Existing law establishes various boards within the Department of Consumer Affairs to license and regulate various health professionals. Existing law prohibits the Medical Board of California, the Osteopathic Medical Board of California, the Board of Registered Nursing, and the Physician Assistant Board from denying an application for licensure or suspending, revoking, or otherwise imposing discipline upon a licensee because the person was disciplined in another state in which they are licensed solely for performing an abortion in that state or because the person was convicted in another state for an offense related solely to performing an abortion in that state.

Existing law provides for the licensure of clinics and health facilities by the Licensing and Certification Division of the State Department of Public Health. Existing law makes a violation of these provisions punishable as a misdemeanor, except as specified.

This bill would prohibit a healing arts board under the Department of Consumer Affairs from denying an application for a license or imposing discipline upon a licensee or health care practitioner on the basis of a civil judgment, criminal conviction, or disciplinary action in another state that is based on the application of another states law that interferes with a persons right to receive sensitive services, as defined, that would be lawful in this state, regardless of the patients location. The bill would similarly prohibit a health facility from denying staff privileges to, removing from medical staff, or restricting the staff privileges of a licensed health professional on the basis of such a civil judgment, criminal conviction, or disciplinary action imposed by another state. The bill also would also prohibit the denial, suspension, revocation, or limitation of a clinic or health facility license on the basis of those types of civil judgments, criminal convictions, or disciplinary actions imposed by another state. The bill would exempt from the above-specified provisions a civil judgment, criminal conviction, or disciplinary action imposed by another state based upon conduct in another state that would subject an applicant, licensee, or health care practitioner to a similar claim, charge, or action under the laws of this state. By imposing new prohibitions under the provisions related to clinics and health facilities, the violation of which is a crime, this bill would impose a state-mandated local program.

The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

This bill would provide that no reimbursement is required by this act for a specified reason.

Existing law establishes various boards within the Department of Consumer Affairs to license and regulate various health professionals. Existing law prohibits the Medical Board of California, the Osteopathic Medical Board of California, the Board of Registered Nursing, and the Physician Assistant Board from denying an application for licensure or suspending, revoking, or otherwise imposing discipline upon a licensee because the person was disciplined in another state in which they are licensed solely for performing an abortion in that state or because the person was convicted in another state for an offense related solely to performing an abortion in that state.

Existing law provides for the licensure of clinics and health facilities by the Licensing and Certification Division of the State Department of Public Health. Existing law makes a violation of these provisions punishable as a misdemeanor, except as specified.

This bill would prohibit a healing arts board under the Department of Consumer Affairs from denying an application for a license or imposing discipline upon a licensee or health care practitioner on the basis of a civil judgment, criminal conviction, or disciplinary action in another state that is based on the application of another states law that interferes with a persons right to receive sensitive services, as defined, that would be lawful in this state, regardless of the patients location. The bill would similarly prohibit a health facility from denying staff privileges to, removing from medical staff, or restricting the staff privileges of a licensed health professional on the basis of such a civil judgment, criminal conviction, or disciplinary action imposed by another state. The bill also would also prohibit the denial, suspension, revocation, or limitation of a clinic or health facility license on the basis of those types of civil judgments, criminal convictions, or disciplinary actions imposed by another state. The bill would exempt from the above-specified provisions a civil judgment, criminal conviction, or disciplinary action imposed by another state based upon conduct in another state that would subject an applicant, licensee, or health care practitioner to a similar claim, charge, or action under the laws of this state. By imposing new prohibitions under the provisions related to clinics and health facilities, the violation of which is a crime, this bill would impose a state-mandated local program.

The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

This bill would provide that no reimbursement is required by this act for a specified reason.

Existing law establishes various boards within the Department of Consumer Affairs to license and regulate various health professionals. Existing law prohibits the Medical Board of California, the Osteopathic Medical Board of California, the Board of Registered Nursing, and the Physician Assistant Board from denying an application for licensure or suspending, revoking, or otherwise imposing discipline upon a licensee because the person was disciplined in another state in which they are licensed solely for performing an abortion in that state or because the person was convicted in another state for an offense related solely to performing an abortion in that state.

Existing law provides for the licensure of clinics and health facilities by the Licensing and Certification Division of the State Department of Public Health. Existing law makes a violation of these provisions punishable as a misdemeanor, except as specified.

This bill would prohibit a healing arts board under the Department of Consumer Affairs from denying an application for a license or imposing discipline upon a licensee or health care practitioner on the basis of a civil judgment, criminal conviction, or disciplinary action in another state that is based on the application of another states law that interferes with a persons right to receive sensitive services, as defined, that would be lawful in this state. state, regardless of the patients location. The bill would similarly prohibit a health facility from denying staff privileges to, removing from medical staff, or restricting the staff privileges of a licensed health professional on the basis of such a civil judgment, criminal conviction, or disciplinary action imposed by another state. The bill also would also prohibit the denial, suspension, revocation, or limitation of a clinic or health facility license on the basis of those types of civil judgments, criminal convictions, or disciplinary actions imposed by another state. The bill would exempt from the above-specified provisions a civil judgment, criminal conviction, or disciplinary action imposed by another state for which based upon conduct in another state that would subject an applicant, licensee, or health care practitioner to a similar claim, charge, or action would exist against the applicant or licensee under the laws of this state. By imposing new prohibitions under the provisions related to clinics and health facilities, the violation of which is a crime, this bill would impose a state-mandated local program.

The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

This bill would provide that no reimbursement is required by this act for a specified reason.

Existing law establishes various boards within the Department of Consumer Affairs to license and regulate various health professionals. Existing law prohibits the Medical Board of California, the Osteopathic Medical Board of California, the Board of Registered Nursing, and the Physician Assistant Board from denying an application for licensure or suspending, revoking, or otherwise imposing discipline upon a licensee because the person was disciplined in another state in which they are licensed solely for performing an abortion in that state or because the person was convicted in another state for an offense related solely to performing an abortion in that state.

Existing law provides for the licensure of clinics and health facilities by the Licensing and Certification Division of the State Department of Public Health. Existing law makes a violation of these provisions punishable as a misdemeanor, except as specified.

This bill would prohibit a healing arts board under the Department of Consumer Affairs from denying an application for a license or imposing discipline upon a licensee on the basis of a civil judgment, criminal conviction, or disciplinary action in another state that is based on the application of another states law that interferes with a persons right to receive sensitive services, as defined, that would be lawful in this state. The bill would similarly prohibit a health facility from denying staff privileges to, removing from medical staff, or restricting the staff privileges of a licensed health professional on the basis of such a civil judgment, criminal conviction, or disciplinary action imposed by another state. The bill also would also prohibit the denial, suspension, revocation, or limitation of a clinic or health facility license on the basis of those types of civil judgments, criminal convictions, or disciplinary actions imposed by another state. The bill would exempt from the above-specified provisions a civil judgment, criminal conviction, or disciplinary action imposed by another state for which a similar claim, charge, or action would exist against the applicant or licensee under the laws of this state. By imposing new prohibitions under the provisions related to clinics and health facilities, the violation of which is a crime, this bill would impose a state-mandated local program.

The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

This bill would provide that no reimbursement is required by this act for a specified reason.

Existing law establishes various boards within the Department of Consumer Affairs to license and regulate various health professionals. Existing law prohibits the Medical Board of California, the Osteopathic Medical Board of California, the Board of Registered Nursing, and the Physician Assistant Board from denying an application for licensure or suspending, revoking, or otherwise imposing discipline upon a licensee because the person was disciplined in another state in which they are licensed solely for performing an abortion in that state or because the person was convicted in another state for an offense related solely to performing an abortion in that state.

Existing law provides for the licensure of clinics and health facilities by the Licensing and Certification Division of the State Department of Public Health. Existing law makes a violation of these provisions punishable as a misdemeanor, except as specified.

This bill would prohibit a healing arts board under the Department of Consumer Affairs from denying an application for a license or imposing discipline upon a licensee solely on the basis of a civil judgment, criminal conviction, or disciplinary action in another state that is based on the application of another states law that interferes with a persons right to receive care sensitive services, as defined, that would be lawful in this state. The bill would similarly prohibit a health facility from denying staff privileges to, removing from medical staff, or restricting the staff privileges of a licensed health professional solely on the basis of such a civil judgment, criminal conviction, or disciplinary action imposed by another state. The bill also would also prohibit the denial, suspension, revocation, or limitation of a clinic or health facility license solely on the basis of those types of civil judgments, criminal convictions, or disciplinary actions imposed by another state. The bill would exempt from the above-specified provisions a civil judgment, criminal conviction, or disciplinary action imposed by another state for which a similar claim, charge, or action would exist against the applicant or licensee under the laws of this state. By imposing new prohibitions under the provisions related to clinics and health facilities, the violation of which is a crime, this bill would impose a state-mandated local program.

The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

This bill would provide that no reimbursement is required by this act for a specified reason.

Existing law, the Maternal Mental Health Conditions Education, Early Diagnosis, and Treatment Act, requires a general acute care hospital or special hospital that has a perinatal unit to develop and implement a program to provide education and information to appropriate health care professionals and patients about maternal mental health conditions. The act also makes related findings and declarations.

This bill would make a technical, nonsubstantive change to those findings and declarations.

CONCURRENCE IN SENATE AMENDMENTS

CSA1 Bill Id:AB 1707

Author:(Pacheco)

As Amended Ver:August 22, 2023

Majority vote

SUMMARY

Protects licensed health care professionals, clinics, and health facilities from being denied a license or subjected to discipline on the basis of a civil judgment, criminal conviction, or disciplinary action imposed by another state based solely on the application of a law that interferes with a person's right to receive sensitive services that would be lawful in California.

Senate Amendments

Clarifies the exemption for a civil judgment, criminal conviction, or disciplinary action imposed in another state for which there is a similar claim, charge, or action under California law.

COMMENTS

In 2002, the Legislature enacted the Reproductive Privacy Act, which grants every woman in California with the fundamental right to choose to bear a child or to choose to obtain an abortion. Under the Act, the state may not deny or interfere with that right prior to viability of the fetus, or when the abortion is necessary to protect the life or health of the woman. The only restriction on abortion is when, in the good faith medical judgment of a physician, the fetus is viable and there is no risk to the life or health of the pregnant woman associated with continuing the pregnancy.

The Reproductive Privacy Act codifies the right to choose whether to have an abortion as a form of exercising the implicit right to privacy under the Fourteenth Amendment of the United States Constitution, as affirmed by the Supreme Court of the United States in Roe v. Wade, which found that Texas's criminal abortion statute violated the Due Process Clause. The Court in Roe ruled that during the first trimester, "the abortion decision and its effectuation must be left to the medical judgment of the pregnant woman's attending physician." The Court ruled that during the second trimester, a state may only choose to "regulate the abortion procedure in ways that are reasonably related to maternal health," but that states may ban abortion altogether during the third trimester, "except where it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother."

Recent judicial action in the United States has nationally imperiled the protections in Roe. In 2021, the Texas Legislature passed Senate Bill 8, referred to as the Texas Heartbeat Act. That bill criminalized abortion after the detection of embryonic or fetal cardiac activity, essentially banning abortion after approximately six weeks. The constitutionality of that bill was challenged in Whole Woman's Health v. Jackson, which sought to enforce the Roe precedent and overturn Senate Bill 8. However, the Court declined to enjoin the law, which many pro-choice advocates viewed as signaling a future decision by the Court to overturn or diminish the protections in Roe.

Subsequently, on December 1, 2021, the Court heard oral arguments in Dobbs v. Jackson Women's Health Organization, a case regarding a 2018 Mississippi state law that banned abortion after 15 weeks of pregnancy. Dobbs was a direct challenge to the legal precedent set in Roe and was the first new ruling from the Court on the constitutional right to pre-viability abortion. On June 24, 2022, the Court ruled that abortion is not a constitutional right. This effectively overturned Roe and left the question of whether and how to ban it to individual states.

Immediately after the Court's decision, State Senate President pro Tempore Toni Atkins sponsored SCA 10, which placed a proposition on the 2022 ballot titled Constitutional Right to Reproductive Freedom. Proposition 1 explicitly made abortion and access to contraceptives a constitutional right in California. The ballot proposition passed with over 66% of voters in favor, enshrining the protections of Roe into the state's constitution. While California law protects a pregnant person's right to choose in a manner consistent with Roe, it has been estimated that approximately 26 states would likely seek to ban abortion with Roe overturned, resulting in 36 million women and other people who may become pregnant losing access to abortion care nationwide. In spite of this, medical professionals may still choose to provide abortions in defiance of another state's law. This potentially includes professionals licensed in California who may travel to other states to provide these services.

To provide reassurance to California health care professionals that they would not be subjected to discipline for continuing to provide abortion care and other reproductive services, California enacted AB 2626 in 2022. That bill reiterated that licensing boards may not subject licensed health care professionals to serious discipline for performing an abortion that is legal under California law, protecting the license of those who provide abortions in states that have banned abortion or to patients who have traveled from those states to California to seek care. While California licensing boards do not have direct jurisdiction over care provided in other states, they are notified when a licensee was either convicted of a crime in another state or subjected to discipline by another state's licensing board. When notified, the California boards may decide whether to take disciplinary action. AB 2626 prohibited boards from suspending or revoking a license solely for performing an abortion in accordance with California law.

This bill would further protect health care professionals who perform care prohibited in other states that patients would have a right to in California. Specifically, the bill would ban healing arts boards from denying or disciplining a license solely on the basis of a civil judgment, criminal conviction, or disciplinary action in another state based solely on the application of another state's law that interferes with a person's right to receive care that would be lawful if provided in California. The bill would also enact similar prohibitions against discipline against health professionals by the CDPH or licensed health facilities. The protections in this bill are intended ensure that California provides safe harbor to health professionals who defend the rights of patients to receive essential care or services, even if other states have taken action to restrict those rights.

According to the Author

"AB 1707 aims to protect California's reproductive health care providers by ensuring their ability to provide care is not at risk if they faced disciplinary action in another state related to reproductive health care services. California's health care providers are becoming increasingly essential for providing care to residents in other states and it is critical to ensure that providers in California, abiding by California laws, are protected from adverse actions based on another state's hostile law. To ensure that providers in California are protected from hostile laws in these other states – we must do everything we can to strengthen California law to protect provider licensure, facility licensure, and providers' ability to practice. The intent of this bill is to shore up protections so that care in California can remain consistent and ensure that California lives up to its declaration as a reproductive freedom state."

Arguments in Support

Planned Parenthood Affiliates of California (PPAC) is sponsoring this bill. According to PPAC: "AB 1707 builds on existing protections for health care providers who face disciplinary or legal actions in another state based on another state's law restricting services within comprehensive sexual and reproductive health care. Specifically, this bill ensures healing arts licensees, as well as clinics and hospitals are not faced with denial, suspension, or revocation of their license in California as the result of disciplinary action in another state related to providing care that is lawful here, and that health care providers are not faced with denial, suspension, or revocation of their hospital privileges as the result of disciplinary action in another state related to providing care that is lawful in California. This bill is critical to ensuring that states with hostile laws cannot attack providers for what is legal and permissible in California."

Arguments in Opposition

None on file.

FISCAL COMMENTS

Pursuant to Senate Rule 28.8, negligible state costs.

VOTES:

ASM BUSINESS AND PROFESSIONS: 14-2-2

YES: Berman, Alanis, Alvarez, Bonta, Gipson, Grayson, Irwin, Jackson, Lee, Lowenthal, McCarty, McKinnor, Stephanie Nguyen, Ting

NO: Flora, Joe Patterson

ABS, ABST OR NV: Chen, Dixon

ASM JUDICIARY: 8-2-1

YES: Maienschein, Connolly, Haney, Kalra, Pacheco, Papan, Reyes, Robert Rivas

NO: Essayli, Sanchez

ABS, ABST OR NV: Dixon

ASM APPROPRIATIONS: 12-2-2

YES: Holden, Bryan, Calderon, Wendy Carrillo, Mike Fong, Addis, Lowenthal, Papan, Pellerin, Robert Rivas, Weber, Wilson

NO: Megan Dahle, Sanchez

ABS, ABST OR NV: Dixon, Mathis

ASSEMBLY FLOOR: 62-12-6

YES: Addis, Aguiar-Curry, Alanis, Alvarez, Arambula, Bains, Bauer-Kahan, Bennett, Berman, Boerner, Bonta, Bryan, Calderon, Juan Carrillo, Wendy Carrillo, Cervantes, Connolly, Mike Fong, Friedman, Gabriel, Garcia, Gipson, Grayson, Haney, Hart, Holden, Irwin, Jackson, Jones‑Sawyer, Kalra, Lee, Low, Lowenthal, Maienschein, McCarty, McKinnor, Muratsuchi, Stephanie Nguyen, Ortega, Pacheco, Papan, Pellerin, Petrie-Norris, Reyes, Luz Rivas, Robert Rivas, Rodriguez, Blanca Rubio, Santiago, Schiavo, Soria, Ting, Valencia, Villapudua, Wallis, Ward, Weber, Wicks, Wilson, Wood, Zbur, Rendon

NO: Megan Dahle, Essayli, Flora, Vince Fong, Gallagher, Hoover, Mathis, Jim Patterson, Joe Patterson, Sanchez, Ta, Waldron

ABS, ABST OR NV: Chen, Davies, Dixon, Lackey, Quirk-Silva, Ramos

SENATE FLOOR: 31-8-1

YES: Allen, Alvarado-Gil, Archuleta, Ashby, Atkins, Becker, Blakespear, Bradford, Caballero, Cortese, Dodd, Durazo, Eggman, Glazer, Gonzalez, Hurtado, Laird, Limón, McGuire, Menjivar, Min, Newman, Portantino, Roth, Rubio, Skinner, Smallwood-Cuevas, Stern, Umberg, Wahab, Wiener

NO: Dahle, Grove, Jones, Nguyen, Niello, Ochoa Bogh, Seyarto, Wilk

ABS, ABST OR NV: Padilla

UPDATED

VERSION: August 22, 2023

CONSULTANT: Robert Sumner / B. & P. / (916) 319-3301 FN: 0001774

 THIRD READING  

Bill No: AB 1707

Author: Pacheco (D), et al.

Amended: 8/22/23 in Senate

Vote: 21

SENATE BUS., PROF. & ECON. DEV. COMMITTEE: 9-1, 6/19/23

AYES: Roth, Alvarado-Gil, Archuleta, Ashby, Dodd, Eggman, Glazer, Smallwood-Cuevas, Wahab

NOES: Niello

NO VOTE RECORDED: Nguyen, Becker, Wilk

SENATE JUDICIARY COMMITTEE: 9-1, 7/6/23

AYES: Umberg, Allen, Ashby, Caballero, Durazo, Laird, Min, Stern, Wiener

NOES: Niello

NO VOTE RECORDED: Wilk

SENATE APPROPRIATIONS COMMITTEE: Senate Rule 28.8

ASSEMBLY FLOOR: 62-12, 5/22/23 - See last page for vote

SUBJECT: Health professionals and facilities: adverse actions based on another state’s law

SOURCE: Planned Parenthood Affiliates of California

DIGEST:

This bill prohibits a health facility and healing arts board from taking action against healing arts licensees based on action in another state that interferes with a person’s right to receive sensitive services and prohibits a health facility license from being denied or having action taken against it based on action in another state that interferes with a person’s right to receive sensitive services.

Senate Floor Amendments of 8/22/23 make various technical, conforming, and implementation changes.

ANALYSIS:

Existing law:

1. Establishes various practice acts in the Business and Professions Code (BPC) governed by various boards within the Department of Consumer Affairs (DCA) which provide for the licensing and regulation of health care professionals including: physicians and surgeons (under the Medical Practice Act); osteopathic physicians and surgeons (under the Osteopathic Medical Practice Act); nurse practitioners (NPs) and certified nurse midwives (CNMs) (under the Nursing Practice Act); and physician assistants (PA) (under the Physician Assistant Practice Act). (BPC §§ 2000 et seq.; 2099.5 et seq.; 2700 et seq.; 3500 et seq.)
2. Establishes the Reproductive Privacy Act which finds and declares that every individual possesses a fundamental right of privacy with respect to personal reproductive decisions, and states that it is the public policy of the State of California that:
   1. Every individual has the fundamental right to choose or refuse birth control;
   2. Every woman has the fundamental right to choose to bear a child or to choose and to obtain an abortion, except as specifically limited by law; and,
   3. The state cannot deny or interfere with a woman’s fundamental right to choose to bear a child or to choose to obtain an abortion, except as specifically permitted by law. (Health and Safety Code (HSC) § 123462)
3. Defines the following for purposes of the Reproductive Privacy Act:
   1. “Abortion” means any medical treatment intended to induce the termination of a pregnancy except for the purpose of producing a live birth;
   2. “Pregnancy” means the human reproductive process, beginning with the implantation of an embryo;
   3. “State” means the State of California, and every county, city, town and municipal corporation, and quasi-municipal corporation in the state; and,
   4. “Viability” means 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. (HSC § 123464)
4. Provides that the state may not deny or interfere with a woman's right to choose or obtain an abortion prior to viability of the fetus, or when the abortion is necessary to protect the life or health of the woman. (HSC § 123466)
5. Provides that failure to comply with the Reproductive Privacy Act constitutes unprofessional conduct. Prohibits a person from being subject to certain disciplinary action and penalties if they perform an abortion by medication or aspiration techniques in the first trimester of pregnancy, and at the time of so doing, have a valid, unrevoked, and unsuspended license or certificate obtained in accordance with the Medical Practice Act, Osteopathic Act, Nursing Practice Act, or the Physician Assistant Practice Act that authorizes the person to perform the functions necessary for an abortion by medication or aspiration techniques. Prohibits the Medical Board of California and the Osteopathic Medical Board of California from denying an application for licensure as a physician and surgeon, or suspending, revoking, or otherwise impose discipline upon a physician and surgeon if they are licensed to practice medicine in another state and were disciplined in that state solely for performing an abortion in that state or the physician and surgeon is licensed to practice medicine in another state and was convicted in that state for an offense related solely to the performance of an abortion in that state. (BPC § 2253)
6. Limits the authority for most licensing boards under the DCA to deny a new license application to cases where the applicant was formally convicted of a substantially related crime or subjected to formal discipline by another licensing board, with most offenses older than seven years no longer eligible for license denial. (BPC § 480)
7. Defines “sensitive services” as all health care services related to mental or behavioral health, sexual and reproductive health, sexually transmitted infections, substance use disorder, gender affirming care, and intimate partner violence obtained by a patient at or above the minimum age specified for consenting to the service specified in the section. (Civil Code § 56.05)

This bill:

1. Prohibits a health facility from denying staff privileges to, removing from medical staff, or restricting the staff privileges of a person licensed by a healing arts board on the basis of a civil judgment, criminal conviction, or disciplinary action imposed by another state if it is based solely on the application of another state’s law that interferes with a person’s right to receive sensitive services that would be lawful if provided in this state.
2. Prohibits a healing arts board from denying an application for licensure or suspending, revoking, or otherwise impose discipline upon a licensee on the basis of a civil judgment, criminal conviction, or disciplinary action in another state if that judgment, conviction, or disciplinary action is based solely on the application of another state’s law that interferes with a person’s right to receive sensitive services that would be lawful if provided in this state.
3. Specifies that a health facility license application for licensure cannot be denied or suspended, revoked, or otherwise limited, on the basis of a civil judgment, criminal conviction, or disciplinary action imposed by another state if that judgment, conviction, or disciplinary action is based solely on the application of another state’s law that interferes with a person’s right to receive sensitive services that would be lawful if provided in this state. 

Background

In 2002, the Legislature enacted the Reproductive Privacy Act, which grants every woman in California with the fundamental right to choose to bear a child or to choose and to obtain an abortion. Under the Act, the state may not deny or interfere with a woman’s right to choose or obtain an abortion prior to viability of the fetus, or when the abortion is necessary to protect the life or health of the woman. The only restriction on abortion is when, in the good faith medical judgment of a physician, the fetus is viable and there is no risk to the life or health of the pregnant woman associated with the continuation of the pregnancy. Currently in California, medical providers who can perform abortions within their scope of practice are physicians and, under physician supervision, NPs, CNMs, and PAs.

The Reproductive Privacy Act codifies the right to choose whether to have an abortion as a form of exercising the implicit right to privacy under the Fourteenth Amendment of the United States Constitution, as affirmed by the Supreme Court of the United States in Roe v. Wade, which found that Texas’s criminal abortion statute violated the Due Process Clause. The Court in Roe ruled that during the first trimester, “the abortion decision and its effectuation must be left to the medical judgment of the pregnant woman's attending physician.” The Court ruled that during the second trimester, a state may only choose to “regulate the abortion procedure in ways that are reasonably related to maternal health,” but that states may ban abortion altogether during the third trimester, “except where it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother.”

Recent judicial action in the United States has nationally imperiled the protections in Roe. In 2021, the Texas Legislature passed SB 8, referred to as the Texas Heartbeat Act. That bill criminalized abortion after the detection of embryonic or fetal cardiac activity, essentially banning abortion after approximately six weeks. The constitutionality of that bill was challenged in Whole Woman's Health v. Jackson, which sought to enforce the Roe precedent and overturn SB 8. However, the Court declined to enjoin the law, which many pro-choice advocates viewed as signaling a future decision by the Court to overturn or seriously diminish the protections outlined in Roe.

Subsequently, on December 1, 2021, the Court heard oral arguments in Dobbs v. Jackson Women’s Health Organization, a case regarding a 2018 Mississippi state law that banned abortion after 15 weeks of pregnancy. Dobbs was a direct challenge to the legal precedent set in Roe and was the first time the Court ruled on the constitutional right to pre-viability abortion since Roe. On June 24, 2022, the Court ruled that abortion is not a constitutional right. This effectively overturned Roe and left the question of whether to ban it, and how, up to individual states.

Immediately after the Court’s decision, State Senate President pro Tempore Toni Atkins sponsored SCA 10 (Atkins, Resolution Chapter 97, Statutes of 2022), which placed a proposition on the 2022 ballot titled Constitutional Right to Reproductive Freedom (Proposition 1 of the 2022 November Elections). Proposition 1 explicitly made abortion and access to contraceptives a constitutional right in California. The ballot proposition passed with over 66 percent of voters in favor, enshrining the protections of Roe into the state’s constitution.

While California law protects a pregnant person’s right to choose in a manner consistent with Roe, it has been estimated that approximately 26 states would likely seek to ban abortion with Roe overturned, resulting in 36 million women and other people who may become pregnant losing access to abortion care nationwide. In spite of this, medical professionals may still choose to provide abortions in defiance of another state’s law. This potentially includes professionals licensed in California who may travel to other states to provide these services.

To provide reassurance to California health care professionals that they would not be subjected to discipline for continuing to provide abortion care and other reproductive services, California enacted AB 2626 (Calderon, Chapter 565, Statutes of 2022). That bill reiterated that licensing boards may not subject licensed health care professionals to serious discipline for performing an abortion that is legal under California law, protecting the license of those who provide abortions in states that have banned abortion or to patients who have traveled from those states to California to seek care. While California licensing boards do not have direct jurisdiction over care provided in other states, they are notified when a licensee was either convicted of a crime in another state or subjected to discipline by another state’s licensing board. When notified, the California boards may decide whether to take disciplinary action. AB 2626 prohibited boards from suspending or revoking a license solely for performing an abortion in accordance with California law.

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

SUPPORT: (Verified 8/22/23)

Planned Parenthood Affiliates of California (source)

Attorney General Rob Bonta

Office of Lieutenant Governor Eleni Kounalakis

American College of Obstetricians and Gynecologists District IX

California Chapter of the American College of Emergency Physicians

California Medical Association

California Nurse Midwives Association

Citizens for Choice

Medical Board of California

NARAL Pro-Choice California

National Health Law Program

Osteopathic Medical Board of California

Physician Assistant Board

San Francisco City Attorney's Office

University of California

Women's Foundation California

OPPOSITION: (Verified 8/22/23)

None received

ARGUMENTS IN SUPPORT: Supporters note that California’s health care providers are becoming increasingly essential for providing care to residents in other states and it is critical to ensure that providers in California, who abide by California law, are protected in the case that they provide sensitive services to those from other states that have adopted hostile laws. According to supporters, the call for California’s abortion network to remain resilient is needed, now more than ever and AB 1707 enhances protections for reproductive health care providers from adverse licensing actions based on another state’s law restricting services within comprehensive sexual and reproductive health care.

ASSEMBLY FLOOR: 62-12, 5/22/23

AYES: Addis, Aguiar-Curry, Alanis, Alvarez, Arambula, Bains, Bauer-Kahan, Bennett, Berman, Boerner, Bonta, Bryan, Calderon, Juan Carrillo, Wendy Carrillo, Cervantes, Connolly, Mike Fong, Friedman, Gabriel, Garcia, Gipson, Grayson, Haney, Hart, Holden, Irwin, Jackson, Jones-Sawyer, Kalra, Lee, Low, Lowenthal, Maienschein, McCarty, McKinnor, Muratsuchi, Stephanie Nguyen, Ortega, Pacheco, Papan, Pellerin, Petrie-Norris, Reyes, Luz Rivas, Robert Rivas, Rodriguez, Blanca Rubio, Santiago, Schiavo, Soria, Ting, Valencia, Villapudua, Wallis, Ward, Weber, Wicks, Wilson, Wood, Zbur, Rendon

NOES: Megan Dahle, Essayli, Flora, Vince Fong, Gallagher, Hoover, Mathis, Jim Patterson, Joe Patterson, Sanchez, Ta, Waldron

NO VOTE RECORDED: Chen, Davies, Dixon, Lackey, Quirk-Silva, Ramos

Prepared by: Sarah Mason / B., P. & E.D. /

8/23/23 15:31:19

**** END ****

SENATE JUDICIARY COMMITTEE

Senator Thomas Umberg, Chair

2023-2024 Regular Session

Bill No: AB 1707 (Author:Pacheco)

Version: April 12, 2023

Hearing Date: July 6, 2023

Fiscal: Yes

Urgency: No

Consultant: AM

SUBJECT

Health professionals and facilities: adverse actions based on another state’s law

DIGEST

This bill prohibits a healing arts board from disciplining, or a health care facility from denying staff privileges to, a licensed health care professional as a result of an action in another state that is based on the application of a law in that state that interferes with a person’s right to receive sensitive services  lawful in California. The bill exempts from these provisions a civil judgment, criminal conviction, or disciplinary action imposed by another state for which a similar action exists under the laws of this state.

EXECUTIVE SUMMARY

Since the 1973 holding in Roe v. Wade, the U.S. Supreme Court has continuously held that it is a constitutional right to access abortion before fetal viability. However, on June 24, 2022 the Court voted 6-3 to overturn the holding in Roe and found that there is no federal constitutional right to an abortion. As a result of the Dobbs decision, people in roughly half the country may lose access to abortion services or have them severely restricted. In addition, a growing number of states have been passing laws putting residents who seek essential gender-affirming care at risk of being prosecuted. States are attempting to classify the provision and seeking of gender-affirming health care as a crime warranting prison time and are threatening parents with criminal penalties if they attempt to travel to another state in order to secure life-saving gender-affirming care for their child. This bill seeks to address this issue by ensuring that no adverse licensing actions can be taken against a California health care professional as a result of an adverse action taken by another state based on that state’s law prohibiting care that is legal to receive in this state.

This measure is sponsored by Planned Parenthood Affiliates of California and is supported by organizations representing medical providers, reproductive rights, the Lieutenant Governor Eleni Kounalakis, and the City Attorney of San Francisco David Chiu. There is no known opposition. The bill passed the Senate Business, Professions and Economic Development Committee on a vote of 9 to 1.

PROPOSED CHANGES TO THE LAW

Existing federal law:

1. Provides that full faith and credit must be given in each state to the public acts, records, and judicial proceedings of every other state, and that the United States Congress may by general laws prescribe the manner in which such acts, records, and proceedings must be proved, and the effect thereof. (U.S. Const. art. IV, sec. 1.)

Provides that records and judicial proceedings of any court of any such state, territory, or possession, or copies thereof, must be proved or admitted in other courts within the United States and its territories and possessions by the attestation of the clerk and seal of the court annexed, if a seal exists, together with a certificate of a judge of the court that the said attestation is in proper form, and that such acts, records, and judicial proceedings or copies thereof, so authenticated, have the same full faith and credit in every court within the United States and its territories and possessions as they have by law or usage in the courts of such state, territory or possession from which they are taken. (28 U.S.C. § 1738.)

Existing state law:

1. Prohibits the state from denying or interfering with an individual’s reproductive freedom in their most intimate decisions, which includes their fundamental right to choose to have an abortion and their fundamental right to choose or refuse contraceptives. Specifies that this provision is intended to further the constitutional right to privacy guaranteed by Section 1 of Article I of the California Constitution, and the constitutional right to not be denied equal protection guaranteed by Section 7 of Article I of the California Constitution, and that nothing herein narrows or limits the right to privacy or equal protection. (Cal. Const., art. I, § 1.1.)
2. Provides that all people are by nature free and independent and have inalienable rights including, among others, the right to privacy. (Cal. Const., art. I, § 1.)
3. Provides that a person may not be deprived of life, liberty, or property without due process of law or denied equal protection of the laws. (Cal. Const., art. I, § 7.)
4. Holds that the state constitution’s express right to privacy extends to an individual’s decision about whether or not to have an abortion. (People v. Belous (1969) 71 Cal.2d 954.)
5. Establishes the Reproductive Privacy Act and provides that the Legislature finds and declares that every individual possesses a fundamental right of privacy with respect to personal reproductive decisions and, therefore, it is the public policy of the State of California that:
   1. every individual has the fundamental right to choose or refuse birth control;
   2. every individual has the fundamental right to choose to bear a child or to choose to obtain an abortion, with specified limited exceptions; and
   3. the state shall not deny or interfere with a person’s fundamental right to choose to bear a child or to choose to obtain an abortion, except as specifically permitted (Health & Saf. Code § 123460 et. seq., § 123462.)
6. Provides that the state may not deny or interfere with a person’s right to choose or obtain an abortion prior to viability of the fetus or when the abortion is necessary to protect the life or health of the person. (Health & Safe. Code § 123466.)
7. Provides that a law of another state that authorizes a person to bring a civil action against a person or entity who does any of the following is contrary to the public policy of this state:
   1. receives or seeks an abortion;
   2. performs or induces an abortion;
   3. knowingly engages in conduct that aids or abets the performance or inducement of an abortion; or
   4. attempts or intends to engage in the conduct described in a) through c). (Health & Safe. Code § 123467.5(a).)
8. Provides various safeguards against the enforcement of other states’ laws that purport to penalize individuals from obtaining gender-affirming care that is legal in California. (Civ. Code § 56.109, Code of Civ. Proc. § 2029.300 & 2029.350, Fam. Code § 3421, 3424, 3427, 3428, and 3453.5.)
9. Requires specified health arts boards within the Department of Consumer Affairs, including the Medical Board of California, to create a central file individual historical record for each licensee under a given board’s jurisdiction with respect to certain information, including disciplinary information reported, as specified. (Bus. & Prof. Code § 800(a).)
10. Requires the Medical Board of California, the Osteopathic Medical Board to disclose to an inquiring member of the public information regarding any enforcement actions taken against a licensee, including a former licensee, by the board or by another state or jurisdiction, including all of the following:
    1. temporary restraining orders issued;
    2. interim suspension orders issued;
    3. revocations, suspensions, probations, or limitations on practice ordered by the board, including those made part of a probationary order or stipulated agreement;
    4. public letters of reprimand issued; and
    5. infractions, citations, or fines imposed. (Bus. & Prof. Code § 803.1(a).)
11. Requires a physician and surgeon, osteopathic physician and surgeon, a doctor of podiatric medicine, and a physician assistant to report either of the following to the entity that issued their license:
    1. the bringing of an indictment or information charging a felony against the licensee; or
    2. the conviction of the licensee, including any verdict of guilty, or plea of guilty or no contest, of any felony or misdemeanor. (Bus. & Prof. Code § 802.1.)
12. Defines “sensitive services” to mean all health care services related to mental or behavioral health, sexual and reproductive health, sexually transmitted infections, substance use disorder, gender affirming care, and intimate partner violence, and includes services described in specified provisions of the Family Code and Health and Safety Code, obtained by a patient at or above the minimum age specified for consenting to the service. (Civ. Code § 56.06(p).)

This bill:

1. Prohibits a health facility licensed in California from denying staff privileges to, removing from medical staff, or restricting the staff privileges of, a person licensed by a healing arts board in this state on the basis of a civil judgment, criminal conviction, or disciplinary action imposed by another state if that judgment, conviction, or disciplinary action is based on the application of another state’s law that interferes with a person’s right to receive sensitive services that would be lawful if provided in California.
2. Provides that an application for licensure as a health professional or facility, as specified, is not to be denied, and no license is to be suspended, revoked, or otherwise limited, solely on the basis of a civil judgment, criminal conviction, or disciplinary action imposed by another state if that judgment, conviction, or disciplinary action is based solely on the application of another state’s law that interferes with a person’s right to receive care that would be lawful if provided in this state.
3. Provides that the protections in 1) and 2) do not apply to a civil judgment, criminal conviction, or disciplinary action imposed in another state for which a similar claim, charge, or action would exist against the licensee under the laws of this state.
4. Defines sensitive services to have the same meaning as the existing definition found in Section 56.06 of the Civil Code.

COMMENTS

1. Stated need for the bill

The author writes:

AB 1707 aims to protect California’s reproductive health care providers by ensuring their ability to provide care is not at risk if they faced disciplinary action in another state related to reproductive health care services. California’s health care providers are becoming increasingly essential for providing care to residents in other states and it is critical to ensure that providers in California, abiding by California laws, are protected from adverse actions based on another state’s hostile law. To ensure that providers in California are protected from hostile laws in these other states – we must do everything we can to strengthen California law to protect provider licensure, facility licensure, and providers’ ability to practice. The intent of this bill is to shore up protections so that care in California can remain consistent and ensure that California lives up to its declaration as a reproductive freedom state.

1. Reproductive rights

Roe v. Wade was the landmark U.S. Supreme Court decision that held the implied constitutional right to privacy extended to a person’s decision whether to terminate a pregnancy, while allowing that some state regulation of abortion access could be permissible. ((1973) 410 U.S. 113; overruled by Dobbs v. Jackson Women’s Health (2022) 142 S. Ct. 2228.) Roe has been one of the most debated U.S. Supreme Court decisions and its application and validity have been challenged numerous times, but its fundamental holding had continuously been upheld by the Court until June 2022. On June 24, 2022 the Court published its official opinion in Dobbs and voted 6-3 to overturn the holding in Roe.^[1] The case involved a Mississippi law enacted in 2018 that banned most abortions after the first 15 weeks of pregnancy, which is before what is generally accepted as the period of viability. (see Miss. Code Ann. §41-41-191.) The majority opinion upholds the Mississippi law finding that, contrary to almost 50 years of precedent, there is no fundamental constitutional right to have an abortion. The opinion further provides that states should be allowed to decide how to regulate abortion and that a strong presumption of validity should be afforded to those state laws.^[2]

• • • 1. Out-of-state statutes denying or chilling access to reproductive health care

Texas perniciously enacted a law with an enforcement scheme that was designed to avoid judicial scrutiny of the law’s clearly unconstitutional, at the time of enactment, provisions under the holding of Roe and Casey.^[3] Texas abortion providers filed a case in an attempt to stop the law before it took effect seeking pre-enforcement review of the law and an injunction barring its enforcement. On certiorari from the Fifth Circuit, the U.S. Supreme Court held that a pre-enforcement challenge to the law under the U.S. Constitution may only proceed against certain defendants but not others.^[4] The court did not address whether the law was constitutionally sound. However, the court’s ruling essentially insulated the private enforcement of the law from challenge, allowing the law to remain in effect. The inability to challenge the law pre-enforcement allows it to stand as an ominous threat to all persons seeking or performing an abortion. This Texas law may very well be found to be constitutional under the holding of Dobbs.

The Texas law prohibits a physician from knowingly performing or inducing an abortion on a pregnant woman if the physician detected a fetal heartbeat for the unborn child, as specified, or failed to perform a test to detect a fetal heartbeat. (Tex. Health & Safety Code § 171.201 et seq. (enacted through Texas Senate Bill 8).) This law essentially places a near-categorical ban on abortions beginning six weeks after a person’s last menstrual period, which is before many people even realize they are pregnant and occurs months before fetal viability.^[5] The Texas law has far reaching implications, not only for the person receiving an abortion or performing abortion services. This is evidenced in the provisions that prohibit anyone from “aiding and abetting” a person in obtaining an abortion, which could implicate and impose significant civil liability upon a person providing transportation to or from an abortion clinic, a person donating to a fund to assist individuals receiving an abortion, or even a person who simply discusses getting an abortion with someone. (Tex. Health & Safety Code § 171.208.) The Texas law provides that any person, other than an officer or employee of a state or local governmental entity in Texas, may bring a civil action to enforce its provisions, which includes liability of $10,000 plus costs and fees if a plaintiff prevails while a defendant is prohibited from recovering their own costs and fees if they prevail. (Id. at § 171.201(b) & (i).) Other states have already followed suit.

Additionally, many abortion bans target providers of abortions through criminal and administrative penalties, in addition to civil liability. For example, in Texas it is a felony to perform an abortion, unless it is needed to save the life of the patient, and provides for civil liability and licensure revocation. (Tex. Health & Safety Code § 171.201 et. seq.) In six states with abortion bans—Arkansas, Georgia, Idaho, Missouri, North Dakota, and Tennessee—prosecutors can criminally prosecute health care professionals for performing abortions and providers are only allowed to offer evidence that the procedure was necessary to save the patient until after they are charged.^[6] Oklahoma made performing an abortion a felony, with a punishment of up to 10 years in prison and a fine of up to $100,000 in August of 2022.^[7] This year, the Governor of Idaho signed a bill into law that makes it illegal for an adult to help a minor get an abortion without parental consent. The law essentially bans adults from obtaining abortion pills for a minor or “recruiting, harboring or transporting the pregnant minor” without parental consent.^[8] If convicted, a person could face two to five years in prison and may be sued by the minor’s parent. These laws put providers in extremely difficult positions where they have to make legal and ethical judgments about treating a patient whose health or life may be in jeopardy while facing the very real potential of being held criminally or civilly liable or having their medical license threatened.

• • • 1. California is a Reproductive Freedom State

The California Supreme Court held in 1969 that the state constitution’s implied right to privacy extends to an individual’s decision about whether or not to have an abortion. (People v. Belous (1969) 71 Cal.2d 954.) This was the first time an individual’s right to abortion was upheld in a court. In 1972 the California voters passed a constitutional amendment that explicitly provided for the right to privacy in the state constitution. (Prop. 11, Nov. 7, 1972 gen. elec.) California statutory law provides, under the Reproductive Privacy Act, that the Legislature finds and declares every individual possesses a fundamental right of privacy with respect to personal reproductive decisions, which entails the right to make and effectuate decisions about all matters relating to pregnancy; therefore, it is the public policy of the State of California that every individual has the fundamental right to choose or refuse birth control, and every individual has the fundamental right to choose to bear a child or to choose to obtain an abortion. (Health & Saf. Code § 123462.) In 2019 Governor Newsom issued a proclamation reaffirming California’s commitment to making reproductive freedom a fundamental right in response to the numerous attacks on reproductive rights across the nation.^[9] In September 2021, more than 40 organizations came together to form the California Future Abortion Council (CA FAB) to identify barriers to accessing abortion services and to recommend policy proposals to support equitable and affordable access for not only Californians but all who seek care in the state.

In response to the Dobbs decision, California enacted a comprehensive package of legislation expanding, protecting, and strengthening access to reproductive health care, including abortions, for all Californians and people seeking such care in our state.^[10] One such law, AB 1666 (Bauer-Kahan, Ch. 42, Stats. 2022) provided that a law of another state that authorizes a person to bring a civil action against a person or entity who receives, seeks, performs, or induces an abortion, or knowingly engages in conduct that aids or abets the performance or inducement of an abortion, or attempts or intends to engage in such conduct, is contrary to the public policy of this state (Gov. Code § 123467.5.) Additionally, the voters overwhelmingly approved Proposition 1 (Nov. 8, 2022 gen. elec.), and enacted an express constitutional right in the state constitution that prohibits the state from interfering with an individual’s reproductive freedom in their most intimate decisions.

1. Out of state bans on gender-affirming care and California policies to protect patients receiving such care

As California and other states have implemented policies to ensure that transgender individuals are not discriminated against and can obtain gender-affirming care, other states have targeted transgender individuals and providers of gender affirming care. According to Human Rights Watch, as of March 2022, legislatures nationwide had introduced over 300 anti-LGBTQ+ bills, over 130 of which specifically targeted transgender people.^[11] Many states have been enacting statutes that potentially impose civil and criminal liability for providing to a minor, or helping a minor obtain, gender-affirming care. For example, Alabama recently enacted a bill that makes it a felony to provide, or help to provide, certain types of gender-affirming care.^[12] Arkansas prohibits a physician or other healthcare provider from providing or referring certain types of gender-affirming care for a minor; a violation or “threatened violation” can be punished through a professional board or a civil action.^[13] SB 107 (Wiener, 2022; Ch. 810, Stats. 2022), among other things, prohibits the sharing of medical records regarding the receipt of gender-affirming care, the enforcement of out-of-state subpoenas seeking information regarding the receipt of gender-affirming medical care in California, and the enforcement of laws of another state that authorize the removal of a child from their parent or guardian and enforcement of out-of-state criminal laws related to gender-affirming health care. On September 29, 2022, Governor Newsom issued a signing statement for SB 107 that said “[i]n California we believe in equality and acceptance. We believe that no one should be prosecuted or persecuted for getting care they need – including gender-affirming care.”^[14]

1. This bill seeks to provide additional protections for health care providers of sensitive services

In response to the assault on reproductive rights and legislation targeting transgender people, this bill seeks to provide additional protections for health care providers of sensitive services, as defined. The author and sponsors of the bill note that some health care providers and entities are at risk of being unable to obtain a license in California, to have their existing California license suspended or revoked, or being unable to obtain hospital privileges as the result of another state taking action against them based on that state’s law banning the provision of care that is lawful to provide in this state. California’s health care providers are increasingly providing care to residents in other states, and they argue it is critical to ensure that these providers, abiding by California laws, are protected from adverse actions based on another state’s hostile law. The author states that the intent of this bill is to shore up protections so that care in California can remain consistent, and to ensure that California lives up to its declaration as a reproductive freedom state. Under the bill, these provisions do not apply to a civil judgment, criminal conviction, or another disciplinary action in another state for which a similar claim, charge, or action would exist against the licensee under the laws of this state. This provision is to ensure that consumers are protected against acts that occur in another state that would also constitute a violation of California state laws, such as medical malpractice, negligence, or other criminal conduct.

1. This bill does not seem to implicate the Full Faith and Credit Clause of the United States Constitution

Article IV, Section 1 of the U. S. Constitution, known as the Full Faith and Credit Clause, requires every state to give full faith and credit to the public acts (statutes), records, and judicial proceedings of every other state. However, this bill does not deal with the direct enforcement of out of state acts, records, and judicial proceedings, it merely addresses what actions California regulatory bodies are authorized to take against a licensee when the regulatory body receives notice of another state’s complaint or action. The Supreme Court has held that the Full Faith and Credit Clause does not compel “a state to substitute the statutes of another state for its own statutes dealing with a subject matter concerning which it is competent to legislate” (Baker v. General Motors Corp. (1998) 522 U.S. 222, 232-33.). As such, this bill does not seem to implicate the Full Faith and Credit Clause.

1. Proposed author amendments^[15]

The author notes there is a drafting error in Section 2 of the bill. The bill currently refers to a person’s right to receive “care” that would be lawful in this state, but it should read “sensitive services” that would be lawful in this state. The specific amendment would remove the word “care” in subdivision (a) of Section 850.1 of the Business and Professions Code and replace it with “sensitive services”.

1. Statements in support

Planned Parenthood Affiliates of California, sponsor of the bill, writes in support stating:

In June of 2022, the U.S. Supreme Court overturned the protections of Roe v. Wade in their decision in Dobbs v. Jackson Whole Women’s Health, allowing states to ban or severely restrict abortion. Since then, 20 states have enacted total or restrictive bans on abortion. According to the Guttmacher Institute, 58% of women aged 13-44 live in a state hostile or extremely hostile to abortion. People in those states are being forced to seek care outside of their home state and California is continuing to see patients seeking abortion and other sensitive services here in California.[…]

AB 1707 builds on existing protections for health care providers who face disciplinary or legal actions in another state based on another state’s law restricting services within comprehensive sexual and reproductive health care. Specifically, this bill ensures healing arts licensees, as well as clinics and hospitals are not faced with denial, suspension, or revocation of their license in California as the result of disciplinary action in another state related to providing care that is lawful here, and that health care providers are not faced with denial, suspension, or revocation of their hospital privileges as the result of disciplinary action in another state related to providing care that is lawful in California. This bill is critical to ensuring that states with hostile laws cannot attack providers for what is legal and permissible in California.

SUPPORT

Planned Parenthood Affiliates of California (sponsor)

American College of Obstetricians and Gynecologists District IX

California Chapter of The American College of Emergency Physicians

California Legislative Women's Caucus

California Medical Association

California Nurse Midwives Association

Citizens for Choice

City Attorney of San Francisco David Chiu

Lieutenant Governor Eleni Kounalakis

Medical Board of California

NARAL Pro-Choice California

National Health Law Program

Osteopathic Medical Board of California

Physician Assistant Board

University of California

Women's Foundation California

OPPOSITION

None known

RELATED LEGISLATION

Pending Legislation:

AB 254 (Bauer-Kahan, 2023) includes “reproductive or sexual health application information” in the definition of “medical information” and the businesses that offer reproductive or sexual health digital services to consumers in the definition of a provider of health care for purposes of the Confidentiality of Medical Information Act (CMIA). This bill is currently pending in the Senate Appropriations Committee.

AB 352 (Bauer-Kahan, 2023) seeks to enact protections for certain sensitive medical information by requiring businesses that store or maintain that information to develop specified capabilities, policies, and procedures to enable safeguards regarding accessing the information by July 1, 2024. This bill is currently pending in the Senate Appropriations Committee.

AB 793 (Bonta, 2023) prohibits a government entity from seeking or obtaining information from a reverse-location demand or a reverse-keyword demand, and prohibits any person or government entity from complying with a reverse-location demand or a reverse-keyword demand. That bill is currently pending in this Committee.

AB 1194 (Carrillo, 2023) provides stronger privacy protections pursuant to the California Consumer Privacy Act where the consumer information relates to specified reproductive health services. This bill is currently pending in the Senate Appropriations Committee.

Prior Legislation:

SR 9 (Skinner, 2023) urged the President of the U.S. and the U.S. Congress to enact federal legislation that guarantees the right to reproductive freedom, including abortion and contraception.

SB 107 (Wiener, Ch. 810, Stats. 2022) enacted various safeguards against the enforcement of other states’ laws that purport to penalize individuals from obtaining gender-affirming care that is legal in California.

AB 1666 (Bauer-Kahan, Ch. 42, Stats. 2022) prohibited the enforcement in this state of out-of-state laws authorizing a civil action against a person or entity that receives or seeks, performs or induces, or aids or abets the performance of an abortion, or who attempts or intends to engage in those actions and declares those out-of-state laws to be contrary to the public policy of this state.

AB 2091 (Mia Bonta, Ch. 628, Stats. 2022), among other things, prohibited compelling a person to identify or provide information that would identify an individual who has sought or obtained an abortion in a state, county, city, or other local criminal, administrative, legislative, or other proceeding if the information is being requested based on another state’s laws that interfere with a person’s right to choose or obtain an abortion or a foreign penal civil action.

AB 2223 (Wicks, Ch. 629, Stats. 2022), among other things, provides that every individual possesses a fundamental right of privacy with respect to personal reproductive decisions, which entails the right to make and effectuate decisions about all matters relating to pregnancy, including prenatal care, childbirth, postpartum care, contraception, sterilization, abortion care, miscarriage management, and infertility care.

PRIOR VOTES

Senate Business, Professions and Economic Development Committee (Ayes 9, Noes 1)

Assembly Floor (Ayes 62, Noes 12)

Assembly Appropriations Committee (Ayes 12, Noes 2)

Assembly Judiciary Committee (Ayes 8, Noes 2)

Assembly Business and Professions Committee (Ayes 14, Noes 2)

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

1. Dobbs v. Jackson Women’s Health (2022) 597 U.S. _ (142 S. Ct. 2228) at p. 5, available at https://www.supremecourt.gov/opinions/21pdf/19-1392_6j37.pdf. ↑

2. Id. at 77. ↑

3. See Whole Woman's Health v. Jackson (2021) 142 S. Ct. 522, at 543 (conc. opn. Roberts, C.J., Breyer, Sotomayor, & Kagan) that states Texas has passed a law that is contrary to Roe and Casey because it has “the effect of denying the exercise of what we have held is a right protected under the Federal Constitution” and was “designed to shield its unconstitutional law from judicial review.” (footnote omitted). ↑

4. Whole Woman's Health v. Jackson (2021) 142 S. Ct. 522, 530. ↑

5. See Whole Woman's Health v. Jackson (2021) 141 S. Ct. 2494, at 2498 (dis. opn. Sotomayor, Breyer, & Kagan). ↑

6. Christine Vestal, Some Abortion Bans Put Patients, Doctors at Risk in Emergencies, Pew Trusts (Sept. 1, 2022), available at https://www.pewtrusts.org/en/research-and-analysis/blogs/stateline/2022/09/01/some-abortion-bans-put-patients-doctors-at-risk-in-emergencies. ↑

7. Associated Press, Oklahoma governor signs bill making it felony to perform an abortion, NBC News (Apr. 12, 2022), available at https://www.nbcnews.com/news/us-news/oklahoma-governor-signs-bill-making-felony-perform-abortion-rcna24071. ↑

8. Associated Press, Idaho governor signs law banning adults from helping minors get abortions, The Guardian (April 6, 2023), available at https://www.theguardian.com/us-news/2023/apr/06/idaho-abortion-trafficking-law-governor. ↑

9. California Proclamation on Reproductive Freedom (May 31, 2019) available at https://www.gov.ca.gov/wp-content/uploads/2019/05/Proclamation-on-Reproductive-Freedom.pdf. ↑

10. Kristen Hwang, Newsom signs abortion protections into law, CalMatters (Sept. 27, 2022), available at https://calmatters.org/health/2022/09/california-abortion-bills/. ↑

11. Human Rights Watch, Press Release, ICYMI: As Lawmakers Escalate Attacks on Transgender Youth Across the Country, Some GOP Leaders Stand Up for Transgender Youth (Mar. 24, 2022), https://www.hrc.org/press-releases/icymi-as-lawmakers-escalate-attacks-on-transgender-youth-across-the-country-some-gop-leaders-stand-up-for-transgender-youth (all links current as of August 29, 2022). ↑

12. See Al. Code, § 26-26-4. ↑

13. Ark. Stats. §§ 20-9-1502 & 20-9-1504. ↑

14. Governor’s singing statement on Sen. Bill 107 (2021-22 Reg. Sess.), available at https://www.gov.ca.gov/wp-content/uploads/2022/09/SB-107-SIGNING.pdf?emrc=1a80c5. ↑

15. The amendments may also include technical, nonsubstantive changes recommended by the Office of Legislative Counsel as well as the addition of co-authors. ↑

SENATE COMMITTEE ON

BUSINESS, PROFESSIONS AND ECONOMIC DEVELOPMENT

Senator Richard Roth, Chair

2023 - 2024 Regular

Bill No: Hearing Date: June 19, 2023

Subject:

SUMMARY:

Prohibits a health facility and healing arts board from taking action against healing arts licensees based on action in another state that interferes with a person’s right to receive sensitive services and prohibits a health facility license from being denied or having action taken against it based on action in another state that interferes with a person’s right to receive sensitive services.

NOTE: This bill is double referred to the Senate Committee on Judiciary, second.

Existing law:

1. Establishes various practice acts in the Business and Professions Code (BPC) governed by various boards within the Department of Consumer Affairs (DCA) which provide for the licensing and regulation of health care professionals including: physicians and surgeons (under the Medical Practice Act); osteopathic physicians and surgeons (under the Osteopathic Medical Practice Act); NPs and CNMs (under the Nursing Practice Act); and physician assistants (PA) (under the Physician Assistant Practice Act). (BPC §§ 2000 et seq.; 2099.5 et seq.; 2700 et seq.; 3500 et seq.)
2. Establishes the Reproductive Privacy Act which finds and declares that every individual possesses a fundamental right of privacy with respect to personal reproductive decisions, and states that it is the public policy of the State of California that:
3. Every individual has the fundamental right to choose or refuse birth control;
4. Every woman has the fundamental right to choose to bear a child or to choose and to obtain an abortion, except as specifically limited by law; and,
5. The state cannot deny or interfere with a woman’s fundamental right to choose to bear a child or to choose to obtain an abortion, except as specifically permitted by law. (Health and Safety Code (HSC) § 123462)
6. Defines the following for purposes of the Reproductive Privacy Act:
7. “Abortion” means any medical treatment intended to induce the termination of a pregnancy except for the purpose of producing a live birth;
8. “Pregnancy” means the human reproductive process, beginning with the implantation of an embryo;
9. “State” means the State of California, and every county, city, town and municipal corporation, and quasi-municipal corporation in the state; and,
10. “Viability” means 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. (HSC § 123464)
11. Provides that the State may not deny or interfere with a woman's right to choose or obtain an abortion prior to viability of the fetus, or when the abortion is necessary to protect the life or health of the woman. (HSC § 123466)
12. Provides that failure to comply with the Reproductive Privacy Act constitutes unprofessional conduct. Prohibits a person from being subject to certain disciplinary action and penalties if they perform an abortion by medication or aspiration techniques in the first trimester of pregnancy, and at the time of so doing, have a valid, unrevoked, and unsuspended license or certificate obtained in accordance with the Medical Practice Act, Osteopathic Act, Nursing Practice Act, or the Physician Assistant Practice Act that authorizes the person to perform the functions necessary for an abortion by medication or aspiration techniques. Prohibits the Medical Board of California and the Osteopathic Medical Board of California from denying an application for licensure as a physician and surgeon, or suspending, revoking, or otherwise impose discipline upon a physician and surgeon if they are licensed to practice medicine in another state and were disciplined in that state solely for performing an abortion in that state or the physician and surgeon is licensed to practice medicine in another state and was convicted in that state for an offense related solely to the performance of an abortion in that state. (BPC § 2253)
13. Limits the authority for most licensing boards under the DCA to deny a new license application to cases where the applicant was formally convicted of a substantially related crime or subjected to formal discipline by another licensing board, with most offenses older than seven years no longer eligible for license denial. (BPC § 480)
14. Defines “Sensitive services” as all health care services related to mental or behavioral health, sexual and reproductive health, sexually transmitted infections, substance use disorder, gender affirming care, and intimate partner violence obtained by a patient at or above the minimum age specified for consenting to the service specified in the section. (Civil Code § 56.05)

This bill:

1. Prohibits a health facility from denying staff privileges to, removing from medical staff, or restricting the staff privileges of a person licensed by a healing arts board on the basis of a civil judgment, criminal conviction, or disciplinary action imposed by another state if it is based solely on the application of another state’s law that interferes with a person’s right to receive sensitive services that would be lawful if provided in this state.
2. Prohibits a healing arts board from denying an application for licensure or suspending, revoking, or otherwise impose discipline upon a licensee on the basis of a civil judgment, criminal conviction, or disciplinary action in another state if that judgment, conviction, or disciplinary action is based solely on the application of another state’s law that interferes with a person’s right to receive care that would be lawful if provided in this state.
3. Specifies that a health facility license application for licensure cannot be denied or suspended, revoked, or otherwise limited, on the basis of a civil judgment, criminal conviction, or disciplinary action imposed by another state if that judgment, conviction, or disciplinary action is based solely on the application of another state’s law that interferes with a person’s right to receive sensitive services that would be lawful if provided in this state. 

FISCAL EFFECT:

This bill is keyed fiscal by Legislative Counsel. According to the Assembly Committee on Appropriations, the bill will not result in any significant costs to the healing arts boards in the Department of Consumer Affairs or to the California Department of Public Health.

COMMENTS:

1. Purpose. Planned Parenthood Affiliates of California is the Sponsor of this bill. According to the Author, “Some health care providers and entities are at risk of being unable to obtain a license in California, to have their existing California license suspended or revoked, or being unable to obtain hospital privileges as the result of another state taking action against them based on that state’s law banning the provision care that is lawful to provide in California. California’s health care providers are increasingly providing care to residents in other states and it is critical to ensure that providers in California, abiding by California laws, are protected from adverse actions based on another state’s hostile law.”

The Author notes that “Currently, 18 states have enacted total or restrictive bans on abortion. According to the Guttmacher Institute, 58% of women aged 13-44 live in a state hostile or extremely hostile to abortion. People in those states are being forced to seek care outside of their home state and California is continuing to see patients seeking abortion and other sensitive services here in California.

Hostile states are not just going after abortion, the Dobbs decision may have paved the way for states to restrict or prohibit other reproductive health services like contraception and gender affirming care. In states across the US, more than 80 bills seeking to restrict access to gender affirming care have been introduced.

California’s health care providers are increasingly providing care to residents in other states and it is critical to ensure that providers in California, abiding by California laws are protected from adverse actions based on another state’s hostile law. As of October 2022, 66 clinics across 15 states in the US had to stop providing abortion. The call for California’s abortion network to remain resilient is needed, now more than ever.”

According to the Author, “To ensure that providers in California are protected from hostile laws in these other states – we must do everything we can to strengthen California law to protect provider licensure, facility licensure, and providers’ ability to practice. The intent of this bill is to shore up protections so that, care in California can remain consistent and ensure that California lives up to its declaration as a reproductive freedom state.”

1. Background. In 2002, the Legislature enacted the Reproductive Privacy Act, which grants every woman in California with the fundamental right to choose to bear a child or to choose and to obtain an abortion. Under the act, the state may not deny or interfere with a woman’s right to choose or obtain an abortion prior to viability of the fetus, or when the abortion is necessary to protect the life or health of the woman. The only restriction on abortion is when, in the good faith medical judgment of a physician, the fetus is viable and there is no risk to the life or health of the pregnant woman associated with the continuation of the pregnancy. Currently in California, medical providers who can perform abortions within their scope of practice are physicians and, under physician supervision, NPs, CNMs, and PAs.

The Reproductive Privacy Act codifies the right to choose whether to have an abortion as a form of exercising the implicit right to privacy under the Fourteenth Amendment of the United States Constitution, as affirmed by the Supreme Court of the United States in Roe v. Wade, which found that Texas’s criminal abortion statute violated the Due Process Clause. The Court in Roe ruled that during the first trimester, “the abortion decision and its effectuation must be left to the medical judgment of the pregnant woman's attending physician.” The Court ruled that during the second trimester, a state may only choose to “regulate the abortion procedure in ways that are reasonably related to maternal health,” but that states may ban abortion altogether during the third trimester, “except where it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother.”

Recent judicial action in the United States has nationally imperiled the protections in Roe. In 2021, the Texas Legislature passed Senate Bill 8, referred to as the Texas Heartbeat Act. That bill criminalized abortion after the detection of embryonic or fetal cardiac activity, essentially banning abortion after approximately six weeks. The constitutionality of that bill was challenged in Whole Woman's Health v. Jackson, which sought to enforce the Roe precedent and overturn Senate Bill 8. However, the Court declined to enjoin the law, which many pro-choice advocates viewed as signaling a future decision by the Court to overturn or seriously diminish the protections outlined in Roe.

Subsequently, on December 1, 2021, the Court heard oral arguments in Dobbs v. Jackson Women’s Health Organization, a case regarding a 2018 Mississippi state law that banned abortion after 15 weeks of pregnancy. Dobbs was a direct challenge to the legal precedent set in Roe and was the first time the Court ruled on the constitutional right to pre-viability abortion since Roe. On June 24, 2022, the Court ruled that abortion is not a constitutional right. This effectively overturned Roe and left the question of whether to ban it, and how, up to individual states.

Immediately after the Court’s decision, State Senate President pro Tempore Toni Atkins sponsored SCA 10, which placed a proposition on the 2022 ballot titled Constitutional Right to Reproductive Freedom. Proposition 1 explicitly made abortion and access to contraceptives a constitutional right in California. The ballot proposition passed with over 66 percent of voters in favor, enshrining the protections of Roe into the state’s constitution.

While California law protects a pregnant person’s right to choose in a manner consistent with Roe, it has been estimated that approximately 26 states would likely seek to ban abortion with Roe overturned, resulting in 36 million women and other people who may become pregnant losing access to abortion care nationwide. In spite of this, medical professionals may still choose to provide abortions in defiance of another state’s law. This potentially includes professionals licensed in California who may travel to other states to provide these services.

To provide reassurance to California health care professionals that they would not be subjected to discipline for continuing to provide abortion care and other reproductive services, California enacted AB 2626 (Calderon, 565, Statutes of 2022) in 2022. That bill reiterated that licensing boards may not subject licensed health care professionals to serious discipline for performing an abortion that is legal under California law, protecting the license of those who provide abortions in states that have banned abortion or to patients who have traveled from those states to California to seek care. While California licensing boards do not have direct jurisdiction over care provided in other states, they are notified when a licensee was either convicted of a crime in another state or subjected to discipline by another state’s licensing board. When notified, the California boards may decide whether to take disciplinary action. AB 2626 prohibited boards from suspending or revoking a license solely for performing an abortion in accordance with California law.

1. Arguments in Support. Supporters note that California’s health care providers are becoming increasingly essential for providing care to residents in other states and it is critical to ensure that providers in California, who abide by California law, are protected in the case that they provide sensitive services to those from other states that have adopted hostile laws. According to supporters, the call for California’s abortion network to remain resilient is needed, now more than ever and AB 1707 enhances protections for reproductive health care providers from adverse licensing actions based on another state’s law restricting services within comprehensive sexual and reproductive health care.

SUPPORT AND OPPOSITION:

Support:

American College of Obstetricians and Gynecologists District IX
California Chapter of The American College of Emergency Physicians
California Legislative Women's Caucus
California Medical Association
California Nurse Midwives Association
Citizens for Choice
Medical Board of California
NARAL Pro-choice California
National Health Law Program
Office of Lieutenant Governor Eleni Kounalakis
Osteopathic Medical Board of California
Physician Assistant Board
Planned Parenthood Affiliates of California
University of California
Women's Foundation California

Opposition:

None received

-- END --

ASSEMBLY THIRD READING

ATR Bill Id:AB 1707

Author:(Pacheco)

As Amended Ver:April 12, 2023

Majority vote

SUMMARY

Protects licensed health care professionals, clinics, and health facilities from being denied a license or subjected to discipline on the basis of a civil judgment, criminal conviction, or disciplinary action imposed by another state based solely on the application of a law that interferes with a person's right to receive sensitive services that would be lawful in California.

Major Provisions

1. Defines "healing arts board" as any board, division, or examining committee in the Department of Consumer Affairs that licenses or certifies health professionals.
2. Defines "sensitive services" as all health care services related to mental or behavioral health, sexual and reproductive health, sexually transmitted infections, substance use disorder, gender affirming care, and intimate partner violence.
3. Prohibits a healing arts board from denying an application for licensure or suspending, revoking, or otherwise disciplining a licensee solely on the basis of a civil judgment, criminal conviction, or disciplinary action in another state based solely on the application of another state's law that interferes with a person's right to receive sensitive services that would be lawful if provided in California.
4. Prohibits a health facility from denying staff privileges to, removing from medical staff, or restricting the staff privileges of, a person licensed by a healing arts board solely on the basis of a civil judgment, criminal conviction, or disciplinary action in another state based solely on the application of another state's law that interferes with a person's right to receive sensitive services that would be lawful if provided in California.
5. Prohibits the California Department of Public Health (CDPH) from denying or disciplining a license for a clinic or health facility on the basis of a civil judgment, criminal conviction, or disciplinary action in another state based solely on the application of another state's law that interferes with a person's right to receive sensitive services that would be lawful if provided in California.
6. Specifies that the bill does not apply to any judgment, criminal conviction, or disciplinary action imposed by another state for which a similar claim, charge, or action would exist against the applicant or licensee under provisions of California law.

COMMENTS

In 2002, the Legislature enacted the Reproductive Privacy Act, which grants every woman in California with the fundamental right to choose to bear a child or to choose to obtain an abortion. Under the Act, the state may not deny or interfere with that right prior to viability of the fetus, or when the abortion is necessary to protect the life or health of the woman. The only restriction on abortion is when, in the good faith medical judgment of a physician, the fetus is viable and there is no risk to the life or health of the pregnant woman associated with the continuation of the pregnancy.

The Reproductive Privacy Act codifies the right to choose whether to have an abortion as a form of exercising the implicit right to privacy under the Fourteenth Amendment of the United States Constitution, as affirmed by the Supreme Court of the United States in Roe v. Wade, which found that Texas's criminal abortion statute violated the Due Process Clause. The Court in Roe ruled that during the first trimester, "the abortion decision and its effectuation must be left to the medical judgment of the pregnant woman's attending physician." The Court ruled that during the second trimester, a state may only choose to "regulate the abortion procedure in ways that are reasonably related to maternal health," but that states may ban abortion altogether during the third trimester, "except where it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother."

Recent judicial action in the United States has nationally imperiled the protections in Roe. In 2021, the Texas Legislature passed Senate Bill 8, referred to as the Texas Heartbeat Act. That bill criminalized abortion after the detection of embryonic or fetal cardiac activity, essentially banning abortion after approximately six weeks. The constitutionality of that bill was challenged in Whole Woman's Health v. Jackson, which sought to enforce the Roe precedent and overturn Senate Bill 8. However, the Court declined to enjoin the law, which many pro-choice advocates viewed as signaling a future decision by the Court to overturn or diminish the protections in Roe.

Subsequently, on December 1, 2021, the Court heard oral arguments in Dobbs v. Jackson Women's Health Organization, a case regarding a 2018 Mississippi state law that banned abortion after 15 weeks of pregnancy. Dobbs was a direct challenge to the legal precedent set in Roe and was the first new ruling from the Court on the constitutional right to pre-viability abortion. On June 24, 2022, the Court ruled that abortion is not a constitutional right. This effectively overturned Roe and left the question of whether and how to ban it to individual states.

Immediately after the Court's decision, State Senate President pro Tempore Toni Atkins sponsored SCA 10 (Atkins), Chapter 97, Statutes of 2022, which placed a proposition on the 2022 ballot titled Constitutional Right to Reproductive Freedom. Proposition 1 explicitly made abortion and access to contraceptives a constitutional right in California. The ballot proposition passed with over 66% of voters in favor, enshrining the protections of Roe into the state's constitution. While California law protects a pregnant person's right to choose in a manner consistent with Roe, it has been estimated that approximately 26 states would likely seek to ban abortion with Roe overturned, resulting in 36 million women and other people who may become pregnant losing access to abortion care nationwide. In spite of this, medical professionals may still choose to provide abortions in defiance of another state's law. This potentially includes professionals licensed in California who may travel to other states to provide these services.

To provide reassurance to California health care professionals that they would not be subjected to discipline for continuing to provide abortion care and other reproductive services, California enacted AB 2626 (Calderon), Chapter 565, Statutes of 2022 . That bill reiterated that licensing boards may not subject licensed health care professionals to serious discipline for performing an abortion that is legal under California law, protecting the license of those who provide abortions in states that have banned abortion or to patients who have traveled from those states to California to seek care. While California licensing boards do not have direct jurisdiction over care provided in other states, they are notified when a licensee was either convicted of a crime in another state or subjected to discipline by another state's licensing board. When notified, the California boards may decide whether to take disciplinary action. AB 2626 prohibited boards from suspending or revoking a license solely for performing an abortion in accordance with California law.

This bill would further protect health care professionals who perform care prohibited in other states that patients would have a right to in California. Specifically, the bill would ban healing arts boards from denying or disciplining a license solely on the basis of a civil judgment, criminal conviction, or disciplinary action in another state based solely on the application of another state's law that interferes with a person's right to receive care that would be lawful if provided in California. The bill would also enact similar prohibitions against discipline against health professionals by the CDPH or licensed health facilities. The protections in this bill are intended ensure that California provides safe harbor to health professionals who defend the rights of patients to receive essential care, even if other states have restricted those rights.

According to the Author

"AB 1707 aims to protect California's reproductive health care providers by ensuring their ability to provide care is not at risk if they faced disciplinary action in another state related to reproductive health care services. California's health care providers are becoming increasingly essential for providing care to residents in other states and it is critical to ensure that providers in California, abiding by California laws, are protected from adverse actions based on another state's hostile law. To ensure that providers in California are protected from hostile laws in these other states – we must do everything we can to strengthen California law to protect provider licensure, facility licensure, and providers' ability to practice. The intent of this bill is to shore up protections so that care in California can remain consistent and ensure that California lives up to its declaration as a reproductive freedom state."

Arguments in Support

Planned Parenthood Affiliates of California (PPAC) is sponsoring this bill. According to PPAC: "AB 1707 builds on existing protections for health care providers who face disciplinary or legal actions in another state based on another state's law restricting services within comprehensive sexual and reproductive health care. Specifically, this bill ensures healing arts licensees, as well as clinics and hospitals are not faced with denial, suspension, or revocation of their license in California as the result of disciplinary action in another state related to providing care that is lawful here, and that health care providers are not faced with denial, suspension, or revocation of their hospital privileges as the result of disciplinary action in another state related to providing care that is lawful in California. This bill is critical to ensuring that states with hostile laws cannot attack providers for what is legal and permissible in California."

Arguments in Opposition

None on file.

FISCAL COMMENTS

According to the Assembly Committee on Appropriations, no significant costs to the healing arts boards in the Department of Consumer Affairs or to the California Department of Public Health.

VOTES

ASM BUSINESS AND PROFESSIONS: 14-2-2

YES: Berman, Alanis, Alvarez, Bonta, Gipson, Grayson, Irwin, Jackson, Lee, Lowenthal, McCarty, McKinnor, Stephanie Nguyen, Ting

NO: Flora, Joe Patterson

ABS, ABST OR NV: Chen, Dixon

ASM JUDICIARY: 8-2-1

YES: Maienschein, Connolly, Haney, Kalra, Pacheco, Papan, Reyes, Robert Rivas

NO: Essayli, Sanchez

ABS, ABST OR NV: Dixon

ASM APPROPRIATIONS: 12-2-2

YES: Holden, Bryan, Calderon, Wendy Carrillo, Mike Fong, Addis, Lowenthal, Papan, Pellerin, Robert Rivas, Weber, Wilson

NO: Megan Dahle, Sanchez

ABS, ABST OR NV: Dixon, Mathis

UPDATED

VERSION: April 12, 2023

CONSULTANT: Robert Sumner / B. & P. / (916) 319-3301 FN: 0000345

Date of Hearing: May 10, 2023

ASSEMBLY COMMITTEE ON APPROPRIATIONS

Chris Holden, Chair

ABPCA Bill Id:AB 1707

Author:(Pacheco) – As Amended Ver:April 12, 2023

Urgency: No State Mandated Local Program: Yes Reimbursable: No

SUMMARY:

This bill protects California-licensed health care professionals from adverse licensing actions or losing staff privileges in this state as a result of an adverse action taken in another jurisdiction as a result of giving proper care that is based on another state’s law that interferes with a person’s right to receive sensitive services and is lawful in California. This bill also protects California-licensed clinics and health facilities from adverse licensing actions on the basis of another state’s law that interferes with a person’s right to receive sensitive services that are lawful in California.

FISCAL EFFECT:

No significant costs to the healing arts boards in the Department of Consumer Affairs or to the California Department of Public Health.

COMMENTS:

This measure is sponsored by Planned Parenthood Affiliates of California. According to the author:

AB 1707 aims to protect California’s reproductive health care providers by ensuring their ability to provide care is not at risk if they faced disciplinary action in another state related to reproductive health care services. California’s health care providers are becoming increasingly essential for providing care to residents in other states and it is critical to ensure that providers in California, abiding by California laws, are protected from adverse actions based on another state’s hostile law. To ensure that providers in California are protected from hostile laws in these other states – we must do everything we can to strengthen California law to protect provider licensure, facility licensure, and providers’ ability to practice. The intent of this bill is to shore up protections so that care in California can remain consistent and ensure that California lives up to its declaration as a reproductive freedom state.

Last year, the Assembly Business and Professions Committee analysis for AB 2626 (Calderon), Chapter 565, Statutes of 2022, noted “registered nurses and physician assistants can provide certain abortion services under specified conditions. The author may wish to consider whether the bill’s protections should be expanded to cover any of these professions as well.” This bill expands protections in AB 2626 to all professionals licensed under California’s healing arts boards.

Analysis Prepared by: Allegra Kim / APPR. / (916) 319-2081

Date of Hearing: April 18, 2023

ASSEMBLY COMMITTEE ON JUDICIARY

Brian Maienschein, Chair

ABPCA Bill Id:AB 1707

Author:(Pacheco) – As Amended Ver:April 12, 2023

SUBJECT: Health professionals and facilities: adverse actions based on another state’s law

KEY ISSUE: in the event a medical professional or health care facility faces an adverse action from an out-of-state regulatory agency or court, should the professional or facility be provided with limited protection from adverse actions by California regulators if the underlying conduct is legal in California and the care provided they provided met all applicable standards of care?

SYNOPSIS

Following the United States Supreme Court’s decision to abolish the right to an abortion in 2022, over a dozen states have moved to ban the procedure and impose criminal or licensing sanctions against medical providers who provide this critical care. Even more troubling many of these states have adopted laws targeting doctors who provide care to their residents outside the jurisdiction. In order to protect California health care providers who provide critical abortion services to women from outside of the state, this bill seeks to ensure that no adverse licensing actions can be taken against a California medical professional or health care facility as a result of an adverse action taken out of state. This bill limits this protection from adverse actions to the provision of care that is both legal in California and performed in accordance with the standard of care demanded by this state’s laws.

This measure is sponsored by Planned Parenthood Affiliates of California and is supported by a coalition of organizations representing medical providers. The support coalition highlight the need to protect California medical providers from adverse actions for simply providing care that is legal in this state. This measure has no formal opposition and was previously heard and approved by the Committee on Business and Professions by a vote of 14-2.

SUMMARY: Protects California-licensed health care professionals from adverse licensing actions or losing staff privileges in this state as a result of an adverse action taken in another jurisdiction as a result of a medical provider giving proper care that is otherwise legal in California. Specifically, this bill:

1. Prohibits a health facility licensed in California from denying staff privileges to, removing from medical staff, or restricting the staff privileges of, a person licensed by a healing arts board in this state on the basis of a civil judgment, criminal conviction, or disciplinary action imposed by another state if that judgment, conviction, or disciplinary action is based solely on the application of another state’s law that interferes with a person’s right to receive sensitive services that would be lawful if provided in California.
2. Provides that an application for licensure as health professional or facility, as specified, is not to be denied, and no license is to be suspended, revoked, or otherwise limited, solely on the basis of a civil judgment, criminal conviction, or disciplinary action imposed by another state if that judgment, conviction, or disciplinary action is based solely on the application of another state’s law that interferes with a person’s right to receive care that would be lawful if provided in this state.
3. Provides that the protections in 1) and 2) do not apply to a civil judgment, criminal conviction, or disciplinary action imposed in another state for which a similar claim, charge, or action would exist against the licensee under the laws of this state.
4. Defines sensitive services to have the same meaning as the existing definition found in Section 56.06 of the Civil Code.

EXISTING LAW:

1. Requires specified health arts boards within the Department of Consumer Affairs, including the Medical Board of California, to create a central file individual historical record for each licensee under a given board’s jurisdiction with respect to the following information:
   1. Reports of any conviction of a crime in this or any other state that constitutes unprofessional conduct, as specified;
   2. Any judgment or settlement requiring the licensee or the licensee’s insurer to pay any amount of damages in excess of three thousand dollars ($3,000) for any claim that injury or death was proximately caused by the licensee’s negligence, error, or omission in practice, or by rendering unauthorized professional services, as specified;
   3. Public complaints, as specified;
   4. Disciplinary information reported, as specified, including any additional exculpatory or explanatory statements submitted by the licentiate; and
   5. Incompetence, or gross or repeated deviation from the standard of care involving death or serious bodily injury to one or more patients, as specified. (Business and Professions Code Section 800 (a).)
2. Requires, generally, a professional liability insurer to disclose to the Medical Board of California any award or settlement over $30,000 for damages for death or personal injury caused by the licensee’s alleged negligence, error, or omission in practice, or by the licensee’s rendering of unauthorized professional services. (Business and Professions Code Section 801.1 (a).)
3. Requires a physician and surgeon, osteopathic physician and surgeon, a doctor of podiatric medicine, and a physician assistant to report either of the following to the entity that issued their license:
   1. The bringing of an indictment or information charging a felony against the licensee; or
   2. The conviction of the licensee, including any verdict of guilty, or plea of guilty or no contest, of any felony or misdemeanor. (Business and Professions Code Section 802.1.)
4. Requires the clerk of the court that rendered a judgment holding a physician and surgeon, osteopathic physician and surgeon, doctor of podiatric medicine, or physician assistant liable for any death or personal injury resulting in a judgment of any amount caused by the professional’s negligence, error or omission in practice, or their rendering of unauthorized professional services to report that fact to the agency that issued the license. (Business and Professions Code Section 803 (b).)
5. Requires the Medical Board of California, the Osteopathic Medical Board to disclose to an inquiring member of the public information regarding any enforcement actions taken against a licensee, including a former licensee, by the board or by another state or jurisdiction, including all of the following:
   1. Temporary restraining orders issued;
   2. Interim suspension orders issued;
   3. Revocations, suspensions, probations, or limitations on practice ordered by the board, including those made part of a probationary order or stipulated agreement;
   4. Public letters of reprimand issued; and
   5. Infractions, citations, or fines imposed. (Business and Professions Code Section 803.1(a).)
6. Defines “sensitive services” to mean all health care services related to mental or behavioral health, sexual and reproductive health, sexually transmitted infections, substance use disorder, gender affirming care, and intimate partner violence, and includes services described in specified provisions the Family Code and Health and Safety Code, obtained by a patient at or above the minimum age specified for consenting to the service. (Civil Code Section 56.06 (p).)
7. Prohibits, under the Reproductive Privacy Act, the state from denying or interfering with a woman’s right to choose or obtain an abortion prior to viability of the fetus, or when the abortion is necessary to protect the life or health of the woman. (Health and Safety Code Section 123460 et seq.)
8. Provides that full faith and credit must be given in each state to the public acts, records, and judicial proceedings of every other state, and that the United States Congress may by general laws prescribe the manner in which such acts, records and proceedings must be proved, and the effect thereof. (U.S. Const. art. IV, sec. 1.)
9. Provides, pursuant to federal law, that records and judicial proceedings of any court of any such state, territory or possession, or copies thereof, must be proved or admitted in other courts within the United States and its territories and possessions by the attestation of the clerk and seal of the court annexed, if a seal exists, together with a certificate of a judge of the court that the said attestation is in proper form, and that such acts, records and judicial proceedings or copies thereof, so authenticated, have the same full faith and credit in every court within the United States and its territories and possessions as they have by law or usage in the courts of such State, territory or possession from which they are taken. (28 U.S.C. Section 1738.)

FISCAL EFFECT: As currently in print this bill is keyed fiscal.

COMMENTS: Following the United States Supreme Court’s unprecedented decision to eliminate a previously held constitutional right and determine that no right to an abortion exists under the U.S. Constitution (Dobbs v. Jackson Women’s Health Org. (2022) 141 S. Ct. 2619), access to abortion care is now being determined on a state-by-state basis. Some states, including California, have greatly expanded access to care and are taking steps to accommodate out-of-state patients who need safe and effective reproductive health care. Unfortunately, many states are dramatically restricting or eliminating a person’s ability to seek an abortion and gender-affirming health care. As a result of telehealth and mail-order pharmaceuticals, in addition to the longstanding practice of doctors opting to be licensed in multiple jurisdictions, California doctors may face discipline from other state’s medical regulators should that regulator believe the doctor conducted services in violation of that state’s laws. Seeking to prevent California doctors from facing regulatory discipline in California should another state take action against them for safely and effectively providing care that is legal in this jurisdiction, this bill limits the ability of the healing arts boards within the Department of Consumer Affairs to discipline doctors in the above described circumstances. In support of this bill, the author writes:

AB 1707 aims to protect California’s reproductive health care providers by ensuring their ability to provide care is not at risk if they faced disciplinary action in another state related to reproductive health care services. California’s health care providers are becoming increasingly essential for providing care to residents in other states and it is critical to ensure that providers in California, abiding by California laws, are protected from adverse actions based on another state’s hostile law. To ensure that providers in California are protected from hostile laws in these other states – we must do everything we can to strengthen California law to protect provider licensure, facility licensure, and providers’ ability to practice. The intent of this bill is to shore up protections so that care in California can remain consistent and ensure that California lives up to its declaration as a reproductive freedom state.

A series of draconian laws in other states seek to limit medical professional’s ability to provide vital reproductive and gender-affirming healthcare. Since the ruling in the Dobbs case thirteen states have moved to effectively ban abortion, one state bans the procedure after six weeks, and another four ban the procedure between 15 and 20 weeks. (NY Times, Tracking the States Where Abortion Is Now Banned, (Apr. 2023.) available at: https://www.nytimes.com/interactive/2022/us/abortion-laws-roe-v-wade.html.) Another eight states have abortion restrictions or bans currently being evaluated in state courts. Abortion is not the only legitimate form of health care being limited by some state legislatures. Thirteen states have recently enacted restrictions on gender affirming health care for minors. (Human Rights Campaign Foundation, Map: Attacks on Gender Affirming Care by State, (Apr. 2023) available at: https://www.hrc.org/resources/attacks-on-gender-affirming-care-by-state-map.) In several of these states it is not the person receiving care who “violates” the law but rather the medical professional providing the treatment.

Although California has become a safe haven for persons seeking medical treatment, the fact that medical professionals are targeted by other states can have implications in California. For example, should a California-based doctor have a license in a jurisdiction that now prohibits abortion, and a woman from that state travels to California and receives care from the doctor, the doctor may be subject to discipline from the out-of-state medical regulator for violating the other state’s laws. Existing California law rightfully requires medical professionals to disclose to California regulators any out-of-state professional discipline or legal misconduct. Based on these disclosures, a medical professional can have their license revoked or suspended, their medical facility permissions restricted, and face difficulty in finding employment. Given that the above described example ultimately started with a medical professional properly performing a procedure that is lawful under California law, it appears necessary to ensure that such a medical professional would not face potentially career-ending sanctions for simply doing their job in California.

This bill. In order to protect California-licensed medical professionals from adverse actions related to providing legal medical services that other states have now prohibited in a competent manner, this bill limits the ability for the healing arts boards to discipline a professional solely due to an out-of-state action related to a medical service that is legal in California. This bill also protects a medical professional’s facility privileges and the licenses of facilities that permit medical professionals to continue working despite the adverse actions of another state for conduct that is legal in California. The bill provides that the protections apply to the provision of sensitive services only, which entails both abortion and gender affirming care. Finally, this bill provides that the protections conferred to medical professionals do not apply if the conduct would give rise to criminal, civil, or regulatory discipline under the laws of California.

Full faith and credit does not require one regulator to follow the lead of another regarding discipline. This bill is the latest in a series of bills seeking to address actions taken by other legislatures to limit a person’s medical autonomy. Many of those bills implicated the Full Faith and Credit Clause of the United States Constitution, which dictates how other states are required to treat the records, proceedings, and legal decisions of other states. As it pertains to this bill, because the bill implicates out-of-state court and regulatory judgments, it may appear that the strict adherence to the judgment of an out-of-state tribunal should apply. (See Mills v. Duryee (1813) 7 Cranch 481.) However, this bill does not touch on the direct enforcement of those actions. While a California court may be required to uphold a civil judgment, nothing in the Full Faith and Credit Clause requires this state’s government to follow the lead of an out-of-state regulator and abide by its regulatory action. Accordingly, this bill simply clarifies existing California law as it pertains to actions by medical regulatory bodies upon receipt of a notice about an out-of-state complaint. Given that the Supreme Court has held that the Full Faith and Credit Clause does not compel “a state to substitute the statutes of another state for its own statutes dealing with a subject matter concerning which it is competent to legislate” (Baker v. General Motors Corp. (1998) 522 U.S. 222, 232-33.), this bill seems wholly constitutional.

This bill will not limit legitimate legal action for malpractice or other medical injuries. The existing regulatory structure for medical professionals and health care facilities is designed to protect the public from negligent or improper medical practices. Accordingly, ensuring robust oversight by the various healing arts boards within the Department of Consumer Affairs is vital for public protection. Given that this bill would, in some instances, limit the ability to discipline professionals for “misconduct” alleged by an out-of-state regulator, a proper balance must be struck. Notably, especially in light of amendments taken in the Committee on Business and Professions, this bill appears to strike the proper balance. First, this measure is limited to the provision of sensitive services. These services include various mental health treatments, in addition to the types of care other states seek to limit including abortion and gender affirming care. Secondly, and most importantly, this bill is clearly limited to conduct that is already legal in California. The bill clearly provides that conduct that would give rise to criminal, civil, or disciplinary actions (i.e. medical malpractice) would not be protected.

ARGUMENTS IN SUPPORT: This bill is sponsored by Planned Parenthood Affiliates of California and is supported by a coalition of organizations representing medical providers. In support of the bill, Planned Parenthood notes:

The fall of Roe not only put patients at risk, but it threatened providers with being criminalized for providing reproductive health care, including abortion. Some health care providers and entities are at risk of being unable to obtain a license in California, to have their existing California license suspended or revoked, or being unable to obtain hospital privileges as the result of another state taking action against them based on that state’s law banning the provision care that is lawful to provide in California. California’s health care providers are increasingly providing care to residents in other states and it is critical to ensure that providers in California, abiding by California laws, are protected from adverse actions based on another state’s hostile law.

AB 1707 builds on existing protections for health care providers who face disciplinary or legal actions in another state based on another state’s law restricting services within comprehensive sexual and reproductive health care. Specifically, this bill ensures healing arts licensees, as well as clinics and hospitals are not faced with denial, suspension, or revocation of their license in California as the result of disciplinary action in another state related to providing care that is lawful here, and that health care providers are not faced with denial, suspension, or revocation of their hospital privileges as the result of disciplinary action in another state related to providing care that is lawful in California. This bill is critical to ensuring that states with hostile laws cannot attack providers for what is legal and permissible in California.

REGISTERED SUPPORT / OPPOSITION:

Support

Planned Parenthood Affiliates of California (sponsor)

California Chapter of the American College of Emergency Physicians

California Legislative Women’s Caucus
California Nurse Midwives Association
NARAL Pro-choice California

Opposition

None on file

Analysis Prepared by: Nicholas Liedtke / JUD. / (916) 319-2334

Date of Hearing:

ASSEMBLY COMMITTEE ON BUSINESS AND PROFESSIONS

Marc Berman, Chair

ABPCA Bill Id:AB 1707

Author:(Pacheco) – As Amended Ver:March 16, 2023

NOTE: This bill is double-referred and if passed by this Committee will be referred to the Assembly Committee on Judiciary.

SUBJECT: Health professionals and facilities: adverse actions based on another state’s law.

SUMMARY: Protects licensed health care professionals, clinics, and health facilities from being denied a license or subjected to discipline in California on the basis of a civil judgment, criminal conviction, or disciplinary action imposed by another state based solely on the application of that state’s law that interferes with a person’s right to receive care that would be lawful if provided in California.

EXISTING LAW:

1. Establishes the Department of Consumer Affairs (DCA) within the Business, Consumer Services, and Housing Agency. (Business and Professions Code (BPC) § 100)
2. Enumerates various regulatory boards, bureaus, committees, and commissions under the DCA’s jurisdiction, including healing arts boards under Division 2. (BPC § 101)
3. Defines “board” as also inclusive of “bureau,” “commission,” “committee,” “department,” “division,” “examining committee,” “program,” and “agency.” (BPC § 22)
4. Provides that all boards within the DCA are established for the purpose of ensuring that those private businesses and professions deemed to engage in activities which have potential impact upon the public health, safety, and welfare are adequately regulated in order to protect the people of California. (BPC § 101.6)
5. States in myriad practice acts enforced by boards under the DCA that protection of the public shall be the highest priority. (BPC § 7301.1; § 2001.1; § 1601.2; § 2450.1; § 2460.1; § 2531.02; § 2570.25; § 2602.1; § 2708.1; § 2841.1; § 2920.1; § 3010.1; § 3320.1; § 3504.1; § 3710.1; § 4001.1; § 4501.1; § 4800.1; § 4928.1; § 4990.125; § 5000.1; § 5510.15; § 5620.1; § 6710.1; § 7000.6; § 7303.1; § 7501.05; § 7601.1; § 7810.1; § 8005.1; § 8520.1; § 9810.1; § 9880.3; § 18602.1; 19004.1; § 94770.1; etc.)
6. Limits the authority for most licensing boards under the DCA to deny a new license application to cases where the applicant was formally convicted of a substantially related crime or subjected to formal discipline by another licensing board, with most offenses older than seven years no longer eligible for license denial. (BPC § 480)
7. Requires each board under the DCA to develop criteria to aid it, when considering the denial, suspension, or revocation of a license, to determine whether a crime is substantially related to the qualifications, functions, or duties of the business or profession it regulates. (BPC § 481)
8. Enacts the Medical Practice Act, which provides for the licensure and regulation of physicians and surgeons by the Medical Board of California (MBC). (BPC §§ 2000 et seq.)
9. Establishes the Osteopathic Medical Board of California (OMBC), which regulates osteopathic physicians and surgeons who possess effectively the same practice privileges and prescription authority as those regulated by the MBC. (BPC § 2450)
10. Empowers the MBC to take action against persons guilty of violating the Medical Practice Act. (BPC § 2220)
11. Authorizes the MBC to either deny an application for licensure as a physician and surgeon or to issue a probationary license subject to terms and conditions. (BPC § 2221)
12. Provides that the conviction of any offense substantially related to the qualifications, functions, or duties of a physician constitutes unprofessional conduct. (BPC § 2236)
13. Automatically suspends a physician’s license during any time that the physician is incarcerated after conviction of a felony. (BPC § 2236.1)
14. Automatically places a physician’s license on inactive status during any time that the physician is incarcerated after conviction of a misdemeanor. (BPC § 2236.2)
15. Provides that the revocation, suspension, or other discipline, restriction, or limitation imposed by another state or the federal government upon a license or certificate to practice medicine issued by that state, or the revocation, suspension, or restriction of the authority to practice medicine by any agency of the federal government, that would have been grounds for discipline in California by the MBC, constitutes grounds for disciplinary action for unprofessional conduct against the licensee in California. (BPC § 2305)
16. Prohibits the MBC and the OMBC from denying an application for licensure or suspending or revoking the license of a physician and surgeon solely for performing an abortion in accordance with the provisions of the Medical Practice Act and the Reproductive Privacy Act, including in other states that have banned or restricted abortion. (BPC § 2253)
17. Establishes the Board of Registered Nursing (BRN) within the DCA. (BPC § 2700)
18. Prohibits the BRN from denying an application for licensure or suspending or revoking the license of a certified nurse-midwife (CNM) solely for performing an abortion in accordance with the provisions of the Nursing Practice Act and the Reproductive Privacy Act, including in other states that have banned or restricted abortion. (BPC § 2253)
19. Prohibits the BRN from denying an application for licensure or suspending or revoking the license of a nurse practitioner (NP) solely for performing an abortion in accordance with the provisions of the Nursing Practice Act and the Reproductive Privacy Act, including in other states that have banned or restricted abortion. (BPC § 2253)
20. Establishes the Physician Assistant Board (PAB) within the DCA. (BPC §§ 3500 et seq.)
21. Prohibits the PAB from denying an application for licensure or suspending or revoking the license of a physician assistant (PA) solely for performing an abortion in accordance with the provisions of the Physician Assistant Practice Act and the Reproductive Privacy Act, including in other states that have banned or restricted abortion. (BPC § 2253)
22. Provides for the licensure of health facilities by the Department of Public Health (CDPH). (Health and Safety Code (HSC) §§ 1250 et seq.)
23. Provides for the licensure of clinics by the CDPH. (HSC §§ 1200 et seq.)
24. Establishes the Reproductive Privacy Act. (HSC §§ 123460 et seq.)
25. Finds and declares that every individual possesses a fundamental right of privacy with respect to personal reproductive decisions, including whether to choose to bear a child or to choose to obtain an abortion. (HSC § 123462)
26. Prohibits the state from denying or interfering with a woman’s right to choose or obtain an abortion prior to viability of the fetus, or when the abortion is necessary to protect the life or health of the woman. (HSC § 123466)

THIS BILL:

1. Defines “healing arts board” as any board, division, or examining committee in the Department of Consumer Affairs that licenses or certifies health professionals.
2. Prohibits a healing arts board from denying an application for licensure or suspending, revoking, or otherwise disciplining a licensee solely on the basis of a civil judgment, criminal conviction, or disciplinary action in another state based solely on the application of another state’s law that interferes with a person’s right to receive care that would be lawful if provided in California.
3. Prohibits a health facility from denying staff privileges to, removing from medical staff, or restricting the staff privileges of, a person licensed by a healing arts board solely on the basis of a civil judgment, criminal conviction, or disciplinary action in another state based solely on the application of another state’s law that interferes with a person’s right to receive care that would be lawful if provided in California.
4. Prohibits the CDPH from denying or disciplining a license for a clinic or health facility on the basis of a civil judgment, criminal conviction, or disciplinary action in another state based solely on the application of another state’s law that interferes with a person’s right to receive care that would be lawful if provided in California.
5. For all of the above prohibitions, specifies that the bill does not apply to any judgment, criminal conviction, or disciplinary action imposed by another state for which a similar claim, charge, or action would exist against the applicant or licensee under provisions of California law.

FISCAL EFFECT: Unknown; this bill is keyed fiscal by the Legislative Counsel.

COMMENTS:

Purpose. This bill is sponsored by Planned Parenthood Affiliates of California. According to the author:

“AB 1707 aims to protect California’s reproductive health care providers by ensuring their ability to provide care is not at risk if they faced disciplinary action in another state related to reproductive health care services. California’s health care providers are becoming increasingly essential for providing care to residents in other states and it is critical to ensure that providers in California, abiding by California laws, are protected from adverse actions based on another state’s hostile law. To ensure that providers in California are protected from hostile laws in these other states – we must do everything we can to strengthen California law to protect provider licensure, facility licensure, and providers’ ability to practice. The intent of this bill is to shore up protections so that care in California can remain consistent and ensure that California lives up to its declaration as a reproductive freedom state.”

Background.

In 2002, the Legislature enacted the Reproductive Privacy Act, which grants every woman in California with the fundamental right to choose to bear a child or to choose and to obtain an abortion. Under the act, the state may not deny or interfere with a woman’s right to choose or obtain an abortion prior to viability of the fetus, or when the abortion is necessary to protect the life or health of the woman. The only restriction on abortion is when, in the good faith medical judgment of a physician, the fetus is viable and there is no risk to the life or health of the pregnant woman associated with the continuation of the pregnancy. Currently in California, medical providers who can perform abortions within their scope of practice are physicians and, under physician supervision, NPs, CNMs, and PAs.

The Reproductive Privacy Act codifies the right to choose whether to have an abortion as a form of exercising the implicit right to privacy under the Fourteenth Amendment of the United States Constitution, as affirmed by the Supreme Court of the United States in Roe v. Wade, which found that Texas’s criminal abortion statute violated the Due Process Clause. The Court in Roe ruled that during the first trimester, “the abortion decision and its effectuation must be left to the medical judgment of the pregnant woman's attending physician.” The Court ruled that during the second trimester, a state may only choose to “regulate the abortion procedure in ways that are reasonably related to maternal health,” but that states may ban abortion altogether during the third trimester, “except where it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother.”

Recent judicial action in the United States has nationally imperiled the protections in Roe. In 2021, the Texas Legislature passed Senate Bill 8, referred to as the Texas Heartbeat Act. That bill criminalized abortion after the detection of embryonic or fetal cardiac activity, essentially banning abortion after approximately six weeks. The constitutionality of that bill was challenged in Whole Woman's Health v. Jackson, which sought to enforce the Roe precedent and overturn Senate Bill 8. However, the Court declined to enjoin the law, which many pro-choice advocates viewed as signaling a future decision by the Court to overturn or seriously diminish the protections outlined in Roe.

Subsequently, on December 1, 2021, the Court heard oral arguments in Dobbs v. Jackson Women’s Health Organization, a case regarding a 2018 Mississippi state law that banned abortion after 15 weeks of pregnancy. Dobbs was a direct challenge to the legal precedent set in Roe and was the first time the Court ruled on the constitutional right to pre-viability abortion since Roe. On June 24, 2022, the Court ruled that abortion is not a constitutional right. This effectively overturned Roe and left the question of whether to ban it, and how, up to individual states.

Immediately after the Court’s decision, State Senate President pro Tempore Toni Atkins sponsored SCA 10, which placed a proposition on the 2022 ballot titled Constitutional Right to Reproductive Freedom. Proposition 1 explicitly made abortion and access to contraceptives a constitutional right in California. The ballot proposition passed with over 66 percent of voters in favor, enshrining the protections of Roe into the state’s constitution.

While California law protects a pregnant person’s right to choose in a manner consistent with Roe, it has been estimated that approximately 26 states would likely seek to ban abortion with Roe overturned, resulting in 36 million women and other people who may become pregnant losing access to abortion care nationwide. In spite of this, medical professionals may still choose to provide abortions in defiance of another state’s law. This potentially includes professionals licensed in California who may travel to other states to provide these services.

To provide reassurance to California health care professionals that they would not be subjected to discipline for continuing to provide abortion care and other reproductive services, California enacted AB 2626 in 2022. That bill reiterated that licensing boards may not subject licensed health care professionals to serious discipline for performing an abortion that is legal under California law, protecting the license of those who provide abortions in states that have banned abortion or to patients who have traveled from those states to California to seek care. While California licensing boards do not have direct jurisdiction over care provided in other states, they are notified when a licensee was either convicted of a crime in another state or subjected to discipline by another state’s licensing board. When notified, the California boards may decide whether to take disciplinary action. AB 2626 prohibited boards from suspending or revoking a license solely for performing an abortion in accordance with California law.

This bill would further protect health care professionals who perform care prohibited in other states that patients would have a right to in California. Specifically, the bill would ban healing arts boards from denying or disciplining a license solely on the basis of a civil judgment, criminal conviction, or disciplinary action in another state based solely on the application of another state’s law that interferes with a person’s right to receive care that would be lawful if provided in California. The bill would also enact similar prohibitions against discipline against health professionals by the CDPH or licensed health facilities. The protections in this bill are intended ensure that California provides safe harbor to health professionals who defend the rights of patients to receive essential care, even if other states have restricted those rights.

Current Related Legislation. AB 1646 (Stephanie Nguyen) would allow a medical school graduate who is engaged in a postgraduate training program outside of California to participant in guest rotations in California. This bill is pending in this committee.

Prior Related Legislation. AB 2626 (Calderon, Chapter 565, Statutes of 2022) prohibited specified licensing boards from suspending, revoking, or denying a license solely for performing an abortion that is lawful in California in accordance with the licensee’s practice act.

AB 1666 (Bauer-Kahan, Chapter 42, Statutes of 2022) declare that another state’s law authorizing a civil action against a person or entity that receives or seeks, performs or induces, or aids or abets the performance of an abortion, or who attempts or intends to engage in those actions, is contrary to the public policy of this state.

ARGUMENTS IN SUPPORT:

Planned Parenthood Affiliates of California (PPAC) is sponsoring this bill. According to PPAC: “AB 1707 builds on existing protections for health care providers who face disciplinary or legal actions in another state based on another state’s law restricting services within comprehensive sexual and reproductive health care. Specifically, this bill ensures healing arts licensees, as well as clinics and hospitals are not faced with denial, suspension, or revocation of their license in California as the result of disciplinary action in another state related to providing care that is lawful here, and that health care providers are not faced with denial, suspension, or revocation of their hospital privileges as the result of disciplinary action in another state related to providing care that is lawful in California. This bill is critical to ensuring that states with hostile laws cannot attack providers for what is legal and permissible in California.”

ARGUMENTS IN OPPOSITION:

None on file.

POLICY ISSUE(S) FOR CONSIDERATION:

While the author and sponsors of this bill specifically acknowledge the Court’s overturning of Roe as an urgent impetus for this legislation, its provisions are not limited to cases where a health professional provided abortion care in a state that has banned reproductive health services. Currently, the bill would prohibit disciplinary action for any care that would be lawful if provided in California. There are certainly other forms of care beyond abortion that California has sought to protect that have been under attack in other states. For example, the Legislature has introduced and enacted bills to expand access to gender affirming care, which encompasses a wide range of essential health services that have been regressively jeopardized in other states. However, the author may still wish to consider setting some parameters to the type of care that this bill protects to ensure that California would not provide safe harbor to professionals whose violation of other state’s laws is less deserving of sympathy or support from this state.

AMENDMENTS:

To narrow the bill to specifically protect health professionals who provide sensitive services, including health care services related to sexual and reproductive health, gender affirming care, mental or behavioral health, sexually transmitted infections, substance use disorder, and intimate partner violence, amend each section of the bill to specify that adverse action shall not be taken based solely on the application of another state’s law that interferes with a person’s right to receive sensitive services that would be lawful if provided in this state, within the same meaning as the term is used in Section 56.05 of the Civil Code.

REGISTERED SUPPORT:

Planned Parenthood Affiliates of California (Sponsor)

California Chapter of the American College of Emergency Physicians

California Nurse Midwives Association

NARAL Pro-Choice California

REGISTERED OPPOSITION:

None on file.

Analysis Prepared by: Robert Sumner / B. & P. / (916) 319-3301