California’s Ability to Fight for Abortion Rights may be Shrinking
Michael R. Blood / Associated Press
Following the leak of the draft opinion of Dobbs v. Jackson Women’s Health Organization in May 2022, Governor Gavin Newsom tweeted that, “California will not sit back. We are going to fight like hell.” The decision, officially released later that year in June, overturned the 50-year precedent of Roe v. Wade and removed federal protection of abortion services in the United States. This decision turned abortion rights over to the states, which has resulted in 13 states banning abortion. Six other states' courts blocked these bans, but that could change at any time. Progressive states have responded to the decision by seeking to expand protections for abortion in their state and trying to find methods to support abortion providers in places where it is restricted or banned. While this may excite and drum up support on the progressive wing, the options to act for states like California seem to be shrinking. The Supreme Court’s swing to the right and growing judicial activism limits, if not destroys, California’s ability to support people in abortion-restricting states, or even in California itself.
One of the methods in which California has sought to provide support for abortion at home and in other states is through shield laws. Shield laws protect people in one state from laws in another state. For example, an abortion provider in California cannot be sued in a civil case for providing an abortion to a woman who has traveled to the state from an abortion-restricting state. The law, AB 1666, prohibits California state courts from hearing cases filed under an abortion-restricting state’s laws and does not allow enforcement of a civil judgment from that law. In signing the bill into law, Newsom said that: “We will not cooperate with any states that attempt to prosecute women or doctors for receiving or providing reproductive care”. This law was passed in response to states such as Texas and Oklahoma that allow private citizens to bring a civil suit against someone who assists in providing an abortion. California’s new law effectively shields its citizens and courts from these state laws.
While these measures have sought to protect California abortion providers, some seem to go on the offensive and try to actively prevent laws in abortion-restricting states from being enforced. For example, AB 1242, prohibits California-based technology companies from handing over the personal information of abortion-seekers to other out-of-state authorities or investigations. As such, they cannot hand over data such as geolocation, search history, or other personal information in response to out-of-state search warrants. This law directly undermines anti-abortion laws in other states and sets up an interesting legal battle in the courts.
While shield laws like AB 1666 and AB 1242 seem like a major victory for California and other progressive states who may follow, the law's constitutionality may be questioned. Chamber of Progress CEO Adam Kovacevich said in a statement that: “Red states and blue states are at war over abortion, and online platforms are caught in the crossfire. California’s new law could potentially have a big impact on protecting reproductive privacy — but first it will create a challenging conflict between state laws.” California’s string of legislation since the Dobbs decision has undermined and even contradicted the laws of other states. Therefore, there is a high chance that they could face a challenge in federal court. The Supreme Court has swung to the right on topics such as abortion, so the future of laws such as these are in doubt if they do. This avenue to protect abortion seems to be open now, but it may very well be closed abruptly by the Court in the near future.
Another method California has used to support those seeking abortions is expanding access to medication abortions. Medication abortions account for more than half of all US abortions and make it much easier for those seeking an abortion to get one. The process involves taking two drugs, Mifepristone and Misoprostol, which has had approval from the FDA since 2000. However, recent developments in the past month have thrown the future of medication abortions into question. US District Judge Matthew Kacsmaryk suspended the FDA’s approval of Mifepristone in an opinion, claiming that it was flawed and invalid. The same day, US District Judge Thomas O. Rice issued an opposite ruling in a different case in Washington. Walgreens announced it would be taking Mifepristone off of the shelves in 21 states because of the decision. On April 14, the Supreme Court issued a temporary stay to preserve the status quo while they study the lower courts’ rulings. On April 21, the Court issued an unsigned statement allowing the pill to continue to be available while an appeal of Kacsmaryk’s ruling proceeds. This appeal will likely make its way to the Supreme Court, where the issue once again will be considered. This potential ruling could affect not only states where abortions are illegal but even California itself. Back in March, State Senator Nancy Skinner introduced a bill that would prohibit California from extraditing doctors who face charges in another state for providing abortion medication. This law would be a bold step towards expanding abortion protection in states where it is banned, but this potential ruling throws this plan into chaos. The Court upholding Kacsmaryk’s ruling in a future appeal would severely limit the ability of people to get an abortion in progressive states, not just in abortion-restricting states. In response to Kacsmaryk’s decision, California announced an emergency stockpile of 250,000 Mifepristone pills to ensure California providers can continue to provide medication abortions even while its status is in doubt. However, this can only last for so long. While the Supreme Court allowing access to Mifepristone while the appeal moves forward is good news for abortion rights advocates, the future is still in jeopardy. The case could potentially come up to the Court who could outlaw the most common type of abortion in all of the United States, overturning over 20 years of FDA approval.
Despite Governor Newsom’s assurances to “fight like hell” in response to the Dobbs decision, his options may be running out. A conservative activist Supreme Court has not only removed federal protection for abortion, but is attacking the way they are provided. Any law that California passes in hopes of helping people get abortions in abortion-restricting states has little hope of surviving the Roberts Court's anti-abortion judicial activism. For a progressive state like California, this should be worrying information. There was so much eagerness immediately following Dobbs to find ways to circumvent the Court’s decision, but that well of hope may be drying up. California's only solution may be to “fight like hell” to protect abortion in the state itself, and try to elect officials who can swing the Court back to protecting a person's right to get an abortion in the United States.