Make California a Sanctuary State for Abortion? We already are one.
And Pro-Choice Activists in California Must Remain Wary to Keep it That Way
In light of the United States Supreme Court’s reconsideration of Roe v. Wade1 and Casey v. Planned Parenthood2 as well as the drive of activists to outlaw abortion in the United States, there is discussion of California becoming a sanctuary state for abortion.3
Turns out, we already are one.4
California was the first state in the nation to ever legalize abortion.5 Under the 2002 Reproductive Privacy Act, a woman in California has the right to terminate her pregnancy prior to the fetus becoming viable or when the fetus is viable but the abortion is necessary to protect the life and health of the woman.6
The law defines “viability” as “the point in a pregnancy when, in the good faith medical judgment of a physician, on the particular facts of the case before that physician, there is a reasonable likelihood of the fetus’ sustained survival outside the uterus without the application of extraordinary medical measures.”7
Even if the Supreme Court reversed Roe and Casey, this law would remain in effect and abortion would remain legal in California.
But even more importantly, California has different constitutional protections for a woman’s right to choose because California is governed not just by the federal constitution but by the California Constitution as well.8
Unlike the federal constitution where the right to individual privacy is implicit, California has its own explicit constitutional right to privacy in its text.9 As a result, the privacy rights guaranteed to Californians are far broader than those guaranteed by the federal constitution.10
Roe and Casey have not been the controlling constitutional case law on a woman’s right to choose in California for 24 years. California’s law on abortion is governed by American Academy of Pediatrics v. Lungren,11 the seminal California Supreme Court case that held the parental notification requirement for minors seeking an abortion was unconstitutional under the California Constitution.12
There, the state had enacted a law requiring that a minor could only obtain an abortion if she received written consent from a parent or legal guardian or obtained a judicial bypass.13 The California Supreme Court, rejecting the United States Supreme Court’s analysis on the same issue in Casey, held that the law restricting abortion had to be evaluated under the compelling interest standard.14
As the Court explained, under the compelling interest standard, the government must prove a compelling state interest justifying the restriction on a fundamental right that cannot be served by an alternative less restrictive means.15
Is this different from Roe and Casey?
Yes.
Under Roe and Casey, states can require that minors seeking an abortion get a parent’s written consent.16 Indeed, when California enacted its parental consent statute, it modeled the law on the Supreme Court decision holding that states could enact this abortion restriction.17 But the California Supreme Court held that this did not make the law constitutional under California law.18
You may be wondering if the California Supreme Court has the authority to reject the United States Supreme Court’s interpretation of the United States Constitution when interpreting provisions of the California Constitution.
They do.19
The United States Supreme Court is responsible for interpreting the federal Constitution but has no authority to interpret the California Constitution contrary to the California Supreme Court’s interpretation even when it disagrees.20 The “California Constitution is a document of independent force”.21 “Rights guaranteed by [the California] Constitution are not dependent on those guaranteed by the United States Constitution.”22
This has come up more than once in the context of a woman’s right to choose.
For example, under Roe and Casey, the United States Supreme Court has held that the government is not required to pay for abortion services.23 However, under the California Constitution, Medi-Cal funds must be used to pay for abortion services.24
Additionally, the California Constitutional Right to Privacy might be useful against the new Texas anti-abortion law, which purports to allow private citizens, acting as bounty hunters, to seek judgments against women who have abortions after the first six weeks of pregnancy. This effectively acts as an abortion restriction since most women are unaware that they are pregnant until well after the first six weeks of pregnancy. However, it is quite likely that this statute could not evade constitutional review in a California court.
Why?
California’s Constitutional right to privacy is applicable to private parties as well as governmental actors.25
However, we cannot become complacent as pro-choice activists in California. Because what our Constitution gives, it can also take away.26
Unlike the federal constitution, the California Constitution gives the power of amending the Constitution to a popular vote.27 A constitutional amendment can be placed on the ballot so long as it contains the valid signatures of voters in a number equal to 8% of the number who voted in the most recent gubernatorial election.28 The initiative and referendum powers are considered those that Californians have as part of their inherent legislative power.29
Indeed, the voters have voted to restrict individual rights in the past in the State Constitution.30 Most infamously, voters took away the right to same-sex marriage in 2008. But it was not the first time that voters had reversed the California Supreme Court on an issue of state constitutional law.
Indeed, anti-abortion forces attempted to reverse the California Supreme Court’s decision protecting a minor’s right to abortion without parental consent in three successive elections in 2005, 2006, and 2008, each time narrowly failing.31 While these were huge losses for the anti-abortion movement, anti-abortion activists could certainly try again. And vital protections could be taken away in just one election.
While California is a sanctuary state for reproductive freedom, that could change. We can take pride in our state’s status. But we cannot rest on our laurels and must continue to be vigilant against those attempts to take away or restrict the right.
410 U.S. 113 (1973)(“Roe”).
558 U.S. 833 (1992)(“Casey”).
The author of this article is an attorney licensed to practice in the State of California and the District of Columbia. This article and all of the works on this Substack page are statements of the opinions of the author, only, and do not constitute legal advice; they are not intended to be relied upon by any individual or entity in any transaction or other legal matter, past, pending, or future. A paid subscription to this Substack page supports the author’s scholarship and provides access to research that the author has compiled, but does not establish an attorney-client relationship. The author does not accept unsolicited requests for legal advice or representation, and this Substack page is not intended as legal advertising. The opinions expressed on this Substack page reflect the personal views of the author only.
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