A Contemporary Abortion Law For California

Constitutional law, science and medicine have dramatically changed since Ronald Reagan was Governor of California.  But a major law involving fundamental reproductive rights remains frozen in time. California’s Therapeutic Abortion Act appears in our statute books exactly as Governor Reagan signed it in 1967.

A progressive measure 35 years ago, the Therapeutic Abortion Act now is archaic, confusing, and unconstitutional.   A lawyer researching the Health and Safety Code today would read that abortion is legal only if a hospital committee determines that the pregnancy will gravely impair a woman’s physical or mental health or a District Attorney concludes that the pregnancy probably resulted from rape or incest.  Health and Safety Code Sections 123405, 123407. 

Reform is long overdue, and it is finally on the horizon.  SB 1301 (Kuehl), pending in the California Senate, will repeal the Therapeutic Abortion Act and replace with a truly contemporary law, the Reproductive Privacy Act. 

            The Therapeutic Abortion Act was the Legislature’s 1967 response to the carnage resulting from back-alley abortions. Appellate decisions arising from the state's criminal abortion law tell a grim tale of abortions performed in hotel rooms and on kitchen tables, using knitting needles, poisons and coat hangars, resulting in death, injury and sterility.  The Legislature resolved in 1967 to ensure that legal abortions be performed in a safe clinical environment. The Therapeutic Abortion Act required that each abortion, no matter how early, take place in an accredited hospital, and provided that only licensed doctors could perform or even assist in performing abortions. Health and Safety Code Section 123405. 

            These restrictions made sense in 1967, when the only medical procedure for ending pregnancy was surgery, and doctors were the only health professionals licensed and trained to perform surgery.  But much has changed in 35 years.

            In 1972, the California Supreme Court struck down the Therapeutic Abortion Act’s restrictive eligibility criteria and committee approval system in 1972.  People v. Barksdale, 8 Cal. 3d 320 (1972).  Two months later, the United States Supreme Court issued its landmark decision establishing that women possess a fundamental right to decide whether to bear children. Roe v. Wade, 410 U.S. 113 (1973).  Roe and its companion case, Doe v. Bolton, 410 U.S. 179 (1973), established that the Therapeutic Abortion Act’s hospital requirement and time limits on abortions were unconstitutional. 

            California voters added a privacy initiative to our state Constitution in 1972. Article I, Section 1 protects childbearing decisions more broadly than the United States Constitution. Our right to privacy prevents the state from denying poor women public funding for abortion, Committee to Defend Reproductive Rights v. Myers, 29 Cal. 3d 252 (1981), and from requiring young women to obtain parental or judicial consent for abortion. American Academy of Pediatrics v. Lungren, 16 Cal. 4^th 307 (1997).

            The Legislature has never responded to these constitutional developments.  Despite resolutions from the State Bar Conference of Delegates urging the Legislature to repeal the Therapeutic Abortion Act, it remains unmodified in the Health and Safety Code.  But while California’s abortion law remained static, science and medicine progressed. 

             Legalizing abortion brought the procedure out of the shadows and allowed for technological advances.  Surgical abortions are far safer today than in 1967. Moreover, women may now end very early pregnancies by medication.  On September 28, 2000, the federal Food and Drug Administration approved the distribution of mifepristone, the French abortion pill (known as“RU-486”).  The FDA finally brought to American women an option that has been available abroad since 1988.  More than 650,000 women in Europe, and millions of women worldwide, have safely ended pregnancies without surgery.  Medical abortion allows for much earlier termination without an invasive procedure.  This new technology brings the promise of true reproductive freedom to women in rural areas lacking abortion providers.

            Medicine has also dramatically changed in the past 35 years.  With the return on medics after the Vietnam War in 1975, California licensed a new health care professional, the physician’s assistant.  Subsequently, the state has licensed registered nurses with advanced degree as nurse practitioners and certified nurse midwives. These advanced practice clinicians are integral to the delivery of health care, particularly in medically underserved areas of the state.

Advanced practice clinicians are licensed, trained and experienced in providing a range of health care services, including many complex procedures.  But the law bars them from performing the functions associated with one medical procedure—abortion—regardless of whether those functions are within their scope of practice.  Because the 1967 Therapeutic Abortion Act limited abortions to licensed physicians, advanced practice nurses and physicians’ assistants today may not even hand a patient abortion pills under a doctor’s supervision.  This prohibition, sensible for a bygone era, now operates as an unjustified barrier to new technology allowing for very early safe abortions.

            California’s 1967 abortion law has simply not kept pace with developments in constitutional rights, science and medicine.  The state needs a 21^st century statute. SB 1301, repealing all of the Therapeutic Abortion Act, will create a modern law: the Reproductive Privacy Act.

The Reproductive Privacy Act will bring California abortion law into compliance with the Constitution by codifying Roe v. Wade.  The Act declares as a matter of California policy that individuals have a right to make private childbearing decisions free of government interference.  At a time when Supreme Court is a single vote away from overruling Roe, California law should embody its important constitutional principles. 

The Reproductive Privacy Act will also conform California law to modern medicine, by eliminating the legal anomaly that has historically singled out abortion for special burdens and stigmas   The state will regulate abortion consistent with all other health care services.  Advance practice clinicians, acting within scope of their licenses, training and education, will be authorized to assist with surgical abortions and to provide non-surgical abortions under the general supervision of doctors.  This will expand the pool of qualified abortion providers in California, fulfill the promise of new abortion technologies, and grant women throughout the state greater ability to control their childbearing.

In short, SB 1301 will create a truly contemporary abortion law.  It is timely, long overdue, and important to protect California women's reproductive freedom in the future.