Last Updated on September 9, 2024
There are a lot of questions circulating now that the world knows Roe Vs. Wade will almost certainly be overturned when the Supreme Court releases their opinion in Dobbs v. Jackson Women’s Health Organization in June. One thing many people have wondered is how the ruling will impact the notably pro-choice state of California. While it’s impossible to predict the future, measures taken by California lawmakers and particularly anti-abortion states such as Texas, Missouri and Louisiana are giving us some insight into how a post-Roe world will look.
How California is Protecting Abortion Rights Without Roe Vs. Wade?
California has long been a pro-choice state and courts actually recognized the right to abortion services in the state constitution four years before Roe Vs. Wade was determined in the Supreme Court. Since then, the state legislature passed a statute declaring abortion a fundamental right under state law.
More recently, Governor Newsom has declared that California will become an abortion sanctuary should Roe Vs. Wade be overturned. A list of over 40 policy recommendations were released in December and most of these have been incorporated into a major legislative package going through the state capital right now. While most of these proposals will not become law until next year, some pieces could potentially be added to the state’s budget and be approved by June 15 so they could be enacted just as the Supreme Court ruling is released. Proposals include:
- Allowing some nurse practitioners to perform first-trimester abortions without doctor supervision.
- Creating a state fund to help patients who may not be able to afford abortions and to help improve access to abortions, this includes expenses such as travel, lodging, lost wages and more
- Providing money to clinics who provide abortion services to patients with insurance companies that will not cover the procedure
- Preventing insurers from charging a co-pay or deductible for abortions performed within California
- Protecting doctors who travel to other states to perform the procedure or who treat patients from other states. This includes nullifying civil judgements in other states that are related to abortion services, prohibiting providers and insurers from sharing information that could be used to penalize abortion providers or patients, and preventing the state medical board from suspending or revoking the licenses of California physicians punished in other states for performing a legal abortion in California
- Creating a “reproductive health service corps” for parts of the state that are currently underserved in this area
- Stopping coroner investigations of fetal deaths from possible self-inflicted abortions
- Improving security services at abortion clinics
- Developing an incentive program for states that want to relocate to California from states that have abortion bans
- Adding over $125 million for funding of abortion services, including $15 million to help reproductive rights groups to promote California’s pro-choice services
- Creating an amendment to the state constitution to codify the right to abortion in the state, so no state court case could undo the statute protecting the right and the State Supreme Court’s precedent on the issue
Can States Prohibit Abortions Done Outside The State’s Borders?
While California has already declared its intention to protect residents and those who seek abortion services within the state, other states are working to prohibit residents from getting abortions, even outside the state limits. In fact, Missouri even considered passing a law prohibiting abortions even in cases where the baby was possibly conceived within state limits. But laws attempting to stop someone from visiting another state in order to obtain an abortion are largely for show because they are widely considered to be unconstitutional for multiple reasons. First of all, these types of laws violate the Dormant Commerce Clause, which prohibits state regulations from restricting interstate commerce -and yes, abortion services can be considered commerce. Second, states do not have the authority to dictate what happens outside of their borders. And third, this violates an individual’s constitutional right to travel.
That being said, it is possible that a republican held congress could pass a federal law prohibiting travel for the purposes of getting an abortion, for example, by barring facilities from performing abortions on those visiting from states where the procedures are illegal. Realistically, it would be very difficult to pass such a law though, but even if such a law was passed though, it would be very difficult to enforce. That’s because the federal government cannot require state or local law enforcement agencies to help enforce federal law and states like California would quickly prohibit these agencies from doing so, just as they prohibited them from providing information to ICE.
Providing Tele-Health and Mail Order Abortion Pills to Out-of-State Patients
One of the interesting challenges to face states trying to ban abortions is the fact that the FDA has recently permitted abortion pills to be delivered through the mail and tele-health services now allow patients to more easily see physicians outside of their borders. This makes it dramatically more difficult for states to enforce abortion bans since many patients no longer need to visit clinics at all.
Some states, such as Texas, have made laws that allow for citizens to sue anyone who helps a woman from that state obtain an abortion, including providers in other states. Texas has also prohibited the mailing of abortion pills to those in the state, making it a criminal offense subject to extradition -and other states are sure to follow suit. While California is already enacting laws to negate fines related to such lawsuits and to prohibit the extradition of providers offering legal abortions within the state, it would be impossible to protect a provider with a warrant out against them from being arrested or prosecuted if the individual actually visited the state in question. This means anyone offering abortion services to someone physically located in a state that has banned abortion would be best off avoiding travel in states with such laws.
Women Who Have Miscarriages in Some States May be At Risk
Pregnant Californians traveling to states where abortion has been illegalized may want to exercise caution. Depending on how the state’s abortion laws are worded, having a miscarriage could put women at risk of being investigated and possibly accused of breaking the state’s abortion law. While Louisiana’s attempt to pass a law of this nature failed to for the time being, future laws consider abortion a type of homicide could be particularly problematic as these could require police to investigate miscarriages.
It is also possible that medical providers in states that have abortion bans will be particularly cautious about offering certain types of care to pregnant women. If the mother’s life is in danger, doctors in states with no medical exemptions will not be able to legally terminate a pregnancy. Even if the fetus is not viable, but has not been expelled by the woman’s body, doctors may be hesitant, or even outright refuse, to perform abortion procedures, which could put the mother at risk of sepsis.
Does California Have Any Protections for the Unborn?
Contrary to what anti-abortion activists may claim, California does value the life of fetuses, it just believes a woman’s right to choose is more important. For proof, look no further than the state’s fetal murder law, which doesn’t apply in cases of abortion, but in cases where someone else killed a fetus in its mother’s body. Under this law, killing a fetus is considered another form of murder, meaning killing a pregnant woman can result in the murderer being charged with two counts of murder.
What About Incarcerated Women?
Female inmates are guaranteed access to abortions, though their doctor, nurses, and Family Services Coordinator are not legally required to tell them about this option. After the 24th week, inmates, like any other pregnant woman, can only have an abortion if their life is in danger from the pregnancy.
So How Will Overturning Roe Vs. Wade Affect Californians?
Overall, most Californians won’t be affected by the Supreme Court’s ruling to remove national abortion protections, other than facing a few new taxes to cover expenses to protect protections for all women seeking abortions. Additionally, California as a whole might see quite a few more visitors coming to obtain medical services in a sanctuary state. For abortion providers though, life is about to get a lot busier and their travel may be best be restricted to states without abortion bans. Similarly, pregnant women may want to be cautious about traveling to states with abortion bans, particularly if they believe they may be at risk of having a miscarriage.
