Roe v Wade ruling: California set to become ‘US abortion sanctuary’

“We’ll be a sanctuary,” said Newsom, 54, who convened the state’s Future of Abortion Council in September after Texas introduced its “heartbeat” law to end abortions once a pulse can be detected. “We are looking at ways to support that inevitability and looking at ways to expand our protections.”

The requirement for all states to enable abortion up to the point of foetal viability, generally held to be 23 or 24 weeks, was set in 1992 by the Supreme Court in a modification to the Roe v Wade ruling.

It faces its severest challenge in a generation from two cases before the Supreme Court from Texas and Mississippi which the 6-3 supermajority of conservative justices has signalled may change the benchmark. Texas has been allowed to continue with a law allowing providers to be sued by private individuals for offering abortions beyond six weeks while Mississippi seeks a ban after 15 weeks of pregnancy.

Final court decisions are likely next summer but campaigners in California say that action should be taken immediately to prepare for a change.

Newsom issued a proclamation on reproductive freedom in 2019 containing a guarantee that “the right to choose should not depend on the ability to pay”. Money is not a big issue for state-funded abortion services for patients from other states because California’s coffers have swollen during the pandemic, fuelling a record budget surplus. The state predicts a surplus of about $31 billion next year.

The Future of Abortion Council concluded: “It is imperative that California take the lead, live up to its proclamation as a ‘Reproductive Freedom State’ and be ready to serve anyone who seeks abortion services in the state.”

Toni Atkins, 59, the Democratic leader of the state senate, who ran a women’s reproductive healthcare centre in San Diego in the Nineties before first being elected, said that women had already started coming in higher numbers to California because of the abortion clampdowns in Texas, Mississippi and elsewhere.

“Women are going to access this option: they are either going to find a way to go somewhere that is legal and is safe or they are going to have illegal abortions, which I remember,” she said.

Atkins is one of the prime movers behind the abortion report and expects to see some of its recommendations reflected in Newsom’s budget. They included funding for travel expenses such as petrol, lodging, transportation and child care. It seeks reimbursement of abortion providers for services to those who cannot afford to pay, including those on low incomes who travel to California from other states.

Atkins said that she would raise the idea of creating a network of states with open access to abortion if large parts of the country curtailed the service.

Opponents of abortion in California are preparing to confront a surge of patients from other states.

Jonathan Keller, president of the California Family Council, said that the state has about 160 pregnancy resource centres, which aim to convince women not to get abortions, many located near abortion clinics.

Many plan more staff, he said. “Even if we are not facing any immediate legislative victories, it’s a reminder that the work of changing hearts and minds and also providing real support and resources to women facing unplanned pregnancies, that work will always continue. In many ways, that work is going to be even more important.”

America could soon return to a patchwork of abortion laws with bans varying from state to state, as existed before the landmark Roe v Wade ruling that set a national benchmark in 1973 (David Charter writes).

Challenges to the status quo have been gaining momentum based on moral grounds and the constitutional objection to the Supreme Court taking away power from individual states to set their own laws.

The “states’ rights” argument weighs strongly among conservative justices who rely on the constitution as their North Star: there is no mention of abortion in the document.

They place great store in the tenth amendment of 1791, which declares that “powers not delegated to the United States by the constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people”.

Roe v Wade centred around a woman’s right to privacy derived from the 14th amendment of 1868.

Anti-abortion states have been adding caveats such as a cooling-off period before an abortion and a requirement to hear the heartbeat of the foetus.

But the fundamental question of a ban or curbing the baseline of 23 weeks is entirely in the hands of the nine justices on the Supreme Court because there has been no federal law passed by Congress.

If, as seems possible, the challenge from Mississippi to limit abortion to 15 weeks is upheld, then an array of new laws will be unleashed by anti-abortion states. Some will seek to go further, others may impose different restrictions, in the hope of favourable rulings from the court.

There could be several years of confusing legal battles, requiring women to travel hundreds of miles for services that are available today in every state.

The post-Roe world will be different in at least one key respect: telehealth making abortion pills available by post that can generally be used up to the ninth week of pregnancy.

With others likely to join California in becoming abortion “sanctuaries” state will be set against state until the Supreme Court does Congress’s job in settling a new system.