(KRON) — Since the Supreme Court overturned a constitutional right to abortion in Dobbs v. Jackson Women’s Health Organization in late June, California politicians have repeatedly reaffirmed that the state will continue to protect and expand abortion access in the state.
But, like in many states, abortion has not always been legal in California.
Justice Samuel Alito’s majority opinion in Dobbs references state laws banning or limiting abortion that were in place around the time the Fourteenth Amendment — which protects the right to privacy that Roe v. Wade was based on — was enacted. The decision lists 37 state laws and 14 laws from territories that would become states criminalizing abortion — including an 1850 law from California.
“The inescapable conclusion is that a right to abortion is not deeply rooted in the Nation’s history and traditions,” Alito wrote in the decision. “On the contrary, an unbroken tradition of prohibiting abortion on pain of criminal punishment persisted from the earliest days of the common law until 1973.”
Early America and 19th century regulations
Before the 19th century, abortion regulation was largely based on English common law, and women in most states were permitted to abort a pregnancy before “quickening,” which is when a pregnant person begins to feel the movement of a fetus. Generally quickening occurs around the fourth month of pregnancy.
In the decades leading up to the Civil War, a movement emerged that pushed to criminalize abortion at all stages. The American Medical Association, which was founded in 1847, made outlawing abortion one of its top priorities. By 1880, all states regulated abortion in some way, and many allowed exceptions only to save the life of the mother.
The 1850 California law punished anyone who “administered or caused to be administered” a substance or instrument causing an abortion with imprisonment of two to five years. The law provided an exception only when the abortion was performed by a physician to save the life of the mother. Historically, this type of abortion has been called a “therapeutic abortion.”
The 1850 law remained the authority on abortion for more than a century in California. The legal “therapeutic abortions” were approved by therapeutic abortion committees at hospitals.
Changing laws of the 20th century
People v. Ballard, a 1959 California Court of Appeals case, established that the threat to the pregnant person’s life does not have to be imminent for a doctor to exercise judgement in providing an abortion. The court ruled in favor of a doctor who had administered abortions on the grounds that his diagnoses that these procedures were medically necessary were correct.
The first bill that would loosen abortion laws in California was introduced by Representative Jared Knox in 1961, but it died in committee.
The push for loosened abortion laws in California strenthened immensely following the incident of the “San Francisco Nine.” In 1966, nine doctors were threatened with the loss of their licenses by the State Board of Medical Examiners for performing abortions for women who had rubella early in their pregnancy, which is a disease that can cause severe birth defects.
The national medical community responded to this threat with outrage, and two lawyers submitted an amicus brief in the court case that was signed by more than 200 medical school leaders from across the U.S. The doctors were ultimately pardoned.
Because of this case, California passed the 1967 Therapeutic Abortion Act, which expands legal abortions to include those performed because pregnancy would “gravely impair the physical or mental health” of the mother, in cases of rape or incest or in cases of statutory rape of those under the age of 15. The law was similar to those that had been recently passed in Colorado and North Carolina but outlawed abortions after 20 weeks.
Unlike in these two states, mental health in California was defined as “mental illness to the extent that the woman is dangerous to herself or to the person or property of others or is in need of supervision or restraint.” This definition was added “to gain legislative support” for the bill when lawmakers feared mental health would be used as a catch-all excuse for abortion.
The Theraputic Abortion Act was “reluctantly” signed into law in June 1967 by Republican Gov. Ronald Reagan, who negotiated for the removal of a part of the law that would allow abortion in cases where the baby has a strong chance of being born with birth defects.
“The taking of the unborn life simply on the supposition that it might be a less than perfect human being,” Regan said in a May 1967 press conference about the bill. “I don’t see any difference between that and what Hitler tried to do.”
Despite the legalization of abortion in California in 1967, and the broadening of abortion access in 1973 following Roe v. Wade, the state has variably imposed restrictions on abortion access or expanded access beyond federal requirements.
In 1972, California added a “right to privacy” guarantee in the state constitution, which was interpreted in the 1981 California Supreme Court case Committee to Defend Reproductive Rights v. Myers to protect “the woman’s right of procreative choice.” After the 1976 Hyde Amendment made it so Medicaid could not fund abortions, Myers mandated that Medi-Cal fund abortions because of this right to privacy.
A 1987 law would have required parental consent for minors to recieve an abortion in California, but the law was never enforced and was struck down by the state Supreme Court in 1997.
A 1996 California law permits nonprofit hospitals or medical facilities that are run by a religions organization to decline to offer abortion services. It also extends the right to not provide abortions to doctors and nurses who oppose the procedure on “moral, ethical or religious” bases.
21st century and today
The 2002 Reproductive Privacy Act expanded access to abortion in California on the basis that aspects of the 1967 law, such as the requirement that a woman be approved by a doctor to receive an abortion, had been found unconstitutional. The bill established that the state would not “deny or interfere with a woman’s fundamental right to choose” prior to the viability of the fetus.
Another 2002 law required that all Ob/Gyn programs in the state provide training in abortion services in accordance with the program requirements of the medical education accredidation council.
In 2013, California expanded who can perform certain types of abortion to include nurses and midwives.
The 2015 Reproductive FACT Act, which required that unlicensed crisis pregnancy centers post a disclaimer that they were not licensed medical facilities and that licensed centers that offer reproductive health services post a notice about contraception and abortion services, was found to violate the right to free speech by the Supreme Court in 2018.
In 2019, California became the first state to mandate that public colleges provide access to abortion medication at no charge to students. Over the years, California has passed several laws that provide privacy protections to patients seeking abortion and medical professionals providing abortions.
In the wake of Dobbs, California politicians have reaffirmed that the state will continue to guarantee abortion access. Gov. Gavin Newsom announced a partnership with Washington and Oregon to protect abortion rights for those who live in-state and those who travel to the West Coast seeking abortion care. In November, voters will decide whether to put the right to abortion care in an amendment to the state constitution.