Abortions are procedures that induce the termination of pregnancies. For many years, the issue of a woman's right to abortion has been controversial in this country. As is the case with many social issues, California has been on the forefront of legalizing abortion and making it available to women. Although a woman's right to an abortion was not established on a national basis until the U.S. Supreme Court decision of Roe v. Wade in 1973, California recognized that right in the 1960s.
California Abortion Laws
California abortion laws are among the most liberal in the nation, giving every woman the right to decide for herself, with only minor restrictions, whether or not to carry a pregnancy to term. State laws not only make low-cost abortion available, they also require Medi-Cal to pay for abortions for low-income women. To make abortion procedures available to more women at a lower cost, the state also authorizes trained persons other than medical doctors to perform abortions, like nurse midwives.
But abortion laws are not set in stone, written once then never amended. The statutes of California abortion laws in 2018 are the result of both court decisions and, to some extent, shifting politics with the state. That's why, in order to understand California abortion laws, it's important to get a historical overview.
History of Abortion Laws in California
Women throughout the ages have found a way to terminate unwanted pregnancies, but many early abortions were performed in the shadows by people who may not have been trained in proper medical procedures. Many women died while trying to obtain abortions before the procedure was legalized and safe abortions became available. In fact, in the mid-20th century, illegal abortions were the leading cause of women's death, disability and infertility. Even in California, abortions were illegal for many years under Penal Code 274 unless the mother's life was at stake. As late as 1961, the county hospital in 1961 admitted more than 3,500 women who needed medical help after getting illegal abortions.
When was abortion legalized in California? In 1967, California became the first state in the United States to formally legalize abortion. The state passed the Therapeutic Abortion Act in that year, signed into law by newly elected Governor Ronald Reagan.
While the Therapeutic Abortion Act relaxed the restrictions on abortions, the law still criminalized many abortion options, and women were not allowed to get abortions on their own terms. The law legalized abortion only in the case of rape or if a hospital committee found that the pregnancy would hurt a woman's physical or mental health. But the next few years changed the law dramatically.
The next step in the history of California abortion law was not taken by politicians, but by the California Supreme Court. In 1969, the California Supreme Court held, in People v. Belous, that every woman has a “fundamental right” to make her own decisions about whether to have a child and how to protect her own reproductive health. And a few years later, the Court's decisions struck down the hospital-permission requirement for abortions. In fact, by the 1970s, the only significant abortion restriction in California law required that abortions be performed in hospitals. Then, in 1973, Roe v. Wade was decided by the United States Supreme Court.
Roe v. Wade
Most people have heard of Roe v. Wade, but few remember the case facts. It was the project of two young attorneys who had recently graduated from the University of Texas Law School, Linda Coffee and Sarah Weddington. They brought a case on behalf of Dallas resident Norma McCorvey, called "Jane Roe" in the case to protect her confidentiality. The lawsuit challenged a Texas law criminalizing most abortions. The attorneys claimed that it violated Roe's constitutional rights, as the Texas law banned all abortions except those necessary to save the life of the mother. Henry Wade, Dallas County District Attorney, was the person they sued.
Roe v. Wade was the case that changed not just California abortion law but also national laws about abortion. In that case, the high Court ruled that Texas's law banning abortions except to save the life of the mother violated a woman's constitutional rights. The Court ruled that the Constitution prohibited states from regulating any aspect of an abortion that is performed during the first trimester of pregnancy. It also discussed second and third-trimester abortions, saying that states could only enact abortion regulations reasonably related to maternal health. Only during the third trimester are states permitted to enact abortion laws protecting the life of the fetus, and only if the mother's life is not at stake.
Roe v. Wade was a very controversial decision, politically dividing the country and continuing to divide it. But it reflected the spirit of California's abortion laws. Since then, California has continued to expand abortion protections in the state. In 2002, it enacted the Reproductive Privacy Act. In it, the legislature declared that every woman possesses a fundamental right of privacy with respect to personal reproductive decisions, the right to choose or refuse birth control, and the right to choose to bear a child or to choose to obtain an abortion.
Recent California Abortion Law Rulings
In 1981, the California Supreme Court looked at whether Medi-Cal's ban on abortion funding violated the constitutional rights of low-income women. In that case, Committee to Defend Reproductive Rights v. Myers, the Court held that it was unconstitutional, creating an improper obstacle to allowing low-income women to exercise their constitutional rights. And in American Academy of Pediatrics v. Lungren, the court ruled in 1997 that a minor had a right to privacy and that her parents did not have a right to be informed about their minor daughter's abortion.
In 2013, California passed a law allowing nurses, physicians and certified midwives to perform abortions. California abortion law in 2018 contains only a few limitations on when, where and how a woman can get an abortion.
Abortion Law Restrictions
Today, many states still have severe restrictions on abortions despite Roe v. Wade and subsequent decisions of the United State Supreme Court reaffirming that right. The Court ruled that a state cannot ban an abortion before the fetus is viable (meaning it can survive outside the uterus). It held in 1992 in Planned Parenthood v. Casey that any abortion restrictions before fetus viability cannot create an undue burden on a woman seeking an abortion. This undue burden standard was reaffirmed in 2016 in Whole Woman's Health v. Hellerstedt. In that case, the Court ruled that a lower court must consider scientific evidence when it is determining the constitutionality of abortion restrictions.
What types of abortion restrictions have been enacted at a state level? Perhaps the most common restriction among states is a requirement that parents be told when their minor daughter wants an abortion or that they need to give consent. Another restriction in many states is refusal to fund abortions for low-income women. Some states require "counseling" before an abortion, usually intended to talk her out of the procedure, along with a required waiting period and restrictions on abortion facilities.
Between 2010 and 2016, over 300 states enacted new abortion restrictions. In fact, these account for almost a third of all of new state restrictions since Roe v. Wade.
California Abortion Law Restrictions
California abortion law does not have many major abortion restrictions. In California, you cannot get an abortion for a viable fetus unless the mother's health is at risk if the pregnancy proceeds. This is language taken from the U.S. Supreme Court cases like Roe v. Wade and those that followed it.
Another restriction is that it is illegal to get an abortion performed by an unqualified professional. As noted above, many types of professional medical providers are authorized to perform abortions in California, and there are many clinics that offer abortions. In California, anyone who performs unauthorized abortions can face some significant criminal consequences.
Finally, under the statutory law in California, minors do not have unrestricted rights to abortion. Section 6925 of the Family Code provides that "a minor may consent to medical care related to the prevention or treatment of pregnancy." But it specifies that the section does not authorize a minor to get an abortion without the consent of a parent or guardian "other than as provided in Section 123450 of the Health and Safety Code."
That statute provides that a minor still under her parents' authority must get the permission of a parent or guardian to get an abortion, although she can seek court permission. No consent is required, however, in a medical emergency requiring immediate medical action. This law was, however, found unconstitutional by the California Supreme Court and cannot be enforced.
Penalties for Illegal Abortions
All this means that, abortions are illegal in California only in very few instances. To recap, abortions are illegal if they are performed on an unemancipated minor under certain circumstances, when the fetus is viable in certain circumstances, and/or by someone not authorized to perform an abortion. Of course, they are also illegal if performed without the woman's consent.
So, what are the penalties for illegal abortions in California? Note that penalties for illegal abortions in California fall on the head of the person performing the abortion. The only penalty specified in the codes is for an abortion involving an unemancipated minor. This is considered a misdemeanor, and can be punished by 30 days in jail and a $1,000 fine. However, as noted above, the law has been found unconstitutional and cannot be applied.
Supreme Court and Abortion Restrictions
It is interesting to compare the abortion law in various states with the body of U.S. Supreme Court law on abortion restrictions. It is clear that, under the U.S. Supreme Court rulings, many state codes may be unconstitutional if a challenge were brought to them at this point in time. The Court has ruled that a state cannot require a minor seeking an abortion to get the consent of a parent or guardian without providing a workable judicial bypass procedure. Under a bypass, the girl can go to the court for permission without her parents being advised. The Court has also found that all spousal consent requirements for adult women or married women to get an abortion are unconstitutional. The woman can get an abortion without asking or even telling her spouse. Court rulings have also made it clear that a state cannot mandate that a second doctor participate in the abortion to attempt to save an aborted fetus, nor can it require that the person performing the abortion use the technique most likely to allow the fetus to survive the procedure. Nor can a state require that the remains of an aborted fetus be buried in any particular manner.
On the other hand, some restrictions the court had recognized have been cut back in recent years. For example, it is permissible under current Court rulings for a state to force a physician to give a woman information providing alternatives to abortion, sources of financial aid for young mothers, and charts about fetal development. These "informed consent" provisions were unconstitutional before 1992. Likewise, waiting periods were unconstitutional before 1992, but now a 24-hour waiting period has been ruled not an undue burden on a woman's right to abort.
- FindLaw: California Abortion Laws
- Guttmacher Institute: State Facts About Abortion: California
- Bajaj Law Offices: Understanding California Abortion Laws
- Rodriguez Law Offices: Understanding Abortion Laws in California
- Thirteen: Roe v. Wade (1973)
- Legislative Info: Reproductive Privacy Act [123460 - 123468]
- FindLaw: Details on State Abortion Laws