California and Abortion Returning to the States

December 12, 2021 Updated: December 12, 2021

Commentary

The most contentious issue by far in America the past five decades has been abortion. That’s because the U.S. Supreme Court, in its 1973 Roe v. Wade decision, not only made it a new “right,” but took almost all powers to regulate it away from the states. That produced subsequent decisions, contradictory and complicated, further nationalizing the issue.

It was the late liberal court icon Ruth Bader Ginsberg who explained the problem before she joined the court in 1993. In a 1992 speech, she said, “Suppose the Court had stopped there, rightly declaring unconstitutional the most extreme brand of law in the nation, and had not gone on, as the Court did in Roe, to fashion a regime blanketing the subject, a set of rules that displaced virtually every state law then in force. Would there have been the 20-year [now almost 50-year] controversy we have witnessed? A less encompassing Roe … might have served to reduce rather than to fuel controversy.”

The fact is the United States was designed to operate as a federal system, with the 50 states each operating under local democratic control. There was no Soviet-style centralized regime imposed from above.

The Supreme Court currently is considering a case that might return abortion to the states, following RBG’s advice to “reduce rather than to fuel controversy.” From Mississippi, it is Dobbs v. Jackson Women’s Health Organization, No. 19-1392.

Legally in California, there would be no change, because in 2002 the legislature passed Senate Bill 1301, which effectively codified Roe as state law, regardless of what happened at the federal level.

I remember the discussion at the time, and it was anticipated President Bush would appoint enough conservative justices to the court that it would overturn Roe. Hence AB 1301. He did appoint Justice Samuel Alito, who is pro-life, and Chief Justice John Roberts, who seems to be on the fence. But then President Obama appointed two pro-choice justices, Sonia Sotomayor and Elena Kagan, and the issue was not taken up.

President Trump changed the situation by appointing three likely pro-life justices: Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett. But one always must be careful in predicting court actions, which can turn in unexpected directions, as Roe itself did.

Several articles in recent days reported on how California would respond, including in the New York Times, AP, and the San Francisco Chronicle. The latter wrote, “The newly created California Future of Abortion Council—a group of 40 organizations including Planned Parenthood, Black Women for Wellness Action Project and the ACLU—released a list of 45 recommendations to prepare for a seismic shift in abortion access, from a package of potential new legislation to funding for out-of-state people traveling west for help to a call to train more health providers to perform the procedure.”

Given how easy it is to cross state lines in modern America, the number of abortions in the country, currently around 1 million a year, might not change much. But there will be further consequences, especially for California.

First, the decision if it happens would further advance the ongoing return to federalism we see in such things as dealing with COVID-19, education policy, and the minimum wage. America is a very diverse country of 330 million people, and expecting every state to behave exactly the same way always was an impossible goal.

Second, if the highly contentious abortion issue does go back to the states, then future battles over abortion also will return to the states. Currently, most states simply go along with Roe, except in cases originating in more conservative states such as Mississippi and Texas. But if the states again have wide leeway, then abortion could become a divisive issue again even in California.

The divide might be along lines people may not realize. In California, Latino residents, now the largest ethnic group at 39 percent in the 2020 Census, generally are more conservative than white and Asian residents on social issues, despite a majority still voting Democratic. It’s a similar situation with black residents, now 6 percent of the population. In the 2008 initiative banning same-sex marriage (since overturned by the U.S. Supreme Court), white and Asian residents were opposed, but a majority of black and Latino residents put it over the top.

Will Latino and black pro-lifers push the Democratic Party in a different direction, or maybe join Republicans? How will the Democratic leadership respond?

There are already indications Latino and black residents are moving, albeit slightly, in the Republican direction due to the far-left march of the Democrats. Will that continue if Roe is gone?

Republicans, too, could be affected. In California, in recent years the issue has gone into the background. Governors Pete Wilson and Arnold Schwarzenegger were pro-choice, as were candidates Meg Whitman and Neil Kashkari. But John Cox and Larry Elder are pro-life, and both could be running again for the spot next year. For the first time in decades, being pro-life could be a litmus-test issue for the CA GOP.

Third, we should expect ballot initiatives regulating abortion to be put up every election cycle. If justices on the California Supreme Court overturn such initiatives, they could expect recall efforts against them.

If the court finally gets rid of Roe because of the defects RGB detected, California politics will get a lot more interesting.

Views expressed in this article are the opinions of the author and do not necessarily reflect the views of The Epoch Times.

John Seiler
John Seiler is a veteran California opinion writer. He has written editorials for The Orange County Register for almost 30 years. He is a U.S. Army veteran and former press secretary for California state Sen. John Moorlach. He blogs at JohnSeiler.Substack.com