After Roe: What happens to abortion in California?
The constitutional right to abortion in the United States is no more. Today the U.S. Supreme Court struck down its landmark Roe v. Wade precedent in a 5-4 decision, ending nearly 50 years of guaranteed abortion access for American women.
The historic ruling has been expected since early May, when a draft of the opinion was leaked, and was widely anticipated long before that as conservative justices tilted the court. The fight over abortion rights now returns to the states, where it played out five decades ago, with the procedure immediately set to become nearly or entirely illegal in almost half of them and several more bans likely to follow.
California is moving in the opposite direction, ramping up legal protections for abortion providers and pouring resources into expanding access as clinics prepare for a possible surge of patients traveling from other states to terminate their pregnancies.
Here is how the Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization will play out in California:
Abortion will be a major focus of November election
Expect to hear a lot about abortion rights in the months ahead, as candidates tout their endorsements from Planned Parenthood and flood the airwaves with advertisements warning of the bleak future for access if their opponents win.
Since the draft ruling leaked last month, Democrats in California and across the country have latched onto protecting abortion rights as a key issue for the 2022 midterm elections. With decades of public polling showing that a majority of Americans believe abortion should be legal in all or most cases, it has put the party back on the offensive as it faces mounting voter dissatisfaction with President Joe Biden and withering Republican attacks over inflation and crime.
“I hope that people are enraged,” said state Senate President Pro Tem Toni Atkins, a San Diego Democrat who ran a women’s health clinic before entering politics.
“While we feel like we have better protections here and California is different, I hope they’re enraged and they understand what’s at stake,” she told CalMatters.
A poll conducted last month by Monmouth University found that abortion was nearly tied with economic policy as the top concern for voters nationwide, a considerable increase from four years ago driven by its rising importance among Democrats. Another recent survey from UC San Diego asked Californians whether they planned to vote in November, before and after reading an article about the possibility of a national abortion ban if the Roe decision is overturned; researchers determined it had a significant mobilizing effect on independent voters.
The potential for Republicans to pursue a national abortion ban should they win back control of Congress is likely to feature prominently in a number of battleground House races across the state. Gov. Gavin Newsom and Attorney General Rob Bonta have already made abortion rights central to their re-election campaigns, and even some candidates with less of a direct connection to ensuring abortion access, including Democratic state controller hopeful Malia Cohen, have tried to raise alarms about the beliefs of their GOP opponents.
Abortion rights will also literally be on the ballot in California in November. Democratic legislators in Sacramento are rushing to qualify a measure that, if approved by voters, would enshrine “reproductive freedom” in the state Constitution.
Though California already protects abortion access through a constitutional right to privacy, Atkins, who is shepherding the amendment through the Legislature, said a more explicit guarantee is important as legal battles over the future of reproductive rights continue.
“That is my biggest fear. You find one judge somewhere in California who rules and our whole right to privacy as it currently exists in California is in question,” Atkins said, though she acknowledged there were additional political benefits: “I sure as hell hope that it’s going to drive turnout.”
More legal support for abortion providers
As dozens of conservative states laid the groundwork for the end of Roe, passing abortion bans triggered by the Supreme Court ruling, California has been scrambling to build a bulwark for reproductive rights and accommodate a potential influx of patients from beyond its borders.
Last fall, Newsom convened the Future of Abortion Council, a coalition of reproductive rights, health and justice groups, to explore how to make the state a “sanctuary” for abortion. Its recommendations, released in December, formed the basis for a sweeping package of more than a dozen bills currently moving through the Legislature.
They include Atkins’ Senate Bill 1375, which would increase the number of providers by allowing some nurse practitioners to independently perform first-trimester abortions without a doctor’s supervision, and Assembly Bill 1918 by Assemblymember Cottie Petrie-Norris, a Costa Mesa Democrat, which would create a “reproductive health service corps” for underserved parts of the state.
Several measures would protect doctors from legal and financial penalties if they travel to other states to perform abortions or treat out-of-state patients: AB 1666 by Assemblymember Rebecca Bauer-Kahan, an Orinda Democrat, won final legislative passage Thursday and would nullify civil judgments from other states. AB 2091 by Assemblymember Mia Bonta, an Alameda Democrat, would prohibit medical providers and health insurers from sharing information in cases that seek to penalize abortion. AB 2626 by Assemblymember Lisa Calderon, a Whittier Democrat, would prevent the state medical board from suspending or revoking the license of a physician who is punished in another state for performing an abortion in accordance with California law.
Abortion opponents have showed up at the state Capitol in force to protest AB 2223 by Assemblymember Buffy Wicks, an Oakland Democrat. Seeking to protect Californians from overzealous law enforcement and district attorneys who may be hostile to abortion rights, it would end a requirement that coroners investigate the cause of fetal deaths resulting from suspected self-induced abortions, clarify that women cannot be held criminally or civilly liable for pregnancy loss or abortion, and create an ability to sue prosecutors and others who violate that protection.
“We’re covering a lot of ground,” Atkins said. “As disheartening as this reality is that we have to prepare for…given all that we’re doing to shore up our protections and access to services, we will be ready.”
Newsom has expressed support for many of the proposals — and already signed legislation earlier this year to eliminate out-of-pocket costs for abortions in health insurance plans. Though some would take effect immediately if approved, including the three bills expanding legal protections for doctors, others would not become law until January.
Today, Newsom announced with the governors of Oregon and Washington, a West Coast “commitment to reproductive freedom.” “We will not sit on the sidelines and allow patients who seek reproductive care in our states or the doctors that provide that care to be intimidated with criminal prosecution. We refuse to go back and we will fight like hell to protect our rights and our values,” he said in a video message.
Attorney General Rob Bonta quickly vowed today to “use the full force of the law to protect reproductive healthcare for everyone who seeks it in our state.”
Jodi Hicks, CEO of Planned Parenthood Affiliates of California, echoed that pledge. “I want to be crystal clear: abortion remains legal here in California and we are working to ensure that people — regardless of where they come from — can access abortion services with as much support and as few barriers as possible,” she said in a statement. “To people across the country living in a state hostile to abortion: California is here for you. We will not turn people away, and we will find a way to support you so that you can get the care you need.”
Out-of-state influx, but how big?
With Roe toppled, California has become the nearest state with abortion access for approximately 1.3 million out-of-state women of reproductive age, according to the Guttmacher Institute, an abortion-rights think tank. That’s a nearly 3000% increase triggered by Arizona’s historical abortion ban that criminalizes the procedure and went into effect when the Supreme Court announced its decision.
Using women of reproductive age as a proxy for abortion demand is imprecise at best, and Guttmacher’s projection is based solely on driving distance. But without statewide data on abortions, it’s nearly impossible to estimate how many people may now rely on California clinics.
Even before today’s Supreme Court decision, California providers and advocates reported serving women from states farther than Arizona.
“One of the things we’ve seen is a cascading effect. The wait times for appointment availabilities increase in border states, and they travel to other states to get the care,” said Lisa Matsubara, general counsel for Planned Parenthood Affiliates of California.
In the first four months following Texas’ controversial six-week ban last year, Planned Parenthood clinics in California performed abortions for approximately 6,000 out-of-state patients, Matsubara said. Patients from out of state were three times more likely than California patients to be seeking abortions rather than other health care during the same time period.
In 2021, ACCESS Reproductive Justice, which gives grants to women to offset the cost of the procedure and remove barriers such as travel and lodging, helped people from 18 states, said Jessica Pinckney, the group’s executive director.
Pinckney, who is among the coalition of abortion advocates supporting the 13-bill package in the Legislature, said advocates have been clear with lawmakers that planning for the unknown is difficult, but providers have done their best to collectively estimate what access gaps remain in California and what they expect to see in the near future.
“There’s so much you can’t anticipate,” Pinckney said. “In a world where half of the states have banned abortion outright or nearly outright, the barriers are only going to be greater.”
Increase the number of providers?
Despite California’s reputation as a reproductive health safe haven, 40% of California counties do not have any abortion clinics. Lawmakers are pushing to increase the number of abortion providers by offering financial incentives and streamlining regulations that govern who can perform abortions.
Newsom’s proposed budget includes $20 million to give scholarships and loan repayment options to clinicians who commit to providing reproductive health care services. The Legislature’s spending plan invests an additional $21 million in existing reproductive health workforce programs and commits a one-time $20 million investment for recruiting and training clinicians that work at reproductive health centers.
Another measure aimed at allowing nurse practitioners to perform first trimester abortions without physician supervision has been billed as a way to increase the number of abortion providers, but even advocates say the impact may be limited.
In 2013, California adopted a measure allowing nurse practitioners, physician assistants and certified nurse midwives to perform first trimester abortions after receiving special training. Since then, however, training opportunities have remained limited.
“Very few nurse practitioners have been trained since the law went into effect,” said Debbie Bamberger.
Bamberger was the first nurse practitioner in the state to be trained to perform abortions and has been a nurse practioner for 28 years and works for Planned Parenthood in Oakland. Her training was conducted as part of a research study that assessed whether clinicians other than doctors could safely perform aspiration abortions — a procedure that uses suction during the first 10 weeks of pregnancy. Forty clinicians were trained during the course of that study, and Bamberger said not many more have been trained since.
Part of the problem is nursing schools and physicians assistant programs do not have abortion curriculum or training opportunities for students who want to learn the procedure. Most training is limited to medical residency programs for physicians, who don’t want to give up their limited spots to other kinds of clinicians.
Bamberger said her clinic has trained five nurse practitioners to perform abortions in the past two years and Planned Parenthood of Northern California does not offer widespread training.
“It’s mostly trying to remove barriers but it’s not necessarily going to hugely increase access if there’s still no training available,” she said.
The state is investing in abortion access
Both the Legislature’s Democratic leadership and Newsom administration have made it clear they’re willing to commit a significant amount of the state’s record surplus to abortion rights.
In his latest budget proposal, Newsom pledged $125 million to reproductive health care, including $60 million to directly subsidize the cost of providing abortions to low-income or uninsured patients. Roughly a third of that money is reserved for low- and middle-income Californians enrolled in the state’s insurance exchange, Covered California, but $40 million can be used to reimburse abortion providers for procedures conducted on anyone who can’t pay — even those from out of state.
His proposal, which is supported by the Legislature, also includes $20 million to improve physical and digital security at abortion clinics and $15 million for community-based organizations to provide sexual and reproductive health education.
The Legislature’s spending plan goes even further, earmarking an additional $156 million in reproductive health spending to train more providers, increase funding for clinics that serve Medi-Cal patients, and open an abortion “Safe Haven” pilot program in Los Angeles.
One headline-grabbing investment the Legislature and governor haven’t agreed on yet, is the creation of the California Abortion Support Fund. The fund would give grants to organizations that help defray travel, lodging, child care and other costs that advocates say prevent women from getting to an abortion clinic. While the money would go to California-based nonprofits, women seeking abortions from any state could apply for grants.
“Some of the hesitation I’ve heard from legislators and the administration is it’s not common for us to provide practical support,” said Pinckney, with ACCESS Reproductive Justice. “But there’s no other health care that is banned and is time-sensitive. They can’t wait six months to save the money.”