THIRD READING  

Bill No: SR 66

Author: Leyva (D), Atkins (D), Durazo (D), Galgiani (D), Lena Gonzalez (D), Jackson (D), Mitchell (D) and Skinner (D)

Introduced: 1/6/20

Vote: Majority

SENATE JUDICIARY COMMITTEE: 6-1, 1/14/20

AYES: Jackson, Lena Gonzalez, Monning, Stern, Umberg, Wieckowski

NOES: Jones

NO VOTE RECORDED: Borgeas, Durazo

SUBJECT: Reproductive health

SOURCE: Author

DIGEST:

This resolution marks the 47^th anniversary of the U.S. Supreme Court’s decision in the case Roe v. Wade (1973) 410 U.S. 113, which established a person’s constitutional right to choose whether or not to carry a pregnancy to term.

ANALYSIS:

Existing federal law:

1. Holds that the federal constitution’s implied right to privacy extends to a woman’s decision about whether or not to have an abortion. (Roe v. Wade (1973) 410 U.S. 113.)
2. Authorizes the government to impose restrictions on abortion as long as those restrictions do not create an undue burden on a woman’s right to choose to terminate a pregnancy. (Planned Parenthood of Southeastern Pennsylvania v. Casey (1992) 505 U.S. 833.)

Existing state law:

1. Holds that the state constitution’s express right to privacy extends to a woman’s decision about whether or not to have an abortion. (People v. Belous (1969) 71 Cal.2d 954.)
2. Provides that every woman has the fundamental right to choose to bear a child or to choose and to obtain an abortion, with specified exceptions. (Health & Saf. Code § 123462(b).)
3. Prohibits the state from denying or interfering with a woman’s fundamental right to choose to bear a child or to choose to obtain an abortion, with specified exceptions. (Health & Saf. Code § 123462(c).)

This resolution:

1. Declares that:
2. the 47^th anniversary of Roe v. Wade is an occasion deserving of acknowledgement;
3. Roe v. Wade has been the cornerstone to the ability of women to control when, if, with whom, and how many children to have, thus facilitating women’s participation in economic and social life;
4. Roe v. Wade has drastically reduced the percentage of women who die or are severely injured while attempting to terminate their pregnancies;
5. interference with the constitutional right to terminate a pregnancy forces women into illegal and dangerous abortions;
6. Roe v. Wade continues to protect the health and freedom of women throughout the U.S. by providing access to a safe medical procedure that nearly 25 percent of women will use;
7. the central holding of Roe v. Wade is in serious jeopardy as a result of federal regulatory action, executive orders, and judicial appointments, as well as state legislation creating barriers to abortion;
8. abortion service providers are facing increasing levels of violence for their work; and
9. the State of California strongly supports the constitutional right set forth in the holding of Roe v. Wade.
10. Urges the U.S. President and Congress to express their support for a woman’s fundamental right to control her own reproductive decisions, as well as their support for access to comprehensive reproductive care.

Comments

1. Overview. Roe v. Wade, (1973) 410 U.S. 113, is the landmark U.S. Supreme Court decision holding that the constitutional right to privacy extends to a woman’s decision whether to terminate a pregnancy, while allowing that some state regulation of abortion access could be permissible. The plaintiff in the case was “Jane Roe,” an unmarried woman who wanted to end her pregnancy under safe and clinical conditions but was unable to obtain a legal abortion in Texas because her life was not threatened by the continuation of the pregnancy. Unable to afford travel to another state to obtain an abortion, she challenged the statute making it a crime to perform an abortion unless a woman’s life was at stake. She also claimed that the Texas law abridged her right of personal privacy.

The court struck down the Texas law, finding for the first time that the constitutional right to privacy is “broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.” At the same time, the high court also defined two compelling state interests that would satisfy restrictions on a woman’s right to choose to terminate a pregnancy: 1) states may regulate the abortion procedure after the first trimester of pregnancy in ways necessary to promote a woman’s health; and 2) after the point of fetal viability, a state may, to protect the potential life of the fetus, prohibit abortions that are not necessary to preserve a woman’s life or health.

1. Ongoing legal challenges to Roe v. Wade. Roe v. Wade has been one of the most debated Supreme Court decisions, and its application and continued validity have frequently been challenged in the courts. Most significantly, in Planned Parenthood of Southeastern Pennsylvania v. Casey (1992) 505 U.S. 833, the Court reaffirmed the basic holding of Roe v. Wade, yet also permitted states to impose restrictions on abortion as long as those restrictions do not create an undue burden on a woman’s right to choose to terminate a pregnancy.

Exactly what constitutes an undue burden remains a point of frequent legal contention. For example, under this line of cases, the U.S. Supreme Court recently struck down a Texas law that required any facility performing abortions to meet the state requirements for an ambulatory surgical center and also required any doctor performing abortions to have admitting privileges at a hospital with 30 miles. (Whole Woman’s Health v. Hellerstedt (2016) ___ U.S. ___; 136 S. Ct. 2292). Since, in practice, almost no abortion facility or provider could meet these mandates, the Texas law had the practical effect of dramatically restricting access to abortion services in the state. By contrast, under Casey the U.S. Supreme Court upheld a federal statute that restricted so-called “partial birth abortions.” (Gonzales v. Carhart (2007) 550 U.S. 124.)

Throughout this time, a minority of the U.S. Supreme Court’s justices have at various times indicated a belief that Roe v. Wade should be overturned. (See, e.g., Webster v. Reprod. Health Servs. (1989) 492 U.S. 490.) With President Donald Trump’s recent appointment of Justices Neil Gorsuch and Brett Kavanaugh to the high court, it may be that a majority for overturning Roe v. Wade now exists.

As this resolution declares, there are numerous lawsuits regarding access to abortion services that are currently working their way through the courts, some involving deliberate state legislative attempts to set up a direct challenge to the central holding in Roe v. Wade. Any one of these cases or controversies could serve as a vehicle for weakening or overturning Roe v. Wade’s central holding. Most notably, the U.S. Supreme Court recently agreed to decide one of these cases, June Medical Services, LLC v. Gee ((2019) ___U.S.___ , 140 S.Ct. 35), even though the facts of the case closely resemble those presented and decided just three years ago in Whole Women’s Health. Oral arguments for June Medical Services have been set for early March 2020.

Were the U.S. Supreme Court to overturn Roe v. Wade, state governments or the federal government would then be free to impose additional restrictions on abortion or even outlaw it entirely. Access to abortion in California might not be immediately affected by such a ruling, since the California Supreme Court has found a right to abortion access in the state constitution’s privacy clause. (People v. Belous (1969) 71 Cal.2d 954.) If Roe v. Wade were overturned, however, the federal government could potentially seek to impose nationwide restrictions on abortion that might preempt the existing state protections.

1. Economic and social impacts of Roe v. Wade. The existence of a constitutional right to choose whether, when, with whom, and how many children to bear has had a profound impact on the lives of women in the U.S. Indeed, in upholding the fundamental conclusion of Roe v. Wade while reaching its decision in Planned Parenthood v. Casey, the Supreme Court noted that “the ability of women to participate equally in the economic and social life of the Nation has been facilitated by their ability to control their reproductive lives.” (supra, 588 U.S. 833, 856.)

In reviewing a wide selection of data in 2013, the Guttmacher Institute reached similar conclusions. “Once young women were able to satisfy their education and first full-time job aspirations with a reduced risk of unplanned interruptions, their own expectations of their career trajectories—and the expectations of employers—evolved. Many began to seek and attain jobs and professional status in fields previously dominated by men.”^[1]

FISCAL EFFECT: Appropriation: No Fiscal Com.: No Local: No

SUPPORT: (Verified 1/15/20)

Planned Parenthood Affiliates of California

OPPOSITION: (Verified 1/15/20)

California Family Council

Californians for Life

ARGUMENTS IN SUPPORT: According to the author:

Roe v. Wade (1973) ensured safe and legal access to abortion, and has been the cornerstone of women’s ability to control their reproductive lives. The Roe v. Wade decision continues to help secure women’s economic and societal participation by allowing them to decide when, if and with whom to have children. While other states are passing laws that restrict access and create barriers for women to obtain abortions, it is critical that California stand in strong support of Roe v. Wade. SR 66 validates the commitment that the State of California has to protect and advance access to reproductive healthcare.

In support of the resolution, Planned Parenthood Affiliates of California writes:

Abortion accessibility has had a profound impact on the lives of women and families, giving all people the ability to control their reproductive decision and ensures their right to decide if, and when, to have children. With one in four women obtaining an abortion in their lifetime, the 47th anniversary of Roe v. Wade is a significant historical reminder of the importance of safe and medically accurate reproductive and sexual health care.

ARGUMENTS IN OPPOSITION: In opposition to the resolution, the California Family Council writes:

If each human being is created equal, then no person or government has the right to take away someone’s right to live, without due process of law. Unborn human beings deserve the same right to life, liberty, and the pursuit of happiness as everyone else.

Prepared by: Timothy Griffiths / JUD. / (916) 651-4113

1/16/20 13:34:21

**** END ****

1. Sonfield et al, The Social and Economic Benefits of Women’s Ability to Determine Whether and When to Have Children, (March 2013) Guttmacher Institute https://www.guttmacher.org/sites/default/files/report_pdf/social-economic-benefits.pdf p. 11 (as of Jan. 7, 2020). ↑

SENATE JUDICIARY COMMITTEE

Senator Hannah-Beth Jackson, Chair

2019-2020 Regular Session

Bill No: SR 66 (Author:Leyva)

Version: January 6, 2020

Hearing Date: January 14, 2020

Fiscal: No

Urgency: No

Consultant: TSG

SUBJECT

Relative to Reproductive Health

DIGEST

This resolution marks the 47^th anniversary of the U.S. Supreme Court’s decision in the case Roe v. Wade (1973) 410 U.S. 113, which established a person’s constitutional right to choose whether or not to carry a pregnancy to term.

EXECUTIVE SUMMARY

Roe v. Wade was decided on January 22, 1973. To mark the anniversary of the decision, this resolution makes a series of California State Senate findings regarding the positive impact of that ruling on the reproductive, economic, and social life of the nation as a whole, and women in particular. The resolution highlights recent trends – legal, legislative, and in the form of targeted violence and obstruction – that threaten to weaken or even overturn Roe v. Wade’s essential holding. It reaffirms California’s strong support for every individual’s fundamental right to make decisions regarding their own pregnancy and reproduction. With this in mind, the resolution urges the U.S. President and Congress to express support for the constitutional right to control reproductive decisions as well as for access to comprehensive reproductive health care services.

The resolution is author-sponsored. It is supported by reproductive health rights advocates and providers. Opposition is from those favoring greater restriction or outright prohibition on access to abortion.

PROPOSED CHANGES TO THE LAW

Existing federal law:

1. Holds that the federal constitution’s implied right to privacy extends to a woman’s decision about whether or not to have an abortion. (Roe v. Wade (1973) 410 U.S. 113.)
2. Authorizes the government to impose restrictions on abortion as long as those restrictions do not create an undue burden on a woman’s right to choose to terminate a pregnancy. (Planned Parenthood of Southeastern Pennsylvania v. Casey (1992) 505 U.S. 833.)

Existing state law:

1. Holds that the state constitution’s express right to privacy extends to a woman’s decision about whether or not to have an abortion. (People v. Belous (1969) 71 Cal.2d 954.)
2. Provides that every woman has the fundamental right to choose to bear a child or to choose and to obtain an abortion, with specified exceptions. (Health & Saf. Code § 123462(b).)
3. Prohibits the state from denying or interfering with a woman’s fundamental right to choose to bear a child or to choose to obtain an abortion, with specified exceptions. (Health & Saf. Code §. 123462(c).)

This resolution:

1. Declares that:
2. the 47^th anniversary of Roe v. Wade is an occasion deserving of acknowledgement;
3. Roe v. Wade has been the cornerstone to the ability of women to control when, if, with whom, and how many children to have, thus facilitating women’s participation in economic and social life;
4. Roe v. Wade has drastically reduced the percentage of women who die or are severely injured while attempting to terminate their pregnancies;
5. interference with the constitutional right to terminate a pregnancy forces women into illegal and dangerous abortions;
6. Roe v. Wade continues to protect the health and freedom of women throughout the U.S. by providing access to a safe medical procedure that nearly 25 percent of women will use;
7. the central holding of Roe v. Wade is in serious jeopardy as a result of federal regulatory action, executive orders, and judicial appointments, as well as state legislation creating barriers to abortion;
8. abortion service providers are facing increasing levels of violence for their work; and
9. the State of California strongly supports the constitutional right set forth in the holding of Roe v. Wade.
10. Urges the U.S. President and Congress to express their support for a woman’s fundamental right to control her own reproductive decisions, as well as their support for access to comprehensive reproductive care.

COMMENTS

1. Background

Roe v. Wade, (1973) 410 U.S. 113, is the landmark U.S. Supreme Court decision holding that the constitutional right to privacy extends to a woman’s decision whether to terminate a pregnancy, while allowing that some state regulation of abortion access could be permissible. The plaintiff in the case was “Jane Roe,” an unmarried woman who wanted to end her pregnancy under safe and clinical conditions but was unable to obtain a legal abortion in Texas because her life was not threatened by the continuation of the pregnancy. Unable to afford travel to another state to obtain an abortion, she challenged the statute making it a crime to perform an abortion unless a woman’s life was at stake. She also claimed that the Texas law abridged her right of personal privacy.

The court struck down the Texas law, finding for the first time that the constitutional right to privacy is “broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.” At the same time, the high court also defined two compelling state interests that would satisfy restrictions on a woman’s right to choose to terminate a pregnancy: 1) states may regulate the abortion procedure after the first trimester of pregnancy in ways necessary to promote a woman’s health; and 2) after the point of fetal viability, a state may, to protect the potential life of the fetus, prohibit abortions that are not necessary to preserve a woman’s life or health.

2. Ongoing legal challenges to Roe v. Wade

Roe v. Wade has been one of the most debated Supreme Court decisions, and its application and continued validity have frequently been challenged in the courts. Most significantly, in Planned Parenthood of Southeastern Pennsylvania v. Casey (1992) 505 U.S. 833, the Court reaffirmed the basic holding of Roe v. Wade, yet also permitted states to impose restrictions on abortion as long as those restrictions do not create an undue burden on a woman’s right to choose to terminate a pregnancy.

Exactly what constitutes an undue burden remains a point of frequent legal contention. For example, under this line of cases, the U.S. Supreme Court recently struck down a Texas law that required any facility performing abortions to meet the state requirements for an ambulatory surgical center and also required any doctor performing abortions to have admitting privileges at a hospital with 30 miles. (Whole Woman’s Health v. Hellerstedt (2016) ___ U.S. ___; 136 S. Ct. 2292). Since, in practice, almost no abortion facility or provider could meet these mandates, the Texas law had the practical effect of dramatically restricting access to abortion services in the state. By contrast, under Casey the U.S. Supreme Court upheld a federal statute that restricted so-called “partial birth abortions.” (Gonzales v. Carhart (2007) 550 U.S. 124.)

Throughout this time, a minority of the U.S. Supreme Court’s justices have at various times indicated a belief that Roe v. Wade should be overturned. (See, e.g., Webster v. Reprod. Health Servs. (1989) 492 U.S. 490.) With President Donald Trump’s recent appointment of Justices Neil Gorsuch and Brett Kavanaugh to the high court, it may be that a majority for overturning Roe v. Wade now exists.

As the resolution declares, there are numerous lawsuits regarding access to abortion services that are currently working their way through the courts, some involving deliberate state legislative attempts to set up a direct challenge to the central holding in Roe v. Wade. Any one of these cases or controversies could serve as a vehicle for weakening or overturning Roe v. Wade’s central holding. Most notably, the U.S. Supreme Court recently agreed to decide one of these cases, June Medical Services, LLC v. Gee ((2019) ___U.S.___ , 140 S.Ct. 35), even though the facts of the case closely resemble those presented and decided just three years ago in Whole Women’s Health. Oral arguments for June Medical Services have been set for early March 2020.

Were the U.S. Supreme Court to overturn Roe v. Wade, state governments or the federal government would then be free to impose additional restrictions on abortion or even outlaw it entirely. Access to abortion in California might not be immediately affected by such a ruling, since the California Supreme Court has found a right to abortion access in the state constitution’s privacy clause. (People v. Belous (1969) 71 Cal.2d 954.) If Roe v. Wade were overturned, however, the federal government could potentially seek to impose nationwide restrictions on abortion that might preempt the existing state protections.

3. Economic and social impacts of Roe v. Wade

The existence of a constitutional right to choose whether, when, with whom, and how many children to bear has had a profound impact on the lives of women in the U.S. Indeed, in upholding the fundamental conclusion of Roe v. Wade while reaching its decision in Planned Parenthood v. Casey, the Supreme Court noted that “the ability of women to participate equally in the economic and social life of the Nation has been facilitated by their ability to control their reproductive lives.” (supra, 588 U.S. 833, 856.)

In reviewing a wide selection of data in 2013, the Guttmacher Institute reached similar conclusions. “Once young women were able to satisfy their education and first full-time job aspirations with a reduced risk of unplanned interruptions, their own expectations of their career trajectories—and the expectations of employers—evolved. Many began to seek and attain jobs and professional status in fields previously dominated by men.”^[1]

4. Sources for the statistics cited in the resolution

The resolution states that, prior to Roe v. Wade, illegal abortion accounted for approximately 17 percent of all reported deaths attributed to pregnancy and childbirth, a statistic that comes from the Guttmacher Institute’s 2003 special analysis of conditions prior to the decision.^[2]

The resolution next declares that, globally, 13 percent of maternal deaths each year can be attributed to unsafe abortion. That statistic appears in a Review in Obstetrics & Gynecology article on the subject.^[3] The figure is also backed by the World Health Organization’s (WHO) February 2018 Fact Sheet on the subject.^[4] That fact sheet, citing an internal WHO study, states that: “[e]ach year between 4.7% – 13.2% of maternal deaths can be attributed to unsafe abortion.”

The resolution goes on to assert that national peer-reviewed studies show that abortion is a safe medical procedure. This was the conclusion of a National Academies of Science, Engineering, and Medicine study on the matter.^[5]

Next, the resolution states that one in every four women will access abortion services at some point in their lifetimes. This statistic is drawn from research published in the American Journal of Public Health.^[6]

Finally, data collected and published by the National Abortion Federation supports the resolution’s statistics regarding rising levels of violence against abortion.^[7]

5. Arguments supporting or opposing the resolution

According to the author:

Roe v. Wade (1973) ensured safe and legal access to abortion, and has been the cornerstone of women’s ability to control their reproductive lives. The Roe v. Wade decision continues to help secure women’s economic and societal participation by allowing them to decide when, if and with whom to have children. While other states are passing laws that restrict access and create barriers for women to obtain abortions, it is critical that California stand in strong support of Roe v. Wade. SR 66 validates the commitment that the State of California has to protect and advance access to reproductive healthcare.

In support of the resolution, Planned Parenthood Affiliates of California writes:

Abortion accessibility has had a profound impact on the lives of women and families, giving all people the ability to control their reproductive decision and ensures their right to decide if, and when, to have children. With one in four women obtaining an abortion in their lifetime, the 47th anniversary of Roe v. Wade is a significant historical reminder of the importance of safe and medically accurate reproductive and sexual health care.

In opposition to the resolution, the California Family Council writes:

If each human being is created equal, then no person or government has the right to take away someone’s right to live, without due process of law. Unborn human beings deserve the same right to life, liberty, and the pursuit of happiness as everyone else.

Support: Planned Parenthood Affiliates of California

Opposition: California Family Council; Californians for Life

RELATED LEGISLATION

Pending Legislation:

ACR 110 (Wicks, 2019) declares, among other things, that California is a Reproductive Freedom State for All and provides that the Legislature is committed to guaranteeing the constitutionally protected right to an abortion and supporting efforts to increase access to the best available reproductive and pregnancy-related care for women and pregnant individuals. ACR 110 is currently pending referral in the Senate Rules Committee.

Prior Legislation:

SR 7 (Leyva, 2019) was similar to SR 66.

SB 24 (Leyva, Ch. 740, Stats. 2019) required each student health care services clinic on a California State University or University of California campus to offer abortion by medication techniques, as specified, beginning in 2023.

SB 301 (Leyva, 2019) required the Department of Health Care Services, if there are any reductions in federal financial participation to the Family PACT Program, to submit to the Legislature a plan, within 60 days of the reduction, to ensure the sustainability of the program and other specified family planning services.

HR 6 (Limón, 2019) was similar to SR 66.

SR 72 (Leyva, 2018) was similar to SR 66.

SR 12 (Atkins, 2017) was similar to SR 66.

HR 32 (Atkins, 2016) was similar to SR 66.

SJR 19 (Jackson, Res. Ch. 52, Stats. 2016) was similar to SR 66.

SR 55 (Jackson, 2014) urged the U.S. Senate to reconsider and approve SB 2578, the “Not My Boss’s Business Act,” which sought to prevent employers from denying coverage of contraceptives regardless of their religious views.

SR 10 (Jackson, 2013) was similar to SR 66.

SJR 19 (Alquist, 2005) was similar to SR 66. SJR 19 was referred to this Committee but not set for hearing.

AJR 3 (Cohn, Res. Ch. 83, Stats. 2005) was similar to SR 66

AJR 57 (Jackson, Res. Ch. 50, Stats. 2004) was similar to SR 66.

AJR 2 (Jackson, Res. Ch. 63, Stats. 2003) was similar to SR 66.

SJR 3 (Karnette, Res. Ch. 112, Stats. 2001) was similar to SR 66.

**************

1. Sonfield et al, The Social and Economic Benefits of Women’s Ability to Determine Whether and When to Have Children, (March 2013) Guttmacher Institute https://www.guttmacher.org/sites/default/files/report_pdf/social-economic-benefits.pdf p. 11 (as of Jan. 7, 2020). ↑

2. Gold, Lessons from Before Roe: Will Past Be Prologue? (March 2003) Guttmacher Institute Policy Review https://www.guttmacher.org/gpr/2003/03/lessons-roe-will-past-be-prologue (as of Jan. 7, 2020). ↑

3. Haddad and Nour. Rev Obstet Gynecol. 2009 Spring; 2(2): 122–126. (“Some 68,000 women die of unsafe abortion annually, making it one of the leading causes of maternal mortality (13 percent).”) ↑

4. Preventing Unsafe Abortion (June 2019) World Health Organization https://www.who.int/en/news-room/fact-sheets/detail/preventing-unsafe-abortion (as of Jan. 7, 2020). ↑

5. The Safety and Quality of Abortion Care in the United States (March 2018) National Academies of Science, Engineering, and Medicine https://www.nap.edu/resource/24950/03162018AbortionCarehighlights.pdf (as of Jan. 7, 2020). (“Legal abortions in the United States—whether by medication, aspiration, D&E, or induction—are safe and effective.”) ↑

6. Rachel K. Jones, Jenna Jerman, “Population Group Abortion Rates and Lifetime Incidence of Abortion: United States, 2008–2014”, American Journal of Public Health 107, no. 12 (December 1, 2017): pp. 1904-1909. ↑

7. 2017 Violence and Disruption Statistics. National Abortion Federation https://prochoice.org/wp-content/uploads/2017-NAF-Violence-and-Disruption-Statistics.pdf (as of Jan. 7, 2020). ↑