Reproductive Rights: How Safe is California

January 21, 2005 by Margaret Crosby and David Robertson, The Daily Journal

This week, Californians who support women’s reproductive rights will celebrate the thirty second anniversary of the Supreme Court’s decision in Roe v. Wade, 410 U.S. 113 (1973), and will watch the inauguration of a President determined to overturn it. During the campaign, George Bush solicited the votes of those who seek Roe’s demise and praised Supreme Court Justices who do not believe the Constitution protects childbearing decisions. At the second presidential debate, Bush said that he would not appoint Supreme Court justices who endorse the decision in Dred Scott v. Sanford, 60 U.S. 393 (1856), and, thereby, mystified all those lawyers who do not consider 1850’s slavery a burning contemporary issue. Of course, Bush was speaking in an evangelical code to anti-choice forces that rhetorically equate Dred Scott with Roe. Now, the re-elected President does not have to speak in code, and we must face the question: how safe are Californians’ reproductive rights?

We have some good news. Currently, both our federal Constitution and our state Constitution (in Article 1, Section 1) protect women’s rights of privacy and, therefore, their right to control their reproductive lives. The United States Supreme Court’s reversal of Roe would leave California’s women with a state constitutional right to choose abortion. The state Constitution’s explicit right of privacy is completely independent of the federal Constitution and, also, is broader. The California Supreme Court, enforcing our state Constitution, not only has recognized women’s procreative rights but also, in contrast to the United States Supreme Court, has refused to allow the state to restrict Medi-Cal funding for poor women’s abortions, Committee to Defend Reproductive Rights v. Myers, 29 Cal. 3d 252 (1981), or to require parental or judicial consent for minors’ access to abortion, American Academy of Pediatrics v. Lungren, 16 Cal. 4th 307 (1997). Moreover, the California Legislature’s passage of the Reproductive Privacy Act in 2002 declares the state’s public policy that each woman has a right to choose to continue or end a pregnancy and codifies Roe’s constitutional principles of privacy.

However, before you break out the champagne, we have sobering news. A President and a Senate and a House who disfavor women’s privacy rights have the power to pass federal legislation, restricting reproductive rights, that would trump California’s Constitution and its laws. Of course, only the United States Supreme Court’s actual reversal of Roe (presumably after new Bush appointments to the Court) would allow the executive and the legislative branches to eliminate completely a woman’s right to choose an abortion. Nevertheless, the President’s and Congress’s penchant for burdening women’s access to abortion already has resulted in restrictive laws.

For example, the so-called “Partial Birth Abortion Act of 2003” outlaws 95% of abortions as early as twelve to fifteen weeks. Women in California are as subject to these restrictive laws as women in Texas. Congressional choices in the drafting of the Act -- to highlight late abortions as a political issue – ignored clear constitutional standards, particularly safeguards for women’s health. As a result, several federal judges, including a judge hostile to Roe enjoined the federal abortion ban. Planned Parenthood Federation of America v. Ashcroft, 320 F.Supp.2d 957 (N.D. Cal. 2004); Carhart v. Ashcroft, 331 F. Supp. 2d 805 (D. Neb. 2004); National Abortion Federation v. Ashcroft, 330 F. Supp. 2d 446 (S.D. N.Y. 2004).

In a move that intruded even more deeply into state sovereignty, Congress tacked the Weldon amendment onto the Labor, Health and Human Services and Education Appropriations Act of 2005 to coerce states not to enforce their own laws protecting access to abortion information and services. Weldon gives all states, including California, the horrific choice between enforcing laws enacted to safeguard women's health and receiving vital federal funds to support the state’s educational, health, and labor systems.

Congress has a huge stack of new legislation that would further restrict – either directly or indirectly – California women’s’ rights. One direct Congressional assault, the Child Custody Protection Act, will criminalize any person’s driving a teenager across a state line for an abortion in a state with less restrictive parental involvement laws. Thus, the FBI would be able to chase and arrest a grandmother who unwittingly accompanies her granddaughter from Phoenix to Los Angeles for an abortion. The teenager who wants to protect her granny can always hitchhike -- alone -- across state lines to get medical care (and hitchhike home afterwards). In another direct assault, Congress will consider a bill to overturn the FDA’s approval of the pharmaceutical RU-486, known as Mifeprex, which millions of women throughout the world have safely used for over ten years to end very early pregnancies without surgery.

More indirect congressional assaults, equally dangerous, use the federal power of the purse. Congress, for example, has financially and logistically restricted the U.S. Military’s access to reproductive health care. The military not only does not pay for abortions but also prohibits doctors from performing the procedure on military bases. The California soldier who happens to be serving in foreign lands frequently will have to purchase a plane ticket to obtain a safe and legal abortion. Similarly, federal employees in California will find coverage for abortions excluded, for political reasons, from their available health care plans.

The President’s hostility to reproductive rights permeates all levels of his Cabinet and Administration and extends to birth control and sex education, (Both, of course, reduce unplanned pregnancies and the need for abortion.) Thus, over the holidays, the Department of Justice issued a voluminous manual concerning the treatment of sexual assault survivors that did not include even rudimentary information about emergency contraception to prevent pregnancy resulting from rape. Earlier in 2004, the FDA overturned the recommendations of two of its own scientific panels that recommended that Plan B, a form of emergency contraception, be available over the counter in pharmacies.

Additionally, the federal government has spent over $600 million to promote sex education programs that preach abstinence until marriage and omit any contraceptive instruction. As Henry Waxman’s recent congressional report indicates, a majority of these programs promulgate medically inaccurate information, including such false “facts” as that touching genitals may result in pregnancy or that abortion causes sterility and suicide. California is the only state that has never accepted federal “abstinence-only” educational funds. As a consequence, the federal government recently has bypassed California’s state programs to channel these dollars directly into private programs supporting abstinence until marriage, thus eroding the state’s support for comprehensive, medically accurate sex education. The resulting epidemiology? More unwanted pregnancies and more abortions.

In the end, Californians cannot allow partisan politics to eviscerate our rights of privacy. We have two clear alternatives to the coming federal assault on our reproductive rights. Some commentators have noted recently – with tongues in cheek – that one option, in these wars between those who would protect our current constitutional rights and those who would take them away, is a revival of California’s historic interest in secession. Most, however, see the more practical option: our vigilance as a price for our liberties.

We must be politically proactive in Congress as well as judicially reactive in the courts. We should remember California has the largest delegation in Congress. To protect the status of women, we should insist that our California Senators and Representatives’ scrutinize closely not only all the President’s appointments but also all Congressional acts and Administration actions that would curtail our rights of privacy.