal clear: Abortion remains legal here in California, and we are working to ensure that people — regardless of where they come from — can access abortion services with as much support and as few barriers as possible,” Jodi Hicks, president of Planned Parenthood Affiliates of California, said in a statement Friday.
“To people across the country living in a state hostile to abortion: California is here for you,” Hicks continued.
California’s abortion laws have long been targeted by antiabortion and religious groups, which say the state’s protections go too far.
“The sad reality is that California already has some of the most accommodating abortion laws and services in the nation,” the California Catholic Conference of Bishops said in a statement.
The Legislature sent Newsom a budget this month that included millions for expanding abortion services. It calls for $20 million to support a state Abortion Support Fund that will provide money for airfare, lodging or gas costs to pregnant individuals, including those seeking care from out of state.
Newsom has pushed for additional funding for abortion services, saying California will “not stand idly by as women across America are stripped of their rights.”
On Friday, an emotional Atkins said California has been preparing for months to ensure that the state is ready to help as many women as possible from states banning abortions. Calling it a “dark day,” Atkins fought back tears as she said her phone has been ringing nonstop since the high court’s decision was made public.
“The Supreme Court has unleashed a seething fury felt by the majority of Americans,” Atkins said.
Abortion rights are protected under the California Constitution in two ways. The California Supreme Court held in 1969 that women have a fundamental right to choose whether to have children based on a right of privacy or liberty in matters related to marriage, family and sex.
“The court did this interpreting ‘liberty’ in the California Constitution, just as the U.S. Supreme Court did four years later in Roe vs. Wade,” said Erwin Chemerinsky, dean of the UC Berkeley School of Law.
In 1974, the state Constitution was amended to include the right to privacy. Seven years later, the state Supreme Court concluded that constitutional privacy protection included the right for a woman to choose an abortion.
“California has been at the forefront of protecting abortion rights and is continuing to lead the way,” said Elizabeth Nash of the Guttmacher Institute. “Abortion opponents are already thinking about where they go to next.”
Nash said the top of the antiabortion agenda is seeking a national ban by obtaining control of Congress and the presidency. Nash acknowledged such a move would be difficult given the 60 votes needed to pass legislation in the U.S. Senate.
“But even talk of a national abortion ban is cause for serious concern,” Nash said.