Existing law declares another states 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, to be contrary to the public policy of this state, and prohibits the application of that law to a controversy in state court and the enforcement or satisfaction of a civil judgment received under that law.

This bill would specifically include within these provisions, in addition to abortion performers, abortion providers.

Existing law, the Knox-Keene Health Care Service Plan Act of 1975, provides for the licensure and regulation of health care service plans by the Department of Managed Health Care and makes a willful violation of the act a crime. Existing law also provides for the regulation of health insurers by the Department of Insurance.

The bill would also prohibit a contract issued, amended, or renewed on or after January 1, 2024, between a health care service plan or health insurer and a health care services provider from containing any term that would result in termination or nonrenewal of the contract or otherwise penalize the provider based on a civil judgment, criminal conviction, or another professional disciplinary action in another state if the judgment, conviction, or professional disciplinary action is solely based on the application of another states law that interferes with a persons right to receive care that would be lawful if provided in California. The bill would also prohibit a health care service plan or health insurer from discriminating against a licensed provider solely on the basis of a civil judgment, criminal conviction, or another professional disciplinary action in another state if the judgment, conviction, or professional disciplinary action is solely based on the application of another states law that interferes with a persons right to receive care that would be lawful if provided in California. Because a willful violation of these provisions by a health care service plan would be a crime, the bill would impose a state-mandated local program.

Existing law requires that the State Department of Public Health automatically suspend as a Medi-Cal provider any individual or entity that has a license, certificate, or other approval to provide health care that is revoked or suspended by a federal, California, or another states licensing, certification, or approval authority, has otherwise lost that license, certificate, or approval, or has surrendered that license, certificate, or approval while a disciplinary hearing was pending.

The bill would also authorize the department, subject to obtaining necessary federal approvals and the availability of federal financial participation under Medi-Cal, to elect to not suspend an individual or entity as a provider in the Medi-Cal program if the revocation, suspension, or loss of the individual or entitys license, certification, or approval authority in another state or the pending disciplinary hearing during which the individual or entity surrendered the license, certification, or approval authority in another state is based solely on conduct that is not deemed to be unprofessional conduct under California law. The bill would also require the department to seek any necessary federal approvals to implement these provisions.

Under existing law, the Director of Health Care Services is authorized, for purposes of administering the Medi-Cal program, to suspend a provider of service from further participation under the program for specified reasons, including conviction of any felony or any misdemeanor involving fraud, abuse of the Medi-Cal program or any patient, or otherwise substantially related to the qualifications, functions, or duties of a provider of service. Existing law requires the director, upon receipt of written notification from the Secretary of the United States Department of Health and Human Services that a physician or other individual practitioner has been suspended from participation in the Medicare or Medicaid programs, to promptly suspend the practitioner from participation in the Medi-Cal program. Existing law also requires the Director of Health Care Services to notify the administrative director of a suspension of a physician from participation in the Medi-Cal program imposed pursuant to provisions authorizing the director to suspend a provider of service from participation.

This bill would authorize the director, subject to obtaining necessary federal approvals and the availability of federal financial participation under Medi-Cal, to request a waiver under federal law, as permitted, if the providers suspension from participating in the Medicare or Medicaid program was based solely on conduct that is not deemed to be unprofessional conduct under California law. The bill would also require the department to seek any necessary federal approvals to implement these provisions.

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 declares another states 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, to be contrary to the public policy of this state, and prohibits the application of that law to a controversy in state court and the enforcement or satisfaction of a civil judgment received under that law.

This bill would specifically include within these provisions, in addition to abortion performers, abortion providers.

Existing law, the Knox-Keene Health Care Service Plan Act of 1975, provides for the licensure and regulation of health care service plans by the Department of Managed Health Care and makes a willful violation of the act a crime. Existing law also provides for the regulation of health insurers by the Department of Insurance.

The bill would also prohibit a contract issued, amended, or renewed on or after January 1, 2024, between a health care service plan or health insurer and a health care services provider from containing any term that would result in termination or nonrenewal of the contract or otherwise penalize the provider based on a civil judgment, criminal conviction, or another professional disciplinary action in another state if the judgment, conviction, or professional disciplinary action is solely based on the application of another states law that interferes with a persons right to receive care that would be lawful if provided in California. The bill would also prohibit a health care service plan or health insurer from discriminating against a licensed provider solely on the basis of a civil judgment, criminal conviction, or another professional disciplinary action in another state if the judgment, conviction, or professional disciplinary action is solely based on the application of another states law that interferes with a persons right to receive care that would be lawful if provided in California. Because a willful violation of these provisions by a health care service plan would be a crime, the bill would impose a state-mandated local program.

Existing law requires that the State Department of Public Health automatically suspend as a Medi-Cal provider any individual or entity that has a license, certificate, or other approval to provide health care that is revoked or suspended by a federal, California, or another states licensing, certification, or approval authority, has otherwise lost that license, certificate, or approval, or has surrendered that license, certificate, or approval while a disciplinary hearing was pending.

The bill would also authorize the department, subject to obtaining necessary federal approvals and the availability of federal financial participation under Medi-Cal, to elect to not suspend an individual or entity as a provider in the Medi-Cal program if the revocation, suspension, or loss of the individual or entitys license, certification, or approval authority in another state or the pending disciplinary hearing during which the individual or entity surrendered the license, certification, or approval authority in another state is based solely on conduct that is not deemed to be unprofessional conduct under California law. The bill would also require the department to seek any necessary federal approvals to implement these provisions.

Under existing law, the Director of Health Care Services is authorized, for purposes of administering the Medi-Cal program, to suspend a provider of service from further participation under the program for specified reasons, including conviction of any felony or any misdemeanor involving fraud, abuse of the Medi-Cal program or any patient, or otherwise substantially related to the qualifications, functions, or duties of a provider of service. Existing law requires the director, upon receipt of written notification from the Secretary of the United States Department of Health and Human Services that a physician or other individual practitioner has been suspended from participation in the Medicare or Medicaid programs, to promptly suspend the practitioner from participation in the Medi-Cal program. Existing law also requires the Director of Health Care Services to notify the administrative director of a suspension of a physician from participation in the Medi-Cal program imposed pursuant to provisions authorizing the director to suspend a provider of service from participation.

This bill would authorize the director, subject to obtaining necessary federal approvals and the availability of federal financial participation under Medi-Cal, to request a waiver under federal law, as permitted, if the providers suspension from participating in the Medicare or Medicaid program was based solely on conduct that is not deemed to be unprofessional conduct under California law. The bill would also require the department to seek any necessary federal approvals to implement these provisions.

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 declares another states 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, to be contrary to the public policy of this state, and prohibits the application of that law to a controversy in state court and the enforcement or satisfaction of a civil judgment received under that law.

This bill would specifically include within these provisions, in addition to abortion performers, abortion providers.

Existing law, the Knox-Keene Health Care Service Plan Act of 1975, provides for the licensure and regulation of health care service plans by the Department of Managed Health Care and makes a willful violation of the act a crime. Existing law also provides for the regulation of health insurers by the Department of Insurance.

The bill would also prohibit a contract issued, amended, or renewed on or after January 1, 2024, between a health care service plan or health insurer and a health care services provider from containing any term that would result in termination or nonrenewal of the contract or otherwise penalize the provider based on a civil judgment, criminal conviction, or another professional disciplinary action in another state if the judgment, conviction, or professional disciplinary action is solely based on the application of another states law that interferes with a persons right to receive care that would be lawful if provided in California. The bill would also prohibit a health care service plan or health insurer from discriminating against a licensed provider solely on the basis of a civil judgment, criminal conviction, or another professional disciplinary action in another state if the judgment, conviction, or professional disciplinary action is solely based on the application of another states law that interferes with a persons right to receive care that would be lawful if provided in California. Because a willful violation of these provisions by a health care service plan would be a crime, the bill would impose a state-mandated local program.

Existing law requires that the State Department of Public Health automatically suspend as a Medi-Cal provider any individual or entity that has a license, certificate, or other approval to provide health care that is revoked or suspended by a federal, California, or another states licensing, certification, or approval authority, has otherwise lost that license, certificate, or approval, or has surrendered that license, certificate, or approval while a disciplinary hearing was pending.

The bill would also authorize the department, subject to obtaining necessary federal approvals and the availability of federal financial participation under Medi-Cal, to elect to not suspend an individual or entity as a provider in the Medi-Cal program if the revocation, suspension, or loss of the individual or entitys license, certification, or approval authority in another state or the pending disciplinary hearing during which the individual or entity surrendered the license, certification, or approval authority in another state is based solely on conduct that is not deemed to be unprofessional conduct under California law. The bill would also require the department to seek any necessary federal approvals to implement these provisions.

Under existing law, the Director of Health Care Services is authorized, for purposes of administering the Medi-Cal program, to suspend a provider of service from further participation under the program for specified reasons, including conviction of any felony or any misdemeanor involving fraud, abuse of the Medi-Cal program or any patient, or otherwise substantially related to the qualifications, functions, or duties of a provider of service. Existing law requires the director, upon receipt of written notification from the Secretary of the United States Department of Health and Human Services that a physician or other individual practitioner has been suspended from participation in the Medicare or Medicaid programs, to promptly suspend the practitioner from participation in the Medi-Cal program. Existing law also requires the Director of Health Care Services to notify the administrative director of a suspension of a physician from participation in the Medi-Cal program imposed pursuant to provisions authorizing the director to suspend a provider of service from participation.

This bill would authorize the director, subject to obtaining necessary federal approvals and the availability of federal financial participation under Medi-Cal, to request a waiver under federal law, as permitted, if the providers suspension from participating in the Medicare or Medicaid program was based solely on conduct that is not deemed to be unprofessional conduct under California law. The bill would also require the department to seek any necessary federal approvals to implement these provisions.

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 declares another states 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, to be contrary to the public policy of this state, and prohibits the application of that law to a controversy in state court and the enforcement or satisfaction of a civil judgment received under that law.

This bill would specifically include within these provisions, in addition to abortion performers, abortion providers.

Existing law, the Knox-Keene Health Care Service Plan Act of 1975, provides for the licensure and regulation of health care service plans by the Department of Managed Health Care and makes a willful violation of the act a crime. Existing law also provides for the regulation of health insurers by the Department of Insurance.

The bill would also prohibit a contract issued, amended, or renewed on or after January 1, 2024, between a health care service plan or health insurer and a health care services provider from containing any term that would result in termination or nonrenewal of the contract or otherwise penalize the provider based on a civil judgment, criminal conviction, or another professional disciplinary action in another state if the judgment, conviction, or professional disciplinary action is solely based on the application of another states law that interferes with a persons right to receive care that would be lawful if provided in California. The bill would also prohibit a health care service plan or health insurer from discriminating against a licensed provider solely on the basis of a civil judgment, criminal conviction, or another professional disciplinary action in another state if the judgment, conviction, or professional disciplinary action is solely based on the application of another states law that interferes with a persons right to receive care that would be lawful if provided in California. Because a willful violation of these provisions by a health care service plan would be a crime, the bill would impose a state-mandated local program.

Existing law requires that the State Department of Public Health automatically suspend as a Medi-Cal provider any individual or entity that has a license, certificate, or other approval to provide health care that is revoked or suspended by a federal, California, or another states licensing, certification, or approval authority, has otherwise lost that license, certificate, or approval, or has surrendered that license, certificate, or approval while a disciplinary hearing was pending.

The bill would also require that authorize the department department, subject to obtaining necessary federal approvals and the availability of federal financial participation under Medi-Cal, to elect to not suspend an individual or entity as a provider in the Medi-Cal program if the revocation, suspension, or loss of the individual or entitys license, certification, or approval authority in another state or the pending disciplinary hearing during which the individual or entity surrendered the license, certification, or approval authority in another state is based solely on conduct that is not prohibited in California. deemed to be unprofessional conduct under California law. The bill would also require the department to seek any necessary federal approvals to implement these provisions.

Under existing law, the Director of Health Care Services is authorized, for purposes of administering the Medi-Cal program, to suspend a provider of service from further participation under the program for specified reasons, including conviction of any felony or any misdemeanor involving fraud, abuse of the Medi-Cal program or any patient, or otherwise substantially related to the qualifications, functions, or duties of a provider of service. Existing law requires the director, upon receipt of written notification from the Secretary of the United States Department of Health and Human Services that a physician or other individual practitioner has been suspended from participation in the Medicare or Medicaid programs, to promptly suspend the practitioner from participation in the Medi-Cal program. Existing law also requires the Director of Health Care Services to notify the administrative director of a suspension of a physician from participation in the Medi-Cal program imposed pursuant to provisions authorizing the director to suspend a provider of service from participation.

This bill would require the director authorize the director, subject to obtaining necessary federal approvals and the availability of federal financial participation under Medi-Cal, to request a waiver under federal law, as permitted, if the providers suspension from participating in the Medicare or Medicaid program was based solely on conduct that is not prohibited in California. deemed to be unprofessional conduct under California law. The bill would also require the department to seek any necessary federal approvals to implement these provisions.

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 declares another states 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, to be contrary to the public policy of this state, and prohibits the application of that law to a controversy in state court and the enforcement or satisfaction of a civil judgment received under that law.

This bill would specifically include within these provisions, in addition to abortion performers, abortion providers.

Existing law, the Knox-Keene Health Care Service Plan Act of 1975, provides for the licensure and regulation of health care service plans by the Department of Managed Health Care and makes a willful violation of the act a crime. Existing law also provides for the regulation of health insurers by the Department of Insurance.

The bill would also prohibit a contract issued, amended, or renewed on or after January 1, 2024, between a health care service plan or health insurer and a health care services provider from containing any term that would result in termination or nonrenewal of the contract or otherwise penalize the provider based on a civil judgment, criminal conviction, or another professional disciplinary action in another state if the judgment, conviction, or professional disciplinary action is solely based on the application of another states law that interferes with a persons right to receive care that would be lawful if provided in California. The bill would also prohibit a health care service plan or health insurer from discriminating against a licensed provider solely on the basis of a civil judgment, criminal conviction, or another professional disciplinary action in another state if the judgment, conviction, or professional disciplinary action is solely based on the application of another states law that interferes with a persons right to receive care that would be lawful if provided in California. Because a willful violation of these provisions by a health care service plan would be a crime, the bill would impose a state-mandated local program.

Existing law requires that the State Department of Public Health automatically suspend as a Medi-Cal provider any individual or entity that has a license, certificate, or other approval to provide health care that is revoked or suspended by a federal, California, or another states licensing, certification, or approval authority, has otherwise lost that license, certificate, or approval, or has surrendered that license, certificate, or approval while a disciplinary hearing was pending.

The bill would also require that the department not suspend an individual or entity as a provider in the Medi-Cal program if the revocation, suspension, or loss of the individual or entitys license, certification, or approval authority in another state or the pending disciplinary hearing during which the individual or entity surrendered the license, certification, or approval authority in another state is based solely on conduct that is not prohibited in California.

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 declares another states 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, to be contrary to the public policy of this state, and prohibits the application of that law to a controversy in state court and the enforcement or satisfaction of a civil judgment received under that law.

This bill would specifically include within these provisions, in addition to abortion performers, abortion providers.

Existing law declares another states 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, to be contrary to the public policy of this state, and prohibits the application of that law to a controversy in state court and the enforcement or satisfaction of a civil judgment received under that law.

This bill would specifically include within these provisions, in addition to abortion performers, abortion providers.

 UNFINISHED BUSINESS  

Bill No: SB 487

Author: Atkins (D), et al.

Amended: 9/1/23

Vote: 21

SENATE JUDICIARY COMMITTEE: 8-2, 3/28/23

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

NOES: Wilk, Niello

NO VOTE RECORDED: Stern

SENATE HEALTH COMMITTEE: 9-2, 4/19/23

AYES: Eggman, Glazer, Gonzalez, Limón, Menjivar, Roth, Rubio, Wahab, Wiener

NOES: Nguyen, Dahle

NO VOTE RECORDED: Hurtado

SENATE APPROPRIATIONS COMMITTEE: 5-2, 5/18/23

AYES: Portantino, Ashby, Bradford, Wahab, Wiener

NOES: Jones, Seyarto

SENATE FLOOR: 31-8, 5/24/23

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

NOES: Dahle, Grove, Jones, Nguyen, Niello, Ochoa Bogh, Seyarto, Wilk

NO VOTE RECORDED: Limón

ASSEMBLY FLOOR: 64-15, 9/7/23 - See last page for vote

SUBJECT: Abortion: provider protections

SOURCE: American College of Obstetricians and Gynecologists District IX

California Medical Association

Planned Parenthood Affiliates of California

DIGEST:

The bill prohibits health plans and health insurers from terminating, discriminating against, or otherwise penalizing a provider based on a civil judgment, criminal conviction, or another disciplinary action in another state if the judgment, conviction, or disciplinary action is solely based 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. This bill authorizes the Department of Health Care Services (DHCS) to elect not to suspend a Medi-Cal provider who has a license, certificate, or other approval to provide health care suspended or revoked in another state if the revocation or suspension is based solely on conduct that is not deemed to be unprofessional conduct under California law, as provided.

Assembly Amendments

authorize DHCS to elect not to suspend a Medi-Cal provider who has a license, certificate, or other approval to provide health care suspended or revoked in another state if the revocation or suspension is based solely on conduct that is not that is not deemed to be unprofessional conduct under California law, authorizes and requires DHCS to seek federal waivers, if necessary, and specifies that provisions are to be implemented only if waivers granted and fund availability under Medi-Cal is not otherwise jeopardized. They also make other technical changes.

ANALYSIS:

Existing 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. 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, 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. (Health & Saf. Code § 123460 et. seq., § 123462.)
3. 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).)
4. Prohibits the application of an out-of-state law described in 1) from being applied to a case or controversy heard in state court and prohibits the enforcement or satisfaction of a civil judgment received through an adjudication under an out-of-state law described in 1). (Health & Safe. Code § 123467.5(b).)
5. Prohibits a clerk of a superior court in the county in which discovery in a foreign action is sought, or an attorney licensed in this state and retained by a party in a foreign action, from issuing a subpoena for discovery in this state based on a foreign subpoena if the foreign subpoena is based on an anti-gender-affirming care action. (Code of Civ. Proc. § 2029.300(e).)
6. Requires the Department of Managed Health Care (DMHC) to regulate health plans under the Knox-Keene Health Care Service Plan Act of 1975 (Knox-Keene). (Health & Safe. Code § 1340, et seq.)
7. Requires the California Department of Insurance (CDI) to regulate health insurers. (Ins. Code § 10110 et. seq.)
8. Requires the DHCS to administer the Medi-Cal program. (Welf. & Inst. Code § 14000, et. seq.)
9. Requires DHCS to automatically suspend, as a provider in the Medi-Cal program, any individual who, or any entity that, has a license, certificate, or other approval to provide health care, which is revoked or suspended by a federal, California, or another state’s licensing certification or approval authority, has otherwise lost that license, certificate, or approval, or has surrendered that license, certificate, or approval while a disciplinary hearing was pending. (Welf. & Inst. Code § 14043.6.)

This bill:

1. Clarifies, additionally, that a law of another state that authorizes a person to bring a civil action against a person that provides an abortion or knowingly engages in conduct that aids or abets the provision of an abortion is contrary to the public policy of the state.
2. Prohibits, on and after January 1, 2024, a contract issued, amended, or renewed between a health care service plan or a health insurer and a provider of health care services from containing any term that would result in the termination or nonrenewal of the contract or otherwise penalize the provider based solely on a civil judgment, criminal conviction, or another disciplinary action in another state if that other state judgment, conviction, of 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. Prohibits a health care service plan or a health insurer from discriminating, with respect to the provision of, or contracts for, professional services against a licensed provider solely on the basis of a civil judgment, criminal conviction, or another disciplinary action in another state if that other state judgment, conviction, of 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.
4. Provides that the provisions in 2) and 3) above do not apply to a civil judgment, criminal conviction, or another disciplinary action imposed in another state based upon conduct that would subject a provider to claim, charge, or action under the laws of this state.
5. Authorizes DHCS to elect to not suspend an individual or entity as a provider in the Medi-Cal program, subject to obtaining necessary federal approvals and the availability of federal financial participation under Medi-Cal, if the revocation, suspension, or loss of the individual’s or entity’s license, certificate, or approval authority in another state or the pending disciplinary hearing during which the individual or entity surrendered the license, certificate, or approval authority in another state is based solely on conduct that is not deemed to be unprofessional conduct under California law.
   1. Authorizes the Director of DHCS to request a waiver as permitted by federal law to implement these provisions.
   2. Requires DHCS to seek federal approvals it deems necessary to implement these provisions, and provides they are to be implemented only to the extent that DHCS obtains necessary federal approvals and federal financial participation under the Medi-Cal program is available and not otherwise jeopardized.

Comments

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.) 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. (Dobbs v. Jackson Women’s Health (2022) 597 U.S. _ (142 S.Ct. 2228) at 5.) 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.^[1]

Many abortion bans target providers of abortions through criminal, civil, and administrative penalties. 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.) Texas law also 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 SB 8 of 2021).) SB 8 provides that any person, other than an officer or employee of a state or local governmental entity in Texas, and regardless if they suffered any actual harm, 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).) Idaho enacted a similar law via Idaho SB 1309 of 2022, which provides for liability of $20,000 plus costs and fees if a plaintiff prevails (Idaho Code § 18-8701 et. seq.)

Oklahoma also enacted a similar law to Texas and enacted criminal penalties for the performance of an abortion, except when performed to save the life of a pregnant person, with punishment of up to 10 years in prison or fines of up to $100,000.^[2] Similar legislation to Texas’ SB 8 has also been introduced in Arizona, Florida, Minnesota, and Wisconsin.^[3] 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.^[4] 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.

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.^[5] 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 this state. CA FAB issued its first report in December 2021, which included 45 policy recommendations to protect, strengthen, and expand abortion access in California.^[6] In response to the Dobbs decision and CA FAB’s report, California enacted a comprehensive package of legislation that protects the rights of patients seeking abortion in the state and those supporting them.^[7] 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.

Though California has enacted numerous laws to protect the fundamental right to reproductive freedom, without federal protections there is nothing prohibiting providers of sexual and reproductive health care from being criminalized for providing abortion in other states. In December 2022, CA FAB issued an addendum to its original report and identified additional policy recommendations, including protecting abortion providers “against adverse actions related to their participation in public benefit programs, health plan and insurance contracts, and credentialing due to enforcement of another state’s hostile abortion law.^[8]”

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. 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. 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. On September 29, 2022, Governor Newsom issued a signing statement for SB 107 (Wiener, Chapter 810, Statutes of 2022) 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.”

In response to these issues, this bill seeks to provide additional protections for health care providers by prohibiting them from discriminating or taking adverse actions against providers who are subjected to civil, criminal or professional license actions solely because they are providing reproductive health care services – including abortion and gender affirming care – in another state that prohibits or restricts the service.

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

According to the Assembly Appropriations Committee,

1. DHCS estimates costs of $452,000 in fiscal year (FY) 2023-25 and $425,000 in FY 2024-25 for staff to research the nature of each provider termination and perform additional analysis to determine whether conduct is not deemed to be unprofessional conduct under California law (50% General Fund, 50% federal funds).
2. The California Department of Insurance anticipates no costs.
3. Department of Managed Health Care anticipates minor and absorbable costs.

SUPPORT: (Verified 9/8/23)

American College of Obstetricians and Gynecologists District IX (co-source)

California Medical Association (co-source)

Planned Parenthood Affiliates of California (co-source)

Attorney General Rob Bonta

Lieutenant Governor Eleni Kounalakis

American Association of University Women California

California Association of Nurse Anesthetist

California Chapter of the American College of Emergency Physicians

California Federation of Teachers AFL-CIO

CaliforniaHealth+ Advocates

California Hospital Association

California Legislative Women's Caucus

California Nurses Association

California Nurse Midwives Association

California State Association of Psychiatrists

California Women's Law Center

County of San Diego

Equality California

League of Women Voters of California

NARAL Pro-Choice California

National Health Law Program

San Francisco City Attorney's Office

Training in Early Abortion for Comprehensive Health Care

University Of California

OPPOSITION: (Verified 9/8/23)

Right to Life League

ARGUMENTS IN SUPPORT: Planned Parenthood Affiliates of California, one of the sponsors of this bill, writes in support stating:

SB 487 builds off existing protections enacted last year to protect health care providers from automatic suspension from the Medi-Cal program if they are suspended from a Medicaid program in another state as a result of providing health care services that are legal in California. It will also prohibit health insurers from discriminating against or refusing to contract with a health care provider who may have been sanctioned in another state as a result of providing prohibited or restricted health care services that are legal in California. Protecting health care providers from adverse actions stemming from another state’s hostile laws and actions, particularly as it relates to being able to continue to serve Medi-Cal patients, is a priority for Planned Parenthood so that all patients can continue to seek care at health centers without disruption.

ARGUMENTS IN OPPOSITION: The Right to Life League writes in

opposition:

Existing law requires DHCS to automatically suspend as a provider in the Medi-Cal program any individual who, or any entity that, has a license, certificate, or other approval to provide health care revoked or suspended by a federal, California, or another state’s licensing authority, such as abortion or gender alteration. SB 487 amends this existing law in order to continue sending taxpayer monies to abortionists and those who profit from human gender mutilation who would otherwise be ineligible for payment under Medi-Cal.

ASSEMBLY FLOOR 64-15, 9/7/23

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, Quirk-Silva, Ramos, Rendon, Reyes, Luz Rivas, Rodriguez, Blanca Rubio, Santiago, Schiavo, Soria, Ting, Valencia, Villapudua, Wallis, Ward, Weber, Wicks, Wilson, Wood, Zbur, Robert Rivas

NOES: Chen, Megan Dahle, Davies, Dixon, Flora, Vince Fong, Gallagher, Hoover, Lackey, Mathis, Jim Patterson, Joe Patterson, Sanchez, Ta, Waldron

NO VOTE RECORDED: Essayli

Prepared by: Amanda Mattson / JUD. / (916) 651-4113

9/8/23 14:17:46

**** END ****

1. Id. at 77. ↑

2. Dana Branham and Chris Casteel, Another anti-abortion law goes into effect in Oklahoma. Here’s what’s changing, The Oklahoman (Aud, 26, 2022), available at https://www.oklahoman.com/story/news/2022/08/26/oklahoma-senate-bill-612-another-anti-abortion-law-goes-into-effect/65419612007/. ↑

3. Alison Durkee, Idaho Enacts Law Copying Texas’ Abortion Ban – And These States Might Be Next, Forbes (Mar. 23, 2022) available at https://www.forbes.com/sites/alisondurkee/2022/03/23/idaho-enacts-law-copying-texas-abortion-ban---and-these-states-might-be-next/?sh=340dc49425c0. ↑

4. 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. ↑

5. 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. ↑

6. Recommendations to Protect, Strengthen, and Expand Abortion Care in California, California Future of Abortion Council (Dec. 2021), available at https://www.cafabcouncil.org/_files/ugd/ddc900_0beac0c75cb54445a230168863566b55.pdf. ↑

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

8. December 2022 Addendum, California Future of Abortion Council (Dec. 2022), available at https://www.cafabcouncil.org/_files/ugd/ddc900_cb34dfb0c1154013a43642b9a95adfd6.pdf?index=true. ↑

SENATE THIRD READING

STR Bill Id:SB 487

Author:(Atkins)

As Amended Ver:September 1, 2023

Majority vote

SUMMARY

Establishes protections for health care providers who contract with health plans and insurers, or are enrolled as Medi-Cal providers, from adverse outcomes such as contract termination, discrimination, or suspension of enrollment, when such adverse action is based on adverse legal action or professional discipline in other states for conduct that is not prohibited in California (such as provision of abortion or gender-affirming care).

Major Provisions

COMMENTS

1. California Abortion Coverage. California law prohibits the state from denying or interfering with a person's right to choose or obtain an abortion prior to viability of the fetus, or when medically necessary. The state defines viability as the point in a pregnancy when, in the good faith medical judgment of a physician, there is a reasonable likelihood that a fetus will survive outside the uterus without "extraordinary medical measures." Abortion is considered a basic health care service in California and, therefore, is required to be covered by commercial health insurance plans and policies. Medically necessary follow-up services to abortions that constitute basic health care services must also be covered. Similarly, Medi-Cal covers abortion and related services comprehensively as a state-funded benefit.
2. 2022 Supreme Court Decision. On Friday, June 24, 2022, the United States (U.S.) Supreme Court issued its decision in Dobbs v. Jackson Women's Health Organization, thereby overturning Roe v. Wade, the 1973 Supreme Court decision that affirmed the constitutional right to abortion. This ruling had the effect of deferring issues of abortion rights and access to the state level, allowing states to impose restrictions on abortion rights. Consequently, abortion access in the United States now diverges starkly at the state level, with some states protecting the right to abortion, some having passed laws to ban abortion, and other states imposing gestational time limits or other restrictions.
3. California Future of Abortion (CA FAB) Council. In September 2021, more than 40 organizations joined together to form the CA FAB Council. Sexual and reproductive health care providers, reproductive rights and reproductive justice advocacy organizations, legal and policy experts, researchers, and advocates, as well as representatives from the Office of Governor Newsom and legislative leaders, convened to identify barriers to abortion services and recommend policy proposals supporting equitable and affordable access to abortion care for Californians and all who seek care in the state. The Council initially provided 45 policy recommendations, and published an addendum in December of 2022 with updates on the progress of those recommendations as well as additional recommendations. This bill seeks to implement one of those updated recommendations: that California must provide additional safeguards for California abortion providers and other entities and individuals that serve and support abortion patients that reside in states with hostile abortion laws. The Council report states abortion providers should be protected against adverse actions related to their participation in public benefit programs, health plan and insurance contracts, and credentialing due to enforcement of another state’s hostile abortion law.
4. Restrictions on Gender-Affirming Health Care. In addition to bans that target medical providers of abortions, recently several states have begun restricting the provision of gender-affirming care. According to the U.S. Department of Health and Human Services (DHHS) Office of Population Affairs, gender-affirming care consists of an array of services that may include medical, surgical, mental health, and non-medical services for transgender people and people who do not identify as a man or woman (nonbinary people). DHHS indicates gender-affirming care increases positive outcomes for transgender and nonbinary children and adolescents. The American Medical Association (AMA) has expressed opposition to the pattern of restrictions on gender-affirming care, indicating that clinical guidelines established by professional medical organizations for the care of minors promote these supportive interventions based on the current evidence. The AMA states every major medical association in the United States recognizes the medical necessity of transition-related care for improving the physical and mental health of transgender people. In 2021, Arkansas became the first state in the country to prohibit doctors from providing gender-affirming health care for transgender minors, although a federal judge struck down the law on June 20, 2023. Since then, other states have also enacted laws restricting access to gender-affirming care, including a law in Alabama that makes it a felony for a doctor to administer gender-affirming health care to minors. Lawsuits have been filed in several states where bans have been enacted, and some restrictions have been enjoined pending judicial review.
5. Potential Impact of Restrictions on California Health Care Providers. Although a landmark decision nationally, the Dobbs ruling eliminating the federal constitutional right to abortion did not directly affect abortion coverage in California. However, providers delivering abortion care outside California could potentially face civil or criminal legal liability, or professional discipline, in those states, for delivering such care. Similarly, providers could face consequences for delivering gender-affirming care in states where such care is outlawed, even though this care is consistent with professional medical standards. The author of this bill indicates adverse actions in other states could potentially jeopardize providers’ standing in California, including their contractual arrangements or Medicaid or Medicare provider enrollment. This bill is intended to protect health care providers from such adverse consequences, in these narrow situations.

Federal law requires federally funded state health care programs such as Medi-Cal to exclude certain providers from participating in those programs upon notification from the DHHS Secretary that a provider has been excluded or suspended. Upon notification by the Secretary that a provider has been has been excluded or suspended, a state health care program may request a waiver that that the provider not be excluded from their state health program.

California state law similarly imposes an automatic suspension of a provider's Medi-Cal enrollment upon notification from the DHHS Secretary that a provider has been suspended, as well as when a license, certificate, or other approval to provide health care is revoked or suspended by a federal entity or another state. These provisions are in place to ensure providers who engage in specified conduct, such as program fraud, are rapidly identified and suspended from state or federal health programs.

According to the Author

On June 24, 2022, the U.S. Supreme Court overturned the long-standing legal protections for abortion under Roe v. Wade in Dobbs v. Jackson Women's Health Organization. The author states the decision did not impact the legality of abortion in California, but did remove the federal constitutional right to abortion, opening the door for states to ban and criminalize abortion services as well as the possibility of federal restrictions on abortion. The author indicates states are also enacting burdensome and unnecessary requirements on providers that not only further limit access and are not medically required or appropriate, but also make it more challenging for providers to act within the law of the state. The author provides several examples. For instance, Florida only allows abortion in cases of life endangerment, severe health conditions or fatal fetal abnormalities. Missouri has a near-total ban that allows abortion only in cases of life endangerment or severe physical health conditions. Florida requires individuals seeking an abortion under the rape and incest exceptions to provide legal proof of the crime, such as a police report or a note from a physician who examined the patient for signs of sexual assault. South Dakota, Alabama, Mississippi, Ohio, and Florida allow criminal prosecutions of abortion providers.

Last session, the author notes, the California Legislature passed a number of measures to reinforce meaningful protections for providers who travel to other states to provide abortion services and may become subject to attempts to enforce these restrictive laws against California-licensed providers. The author states that in assessing the successes of last session, gaps in provider protections were identified and this bill proposes to close a few of those gaps by adding protections from payers who may attempt to penalize providers who were sanctioned by another state.

The author indicates states are now also attempting to ban transgender youth from accessing gender-affirming healthcare that they need and that is in line with current medical best practices. The author concludes that this bill is also intended to protect providers in these cases.

Arguments in Support

Cosponsor Planned Parenthood Affiliates of California (PPAC) states that this bill builds off existing protections enacted last year to protect health care providers from automatic suspension from the Medi-Cal program if they are suspended from a Medicaid program in another state as a result of providing health care services that are legal in California. It will also prohibit health insurers from discriminating against or refusing to contract with a health care provider who may have been sanctioned in another state as a result of providing prohibited or restricted health care services that are legal in California. Protecting health care providers from adverse actions stemming from another state's hostile laws and actions, particularly as it relates to being able to continue to serve Medi-Cal patients, is a priority for PPAC. Equality California (EQ CA) states that states are attempting to classify the provision of gender- affirming care as a crime warranting prison time and are threatening parents with criminal penalties if they attempt to travel to another state to secure life-saving gender-affirming care for their child. EQ CA indicates that while attacks on the transgender community are not new, they are experiencing alarmingly blatant attempts to use legislation, policy, and political rhetoric to restrict or eliminate the autonomy, freedom, and existence of transgender people across the country.

Arguments in Opposition

Right to Life League states in opposition that existing law requires the Department of Health Care Services (DHCS) to automatically suspend as a provider in the Medi-Cal program any individual who, or any entity that, has a license, certificate, or other approval to provide health care revoked or suspended by a federal, California, or another state’s licensing authority, such as abortion or gender alteration. Right to Life League supports existing-law provisions, affirming that Medi-Cal should suspend, and plans and insurers should be able to discriminate against, health care providers who provide such care.

FISCAL COMMENTS

According to the Assembly Appropriations Committee,

1. DHCS estimates costs of $452,000 in fiscal year (FY) 2023-25 and $425,000 in FY 2024-25 for staff to research the nature of each provider termination and perform additional analysis to determine whether conduct is not deemed to be unprofessional conduct under California law (50% General Fund, 50% federal funds).
2. The California Department of Insurance anticipates no costs.
3. Department of Managed Health Care anticipates minor and absorbable costs.

VOTES

SENATE FLOOR: 31-8-1

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

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

ABS, ABST OR NV: Limón

ASM HEALTH: 11-4-0

YES: Wood, Aguiar-Curry, Arambula, Boerner, Wendy Carrillo, Maienschein, McCarty, Rodriguez, Santiago, Villapudua, Weber

NO: Waldron, Flora, Vince Fong, Joe Patterson

ASM JUDICIARY: 8-3-0

YES: Maienschein, Connolly, Haney, Kalra, Pacheco, Papan, Reyes, McKinnor

NO: Essayli, Dixon, Sanchez

ASM APPROPRIATIONS: 11-4-1

YES: Holden, Bryan, Calderon, Wendy Carrillo, Mike Fong, Hart, Lowenthal, Papan, Pellerin, Weber, Wilson

NO: Megan Dahle, Dixon, Mathis, Sanchez

ABS, ABST OR NV: Soria

UPDATED

VERSION: September 1, 2023

CONSULTANT: Kristene Mapile, Lisa Murawski / HEALTH / (916) 319-2097, FN: 0001675

Date of Hearing: August 23, 2023

ASSEMBLY COMMITTEE ON APPROPRIATIONS

Chris Holden, Chair

SBPCA Bill Id:SB 487

Author:(Atkins) – As Amended Ver:June 22, 2023

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

SUMMARY:

This bill establishes protections for health care providers who contract with health plans and insurers, or are enrolled as Medi-Cal providers, from contract termination, discrimination, or suspension of enrollment, when such adverse action is based solely on adverse legal action or professional discipline in other states for conduct that is not prohibited in California (such as provision of abortion or gender-affirming care).

Specifically, this bill:

1. Authorizes the Department of Health Care Services (DHCS) to elect to not suspend a Medi-Cal provider who has faced loss of their license, certification, or approval authority in another state if the action is based solely on conduct that is not deemed to be unprofessional conduct under California law. Requires DHCS to seek any necessary federal approvals for this purpose, and implement the provision only to the extent federal financial participation is available and not otherwise jeopardized. Authorizes DHCS to implement the provision by means of plan or county letters, information notices, plan or provider bulletins, or similar written instructions.
   
2. Authorizes DHCS to seek a federal waiver to not suspend a Medi-Cal provider who has been suspended from the Medicare or Medicaid program in another state if the suspension is based solely on conduct that is not deemed to be unprofessional conduct under California law. Requires DHCS to seek any necessary federal approvals for this purpose, and implement the provision only to the extent federal financial participation is available and not otherwise jeopardized. Authorizes DHCS to implement the provision by means of plan or county letters, information notices, plan or provider bulletins, or similar written instructions.
   
3. Prohibits a contract between a health plan or insurer and a health care provider from containing any term that would result in termination or nonrenewal of the contract or otherwise penalize the provider based on a civil judgment, criminal conviction, or another professional disciplinary action in another state if the action is solely based on 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 a health plan or insurer from discriminating against a licensed provider solely on the basis of a civil judgment, criminal conviction, or another professional disciplinary action in another state if the judgment, conviction, or professional disciplinary action is solely based 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. Prohibits the provisions of this bill from applying to a judgment, criminal conviction, or other disciplinary action in another state for which a similar claim, charge, or action would exist against the provider under California laws.
   
6. Authorizes the California Department of Insurance (CDI) Commissioner to enforce this bill as it relates to health insurance contracts, as specified.

FISCAL EFFECT:

1. DHCS estimates costs of $452,000 in fiscal year (FY) 2023-25 and $425,000 in FY 2024-25 for staff to research the nature of each provider termination and perform additional analysis to determine whether conduct is not deemed to be unprofessional conduct under California law (50% General Fund, 50% federal funds).
   
2. CDI anticipates no costs.
3. Department of Managed Health Care anticipates minor and absorbable costs.

COMMENTS:

1. Purpose. This bill is cosponsored by Planned Parenthood Affiliates of California (PPAC), California Medical Association, and American College of Obstetricians and Gynecologists, Region IX. Author:

Last session, the California Legislature passed a number of measures to reinforce meaningful protections for providers who travel to other states to provide abortion services and may become subject to attempts to enforce these restrictive laws against California –licensed providers. Many of the measures were also intended to protect providers from retaliation if they care for those who come to California due to lack of access in their home state. In assessing the successes of last session, gaps in provider protections were identified. This bill proposes to…[add] protections from payers who may attempt to penalize providers who were sanctioned by another state.

1. Background.
   

2022 Supreme Court Decision. On June 24, 2022, the U.S. Supreme Court issued its decision in Dobbs v. Jackson Women’s Health Organization, overturning Roe v. Wade, the 1973 Supreme Court decision that affirmed the constitutional right to abortion. The Dobbs ruling had the effect of deferring issues of abortion rights and access to the state level, allowing states to impose restrictions on abortion rights. Consequently, at least 44 states have enacted laws prohibiting abortions after a specified point in pregnancy, with limited exceptions. The exceptions are generally when an abortion is necessary to protect the patient's life or health. The vague wording of exceptions place a provider at substantial legal risk—including large fines, imprisonment, or loss of a medical license—for providing an abortion not deemed to meet the narrow allowable circumstances. On the other hand, failure to provide the care could risk the patient's life, and risks potentially being sued by the patient or family.

California Future of Abortion (FAB) Council. In September 2021, more than 40 organizations, including sexual and reproductive health care providers, reproductive rights and reproductive justice advocacy organizations, legal and policy experts, researchers, advocates, and lawmakers, joined together to form the FAB Council and identify barriers to abortion services and recommend policy proposals supporting equitable and affordable access to abortion care for Californians and all who seek care in the state. The Council initially provided 45 policy recommendations, and published an addendum in December of 2022 with updates on progress, as well as additional recommendations. One of those recommendations was that abortion providers should be protected against adverse actions related to their participation in public benefit programs, health plan and insurance contracts, and credentialing due to enforcement of another state’s hostile abortion law. This bill implements that recommendation.

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

Date of Hearing: July 11, 2023

ASSEMBLY COMMITTEE ON JUDICIARY

Brian Maienschein, Chair

SBPCA Bill Id:SB 487

Author:(Atkins) – As Amended Ver:June 22, 2023

SENATE VOTE: 31-8

SUBJECT: Abortion: provider protections

KEY ISSUE: should California healthcare providers be protected against adverse actions by healthcare plans and medi-cal as a result of legal actions or professional discipline imposed by another state for providing healthcare services that are legal in California?

SYNOPSIS

The United States Supreme Court’s decision in Dobbs v. Jackson Women’s Health Org. (2022) 141 S. Ct. 2619, represented the first time the Court has ever revoked a previously held constitutional right. In the wake of that radical decision, dozens of states have moved to prohibit abortion and enact a series of draconian measures seeking to punish those who seek safe and reliable healthcare in other states. Similarly, fueled by the never-ending need to gain an advantage in this nation’s culture wars, many of those same states are passing legislation to prohibit access to gender affirming healthcare. As a result of these actions, millions of Americans cannot access needed healthcare in their own states, and therefore must travel to states like California in order to receive vital medical treatments. Even more troubling, many of these states have now adopted laws targeting doctors who provide care to their residents outside their jurisdiction. In addition to the potential civil and criminal liability these statutes impose, by targeting out-of-state medical providers foreign jurisdictions are also compromising these medical professionals ability to practice, even with regards to patients who live in California.

Seeking to protect California healthcare providers, this bill would prohibit an insurance provider from terminating, or failing to renew, a contract with a healthcare provider who performs a medical treatment that is legal in this state and is subsequently subject to discipline by a foreign jurisdiction. Similarly, the bill provides that the Department of Health Care Services may permit a medical professional to continue working with patients on Medi-Cal even if the professional is subject to discipline elsewhere for providing services legal in California.

This bill is co-sponsored by the California Medical Association, the American College of Obstetricians and Gynecologists, District IX, and Planned Parenthood Affiliates of California. The bill is also supported by a coalition of medical professionals, hospitals, and advocates for women’s rights who jointly argue for the need to protect California’s healthcare providers in the post-Dobbs era. They contend that this bill simply provides that these medical professionals can continue to work with insurance providers and provide services that are both entirely safe and wholly legal in this state. This bill is opposed by the Right to Life League who contend that this bill protects “unscrupulous” healthcare providers who “kill babies and mutilate children.” This measure was previously heard and approved by the Assembly Health Committee by a vote of 11 to 4.

SUMMARY: Provides that a healthcare provider who contracts with insurers, or is enrolled as a Medi-Cal provider, should not face an insurance-related adverse action as a result of another jurisdiction’s adverse legal action or professional discipline stemming from conduct that is not prohibited in California. Specifically, this bill:

1. Prohibits a contract issued, amended, or renewed on or after January 1, 2024, between a health plan or health insurer and a provider of health care services, from containing any term that would result in termination or nonrenewal of the contract or otherwise penalize the provider, based solely on a civil judgment issued in another state, a criminal conviction in another state, or another disciplinary action in another state, if the 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 California.
2. Prohibits a health plan or insurer from discriminating, with respect to the provision of, or contracts for, professional services, against a licensed provider solely on the basis of a civil judgment issued in another state, a criminal conviction in another state, or another disciplinary action in another state if the 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 California.
3. Provides that the provisions of 1) and 2) do not apply to a civil judgment issued in another state, a criminal conviction in another state, or another disciplinary action in another state for which a similar claim, charge, or action would exist against the provider under the laws of this state.
4. Authorizes the Commissioner of the Department of Insurance to enforce this bill as it relates to health insurer contracts overseen by the Department.
5. Clarifies 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, to be contrary to the public policy of California.
6. Allows the Department of Health Care Services to elect to not suspend a Medi-Cal provider who has a license, certificate, or other approval to provide health care that is suspended or revoked in another state if the revocation or suspension is based solely on conduct that is not deemed to be unprofessional conduct under California law.

EXISTING LAW:

1. Requires, pursuant to federal law, the Secretary of Health and Human Services to exclude individuals and entities convicted of certain crimes, from participation in any federal health care program, including Medicaid and the state Children’s Health Insurance Program. (42 U.S.C. Section 1320a-7.)
2. Authorizes a permissive exclusion to the provisions of 1) if a state requests a waiver for the state’s health care programs. (Ibid.)
3. 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, and 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, Section 1.1.)
4. Establishes the Reproductive Privacy Act. (Health & Safety Code Section 123461.)
5. Declares that every individual possesses a fundamental right of privacy with respect to personal reproductive decisions. (Health & Safety Code Section 123462.)
6. States the following as the public policy of the State of California:
   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 specified; and
   3. The state will not deny or interfere with a woman’s fundamental right to choose to bear a child or to choose to obtain an abortion, except as specified. (Ibid.)
7. Defines, for the purposes of the Reproductive Privacy Act, the following terms:
   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; and
   3. “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. (Health & Safety Code Section 123464.)
8. Prohibits the State of California 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 & Safety Code Section 123466.)
9. Requires the Department of Managed Health Care to regulate health plans under the Knox-Keene Health Care Service Plan Act of 1975. (Health & Safety Code Section 1340 et seq.)
10. Requires the Department of Health Care Services to administer the Medi-Cal program. (Welfare and Institutions Code Section 14000 et seq.)
11. Pursuant to the administrative duties of the Department of Health Care Services, specified in 10), requires the Department to automatically suspend, as a provider in the Medi-Cal program, any individual who, or any entity that, has a license, certificate, or other approval to provide health care, which is revoked or suspended by a federal, California, or another state’s licensing certification or approval authority, has otherwise lost that license, certificate, or approval, or has surrendered that license, certificate, or approval while a disciplinary hearing was pending. (Welfare and Institutions Code Section 14043.6.)

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

COMMENTS: In the last two years, dozens of states have moved to limit or prohibit access to abortion care and gender affirming healthcare, especially for minors. Beyond simply banning certain procedures, some states have enacted draconian laws seeking to punish well-meaning friends and family of persons seeking reproductive or gender affirming care. Indeed, other state’s statutes have imposed criminal liability on persons driving a person across state lines to obtain an abortion, authorized civil lawsuits for any person who “aides and abets” a person in getting an abortion, and deemed providing one’s own child with gender affirming medical care to be tantamount to child abuse.

Despite the efforts of other states, California has remained steadfast in its commitment serving as a national leader in providing access to safe, effective, and necessary healthcare for all. However, many of the states looking to ban various medical procedures are now targeting doctors in other jurisdictions who provide care to their residents, either through telehealth or if an out-of-state resident comes to California for care. Accordingly, California healthcare professionals are now being targeted by others state’s legal overreach. Seeking to protect California’s medical professionals this bill ensures that, even if a doctor is sanctioned by another jurisdiction, a medical professional will not face adverse insurance-related consequences for simply providing care, in a professional and competent manner, that is legal in this state. In support of this important measure the author states:

On June 24, 2022, the U.S. Supreme Court overturned the long-standing legal protections for abortion under Roe v. Wade in Dobbs v. Jackson Women’s Health Organization. The court based its ruling on the fact that the right to abortion was not specifically in the text of the U. S. Constitution and on the assumption that the framers of the fourteenth amendment in 1868 did not regard abortion as a fundamental liberty. The court found there was no basis for a constitutional right to privacy protecting a women’s right to choose. The decision did not impact the legality of abortion in California, but did remove the federal constitutional right to abortion - opening the door for states to ban and criminalize abortion services as well as the possibility of federal restrictions on abortion.

In the wake of this decision, at least 44 states have enacted laws prohibiting abortions after a specified point in pregnancy, with limited exceptions. The allowable circumstances are generally when an abortion is necessary to protect the patient's life or health. The vague wording of exceptions place a physician or other provider at substantial legal risk—including large fines, imprisonment, or loss of a medical license—if they provide an abortion that is not deemed to meet the narrow allowable circumstances. On the other hand failure to provide the care could risk the patient's life, and potentially being sued by the patient or family.

A series of draconian laws in other states seek to limit medical professional’s ability to provide vital reproductive and gender-affirming healthcare. 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 United States Constitution (Dobbs v. Jackson Women’s Health Org. (2022) 141 S. Ct. 2619), access to abortion care is now determined on a state-by-state basis. Since Dobbs, 14 states have moved to effectively ban abortion; nine states have bans currently being litigated under state constitutional provisions; and another five states ban the procedure between 15 and 20 weeks. (NY Times, Tracking the States Where Abortion Is Now Banned, (June 2023.) available at: https://www.nytimes.com/interactive/2022/us/abortion-laws-roe-v-wade.html.) Abortion is not the only legitimate form of health care that is being limited by some state legislatures. Eighteen states have recently enacted restrictions on gender affirming health care for minors. Two such laws are currently being litigated, and another seven state legislatures are considering restrictions on gender affirming care. (Human Rights Campaign Foundation, Map: Attacks on Gender Affirming Care by State, (June 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 who provides the treatment or any person who assists the patient in receiving care.

Although California has become a safe haven for persons seeking medical treatment, the fact that medical professionals are being 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 other state’s 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 have 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 economic consequences for simply doing their job in California. While other legislation is focused on the state’s regulators this bill seeks to protect medical professionals’ ability to work with insurance carriers and Medi-Cal notwithstanding the actions of another state’s regulator.

This bill is part of the California Legislature’s ongoing efforts to protect patients, their friends and family, and medical service providers from harms associated with out-of-state laws that seek to restrict access to abortion and gender affirming healthcare. This measure focuses on maintaining a medical professional’s ability to work with insurance providers should another state seek to sanction them for providing healthcare that is fully legal in this state. First, this bill updates last year’s AB 1666 (Bauer-Kahan) Chap. 42, Stats. 2022, which prevented the enforcement of out-of-state civil judgements from abortion-related bounty lawsuits, to include references to abortion providers. Secondly, this measure clarifies that for any contract issued, amended, or renewed on or after January 1, 2024 between a healthcare service plan and a provider of healthcare services the contract cannot contain any term that would result in termination or nonrenewal of the contract or otherwise penalize the provider, based solely on a civil judgment issued in another state, a criminal conviction in another state, or another disciplinary action in another state if those actions were based on that state’s laws prohibiting the provision of medical care that is legal in California. Additionally, the measure authorizes the Department of Health Care Services to refuse to suspend a healthcare provider whose license, certificate, or other approval to provide health care that is suspended or revoked in another state if the revocation or suspension is based solely on conduct that is not deemed to be unprofessional conduct under California law. Finally, the bill also authorizes the Department to seek any necessary federal waivers to effectuate the above discussed Medi-Cal provisions.

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 provides the Department of Health Care Services with the ability to permit a medical profession to continue seeing Medi-Cal patients even if that provider is subject to an adverse action in another jurisdiction for providing medical care that is legal in California. 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.), the Legislature has the power to provide such flexibility to the Department.

Furthermore, this bill gives the Department of Health Care Services the explicit power to seek any necessary federal waivers to operate Medi-Cal in compliance with this measure. Medi-Cal is the state’s primary vehicle for carrying out the federal Medicaid insurance program. Because Medicaid is federal law, any state law must comply with the federal law or risk preemption and loss of federal Medicaid funds. Because this bill explicitly recognizes the need to obtain a federal exemption, and presumably could not be implemented without the waiver, this provision should address any preemption concerns.

This bill will not impact insurance rates or other factors impacting coverage. Although largely outside of the scope of this Committee’s jurisdiction, California law provides a host of protections designed to prevent dramatic spikes in the rates charged by insurers. One manner in which insurers can attempt to lower costs is to negotiate with medical care providers and healthcare conglomerates on the rates charged for specific procedures. Nothing in this bill will impact these negotiations. This bill simply prevents an insurer from cancelling a contract with a healthcare provider because the provider suffered an adverse action outside of the state for providing care that is legal in this state. For example, while this bill would prohibit an insurer from refusing to continue working with a healthcare provider who provides gendering affirming mental health treatments or hormonal therapies, nothing in this bill would preclude the cost of those therapies from increases to consumers so long as the costs were negotiated in good faith between the provider and the insurer.

ARGUMENTS IN SUPPORT: This measure is co-sponsored by the California Medical Association, the American College of Obstetricians and Gynecologists, District IX, and Planned Parenthood Affiliates of California, in addition to being supported by a coalition of medical professionals, hospitals, and advocates for women’s rights. In support of the bill, the California Medical Association writes:

In June 2022, the United States Supreme Court overturned the constitutional right to abortion under Roe v. Wade with the Dobbs v. Jackson Women’s Health Organization decision, followed by individual states enacting laws heavily restricting abortions and other related reproductive healthcare services. According to the Guttmacher Institute, 58% of women ages 13-44 live in a state that is hostile or extremely hostile to abortion rights. These efforts to restrict reproductive and abortion rights are intertwined with policies banning trans rights and gender-affirming care. Many of these states went as far as to ensure that any person involved in assisting the individual seeking reproductive services or performing reproductive services would be criminally prosecuted.

To counter this effort, California continues to be an abortion sanctuary for patients that must travel from out of state to seek reproductive healthcare services. Building upon the Legislature’s achievements in 2022, SB 487 would strengthen the civil protections for California’s reproductive healthcare service providers to ensure these courageous individuals are safe from potential actions filed against them because of another state’s restrictive abortion-care laws.

Along the same vein, SB 487 will prohibit health care service payors – health insurers, health care service plans, and the Medi-Cal program – from discriminating or taking adverse actions against providers who are subjected to civil, criminal, or professional license actions for providing reproductive health care services – including abortion and gender-affirming care – to patients that have traveled from states that prohibit or restrict the service.

ARGUMENTS IN OPPOSITION: This bill is opposed by the Right to Life League who contend:

Existing law requires the Department of Health Care Services to automatically suspend as a provider in the Medi-Cal program any individual who, or any entity that, has a license, certificate, or other approval to provide health care revoked or suspended by a federal, California, or another state’s licensing authority, such as abortion or gender alteration. SB 487 amends this existing law in order to continue sending taxpayer monies to abortionists and those who profit from human gender mutilation who would otherwise be ineligible for payment under Medi-Cal. Health care providers should be able to discriminate against those who provide such barbaric services. SB 487 will prevent them from doing so.

SB 487 is another attempt to profit unscrupulous individuals who kill babies and mutilate children under the false narrative of healthcare.

REGISTERED SUPPORT / OPPOSITION:

Support

American College of Obstetricians and Gynecologists, District IX (co-sponsor)

California Medical Association (co-sponsor)

Planned Parenthood Affiliates of California (co-sponsor)

American Association of University Women CA

Attorney General Rob Bonta
California Chapter of The American College of Emergency Physicians
California Health+Advocates, Subsidiary of The California Primary Care Association
California Hospital Association
California Legislative Women's Caucus
California Medical Association
California Nurse Midwives Association

California Nurses Association
California State Association of Psychiatrists (CSAP)
California State Council of Service Employees International Union
California Women's Law Center
Equality California
League of Women Voters of California
Naral Pro-choice California
National Health Law Program
Office of Lieutenant Governor Eleni Kounalakis

Planned Parenthood Affiliates of California
San Francisco City Attorney's Office
San Francisco Marin Medical Society
Training in Early Abortion for Comprehensive Health Care

Opposition

Right to Life League

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

Date of Hearing: June 27, 2023

ASSEMBLY COMMITTEE ON HEALTH

Jim Wood, Chair

SBPCA Bill Id:SB 487

Author:(Atkins) – As Amended Ver:June 22, 2023

SENATE VOTE: 31-8

SUBJECT: Abortion: provider protections.

SUMMARY: Establishes protections for health care providers who contract with health plans and insurers, or are enrolled as Medi-Cal providers, from adverse outcomes such as contract termination, discrimination, or suspension of enrollment, when such adverse action is based on adverse legal action or professional discipline in other states for conduct that is not prohibited in California (such as provision of abortion or gender-affirming care). Specifically, this bill:

1. Prohibits a contract issued, amended, or renewed on or after January 1, 2024, between a health plan or health insurer and a provider of health care services, from containing any term that would result in termination or nonrenewal of the contract or otherwise penalize the provider, based solely on a civil judgment issued in another state, a criminal conviction in another state, or another disciplinary action in another state, if the 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 California.
2. Prohibits a health plan or insurer from discriminating, with respect to the provision of, or contracts for, professional services, against a licensed provider solely on the basis of a civil judgment issued in another state, a criminal conviction in another state, or another disciplinary action in another state if the 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 California.
3. Prohibits the provisions of this bill from applying to a civil judgment issued in another state, a criminal conviction in another state, or another disciplinary action in another state for which a similar claim, charge, or action would exist against the provider under California laws.
4. Authorizes the California Department of Insurance (CDI) Commissioner to enforce this bill as it relates to health insurer contracts, as specified.
5. Includes abortion providers within provisions of existing law that declare 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, to be contrary to the public policy of California.
6. Allows the Department of Health Care Services (DHCS) to elect to not suspend a Medi-Cal provider who has a license, certificate, or other approval to provide health care that is suspended or revoked in another state if the revocation or suspension is based solely on conduct that is not deemed to be unprofessional conduct under California law.
7. Allows DHCS to seek a waiver of federal requirements related to provider suspension from Medicaid programs, if a suspension of a provider was based solely on conduct that is not deemed to be unprofessional conduct under California.
8. Requires DHCS to seek any necessary federal approvals to implement the Medi-Cal provisions in 6) and 7), above, and conditions implementation of such provisions on federal approval and the availability of federal financial participation, as specified. Allows DHCS to implement such provisions through non-regulatory guidance.

Existing Federal Law

1. Requires the Secretary of the U.S. Department of Health and Human Services (DHHS) to exclude individuals and entities convicted of certain crimes, from participation in any federal health care program, including Medicaid and the state Children’s Health Insurance Program. Allows permissive exclusion in other circumstances. [42 United States Code §1320a-7]
2. Requires the DHHS Secretary to notify states of the exclusion and permits states to request a waiver of that exclusion for their health care program. [ibid.]

Existing State Law

1. Establishes the Reproductive Privacy Act, which prohibits the state from denying or interfering with a woman’s or pregnant 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 woman or pregnant person. [Health and Safety Code (HSC) § 123460, et seq.]
2. Establishes the Department of Managed Health Care (DMHC) to regulate health plans under the Knox-Keene Health Care Service Plan Act of 1975; CDI to regulate health and other insurance; and, DHCS to administer the Medi-Cal program. [HSC §1340, et seq., Insurance Code (INS) §106, et seq., and Welfare and Institutions Code (WIC) §14000, et seq.]
3. Requires health plans and insurers, providing health coverage in the individual and small group markets to cover, at a minimum, Essential Health Benefits (EHBs), including the 10 EHB benefit categories in the Patient Protection and Affordable Care Act, and consistent with California’s EHB benchmark plan, the Kaiser Foundation Health Plan Small Group HMO 30 plan (Kaiser benchmark), as specified. [HSC §1367.25 and INS §10123.196]
4. Requires health plans and health insurers, except for a specialized health plan contract or a specialized health insurance policy, to provide coverage for all of the following services and contraceptive methods for women:
   1. All Food and Drug Administration (FDA) approved contraceptive drugs, devices, and other products for women, including all FDA-approved contraceptive drugs, devices, and products available over the counter, as prescribed by the enrollee’s or insured’s provider;
   2. Voluntary sterilization procedures;
   3. Patient education and counseling on contraception; and,
   4. Follow-up services related to the drugs, devices, products, and procedures, including, but not limited to, management of side effects, counseling for continued adherence, and device insertion and removal. [HSC §1367.25 and INS §10123.196]
5. Establishes the Health Care Provider’s Bill of Rights which governs contracts between health care providers and health plans and insurers and, among other provisions, prohibits specified terms such as a provision that requires a health care provider to accept additional patients beyond the contracted number or in the absence of a number if, in the reasonable professional judgment of the provider, accepting additional patients would endanger patients’ access to, or continuity of, care. Requires that a plan give a provider at least 45 business days’ notice of its intent to change a material contract term, unless a change in state or federal law or regulations, as specified, requires a shorter timeframe for compliance. [HSC §1375.7 and INS §10133.65]
6. Declares that a law of another state that authorizes a person to bring 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. Prohibits the state from applying that law to a case or controversy heard in state court and the enforcement or satisfaction of a civil judgment received under that law. [HSC §123467.5]
7. Prohibits a provider of health care, health care service plan, contractor, or employer from releasing medical information related to an individual seeking or obtaining an abortion in response to a subpoena or request if that subpoena or request is based on either another state's laws that interfere with a person's rights set forth in the Reproductive Privacy Act, or a foreign penal civil action, as defined. [Civil Code §56.108]
8. Declares 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, to be contrary to the public policy of California, and prohibits the application of that law to a controversy in state court and the enforcement or satisfaction of a civil judgment received under that law. [HSC §123467.5]
9. Requires DHCS to automatically suspend, as a Medi-Cal provider, any individual who, or any entity that, has a license, certificate, or other approval to provide health care, which is revoked or suspended by a federal, California, or another state’s licensing, certification, or approval authority, has otherwise lost that license, certificate, or approval, or has surrendered that license, certificate, or approval while a disciplinary hearing on that license, certificate, or approval was pending. [WIC §14043.6]
10. Requires that DHCS automatically suspend a Medi-Cal provider upon receipt of written notification from the DHHS Secretary that a provider has been suspended from participation in the Medicare or Medicaid programs. [WIC §14123]

FISCAL EFFECT: According to the Senate Appropriations Committee, unknown ongoing costs, likely hundreds of thousands, for DHCS to request federal waivers. DMHC estimates minor and absorbable costs. CDI estimates no fiscal impact.

COMMENTS:

1. PURPOSE OF THIS BILL. According to the author, on June 24, 2022, the U.S. Supreme Court overturned the long-standing legal protections for abortion under Roe v. Wade in Dobbs v. Jackson Women’s Health Organization. The author states the decision did not impact the legality of abortion in California, but did remove the federal constitutional right to abortion, opening the door for states to ban and criminalize abortion services as well as the possibility of federal restrictions on abortion. The author indicates states are also enacting burdensome and unnecessary requirements on providers that not only further limit access and are not medically required or appropriate, but also make it more challenging for providers to act within the law of the state. The author provides several examples. For instance, Florida only allows abortion in cases of life endangerment, severe health conditions or fatal fetal abnormalities. Missouri has a near-total ban that allows abortion only in cases of life endangerment or severe physical health conditions. Florida requires individuals seeking an abortion under the rape and incest exceptions to provide legal proof of the crime, such as a police report or a note from a physician who examined the patient for signs of sexual assault. South Dakota, Alabama, Mississippi, Ohio, and Florida allow criminal prosecutions of abortion providers.

Last session, the author notes, the California Legislature passed a number of measures to reinforce meaningful protections for providers who travel to other states to provide abortion services and may become subject to attempts to enforce these restrictive laws against California-licensed providers. The author states that in assessing the successes of last session, gaps in provider protections were identified and this bill proposes to close a few of those gaps by adding protections from payers who may attempt to penalize providers who were sanctioned by another state.

The author indicates states are now also attempting to ban transgender youth from accessing gender-affirming healthcare that they need and that is in line with current medical best practices. The author concludes that this bill is also intended to protect providers in these cases.

1. BACKGROUND.
   1. California Abortion Coverage. California law prohibits the state from denying or interfering with a person’s right to choose or obtain an abortion prior to viability of the fetus, or when medically necessary. The state defines viability as the point in a pregnancy when, in the good faith medical judgment of a physician, there is a reasonable likelihood that a fetus will survive outside the uterus without "extraordinary medical measures." Abortion is considered a basic health care service in California and, therefore, is required to be covered by commercial health insurance plans and policies. Medically necessary follow-up services to abortions that constitute basic health care services must also be covered. Similarly, Medi-Cal covers abortion and related services comprehensively as a state-funded benefit.
   2. 2022 Supreme Court Decision. On Friday, June 24, 2022, the U.S. Supreme Court issued its decision in Dobbs v. Jackson Women’s Health Organization, thereby overturning Roe v. Wade, the 1973 Supreme Court decision that affirmed the constitutional right to abortion. This ruling had the effect of deferring issues of abortion rights and access to the state level, allowing states to impose restrictions on abortion rights. Consequently, abortion access in the United States now diverges starkly at the state level, with some states protecting the right to abortion, some having passed laws to ban abortion, and other states imposing gestational time limits or other restrictions.
   3. California Future of Abortion (CA FAB) Council. In September 2021, more than 40 organizations joined together to form the CA FAB Council. Sexual and reproductive health care providers, reproductive rights and reproductive justice advocacy organizations, legal and policy experts, researchers, and advocates, as well as representatives from the Office of Governor Newsom and legislative leaders, convened to identify barriers to abortion services and recommend policy proposals supporting equitable and affordable access to abortion care for Californians and all who seek care in the state. The Council initially provided 45 policy recommendations, and published an addendum in December of 2022 with updates on the progress of those recommendations as well as additional recommendations. This bill seeks to implement one of those updated recommendations: that California must provide additional safeguards for California abortion providers and other entities and individuals that serve and support abortion patients that reside in states with hostile abortion laws. The Council report states abortion providers should be protected against adverse actions related to their participation in public benefit programs, health plan and insurance contracts, and credentialing due to enforcement of another state’s hostile abortion law.
   4. Restrictions on Gender-Affirming Health Care. In addition to bans that target medical providers of abortions, recently several states have begun restricting the provision of gender-affirming care. According to the DHHS Office of Population Affairs, gender-affirming care consists of an array of services that may include medical, surgical, mental health, and non-medical services for transgender people and people who do not identify as a man or woman (nonbinary people). DHHS indicates gender-affirming care increases positive outcomes for transgender and nonbinary children and adolescents. The American Medical Association (AMA) has expressed opposition to the pattern of restrictions on gender-affirming care, indicating that clinical guidelines established by professional medical organizations for the care of minors promote these supportive interventions based on the current evidence. The AMA states every major medical association in the United States recognizes the medical necessity of transition-related care for improving the physical and mental health of transgender people. In 2021, Arkansas became the first state in the country to prohibit doctors from providing gender-affirming health care for transgender minors, although a federal judge struck down the law on June 20, 2023. Since then, other states have also enacted laws restricting access to gender-affirming care, including a law in Alabama that makes it a felony for a doctor to administer gender-affirming health care to minors. Lawsuits have been filed in several states where bans have been enacted, and some restrictions have been enjoined pending judicial review.
   5. Potential Impact of Restrictions on California Health Care Providers. Although a landmark decision nationally, the Dobbs ruling eliminating the federal constitutional right to abortion did not directly affect abortion coverage in California. However, providers delivering abortion care outside California could potentially face civil or criminal legal liability, or professional discipline, in those states, for delivering such care. Similarly, providers could face consequences for delivering gender-affirming care in states where such care is outlawed, even though this care is consistent with professional medical standards. The author of this bill indicates adverse actions in other states could potentially jeopardize providers’ standing in California, including their contractual arrangements or Medicaid or Medicare provider enrollment. This bill is intended to protect health care providers from such adverse consequences, in these narrow situations.

Federal law requires federally funded state health care programs such as Medi-Cal to exclude certain providers from participating in those programs upon notification from the DHHS Secretary that a provider has been excluded or suspended. Upon notification by the Secretary that a provider has been has been excluded or suspended, a state health care program may request a waiver that that the provider not be excluded from their state health program.

California state law similarly imposes an automatic suspension of a provider’s Medi-Cal enrollment upon notification from the DHHS Secretary that a provider has been suspended, as well as when a license, certificate, or other approval to provide health care is revoked or suspended by a federal entity or another state. These provisions are in place to ensure providers who engage in specified conduct, such as program fraud, are rapidly identified and suspended from state or federal health programs.

1. SUPPORT. Cosponsor Planned Parenthood Affiliates of California (PPAC) states that this bill builds off existing protections enacted last year to protect health care providers from automatic suspension from the Medi-Cal program if they are suspended from a Medicaid program in another state as a result of providing health care services that are legal in California. It will also prohibit health insurers from discriminating against or refusing to contract with a health care provider who may have been sanctioned in another state as a result of providing prohibited or restricted health care services that are legal in California. Protecting health care providers from adverse actions stemming from another state’s hostile laws and actions, particularly as it relates to being able to continue to serve Medi-Cal patients, is a priority for PPAC. Equality California (EQ CA) states that states are attempting to classify the provision of gender- affirming care as a crime warranting prison time and are threatening parents with criminal penalties if they attempt to travel to another state to secure life-saving gender-affirming care for their child. EQ CA indicates that while attacks on the transgender community are not new, they are experiencing alarmingly blatant attempts to use legislation, policy, and political rhetoric to restrict or eliminate the autonomy, freedom, and existence of transgender people across the country.
2. OPPOSITION. Right to Life League states in opposition that existing law requires DHCS to automatically suspend as a provider in the Medi-Cal program any individual who, or any entity that, has a license, certificate, or other approval to provide health care revoked or suspended by a federal, California, or another state’s licensing authority, such as abortion or gender alteration. Right to Life League supports existing-law provisions, affirming that Medi-Cal should suspend, and plans and insurers should be able to discriminate against, health care providers who provide such care.
3. RELATED LEGISLATION.
   1. AB 1432 (Carrillo) subjects a health plan contract, policy, or certificate of group health insurance that is marketed, issued, or delivered to a California resident to California law requiring coverage of abortion, abortion-related services, and gender-affirming care, regardless of the situs of the contract, subscriber, or master group policyholder. AB 1432 is pending in the Senate Health Committee.
   2. AB 571 (Petri-Norris) prohibits an insurer from refusing to issue or renew or terminating professional liability insurance for health care providers and from imposing a surcharge or increasing the premium or deductible solely based on any prohibited bases for discrimination, including a health care provider offering or performing abortion, contraception, gender-affirming health care, or care related to those health care services that are lawful in this state but unlawful in another state. Prohibits an insurer from denying coverage for liability for damages arising from offering, performing, or rendering abortion, contraception, gender-affirming health care, or care related to those health care services, if those services are within the scope of the insured’s license and the policy would otherwise cover liability for damages arising from performing or rendering other professional services within the insured’s scope of license. AB 571 is pending in the Senate Insurance Committee.
   3. SB 345 (Skinner), among other things, would prohibit a licensing board from denying an application for licensure or suspending, revoking, or otherwise imposing discipline on a licensed person because they were disciplined or convicted of an offense in another state, if that disciplinary action was the result of providing a legally protected health care activity. SB 345 is pending in the Assembly Judiciary Committee.
4. PREVIOUS LEGISLATION.
   1. AB 1666 (Bauer-Kahan), Chapter 42, Statutes of 2022, prohibits 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.
   2. AB 2091 (Bonta), Chapter 628, Statutes of 2022, among other things, prohibits 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.
   3. SB 107 (Wiener), Chapter 810, Statutes of 2023, among other things, prohibits a clerk of a superior court in the county in which discovery in a foreign action is sought, or an attorney licensed in this state and retained by a party in a foreign action, from issuing a subpoena for discovery in this state based on a foreign subpoena if the foreign subpoena is based on an anti-gender-affirming care action.
5. DOUBLE REFERRAL. This bill is double-referred; upon passage of this committee, this bill will be referred to the Assembly Judiciary Committee.

REGISTERED SUPPORT / OPPOSITION:

Support

American College of Obstetricians and Gynecologists, District IX (cosponsor)

California Medical Association (cosponsor)

Planned Parenthood Affiliates of California (cosponsor)

Attorney General Rob Bonta

Lieutenant Governor Eleni Kounalakis

California Chapter of the American College of Emergency Physicians

California Health+ Advocates

California Hospital Association

California Legislative Women's Caucus

California Nurses Association

California State Association of Psychiatrists

California State Council of Service Employees International Union (SEIU California)

California Women's Law Center

Equality California

League of Women Voters of California

NARAL Pro-Choice California

National Health Law Program

San Francisco Marin Medical Society

Training in Early Abortion for Comprehensive Health Care (TEACH)

University of California

Opposition

Right to Life League

Analysis Prepared by: Kristene Mapile / HEALTH / (916) 319-2097, Lisa Murawski / HEALTH / (916) 319-2097

 THIRD READING  

Bill No: SB 487

Author: Atkins (D), et al.

Amended: 4/24/23

Vote: 21

SENATE JUDICIARY COMMITTEE: 8-2, 3/28/23

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

NOES: Wilk, Niello

NO VOTE RECORDED: Stern

SENATE HEALTH COMMITTEE: 9-2, 4/19/23

AYES: Eggman, Glazer, Gonzalez, Limón, Menjivar, Roth, Rubio, Wahab, Wiener

NOES: Nguyen, Dahle

NO VOTE RECORDED: Hurtado

SENATE APPROPRIATIONS COMMITTEE: 5-2, 5/18/23

AYES: Portantino, Ashby, Bradford, Wahab, Wiener

NOES: Jones, Seyarto

SUBJECT: Abortion: provider protections

SOURCE: American College of Obstetricians and Gynecologists District IX California Medical Association

Planned Parenthood Affiliates of California

DIGEST:

The bill prohibits health plans and health insurers from terminating, discriminating against, or otherwise penalizing a provider based on a civil judgment, criminal conviction, or another disciplinary action in another state if the judgment, conviction, or disciplinary action is solely based 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. This bill prohibits the Department of Health Care Services (DHCS) from suspending a Medi-Cal provider who has a license, certificate, or other approval to provide health care suspended or revoked in another state if the revocation or suspension is based solely on conduct that is not prohibited in California.

ANALYSIS:

Existing 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. 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, 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. (Health & Saf. Code § 123460 et. seq., § 123462.)
3. 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).)
4. Prohibits the application of an out-of-state law described in 1) from being applied to a case or controversy heard in state court and prohibits the enforcement or satisfaction of a civil judgment received through an adjudication under an out-of-state law described in 1). (Health & Safe. Code § 123467.5(b).)
5. Prohibits a clerk of a superior court in the county in which discovery in a foreign action is sought, or an attorney licensed in this state and retained by a party in a foreign action, from issuing a subpoena for discovery in this state based on a foreign subpoena if the foreign subpoena is based on an anti-gender-affirming care action. (Code of Civ. Proc. § 2029.300(e).)
6. Requires the Department of Managed Health Care (DMHC) to regulate health plans under the Knox-Keene Health Care Service Plan Act of 1975 (Knox-Keene). (Health & Safe. Code § 1340, et seq.)
7. Requires the California Department of Insurance (CDI) to regulate health insurers. (Ins. Code § 10110 et. seq.)
8. Requires the Department of Health Care Services (DHCS) to administer the Medi-Cal program. (Welf. & Inst. Code § 14000, et. seq.)
9. Requires DHCS to automatically suspend, as a provider in the Medi-Cal program, any individual who, or any entity that, has a license, certificate, or other approval to provide health care, which is revoked or suspended by a federal, California, or another state’s licensing certification or approval authority, has otherwise lost that license, certificate, or approval, or has surrendered that license, certificate, or approval while a disciplinary hearing was pending. (Welf. & Inst. Code § 14043.6.)

This bill:

1. Clarifies, additionally, that a law of another state that authorizes a person to bring a civil action against a person that provides an abortion or knowingly engages in conduct that aids or abets the provision of an abortion is contrary to the public policy of the state.
2. Prohibits, on and after January 1, 2024, a contract issued, amended, or renewed between a health care service plan or a health insurer and a provider of health care services from containing any term that would result in the termination or nonrenewal of the contract or otherwise penalize the provider based solely on a civil judgment, criminal conviction, or another disciplinary action in another state if that other state judgment, conviction, of 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. Prohibits a health care service plan or a health insurer from discriminating, with respect to the provision of, or contracts for, professional services against a licensed provider solely on the basis of a civil judgment, criminal conviction, or another disciplinary action in another state if that other state judgment, conviction, of 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.
4. Provides that the provisions in 2) and 3) above 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 provider under the laws of this state.
5. Prohibits DHCS from suspending an individual or entity as a provider in the Medi-Cal program if the revocation, suspension, or loss of the individual’s or entity’s license, certificate, or approval authority in another state or the pending disciplinary hearing during which the individual or entity surrendered the license, certificate, or approval authority in another state is based solely on conduct that is not prohibited in California.
6. Requires the Director of DHCS to request a waiver under federal law, as permitted, if the provider’s suspension from participating in the Medicare or Medicaid program was based solely on conduct that is not prohibited in California.

Comments

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.) 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. (Dobbs v. Jackson Women’s Health (2022) 597 U.S. _ (142 S.Ct. 2228) at 5.) 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.^[1]

Many abortion bans target providers of abortions through criminal, civil, and administrative penalties. 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.) Texas law also 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).) SB 8 provides that any person, other than an officer or employee of a state or local governmental entity in Texas, and regardless if they suffered any actual harm, 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).) Idaho enacted a similar law via Idaho Senate Bill 1309, which provides for liability of $20,000 plus costs and fees if a plaintiff prevails (Idaho Code § 18-8701 et. seq.)

Oklahoma also enacted a similar law to Texas and enacted criminal penalties for the performance of an abortion, except when performed to save the life of a pregnant person, with punishment of up to 10 years in prison or fines of up to $100,000.^[2] Similar legislation to SB 8 has also been introduced in Arizona, Florida, Minnesota, and Wisconsin.^[3] 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.^[4] 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.

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.^[5] 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 this state. CA FAB issued its first report in December 2021, which included 45 policy recommendations to protect, strengthen, and expand abortion access in California.^[6] In response to the Dobbs decision and CA FAB’s report, California enacted a comprehensive package of legislation that protects the rights of patients seeking abortion in the state and those supporting them.^[7] 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.

Though California has enacted numerous laws to protect the fundamental right to reproductive freedom, without federal protections there is nothing prohibiting providers of sexual and reproductive health care from being criminalized for providing abortion in other states. In December 2022, CA FAB issued an addendum to its original report and identified additional policy recommendations, including protecting abortion providers “against adverse actions related to their participation in public benefit programs, health plan and insurance contracts, and credentialing due to enforcement of another state’s hostile abortion law.^[8]”

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. 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. 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. On September 29, 2022, Governor Newsom issued a signing statement for SB 107 (Wiener, 2022; Ch. 810, Stats. 2022) 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.”

In response to these issues, this bill seeks to provide additional protections for health care providers by prohibiting them from discriminating or taking adverse actions against providers who are subjected to civil, criminal or professional license actions solely because they are providing reproductive health care services – including abortion and gender affirming care – in another state that prohibits or restricts the service.

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

According to the Senate Appropriations Committee, unknown ongoing costs, likely hundreds of thousands, for DHCS to request federal waivers. The Department of Managed Health Care estimates minor and absorbable costs. The Department of Insurance estimates no fiscal impact.

SUPPORT: (Verified 5/18/23)

American College of Obstetricians and Gynecologists District IX (co-source)

California Medical Association (co-source)

Planned Parenthood Affiliates of California (co-source)

California Association of Nurse Anesthetist

California Chapter of the American College of Emergency Physicians

California Hospital Association

California Legislative Women's Caucus

California State Association of Psychiatrists

California Women's Law Center

Equality California

League of Women Voters of California

NARAL Pro-Choice California

National Health Law Program

Training in Early Abortion for Comprehensive Health Care

OPPOSITION: (Verified 5/18/23)

Right to Life League

ARGUMENTS IN SUPPORT: Planned Parenthood Affiliates of California, one of the sponsors of this bill, writes in support stating:

SB 487 builds off existing protections enacted last year to protect health care providers from automatic suspension from the Medi-Cal program if they are suspended from a Medicaid program in another state as a result of providing health care services that are legal in California. It will also prohibit health insurers from discriminating against or refusing to contract with a health care provider who may have been sanctioned in another state as a result of providing prohibited or restricted health care services that are legal in California. Protecting health care providers from adverse actions stemming from another state’s hostile laws and actions, particularly as it relates to being able to continue to serve Medi-Cal patients, is a priority for Planned Parenthood so that all patients can continue to seek care at health centers without disruption.

ARGUMENTS IN OPPOSITION: The Right to Life League writes in opposition: “Existing law requires DHCS to automatically suspend as a provider in the Medi-Cal program any individual who, or any entity that, has a license, certificate, or other approval to provide health care revoked or suspended by a federal, California, or another state’s licensing authority, such as abortion or gender alteration. SB 487 amends this existing law in order to continue sending taxpayer monies to abortionists and those who profit from human gender mutilation who would otherwise be ineligible for payment under Medi-Cal.”

Prepared by: Amanda Mattson / JUD. / (916) 651-4113

5/20/23 12:51:39

**** END ****

1. Id. at 77. ↑

2. Dana Branham and Chris Casteel, Another anti-abortion law goes into effect in Oklahoma. Here’s what’s changing, The Oklahoman (Aud, 26, 2022), available at https://www.oklahoman.com/story/news/2022/08/26/oklahoma-senate-bill-612-another-anti-abortion-law-goes-into-effect/65419612007/. ↑

3. Alison Durkee, Idaho Enacts Law Copying Texas’ Abortion Ban – And These States Might Be Next, Forbes (Mar. 23, 2022) available at https://www.forbes.com/sites/alisondurkee/2022/03/23/idaho-enacts-law-copying-texas-abortion-ban---and-these-states-might-be-next/?sh=340dc49425c0. ↑

4. 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. ↑

5. 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. ↑

6. Recommendations to Protect, Strengthen, and Expand Abortion Care in California, California Future of Abortion Council (Dec. 2021), available at https://www.cafabcouncil.org/_files/ugd/ddc900_0beac0c75cb54445a230168863566b55.pdf. ↑

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

8. December 2022 Addendum, California Future of Abortion Council (Dec. 2022), available at https://www.cafabcouncil.org/_files/ugd/ddc900_cb34dfb0c1154013a43642b9a95adfd6.pdf?index=true. ↑

SENATE COMMITTEE ON

Senator Anthony Portantino, Chair

2023 - 2024 Regular Session

SB 487 (Atkins) - Abortion: provider protections

Bill Summary:

SB 487 would prohibit health plans and health insurers from terminating, discriminating against, or otherwise penalizing a provider based on a civil judgment, criminal conviction, or another disciplinary action in another state if the judgment, conviction, or disciplinary action is solely based 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 prohibit the Department of Health Care Services (DHCS) from suspending a Medi-Cal provider who has a license, certificate, or other approval to provide health care suspended or revoked in another state if the revocation or suspension is based solely on conduct that is not prohibited in California.

Fiscal Impact:

• Unknown ongoing costs, likely hundreds of thousands, for DHCS to request federal waivers.
• The Department of Managed Health Care estimates minor and absorbable costs.
• The Department of Insurance estimates no fiscal impact.

Background:

California’s Reproductive Privacy Act (RPA) 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. Existing state law prohibits a person who aids or assists a pregnant person in exercising their rights under RPA from being subject to civil or criminal liability or penalty, or otherwise being deprived of their rights, based solely on their actions to aid or assist a pregnant person in exercising their rights under RPA with the pregnant person's voluntary consent. Existing state law also 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: receives or seeks an abortion; performs or induces an abortion; knowingly engages in conduct that aids or abets the performance or inducement of an abortion; or, attempts or intends to engage in the aforementioned conduct.

The Department of Managed Health Care (DMHC) regulates health plans under the Knox-Keene Act and the California Department of Insurance (CDI) regulates health insurance. The Department of Health Care Services (DHCS) administers the Medi-Cal program.

Current law requires DHCS to automatically suspend, as a Medi-Cal provider, any individual who, or any entity that, has a license, certificate, or other approval to provide health care, which is revoked or suspended by a federal, California, or another state’s licensing, certification, or approval authority, has otherwise lost that license, certificate, or approval, or has surrendered that license, certificate, or approval while a disciplinary hearing on that license, certificate, or approval was pending. Federal law requires the Secretary of the U.S. Department of Health and Human Services (HHS) to exclude individuals and entities engaging in specified conduct from participation in any federal health care program, including Medicaid and the state Children’s Health Insurance Program; and requires the Secretary to notify states of the exclusion and permits states to request a waiver of that exclusion for their health care program.

Proposed Law:

Specific provisions of the bill would:

• Clarify that a law of another state that authorizes a person to bring a civil action against a person that provides an abortion or knowingly engages in conduct that aids or abets the provision of an abortion is contrary to the public policy of this state.
• Prohibit a contract issued, amended, or renewed on or after January 1, 2024 between a health plan or insurer and a provider of health care services from containing any term that would result in the termination or nonrenewal of the contract or otherwise penalize the provider based solely on a civil judgment, criminal conviction, or another professional disciplinary action in another state if that other state judgment, conviction, or professional 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.
• Prohibit a health plan or insurer from discriminating, with respect to the provision of, or contracts for, professional services against a licensed provider solely on the basis of a civil judgment, criminal conviction, or another professional disciplinary action in another state if that other state judgment, conviction, or professional 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.
• Prohibit DHCS from suspending an individual or entity as a Medi-Cal provider if the revocation, suspension, or loss of the individual’s or entity’s license, certification, or approval authority in another state or the pending disciplinary hearing during which the individual or entity surrendered the license, certification, or approval authority in another state is based solely on conduct that is not prohibited in California.
• Require DHCS to request a provider exclusion waiver upon notification from the HHS Secretary that a Medi-Cal provider is being excluded from federally-funded programs if the reason for that exclusion is for conduct that is not prohibited in California.

-- END --

SENATE COMMITTEE ON HEALTH

Senator Dr. Susan Talamantes Eggman, Chair

BILL NO: SB 487

SUBJECT: Abortion: provider protections

SUMMARY:

Prohibits health plans and health insurers from terminating, discriminating against, or otherwise penalizing a provider based on a civil judgment, criminal conviction, or another disciplinary action in another state if the judgment, conviction, or disciplinary action is solely based 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. Prohibits the Department of Health Care Services from suspending a Medi-Cal provider who has a license, certificate, or other approval to provide health care suspended or revoked in another state if the revocation or suspension is based solely on conduct that is not prohibited in California.

Existing federal law: Requires the Secretary of the U.S. Department of Health and Human Services (HHS) to exclude individuals and entities engaging in specified conduct from participation in any federal health care program, including Medicaid and the state Children’s Health Insurance Program (CHIP). Requires the Secretary to notify states of the exclusion and permits states to request a waiver of that exclusion for their health care program. [42 USC §1320a-7]

Existing state law:

1. Establishes the Department of Managed Health Care (DMHC) to regulate health plans under the Knox-Keene Health Care Service Plan Act of 1975 (Knox-Keene Act); California Department of Insurance (CDI) to regulate health and other insurance; and, the Department of Health Care Services (DHCS) to administer the Medi-Cal program. [HSC §1340, et seq., INS §106, et seq., and WIC §14000, et seq.]
2. Requires DHCS to automatically suspend, as a Medi-Cal provider, any individual who, or any entity that, has a license, certificate, or other approval to provide health care, which is revoked or suspended by a federal, California, or another state’s licensing, certification, or approval authority, has otherwise lost that license, certificate, or approval, or has surrendered that license, certificate, or approval while a disciplinary hearing on that license, certificate, or approval was pending. [WIC §14043.6]
3. Requires that DHCS automatically suspend a Medi-Cal provider upon receipt of written notification from the HHS Secretary that a provider has been suspended from participation in the Medicare or Medicaid programs. [WIC §14123]
4. Establishes the Reproductive Privacy Act (RPA), which 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 §123460, et seq.]
5. Prohibits a person who aids or assists a pregnant person in exercising their rights under RPA from being subject to civil or criminal liability or penalty, or otherwise being deprived of their rights, based solely on their actions to aid or assist a pregnant person in exercising their rights under RPA with the pregnant person's voluntary consent. [HSC §123467]
6. 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: receives or seeks an abortion; performs or induces an abortion; knowingly engages in conduct that aids or abets the performance or inducement of an abortion; or, attempts or intends to engage in the aforementioned conduct. [HSC §123467.5]

This bill:

1. Prohibits a contract issued, amended, or renewed on or after January 1, 2024 between a health plan or insurer and a provider of health care services from containing any term that would result in the termination or nonrenewal of the contract or otherwise penalize the provider based solely on a civil judgment, criminal conviction, or another disciplinary action in another state if that other state judgment, conviction, of 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.
2. Prohibits a health plan or insurer from discriminating, with respect to the provision of, or contracts for, professional services against a licensed provider solely on the basis of a civil judgment, criminal conviction, or another disciplinary action in another state if that other state judgment, conviction, of 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 2) and 3) above 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 provider under the laws of this state.
4. Prohibits DHCS from suspending an individual or entity as a Medi-Cal if the revocation, suspension, or loss of the individual’s or entity’s license, certificate, or approval authority in another state or the pending disciplinary hearing during which the individual or entity surrendered the license, certificate, or approval authority in another state is based solely on conduct that is not prohibited in California.
5. Clarifies that a law of another state that authorizes a person to bring a civil action against a person that provides an abortion or knowingly engages in conduct that aids or abets the provision of an abortion is contrary to the public policy of this state.

FISCAL EFFECT:

This bill has not been analyzed by a fiscal committee.

COMMENTS:

1. Author’s statement. According to the author, on June 24, 2022, the U.S. Supreme Court overturned the long-standing legal protections for abortion under Roe v. Wade in Dobbs v. Jackson Women’s Health Organization. In the wake of this decision, at least 43 states have enacted laws prohibiting abortions after a specified point in pregnancy, with limited exceptions. According to the Guttmacher Institute, the vague wording of exceptions place a physician or other provider at substantial legal risk—including large fines, imprisonment or loss of a medical license—if they provide an abortion that is not deemed to meet the narrow allowable circumstances. States are also enacting burdensome and unnecessary requirements on providers that not only further limit access, but also make it more challenging for providers to act within the law of the state. Alabama, Mississippi, Ohio and Florida allow criminal prosecutions of abortion providers. Texas and Oklahoma enacted laws that incentivize individuals to sue providers and anyone suspected of helping a woman obtain an abortion. Providers who are successfully sued can be barred from continuing to provide abortions and required to pay statutory and compensatory damages. Last session, this Legislature passed a number of measures to reinforce protections for providers who travel to other states and may become subject to attempts to enforce these restrictive laws. The measures were also intended to protect providers from retaliation if they care for those who come to California due to lack of access in their home state. In assessing the successes of last session, gaps in provider protections were identified. This bill closes a few of those gaps by adding protections from payers who may attempt to penalize providers who were sanctioned by another state.
2. Abortion. According to the Center for Disease Control and Prevention (CDC), a legal induced abortion is defined as an intervention performed by a licensed clinician that is intended to terminate an ongoing pregnancy. Ending a pregnancy with medications is an option for women who are less than ten weeks pregnant and would like to have an abortion at home with a less invasive procedure. The CDC reports that 620,327 abortions were reported nationally from 49 reporting areas in 2020. From 2019 to 2020, the total number of abortions decreased 2%, and from 2011 to 2020, the total number of reported abortions decreased 15%. In 2020, women in their 20s accounted for more than half of abortions (57.2%). By contrast, adolescents under 15 years (0.2%) and women over 40 (3.7%) years accounted for the lowest percentages of abortions. In 2020, nearly all abortions (93.1%) were performed at or less than 13 weeks gestation. In 2020, the highest proportion of abortions were performed by early medication abortion at or less than 9 weeks’ gestation (51.0%), followed by surgical abortion at or less than 13 weeks gestation (40.0%), followed by, surgical abortion at more than 13 weeks gestation (6.7%), and medication abortion at more than nine weeks gestation (2.4%). In 2019, the most recent year for which data were reviewed for pregnancy-related deaths, four women died as a result of complications from legal induced abortion.

According to the Guttmacher Institute, in 2020, there were 1,603 facilities providing abortion in the U.S., representing a slight increase from the 1,587 facilities in 2017. Fourteen percent of facilities in 2020 were abortion clinics (i.e., clinics where more than half of all patient visits were for abortion), 36% were nonspecialized clinics, 33% were hospitals and 17% were private physicians' offices. Fifty-four percent of all abortions were provided at abortion clinics, 43% at nonspecialized clinics, 3% at hospitals and 1% at physicians' offices. In 2020, 89% of U.S. counties had no clinics providing abortions. Any of the 38% of reproductive-age women lived in those counties and would have had to travel elsewhere to obtain an abortion.

1. California data. According to the Guttmacher Institute, in 2020, 154,060 abortions were provided in California, though not all abortions that occurred in California were provided to state residents. There was a 17% increase in the abortion rate in California between 2017 and 2020, from 16.4 to 19.2 abortions per 1,000 women of reproductive age. Abortions in California represent 16.6% of all abortions in the United States. There were 173 clinics providing abortion in California in 2020. This number represent a 3% increase in clinics from 2017, when there were 161 clinics. In 2020, 38% of California counties had no clinics that provided abortions, and 3% of California women lived in those counties.

1. Recent abortion bans in a post-Roe world. According to a January 2023 report from the Guttmacher Institute, since the Supreme Court overturned Roe v. Wade in June 2022, 12 states are enforcing a near-total ban on abortion with very limited exceptions. In five of these states, the ban is being challenged in court but remains in effect (Idaho, Kentucky, Louisiana, Oklahoma, Texas, and West Virginia). A court has blocked enforcement of a pre-Roe ban in one state while it is being challenged in court (South Carolina). In two more states, abortion care is unavailable even though the state’s ban is not being enforced (North Dakota and Wisconsin). Four more states have more limited bans based on gestational age (Arizona, Florida, Georgia, and Utah) and three states have near-total bans that are currently blocked by courts (Indiana, Wyoming, and Ohio). Finally, three states currently have available abortion care, but both the legislature and the governors have indicated that they intend to ban abortion soon (Iowa, Montana, and Nebraska).

According to a February 16, 2023 story by the New York Times, one commonality among many of the bans is that enforcement of the bans is enhanced through the targeting of medical providers. 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. The Texas law also provides that any person, other than an officer or employee of a state or local governmental entity in Texas, and regardless if they suffered any actual harm, 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. Idaho enacted a similar law which provides for liability of $20,000 plus costs and fees if a plaintiff prevails. Oklahoma also enacted a similar law to Texas’ and enacted criminal penalties for the performance of an abortion, except when performed to save the life of a pregnant person, with punishment of up to ten years in prison or fines of up to $100,000. Similar legislation has also been introduced in Arizona, Florida, Minnesota, and Wisconsin. 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 after they are charged.

1. California Future of Abortion Council (CA FAB Council). According to the CA FAB Council website, in September 2021 it convened to identify the most pressing barriers to care for patients seeking abortion services in California. More than 40 organizations representing sexual and reproductive health care providers, reproductive rights and reproductive justice advocacy organizations, legal and policy experts, researchers, and advocates, with the support of California policymakers, joined together to recommend policy proposals supporting equitable and affordable access to abortion care for Californians and all who seek care here. The CA FAB Council initially provided 45 policy recommendations, and published an addendum in December of 2022 updating on the progress of those recommendations and adding an additional 16 recommendations. This bill seeks to implement one of those updated recommendations. The report states that California must provide additional safeguards for California abortion providers and other entities and individuals that serve and support abortion patients that reside in states with hostile abortion laws. Abortion providers should be protected against adverse actions related to their participation in public benefit programs, health plan and insurance contracts, and credentialing due to enforcement of another state’s hostile abortion law.
2. Bans on gender affirming care. In addition to bans that target medical providers of abortions, recently several states have begun targeting the provision of gender-affirming care. According to the HHS Office of Population Affairs gender-affirming care is defined as an array of services that may include medical, surgical, mental health, and non-medical services for transgender and nonbinary people. For transgender and nonbinary children and adolescents, early gender-affirming care is crucial to overall health and well-being as it allows the child or adolescent to focus on social transitions and can increase their confidence while navigating the healthcare system. According to the American College of Physicians, gender-affirming care is evidence-based medicine supported by many prestigious medical organizations, and study after study shows that gender-affirming care reduces depression and suicide among transgender youth. In 2021, Arkansas became the first state in the country to ban gender-affirming health care for transgender minors. Since then, 15 other states have also enacted laws restricting access to gender-affirming care, and 17 other states are considering such bans as of April 2023, according to Human Rights Watch. Alabama's ban included the harshest penalties of any legislation passed thus far, making the provision of gender-affirming care a felony punishable by up to ten years in prison. In Alabama, Arkansas, and Texas court injunctions are currently in place allowing continued access to care. These bans focus on services to minors, though three states are currently considering bans that would extend to youth up to age 26.
3. Exclusion of providers from state health care programs. Federal law requires federally-funded state health care programs such as Medi-Cal to exclude certain providers from participating in those programs upon notification from the HHS Secretary that a provider has been excluded or suspended. Upon notification by the Secretary that a provider has been has been excluded or suspended, a state health care program may request a waiver that that the provider not be excluded from their state health program. California state law also reflects many of the same bases for exclusion so that the DHCS director can independently exclude providers who engage in specified conduct including providers convicted of felonies or misdemeanors involving fraud or abuse of the Medi-Cal program or patient, as well as those who have their license, certificate, or other approval to provide health care revoked in California and elsewhere.
4. Double referral. This bill was heard in the Senate Judiciary Committee on March 28, 2023, and passed with an 8-2 vote.
5. Related legislation. SB 385 (Atkins) authorizes a physician assistant who has completed specified training and achieved clinical competency to perform abortions by aspiration techniques without the personal presence of a supervising physician and surgeon, except as provided. SB 385 is set to be heard in the Senate Committee on Judiciary on April 18, 2023.

SB 345 (Skinner), among other things, would prohibit a licensing board from denying an application for licensure or suspending, revoking, or otherwise imposing discipline on a licensed person because they were disciplined or convicted of an offense in another state, if that disciplinary action was the result of providing a legally protected health care activity.

SB 345 is pending in the Senate Public Safety Committee.

AB 571 (Petrie-Norris) would prohibit an insurer from refusing to issue, renew, or terminate professional liability insurance for health care providers and from imposing a surcharge or increasing the premium or deductible solely based on a health care provider offering or performing abortion, and prohibit an insurer from denying coverage for liability for damages arising from offering, performing, or rendering specified health care services. AB 571 is pending in the Assembly Judiciary Committee.

1. Prior Legislation. SB 107 (Wiener, Chapter 810, Statutes of 2023), among other things, prohibits a clerk of a superior court in the county in which discovery in a foreign action is sought, or an attorney licensed in this state and retained by a party in a foreign action, from issuing a subpoena for discovery in this state based on a foreign subpoena if the foreign subpoena is based on an anti-gender-affirming care action.

AB 1666 (Bauer-Kahan, Chapter 42, Statutes of 2022) prohibits 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, Chapter 628, Statutes of 2022), among other things, prohibits 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.

1. Support. Co-sponsor Planned Parenthood Affiliates of California states that this bill builds off existing protections enacted last year to protect health care providers from automatic suspension from the Medi-Cal program if they are suspended from a Medicaid program in another state as a result of providing health care services that are legal in California. It will also prohibit health insurers from discriminating against or refusing to contract with a health care provider who may have been sanctioned in another state as a result of providing prohibited or restricted health care services that are legal in California. Protecting health care providers from adverse actions stemming from another state’s hostile laws and actions, particularly as it relates to being able to continue to serve Medi-Cal patients, is a priority for Planned Parenthood so that all patients can continue to seek care at health centers without disruption. Equality California states that states are attempting to classify the provision of gender- affirming care as a crime warranting prison time and are threatening parents with criminal penalties if they attempt to travel to another state to secure life-saving gender-affirming care for their child. While attacks on the transgender community are not new, they are experiencing alarmingly blatant attempts to use legislation, policy, and political rhetoric to restrict or eliminate the autonomy, freedom, and existence of transgender people across the country. Several supporters note that these bans have caused patients to seek care wherever they can, in border states from their home state or traveling to California for care, and providers have met the need by traveling to other states to provide care to patients and seeing those who come to California for care.
2. Opposition. Opponents Right to Life League states that existing law requires DHCS to automatically suspend as a provider in the Medi-Cal program any individual who, or any entity that, has a license, certificate, or other approval to provide health care revoked or suspended by a federal, California, or another state’s licensing authority, such as abortion or gender alteration. This bill amends existing law in order to continue sending taxpayer monies to abortionists and those who profit from human gender mutilation who would otherwise be ineligible for payment under Medi-Cal. Health care providers should be able to discriminate against those who provide such barbaric services. This bill will prevent them from doing so.
3. Amendments. The author has agreed to amendments that would require DHCS to request a provider exclusion waiver upon notification from the HHS Secretary that a Medi-Cal provider is being excluded from federally-funded programs if the reason for that exclusion is for conduct that is not prohibited in California, as well as a technical amendment requested by CDI to allow enforcement by CDI in the portion pertaining to health insurers.

SUPPORT AND OPPOSITION:

Support: American College of Obstetricians and Gynecologists, District IX (co-sponsor)

California Medical Association (co-sponsor)

Planned Parenthood Affiliates of California (co-sponsor)

California Chapter of the American College of Emergency Physicians

California Hospital Association

California Legislative Women’s Caucus

California State Association of Psychiatrists

California Women’s Law Center

Equality California

NARAL Pro-Choice California

National Health Law Program

Training in Early Abortion for Comprehensive Health Care

Oppose: Right to Life League

-- END --

SENATE JUDICIARY COMMITTEE

Senator Thomas Umberg, Chair

2023-2024 Regular Session

Bill No: SB 487 (Author:Atkins)

Version: March 20, 2023

Hearing Date: March 28, 2023

Fiscal: Yes

Urgency: No

Consultant: AM

SUBJECT

Abortion: civil actions

DIGEST

This bill clarifies existing law to specify that the law of another state that authorizes a person to bring a civil action against a person who provides an abortion or knowingly engages in conduct that aids or abets the provision of an abortion is contrary to the public policy of the state. The bill prohibits a contract between a health care service plan or health insurer and a health care services provider from containing any term that would result in termination or nonrenewal of the contract or otherwise penalize the provider based on a judgment, conviction, or disciplinary action in another state if it is solely based on the application of another state’s law that interferes with a person’s right to receive care that would be lawful in California. The bill prohibits a health care service plan or health insurer from discriminating against a licensed provider solely on the basis of a judgment, conviction, or disciplinary action in another state if it is solely based on the application of another state’s law that interferes with a person’s right to receive care that is lawful in California. The bill prohibits the Department of Health Care Services from suspending an individual or entity as a provider in the Medi-Cal program if the revocation, suspension, or loss of the individual’s or entity’s license, certificate, or approval authority in another state is based solely on conduct that is not prohibited in California.

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 in Dobbs v. Jackson Women’s Health Organization, 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. Though California has enacted numerous laws to protect the fundamental right to reproductive freedom, without the federal protections afforded under Roe there is nothing prohibiting providers of sexual and reproductive health care from being criminalized or held liable for providing essential health care services, such as abortion, in other states. This bill seeks to address this issue by providing protections for providers from other states’ laws that seek to restrict access to, or punish the provision of, health care services that are legal in California.

The bill is sponsored by the American College of Obstetricians and Gynecologists, Region IX, the California Medical Association, and Planned Parenthood Affiliates of California and supported by various organizations, including reproductive rights and privacy rights organizations and medical associations. There is no known opposition.

PROPOSED CHANGES TO THE LAW

Existing law:

1. Provides, under the state constitution, 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.)
2. 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.)
3. 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, 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. (Health & Saf. Code § 123460 et. seq., § 123462.)
4. 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).)
5. Prohibits the application of an out-of-state law described in 1) from being applied to a case or controversy heard in state court and prohibits the enforcement or satisfaction of a civil judgment received through an adjudication under an out-of-state law described in 1). (Health & Safe. Code § 123467.5(b).)
6. Prohibits a clerk of a superior court in the county in which discovery in a foreign action is sought, or an attorney licensed in this state and retained by a party in a foreign action, from issuing a subpoena for discovery in this state based on a foreign subpoena if the foreign subpoena is based on an anti-gender-affirming care action. (Code of Civ. Proc. § 2029.300(e).)
7. Requires the Department of Managed Health Care (DMHC) to regulate health plans under the Knox-Keene Health Care Service Plan Act of 1975 (Knox-Keene). (Health & Safe. Code § 1340, et seq.)
8. Requires the California Department of Insurance (CDI) to regulate health insurers. (Ins. Code § 10110 et. seq.)
9. Requires the Department of Health Care Services (DHCS) to administer the Medi-Cal program. (Welf. & Inst. Code § 14000, et. seq.)
   1. Requires DHCS to automatically suspend, as a provider in the Medi-Cal program, any individual who, or any entity that, has a license, certificate, or other approval to provide health care, which is revoked or suspended by a federal, California, or another state’s licensing certification or approval authority, has otherwise lost that license, certificate, or approval, or has surrendered that license, certificate, or approval while a disciplinary hearing was pending. (Welf. & Inst. Code § 14043.6.)

This bill:

1. Additionally clarifies that a law of another state that authorizes a person to bring a civil action against a person that provides an abortion or knowingly engages in conduct that aids or abets the provision of an abortion is contrary to the public policy of the state.
2. Prohibits, on and after January 1, 2024, a contract issued, amended, or renewed between a health care service plan or a health insurer and a provider of health care services from containing any term that would result in the termination or nonrenewal of the contract or otherwise penalize the provider based solely on a civil judgment, criminal conviction, or another disciplinary action in another state if that other state judgment, conviction, of 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. Prohibits a health care service plan or a health insurer from discriminating, with respect to the provision of, or contracts for, professional services against a licensed provider solely on the basis of a civil judgment, criminal conviction, or another disciplinary action in another state if that other state judgment, conviction, of 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.
4. Provides that the provisions in 2) and 3) above 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 provider under the laws of this state.
5. Prohibits DHCS from suspending an individual or entity as a provider in the Medi-Cal program if the revocation, suspension, or loss of the individual’s or entity’s license, certificate, or approval authority in another state or the pending disciplinary hearing during which the individual or entity surrendered the license, certificate, or approval authority in another state is based solely on conduct that is not prohibited in California.

COMMENTS

1. Stated need for the bill

The author writes:

On June 24, 2022, the U.S. Supreme Court overturned the long-standing legal protections for abortion under Roe v. Wade in Dobbs v. Jackson Women’s Health Organization. The court based its ruling on the fact that the right to abortion was not specifically in the text of the U. S. Constitution and on the assumption that the framers of the fourteenth amendment in 1868 did not regard abortion as a fundamental liberty. The court found there was no basis for a constitutional right to privacy protecting a women’s right to choose. The decision did not impact the legality of abortion in California, but did remove the federal constitutional right to abortion - opening the door for states to ban and criminalize abortion services as well as the possibility of federal restrictions on abortion.

In the wake of this decision, at least 43 states have enacted laws prohibiting abortions after a specified point in pregnancy, with limited exceptions. The allowable circumstances are generally when an abortion is necessary to protect the patient's life or health. According to the Guttmacher Institute, the vague wording of exceptions place a physician or other provider at substantial legal risk—including large fines, imprisonment, or loss of a medical license—if they provide an abortion that is not deemed to meet the narrow allowable circumstances.

States are also enacting burdensome and unnecessary requirements on providers that not only further limit access, are not medically required or appropriate, but also make it more challenging for providers to act within the law of the state. For instance in Kentucky only a licensed physician may prescribe or dispense medication abortion pills and the pills may not be mailed. Consent forms for medication abortion must also include misleading counseling on the possibility of reversing an abortion. In Indiana, the law requires the pregnant person seeking an abortion to receive counseling from medical personnel explaining that being coerced into an abortion is illegal. Alabama, Mississippi, Ohio and Florida allow criminal prosecutions of abortion providers. Texas and Oklahoma enacted laws that incentivize individuals to sue providers and anyone suspected of helping a woman obtain an abortion — and awards at least $10,000 to people who do so successfully. Providers who are successfully sued can be barred from continuing to provide abortions, as well as be subject to paying statutory damages and potentially compensatory damages.

Last session, the California Legislature passed a number of measures to reinforce meaningful protections for providers who travel to other states to provide abortion services and may become subject to attempts to enforce these restrictive laws against California –licensed providers. Many of the measures were also intended to protect providers from retaliation if they care for those who come to California due to lack of access in their home state. In assessing the successes of last session, gaps in provider protections were identified. This bill proposes to close a few of those gaps by adding protections from payers who may attempt to penalize providers who were sanctioned by another state.

1. Post-Dobbs access to reproductive healthcare is being restricted across the nation

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.) 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]

The Roe decision was the foundation for allowing people the ability to control their reproductive lives because it established a federal constitutional right for anyone who could become pregnant in the United States to decide when and if to have children and prevented the criminalization of having an abortion or providing an abortion. Prior to Roe legal abortion did exist in some states, but the choices available to those seeking to terminate an unwanted pregnancy were limited and disproportionately affected those who were younger, lower income, and members of communities of color.^[3] In the wake of the Dobbs decision it is very probable that abortion will be banned or severely restricted in 24 states,^[4] with 13 states already having total abortion bans in effect.^[5] Almost one-third of women and people who can become pregnant of reproductive age in the United States live in a state where abortion is not legal or is severely restricted.^[6] If all the states expected to enact a total ban on abortion actually do, the number of patients who would find that their nearest clinic is in California could increase to 1.4 million, an almost 3,000 percent increase.^[7]

1. Healthcare providers are often the targets of abortion bans

Many abortion bans target providers of abortions through criminal, civil, and administrative penalties. 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.) Texas law also 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).) SB 8 provides that any person, other than an officer or employee of a state or local governmental entity in Texas, and regardless if they suffered any actual harm, 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).) Idaho enacted a similar law via Idaho Senate Bill 1309, which provides for liability of $20,000 plus costs and fees if a plaintiff prevails (Idaho Code § 18-8701 et. seq.) Oklahoma also enacted a similar law to Texas and enacted criminal penalties for the performance of an abortion, except when performed to save the life of a pregnant person, with punishment of up to 10 years in prison or fines of up to $100,000.^[8] Similar legislation to SB 8 has also been introduced in Arizona, Florida, Minnesota, and Wisconsin.^[9] 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.^[10] 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 and came before the Roe decision. 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, 1927 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.^[11]

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 this state. CA FAB issued its first report in December 2021, which included 45 policy recommendations to protect, strengthen, and expand abortion access in California.^[12] In response to the Dobbs decision and CA FAB’s report, California enacted a comprehensive package of legislation that protects the rights of patients seeking abortion in the state and those supporting them.^[13] 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.

Though California has enacted numerous laws to protect the fundamental right to reproductive freedom, without federal protections there is nothing prohibiting providers of sexual and reproductive health care from being criminalized for providing abortion in other states. In December 2022, CA FAB issued an addendum to its original report and identified additional policy recommendations, including protecting abortion providers “against adverse actions related to their participation in public benefit programs, health plan and insurance contracts, and credentialing due to enforcement of another state’s hostile abortion law.^[14]”

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.^[15] 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.^[16] 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.^[17] On September 29, 2022, Governor Newsom issued a signing statement for SB 107 (Wiener, 2022; Ch. 810, Stats. 2022) 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.^[18]”

1. The bill enacts provisions to protect providers from adverse actions or enforcement of another state’s law that interferes with a person’s right to receive care that is lawful in this state

The bill prohibits a contract issued, amended, or renewed on and after January 1, 2024, between a health care service plan or a health insurer and a provider of health care services, from containing any term that would result in the termination or nonrenewal of the contract or otherwise penalize the provider based solely on a civil judgment, criminal conviction, or another disciplinary action in another state if the other state’s 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. As this provision only applies to contracts issued, amended, or renewed on and after January 1, 2024, the contract clause of the U.S. Constitution is not implicated. The bill also prohibits a health care service plan or a health insurer from discriminating, with respect to the provision of, or contracts for, professional services against a licensed provider solely on the basis of a civil judgment, criminal conviction, or another disciplinary action in another state if that other state 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. 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 provider under the laws of this state.

Existing law requires DHCS to automatically suspend as a provider in the Medi-Cal program any individual who, or any entity that, has a license, certificate, or other approval to provide health care revoked or suspended by a federal, California, or another state’s licensing authority. Additionally, any individual or any entity that has lost a license, certificate, or approval or has surrendered a license, certificate, or approval while a disciplinary hearing was pending is to be automatically suspended by DHCS as a provider in the Medi-Cal program. This bill prohibits DHCS from suspending an individual or entity as a provider in the Medi-Cal program if the revocation, suspension, or loss of the individual’s or entity’s license, certificate, or approval in another state or the pending disciplinary hearing during which the individual or entity surrendered the license, certificate, or approval is based solely on conduct that is not prohibited in California. Lastly, the bill clarifies that a law of another state that authorizes a person to bring a civil action against a person that provides an abortion or knowingly engages in conduct that aids or abets in the provision of an abortion is contrary to the public policy of this state.^[19]

1. Statements in support

The American College of Obstetricians and Gynecologists, Region IX and the California Medical Association, sponsors of the bill, write in support stating:

SB 487 will prohibit health care service payors – health insurers, health care service plans, and the Medi-Cal program – from discriminating or taking adverse actions against providers who are subjected to civil, criminal or professional license actions for providing reproductive health care services – including abortion and gender affirming care – in another state that prohibits or restricts the service.

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

SB 487 builds off existing protections enacted last year to protect health care providers from automatic suspension from the Medi-Cal program if they are suspended from a Medicaid program in another state as a result of providing health care services that are legal in California. It will also prohibit health insurers from discriminating against or refusing to contract with a health care provider who may have been sanctioned in another state as a result of providing prohibited or restricted health care services that are legal in California. Protecting health care providers from adverse actions stemming from another state’s hostile laws and actions, particularly as it relates to being able to continue to serve Medi-Cal patients, is a priority for Planned Parenthood so that all patients can continue to seek care at health centers without disruption.

SUPPORT

American College of Obstetricians and Gynecologists, Region IX (sponsor)

California Medical Association (sponsor)

Planned Parenthood Affiliates of California (sponsor)

California Hospital Association

California State Association of Psychiatrists

California Women’s Law Center

NARAL Pro-Choice California

National Health Law Program

OPPOSITION

None known

RELATED LEGISLATION

Pending Legislation:

SB 385 (Atkins, 2023) authorizes a physician assistant who has completed specified training and achieved clinical competency, as described, to perform abortions by aspirations techniques without the personal presence of a supervising physician and surgeon, except as provided. SB 385 is currently pending in the Senate Committee on Business, Professions and Economic Development.

SB 345 (Skinner, 2023), among other things, prohibits a licensing board from denying an application for licensure or suspending, revoking, or otherwise imposing discipline on a licensed person because they were disciplined or convicted of an offense in another state, if that disciplinary action was the result of providing a legally protected health care activity. SB 345 is currently pending in the Senate Public Safety Committee.

AB 571 (Petrie-Norris, 2023) prohibits an insurer from refusing to issue or renew or terminate professional liability insurance for health care providers and from imposing a surcharge or increasing the premium or deductible solely based on any prohibited bases for discrimination, including a health care provider offering or performing abortion, and prohibits an insurer from denying coverage for liability for damages arising from offering, performing, or rendering specified health care services. AB 571 is currently pending in the Assembly Committee on Insurance.

Prior Legislation:

SCA 10 (Atkins and Rendon, Ch. 87, Stats. 2022) expressly provided that the state shall not deny or interfere 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, and states the measure is intended to further the right to privacy and the right to not be denied equal protection, as guaranteed by the California Constitution and that it does not narrow or limit the right to privacy or equal protection.

SB 107 (Wiener, 2023), among other things, prohibits a clerk of a superior court in the county in which discovery in a foreign action is sought, or an attorney licensed in this state and retained by a party in a foreign action, from issuing a subpoena for discovery in this state based on a foreign subpoena if the foreign subpoena is based on an anti-gender-affirming care action.

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, authorized a party aggrieved by a violation of the Reproductive Privacy Act to bring a civil action against an offending state actor, as specified, and 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.

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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. Rachel Benson Gold, Lessons from Before Roe: Will Past be Prologue, Guttmacher Institute (Mar. 1, 2003), available at https://www.guttmacher.org/gpr/2003/03/lessons-roe-will-past-be-prologue. ↑

4. Elizabeth Nash and Isabel Guarnieri, Six Months Post-Roe, 24 US States Have Banned Abortion or Are Likely to Do So: A Roundup, Guttmacher Institute (Jan. 10, 2023), available at https://www.guttmacher.org/2023/01/six-months-post-roe-24-us-states-have-banned-abortion-or-are-likely-do-so-roundup. ↑

5. Sharon Bernstein, Factbox: US. abortion restrictions mount after overturn of Roe v. Wade, Reuters, (Oct. 4, 2022), available at https://www.reuters.com/business/healthcare-pharmaceuticals/us-abortion-restrictions-mount-after-overturn-roe-v-wade-2022-10-04/#:~:text=ACTIVE%20BANS,an%20abortion%20rights%20research%20group. ↑

6. Katie Shepherd, Rachel Roubein, and Caroline Kitchner, 1 in 3 American women have already lost abortion access. More restrictive laws are coming, The Washington Post, (Aug. 22, 2022). ↑

7. April Dembosky, As states ban abortion, Californians open their arms and wallets, NPR (June 27, 2022), available at https://www.npr.org/sections/health-shots/2022/06/27/1103479722/as-states-ban-abortion-californians-open-their-arms-and-wallets. ↑

8. Dana Branham and Chris Casteel, Another anti-abortion law goes into effect in Oklahoma. Here’s what’s changing, The Oklahoman (Aud, 26, 2022), available at https://www.oklahoman.com/story/news/2022/08/26/oklahoma-senate-bill-612-another-anti-abortion-law-goes-into-effect/65419612007/. ↑

9. Alison Durkee, Idaho Enacts Law Copying Texas’ Abortion Ban – And These States Might Be Next, Forbes (Mar. 23, 2022) available at https://www.forbes.com/sites/alisondurkee/2022/03/23/idaho-enacts-law-copying-texas-abortion-ban---and-these-states-might-be-next/?sh=340dc49425c0 ↑

10. 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. ↑

11. 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. ↑

12. Recommendations to Protect, Strengthen, and Expand Abortion Care in California, California Future of Abortion Council (Dec. 2021), available at https://www.cafabcouncil.org/_files/ugd/ddc900_0beac0c75cb54445a230168863566b55.pdf. ↑

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

14. December 2022 Addendum, California Future of Abortion Council (Dec. 2022), available at https://www.cafabcouncil.org/_files/ugd/ddc900_cb34dfb0c1154013a43642b9a95adfd6.pdf?index=true. ↑

15. 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). ↑

16. See Al. Code, § 26-26-4. ↑

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

18. 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. ↑

19. For a detailed analysis of the bill that enacted this section of law (Health & Saf. Code § 123467.5) refer to the Sen. Jud. Com. analysis for AB 1666 (2021-22 Reg. Sess.) as amended May 5, 2022. ↑