Julie A. Werner-Simon
"The sky is falling,” have said a few Westside moms in my impromptu neighborhood-coffee-and-walk club.
A handful took to the streets (and some with daughters in tow) earlier this month to protest the impending death of Roe v. Wade, in the advent of the release of the final opinion of U.S. Supreme Court Justice Samuel Alito’s draft opinion in Dobbs (Mississippi State Department of Health) v. Jackson Women’s Health Organization.
In a nutshell, Justice Alito, who refused at his 2006 Senate confirmation hearing to say that Roe v. Wade, (a 1973 Supreme Court case that gave women an unfettered right to abortion in the first trimester) was settled law, stated in the Dobbs draft that there is no right to privacy and no right to abortion in America. His reasoning? Neither word appears in the 1787 constitution. Alito instead claims that the seminal founding document protects and preserves the rights of unborn “potential life,” specifically, “prenatal life at all stages of development.”
Once the opinion (if it hews closely to the Alito draft) issues, America will be at war — with itself. This is hauntingly similar to when President Abraham Lincoln, our 16th president, took office in March 1861 (having been elected that previous November).
Then, America’s states and people in them were asked to take a side: for or against?
Eleven states had made clear – they were against the autonomy of Black Americans. Blacks would remain enslaved. Blacks were property.
The question posed to us in the 21st Century across the nation is this:
Are you for reproductive access and autonomy of half the population or are you against?
The Guttmacher Institute, a national research center on reproduction and access, has predicted that 26 states are poised to ban abortion access, and almost half of those have already passed trigger laws that will instantaneously ban abortion when the Supreme Court opinion issues.
In fact, several states are copying Texas’ S.B. 8 which the U.S. Supreme Court let stand last year.
Texas’ S.B. 8 law, which is currently in effect, bans abortion after a woman misses her first period (and the law goes on at length about the requirement that physicians record details of the woman’s menstrual cycle in the official “medical record.”) It also lets any Texas busybody file a civil lawsuit against the woman (and anyone who helps assist her in securing an abortion) anywhere. Plus, if the lawsuit-filer wins in a Texas courtroom, the Texas court will require the civil defendant (the abortion seeker or helper) to pay $10,000 reward, a “bounty,” to the busybody.
With all this in play, now and before the Alito final opinion issues, it is time for pro-choice Americans to take action with the following three steps:
STEP ONE: PASS LEGISLATION IN CALIFORNIA BARRING OUR COURTS FROM HELPING ENFORCE TEXAS AND OTHER STATES’ BOUNTY HUNTER LAWS
Californians should demand that the state assembly pass legislation which authorizes Californians to facilitate reproductive access to those who can’t access it in anti-choice states. California should do what Connecticut did, three days after the release of the draft Alito opinion.
Connecticut’s legislation (passed as the antidote to Texas’ S.B. 8’s private lawsuit, bounty hunter law) protects those who provide or facilitate reproductive services in Connecticut or who provide funding to others from anti-choice states to obtain abortions in Connecticut and are then sued extraterritorially in anti-choice states.
The Connecticut legislation enables an access facilitator who has had a civil judgment entered in an anti-choice state for conduct legal in Connecticut (specifically, receiving, providing or helping a person obtain legal abortion services in Connecticut) — to sue, in Connecticut, for damages against the access infringer.
The Connecticut legislation also blocks Connecticut state officials (to include prosecutors) from assisting in interstate anti-access investigations or prosecutions. It also bars Connecticut’s judicial branch employees from issuing or honoring subpoenas related to access legal in Connecticut, and bars Connecticut’s governor from helping enforce another state’s extradition application for matters involving reproductive matters legal in Connecticut but illegal in the state requesting extradition.
Governor Newsom on May 11, 2022, announced his proposal for the passage of a “Reproductive Health Package to Strengthen Protections, Expand Access, and Welcome Businesses from Anti-Abortion States,” but California has not directly taken on Texas’ S.B. 8, and has not passed anything remotely close to what Connecticut has.
It’s time for California to act. There’s no reason that our vast “Golden State” abutting the Pacific Ocean, and home to almost 40 million inhabitants, should trail the tiny “Constitution State” of just 3.5 million on the Atlantic. Contact your state representatives and Governor Newsom’s office, pronto.
STEP TWO: SUPPORT THE PASSAGE OF A CALIFORNIA CONSTITUTIONAL AMENDMENT TO ENSHRINE ABORTION, BIRTH CONTROL, AND IVF IN THE CALIFORNIA CONSTITUTION
The breadcrumbs from the Alito opinion are clear. Since he has decided there is no privacy right in the U.S. Constitution, other reproductive “privacy” rights are not there either like birth control, and in vitro fertilization (IVF). They are at risk too.
While California does have the word privacy right in its state constitution - it is not defined there. The word is specifically mentioned in a provision added, in 1972, through a California voter initiative. Cal. Const. Art. I, section 1, provides that “All people are by nature free and independent and have inalienable rights. Among these are enjoying and defending life and liberty, acquiring, possessing and protecting property, and pursuing and obtaining safety, happiness and privacy.”
The meaning and breadth of California’s privacy right has been litigated in California courts and California is one of several states where state courts have interpreted privacy broadly.
That said, the ascension of federal judges who scour our country’s founding documents for Sherlockian “ah hah” moments to deny women reproductive access (many of the same jurists being those who interpret the Second Amendment’s 18th century phraseology to mean AK-47s), necessitates that state constitutions need to be more specific.
These days state constitutions are a better recourse to protect reproductive access, independently and more vigorously, than the U.S. Constitution. The precise words need to be in state constitutions above the reproductive Mason Dixon line to serve as a firewall to the no-choice states.
On May 2, 2022, within hours of the publication of the Alito draft opinion in Dobbs, Governor Newsom, Senate President Toni G. Atkins (D-San Diego), and Assembly Speaker Anthony Rendon (D-Lakewood), announced that they would support such an amendment.
Governor Newsom announced that “California will not stand idly by as women across America are stripped of their rights and the progress so many have fought for gets erased.”
It’s been weeks and that’s too long. Contact your state representatives and Governor Newsom’s office, without delay.
STEP THREE: GAS UP AND TRANSPORT WOMEN TO AND FROM NO-CHOICE STATES
What else? Step Three. Harness your inner Harriet Tubman and become part of the Overground Reproductive Railroad by giving money or time to transport women seeking access across state lines.
Know that our forebearers, like Tubman, who sought to protect the liberty interests of Black Americans in states that had seceded in Lincoln’s time — faced greater risks. So did those who boarded buses in the North during the Freedom Summer of 1963 to register voters denied the franchise in the South. The peril they faced far exceeds Texas’ S.B. 8 enforcement of civil litigation and bounty hunter $10,000 fines against access helpers. In the 1960s, voter registration activists like Freedom Summer’s field orchestrator Fannie Lou Hammer, were beaten by Southern law enforcement “until their eyes were fused shut,” and others to include Andrew Goodman, James Chaney, and Michael Schwerner, ages 20, 21 and 24, respectively, were murdered in Mississippi for their efforts. Speaking out and taking action for the common good in America has practically always posed risks.
Tubman lived until 1913, over a decade into the twentieth century. She was alive at a time when the Civil War narrative was being rewritten and the very success of Reconstruction (that enabled some 2000 African Americans to hold office in America and even more to participate in the political process) — was recast as failure. The myth that slavery was a benign institution and that slave masters had actually enhanced the lives of their slave-commodities took hold.
Tubman would have none of this and never had. Her words from the 1850s took a torch to the egregiously false and pernicious Southern lie that slavery was good for slave. Tubman stated, “I have seen hundreds of escaped slaves, but I never saw one who was willing to go back and be a slave.”
Now is not the time to go back. Get busy and we can share the cost of the gas.
Julie A. Werner-Simon is a former federal prosecutor, former constitutional law fellow, and currently serves as a law professor (adjunct) at University of Southern California’s Gould School of Law, Drexel University’s Kline School of Law, and is also a legal analyst at Drexel’s LeBow School of Business
