Abortion Rights in California, Explained: State Has Led the Way in Establishing Woman’s Right to Choose

After a hearing before the United States Supreme Court on Dec. 1, 2021, the 48-year-old right to obtain an abortion in the United States looked like it would soon be eliminated.

The high court established the right to an abortion during the first two trimesters of pregnancy in its momentous 1973 decision in the case Roe v. Wade. But at the hearing in the case Dobbs v. Jackson Women’s Health Organization, at least five and possibly six of the nine justices appeared not only ready but downright eager to trash the Roe decision and with it the second landmark case affirming the right to abortion, the 1992 SCOTUS decision in Planned Parenthood v. Casey.

On Dec. 10, SCOTUS handed down another setback to supporters of the Roe v. Wade decision. In a 5-4 decision, the court allowed a Texas anti-abortion statute to remain in effect. The Texas legislation allows any person to file a $10,000 lawsuit against any other person who performs an abortion or “aids or abets” in one. By going the private lawsuit route, rather than creating a state ban on abortion, the Texas law, now given the green light by SCOTUS, effectively negates Roe v. Wade without the benefit of a court ruling on its constitutionality. The Texas law was decsribed by The Washington Post as the “nation’s most restrictive” anti-abortion law.

California, on the other hand, remains one of the best states when it comes to upholding the right to abortion established under Roe. The state is one of only five with no legal restrictions on abortion other than the “viability” of the fetus, that is, the ability of the fetus to survive outside of the womb. That point is generally considered to be the 24th or 23rd week of pregnancy, a period that roughly corresponds to the Roe decision’s “second trimester” standard.

Under California law, abortions may still be performed after the point of viability, but only when in a doctor’s opinion, offered in good faith, carrying the pregnancy further would pose a danger to the mother’s life or health.

Of 250 abortion-related laws in 45 states from 2017 through 2020, just short of 89 percent restricted abortion access, while the remainder were designed to expand the right to abortion.

California was one of only five states that did not pass any new laws affecting abortion rights since 2017.

California Was a Leader in Abortion Rights Before Roe

Gov. Gavin Newsom said shortly after the Supreme Court hearing that California would not only continue to protect the right to choose, but would serve as a "sanctuary" for women seeking abortion services in the event that Roe v. Wade was overturned, welcoming women from other states where abortion becomes unavailable. But California has long been ahead of much of the country when it comes to legalizing abortion. The state’s Therapeutic Abortion Act was signed into law by conservative Republican Gov. Ronald Reagan on June 15, 1967, five-and-a-half years before the U.S. Supreme Court handed down its historic Roe ruling.

At the time, the law was perhaps the most liberal abortion law in the country. Previously, the state law had made providing or even “procuring” abortion for a woman a crime punishable by two to five years in prison, except in cases when an abortion was “neccessary for preserving her life,” a law similar to the type of anti-abortion legislation that had existed in most states at least since the 1890s. The California abortion ban dated back to 1850.

Reagan had his doubts about the bill, though he said at the time that abortion—which he came to vociferously oppose after he became president 14 years later—was “a subject I’d never given much thought to.” He later said that he did “more studying and soul searching” on the issue before signing the bill than on anything else he dealt with in his eight years as California’s governor.

But Reagan also said that he wished he had not signed the bill, when he saw the number of legal “therapeutic” abortions in California jump. In 1967, there were 518 performed. But there were 5,030 the following year—and 15,339 in 1969. By 1972, the year before the Roe decision, legal abortions in the state topped 106,000.

State High Court Overturns Abortion Ban in 1969

Regardless of Reagan’s remorse, California continued to expand access to abortion, next through the state’s court system. In 1969, four years before the Roe v. Wade, decision, the California Supreme Court handed down a ruling in the case People v. Belous that declared the state’s entire abortion ban “invalid.”

Leon Belous was a physician and member of the National Organization for Women who was convicted in 1967 of abortion and conspiracy to commit abortion, for referring a woman, referred to in the case as “Cheryl,” to a doctor named Karl Lairtus—who was practicing without a license in the U.S., though he was licensed in Mexico—when she came to him for an abortion. Belous was an outspoken supporter of more liberal abortion laws, calling abortion bans an example of “man’s inhumanity to women.” Cheryl and her husband, “Clifton,” saw him speaking on television.

Belous told them he couldn’t perform the abortion himself. But the young couple convinced him that they would do anything, including inflicting potential harm on Cheryl, to terminate her pregnancy—which they felt strongly they were unprepared to handle. Belous then referred them to Lairtus, who safely performed the abortion. While Cheryl was resting after the procedure, however, police acting on a tip raided Lairtus’s office (which was actually his apartment). They arrested the doctor—and Belous also, after finding his name in a notebook as a referring physician.

Belous appealed his conviction up to California’s Supreme Court, where Judge Raymond Peters, writing for the majority in a narrow 4-3 decision, ruled that the state’s abortion ban was unconstitutional due to its “vague” language about abortion being permissible only when “necessary” to “preserve” the life of the mother. Because those terms lacked clear definitions, the majority ruled, Belous was denied his due process rights.

But Peters’ ruling went further. The then-69-year-old judge, who had held his seat on the court since being appointed by Gov. Edmund “Pat” Brown in 1959, also ruled that California’s law infringed on a pregnant woman’s constitutional “rights to life and to choose whether to bear children.”

The woman’s “right to life” derived from the fact that any time she gives birth she risks dying, Peters wrote. But where does the U.S. Constitution give a woman the right to choose whether to bear children? That right comes from an earlier U.S. Supreme Court case, Peters wrote—Griswold v. Connecticut.

A Constitutional Right to Privacy

For most Americans, it’s probably taken for granted that a married couple would have a right to privacy within their own marriage, and the intimate acts marriage entails. But this “right” is not guaranteed, or even mentioned, anywhere in the Constitution. Griswold v. Connecticut, a Supreme Court case decided in 1965, marked the first time that the right to privacy was found to be protected.

Griswold established a couple’s right to use birth control, which had been outlawed in Connecticut since 1879. The right to contraception, the court ruled, is based on the Constitutional right to privacy, preventing the state from poking its fingers into the marital bedroom. But where does this right to privacy come from?

Seven justices found that the Constitution does, indeed, contain a right to privacy even though neither the word nor the concept is mentioned in there. The 14th Amendment in particular, stating that “no state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law,” contains the privacy right, the justices found.

That right to privacy, according to the court, prevented the state from effectively prohibiting married couples from engaging in sexual relations for purposes other than having kids, as the ban on contraception was intended to do.

The privacy right established in Griswold led directly to the landmark Roe v. Wade decision eight years later. In Roe, another 7-2 decision, the Supreme Court ruled that the right to privacy was “broad” and extended far beyond married couples and their personal sex lives. Any woman who becomes pregnant has the right to be free of government interference in her decision whether to carry that pregnancy to term or not, at least until the fetus becomes “viable,” Justice Harry Blackmun wrote, in the majority opinion. The court also found that the word “person” in the 14th Amendment does not include unborn fetuses.

Abortion Rights in California Today

Though six conservative justices at the Dec. 1 SCOTUS hearing appeared ready to toss out the Roe v. Wade decision, at least partially, they did not make clear on what basis they would do so. That would have to wait for the court’s written opinion, expected in June of 2022. Justice Amy Coney Barrett, however, seemed to imply that Roe could somehow be overturned without invalidating the right to privacy found in Griswold. How that would be possible, Barrett did not make clear.

Abolishing the privacy right articulated in the Griswold decision would also appear to jeopardize California's own landmark case, People v. Belous. If that decision were negated—what then for California?

Though the state laws do more to protect abortion rights than at least 45 other states, there are significant logistical obstacles to obtaining a safe, legal abortion throughout the state. As of 2017, the year with the latest figures available via the Guttmacher Institute, a top sexual and reproductive health research organization, California had 419 facilties providing legal abortion. That was more than one of every four abortion facilities in the United States.

At the same time, 40 percent of California’s counties had no abortion facilities, meaning that 3 percent of women living in the state—almost 600,000 women—had no access to abortion in the counties where they live. The situation is better than throughout the U.S. however, where 89 percent of counties have no abortion facilities.

To make matters worse, low-income women who rely on the state’s Medi-Cal insurance program are often forced to travel more than 100 miles to find an abortion provider who will accept the public insurance program, due to its lower reimbursement rates. According to a Los Angeles Times report, women in Mono County—on the eastern-central edge of the state—must travel a median distance of 311 miles to reach an abortion provider.

California law requires insurance companies to cover abortion services, but required out-of-pocket deductibles and co-payments can also present financial barriers to obtaining abortions.

Nonetheless, Newsom has pledged that regardless of whether the Supreme Court overturns Roe v. Wade or not, California will continue to protect the right to legal abortion.

“In California, we will ensure that women continue to have access to critical health care services, including abortion, and California will continue to lead the nation in expanding access to reproductive and sexual health care,” Newsom said in a September 2021 statement. “And I will continue to appoint judges and justices who will faithfully follow the Constitution and precedent to uphold people’s rights.”