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State legislation protects abortion rights

By Wendy McElroy
web posted October 14, 2002

California has been passing a series of bills that the media has been calling "landmarks" in the protection of "women's rights."

The measures constitute the most aggressive attempt in recent memory to entrench "reproductive rights" -- that is, abortion -- into society by force of law. They also constitute an interesting challenge to federal authority. California seems to be purposefully careening toward confrontation with the federal government on the issue of abortion. What are the bills?

Assembly Bill 2194 (signed Sept. 5) requires all accredited residency programs in obstetrics and gynecology to provide abortion training, making California the first state to mandate such a qualification.

Those arguing for the bill pointed to a nationwide shortage of doctors who perform the procedure: for example, over one third of the counties in California have no abortion provider. Moreover, the number of abortion providers in California fell from 554 to 492 between 1992 and 1996, an 11 percent loss. Thus, abortion training has been mandated even in private hospitals.

The ultimate impact of Bill 2194 is not clear. The law still allows institutions with "moral or religious objections" to refuse to provide the training as long as they "ensure" that their residents can receive it elsewhere. That is, they must provide it indirectly.

Doctors, nurses and medical students can also file as "conscientious objectors" and be excused. Nevertheless, medical institutions may view such individuals as poor candidates for residency or employment as they do not shoulder "their share" of the "work load."

There is also the tricky matter of federal law that extends conscientious objection protection to institutions declining to perform abortions or to offer training. Moreover, and perhaps partially in response to the California measure, the House just passed The Abortion Non-Discrimination Act (HR 4691) to ensure the right of institutions and individuals not to participate in abortion in any manner. Thus, California risks losing federal funds by requiring hospitals to provide abortion training, even indirectly.

Senate Bill 1301 (signed Sept. 5). This bill, also called the Reproductive Privacy Act, "protects reproductive choice" in California even if the U.S. Supreme Court overturns Roe versus Wade -- the 1973 decision that "legalized" abortion. According to the bill's sponsor, Sen. Sheila Kuehl, D-Santa Monica, "We have an anti-choice president, an anti-choice Congress, and a Supreme Court that's one vote away from overturning Roe v. Wade. In other words, California is the first state to shield abortion against future federal policy and court decisions."

Other aspects of SB 1301 are significant. Former state law prohibited abortions "after the 20th week of pregnancy." The new wording: "[t]he state may not deny or interfere with a woman's right to choose or obtain an abortion prior to viability of the fetus, or when the abortion is necessary to preserve the life or health of the woman." Thus, SB 1301 could become the model of a bill that explicitly "legalizes" abortion rather than prohibits its banning.

The bill revises another aspect of former state law. Formerly, abortions could be performed only by "a holder of the physician's and surgeon's certificate." Now nurses and other non-physician health workers are allowed to dispense mifepristone -- the "abortion pill" RU 486 -- to women who request medical abortions. A follow-up bill, SB 993 (signed Sept. 20), extends this right to "solo practitioners" -- for example, nurse-midwives who practice on their own.

AB 1860 (signed Sept. 5) requires that "female victims of sexual assault be provided information and services pertaining to emergency contraception." In other words, hospitals must discuss abortion options with victims of rape and offer them the equivalent of mifepristrone, called "the abortion pill." California does not set a precedent with this requirement -- Washington State has a similar law -- but it does place the state on a collision course with federal protections for "conscientious objectors."

AB 797 (signed Sept. 5). Also called The Confidentiality for Reproductive Health Workers and Patients Bill, this measure allows the workers and patients at abortion clinics to use the Safe At Home program. This state program was originally designed to prevent the home addresses of domestic violence and stalking victims from being publicized.

AB 797 is specifically intended to discourage sites such as "Nuremberg Files," which posted the home address and other information about clinic staff and patients. It is not clear why the bill was necessary, however, since a federal appeals court ruled recently that posting the addresses constituted a "true threat" and the site was reportedly altered to conform to the court's ruling. Perhaps the purpose of the state law will be revealed in its application.

Collectively, these four bills constitute an attempt by the state of California to grab control of the abortion debate. They also present a direct challenge to federal authority -- a challenge that is bound to be taken up by activists on both sides of the issue. The abortion debate is already the most bitter and divisive single issue in North American politics. The conflict is about to be ratcheted up a notch or two.

Wendy McElroy is the editor of ifeminists.com and a research fellow for The Independent Institute in Oakland, Calif. She is the author and editor of many books and articles, including the new book, Liberty for Women: Freedom and Feminism in the 21st Century (Ivan R. Dee/Independent Institute, 2002). She lives with her husband in Canada.

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