News : Can California’s abortion protections survive a federal ban?

Wednesday, September 14, 2022

Can California’s abortion protections survive a federal ban?

Sep 14, 2022

By Lara Korte, Jeremy B. White and Sakura Cannestra

Presented by Clean Air California

THE BUZZ — BATTEN DOWN THE HATCHES: California Democrats have been laser-focused on beefing up abortion access in the wake of the Supreme Court's reversal of Roe v. Wade, but even the most stringent protections may not be impervious to Republicans in Washington.

South Carolina Sen. Lindsey Graham's proposal Tuesday to ban abortions nationwide after 15 weeks of pregnancy outraged Democrats and shocked even some fellow Republicans . The proposal would allow stricter bans in conservative states to stand while imposing the limit on abortion in blue states, like California, that have no such restrictions. As POLITICO reported yesterday, Graham's proposal includes exceptions for rape, incest and pregnancies that threaten maternal health.

California voters this fall will weigh in on Proposition 1 — the penultimate piece of Democrats' abortion package. The measure would amend the California Constitution to say the state "shall not deny or interfere with" an individual's right to have an abortion or choose or refuse contraceptives. Supporters have been pitching it as a critical safeguard against further national efforts to strip away abortion rights. But if Graham's plan comes to fruition, a California Constitutional amendment may not offer surefire protection, according to legal scholars. A federal ban would almost instantly trigger a slate of lawsuits from states that allow abortions pass 15 weeks, but if the courts ultimately uphold it, states would have to fall into line.

"If the federal government comes in and says 'no abortions after 15 weeks,' and that is upheld, then there's no abortions after 15 weeks," said Jessica Levinson, a professor at Loyola Law School and Constitutional law expert. "It doesn't matter what state you live in."

But that doesn't necessarily mean abortion rights advocates are on a fruitless crusade. David A. Carillo, executive director of Berkeley Law's California Constitution center, said adding abortion rights to California's constitution would give Attorney General Rob Bonta a "major new weapon to combat Congressional overreach."

"A state constitutional right allows California's lawyers to position state sovereignty against federal commerce clause powers," he told us.

Sen. Lindsey Graham at a podium bearing the US Senate seal, speaking during a news conference with three women standing behind him.

Sen. Lindsey Graham, R-S.C., speak during a news conference to discuss the introduction of the Protecting Pain-Capable Unborn Children from Late-Term Abortions Act on Capitol Hill, Tuesday, Sept. 13, 2022. | AP Photo/Mariam Zuhaib

Let's be clear — there's a lot that would need to happen for a national ban to go into effect. Republicans would likely need to take control of both houses in the midterms, which is not a certainty, and even then it appears some in the GOP are shying away from such legislation (Senate Minority Leader Mitch McConnell said Tuesday that most Republican senators " prefer this be handled at the state level. ") If it does pass, and end up in front of the U.S. Supreme Court, justices would have to determine if abortion is something Congress has the power to regulate under the Commerce Clause, which gives the federal lawmakers power over interstate commerce.

Yes on Proposition 1 co-chairs Senate President pro Tem Toni G. Atkins (D-San Diego) and Planned Parenthood Affiliates of California President and CEO Jodi Hicks said Graham's ban is "despicable" but comes as no surprise.

"Now more than ever, we must show the rest of the country that we cannot go backward, that we must affirm abortion rights and we must protect the most vulnerable among us," the pair said in a statement.

Speaking of interstate commerce — Just after news of Graham's ban dropped, California launched abortion.ca.gov, a one-stop-shop for people seeking abortion and reproductive health care in California. Gov. Gavin Newsom released a short on-camera spot touting the website, which includes information on abortion rights and what to do if you're traveling to California from another state that has restricted reproductive healthcare. "We have your back," Newsom said.

BUENOS DÍAS, good Wednesday morning. Proposition 30 supporters are kicking off their campaign in Oakland this morning, with guest appearances from Oakland Mayor Libby Schaaf, , Assemblymember Buffy Wicks (D-Oakland) and Lyft President John Zimmer, whose company just dropped another $10 million into the fight yesterday.

Got a tip or story idea for California Playbook? Hit us up: jwhite@politico.com and lkorte@politico.com or follow us on Twitter @JeremyBWhite and @Lara_Korte.

QUOTE OF THE DAY: "There was no Tesla without California's regulatory bodies." Newsom during a virtual panel on Tuesday.

TWEET OF THE DAY

Today's Tweet of the Day | Twitter

WHERE'S GAVIN? In Santa Clara County to sign legislation establishing CARE Courts.

A message from Clean Air California:

We have always had wildfires, but as California gets hotter and drier, the fires are getting worse. Prop 30 is the solution we need to prevent catastrophic wildfires and polluted air throughout the state. It provides more state firefighters and firefighting equipment to stop fires before they grow, better forest management to reduce dry fuels, and increased protective space around our homes. Prop 30 : the solution we need to prevent wildfires and clean our air.

TOP TALKERS

— "California's Net-Zero Roadmap Is Being Shaped by Regulators-Turned-Lobbyists," by Capital and Main's Aaron Cantú: "A draft of the plan by the California Air Resources Board (CARB), released in May, reflects the interests of oil and gas refiners and agrochemical companies involved in the production of biofuels, while relying on ineffective methods for cutting emissions, say climate policy experts and environmental justice groups."

— Gas prices falling across U.S., but not in California , by POLITICO's Lara Korte: Experts say factors to blame for the high cost of gas in California — now more than $5 a gallon — include problems at refineries that supply the state as well as higher taxes, more regulations and the same global issues driving the overall U.S. market.

PROFESSORIAL PROBLEMS — " Katie Porter lives in a home she bought on the UC Irvine campus. Now she's facing criticism," by the Los Angeles Times' Seema Mehta: "Homes there are sold below market rate, a boon for academics who couldn't otherwise afford to live in one of the nation's most expensive housing markets. But there is a cost: Strict rules on resales mean buyers will never see a fraction of the capital gains compared with if they had bought and sold on the open market."

CAMPAIGN MODE

FIRST IN PLAYBOOK — REPRODUCTIVE POLITICS: Democrat Christy Smith's first general election ad focuses on abortion rights as Smith works to unseat GOP Rep. Mike Garcia in CA-27. Here is the spot launching this week focusing on Garcia's support for ending federal abortion protections. It's the latest evidence that abortion will figure heavily into California's top-tier House races. Yesterday Rep. Katie Porter launched an ad vowing to battle "extreme" Republicans efforts to institute a nationwide abortion ban.

FIRST IN PLAYBOOK — CALVERT'S COURSE: While Democrats emphasize abortion, Republicans are stressing the economy. GOP Rep. Ken Calvert is also launching his first television spot of the general as he seeks to defend his newly CA-41 seat with a six-figure ad buy focused on inflation. Take a look.

CA GOP WANTS TO DEBATE: California Republicans are trying to mount a pressure campaign to spur statewide Democrats into debating their GOP competitors. The party yesterday highlighted a tweet from FOX LA's Elex Michaelson saying Newsom has "turned down all of our requests & indicated he doesn't have any current plans to debate" Sen. Brian Dahle (R-Bieber). Apparently, Attorney General Rob Bonta's team has also declined invites from FOX LA to debate Republican candidate Nathan Hochman. The party is also needling state controller candidate Malia Cohen for not going up against Lanhee Chen.

— " Newsom's allies support Prop. 30 — here's why it makes sense that he doesn't," opines the San Francisco Chronicle's Joe Garofoli: "In refusing to soak the rich, Newsom is siding with his political enemies — like the California Republican Party — and opposing his friends in labor, environmentalists, firefighters and the California Democratic Party, all of whom support Prop. 30."

— "How unpopular is S.F. Mayor Breed? New S.F. Chronicle poll shows anger with city dysfunction," by the San Francisco Chronicle's Mallory Moench: "But the Chronicle survey suggests that dissatisfaction with the state of the city reflected on the mayor as well as other leaders — notably, the Board of Supervisors with whom Breed often tussles polled even lower — as San Francisco faces critical challenges, including recovering economically from the extended absence of tourists and downtown workers."

A WOMEN RULE CONVERSATION ON LEADING FROM THE GROUND UP: Join POLITICO's Women Rule on Sept. 15 for conversations focused on creating and leading sustainable, healthy and inclusive communities. The program will feature a Member Exchange panel followed by a keynote discussion exploring the most pressing issues facing women in their communities and women in leadership roles who are best positioned to solve these problems. REGISTER HERE.

CALIFORNIA AND THE CAPITOL CORRIDOR

FED-UP FRANCISCIANS — "How fed up are San Franciscans with the city's problems? New S.F. Chronicle poll finds pervasive gloom," by the San Francisco Chronicle's Noah Arroyo: "Roughly one-third of the respondents said they were likely to leave within the next three years. A large majority, 65%, said that life in the city is worse than when they first moved here."

HOUSING HURDLES — "Another real estate tech company lays off workers in response to housing slowdown ," by SFGate's Sam Moore: "Though a spokesperson for Realtor.com declined to share how many employees were let go, Doctorow's email indicated that the layoffs impacted both regular and contracted employees across most of the company's locations and functions."

— " Check your home: Here's a map of the Mosquito Fire's destruction in El Dorado County," by the Sacramento Bee's Michael McGough: "The map as of Tuesday morning showed most of the reported damage concentrated along Volcanoville Road, which runs just south of the Middle Fork of the American River."

— " Bay Area inflation eases a tiny bit — yet prices remain stubbornly high," by the Mercury News' George Avalos: "The grim reality of the inflation report shoved stocks into a tailspin and all three major indices nosedived."

— " Retired LA County Sheriff's chief sues, claiming retaliation and discrimination," by the City News Service: "Plaintiff LaJuana Haselrig was often seen standing next to [La County Sheriff Alex] Villanueva during news conferences, but her Los Angeles Superior Court lawsuit alleges whistleblower retaliation, racial discrimination, failure to take all steps to prevent discrimination, intentional infliction of emotional distress, defamation and violations of the Public Safety Officers Procedural Bill of Rights."

HEAT AND HOMES — "Column: Could extreme heat be just what California needs to finally solve homelessness?" by the Los Angeles Times' Anita Chabria and Erika D. Smith: "When the temperature rises to new extremes and stays elevated for days at a time, tens of thousands of homeless people end up at greater risk of heatstroke, cardiac arrest and dehydration."

— "Sacramento councilman swore at constituents who asked for update on city investigation," by the Sacramento Bee's Theresa Clift: "'I would love to respond to this bullshit e-mail,' [Sacramento City Councilmember Sean] Loloee wrote Tuesday to a group of North Sacramento residents pushing for an investigation into his residency. 'What f****** coalition!!!'"

A message from Clean Air California:

BIDEN, HARRIS AND THE HILL

— 'Sleazy backroom deal': Progressives tangle one more time with Manchin, by POLITICO's Sarah Ferris and Burgess Everett: "This is a tale of two houses," said Rep. Jared Huffman (D-Calif.), slamming Schumer and Manchin's agreement to take up permitting reform in exchange for his vote on the party-line bill as a "sleazy backroom deal."

SILICON VALLEYLAND

FLY AWAY, BIRDIE — Twitter whistleblower to Congress: Your data is at risk too, by POLITICO's Rebecca Kern and Eric Geller: Twitter's protection of users' sensitive data is so lax that just about anyone with an account has reason to fear for the security of their accounts — even members of the Senate, the company's former chief security officer told lawmakers Tuesday.

— "Amazon to Fund Raises for Delivery Drivers Amid Tight Labor Market ," by the Wall Street Journal's Dana Mattioli: "The company will invest $450 million to fund wage increases and other benefits for delivery drivers employed by members of its Delivery Service Partners network, it said in a release."

HOLLYWOODLAND

— "Burning Man revelers returning from the desert with lifelong memories, and COVID," by the Mercury News' Harriet Blair Rowan: "There are no official numbers on how many festivalgoers became infected. But many attendees have posted on Twitter and Reddit that they tested positive during the exodus, or a few days after getting home."

— "Instagram post of rapper PnB Rock at Roscoe's may have led to killing, LAPD chief says ," by the Los Angeles Times' Richard Winton, Kenan Draughorne, Gregory Yee and Noah Goldberg: "Police Capt. Kelly Muniz said a suspect brandished a firearm in the restaurant and demanded items from the victim. Sources told The Times that Rock was targeted for his jewelry."

CANNABIS COUNTRY

— "Killings, robberies, extortion. California can't stop its booming illegal cannabis stores," by the Los Angeles Times' Matthew Ormseth: "Unlicensed dispensaries have become hotbeds of crime. Sometimes the operators are the perpetrators, authorities say, selling cocaine and methamphetamine alongside cannabis. At other times, they are the victims."

Join POLITICO Live on Tuesday, Sept. 20 to dive into how federal regulators, members of Congress, and the White House are seeking to write the rules on digital currencies, including stablecoins. The panel will also cover the tax implications of crypto, which could be an impediment to broader adoption and the geopolitical factors that the U.S. is considering as it begins to draw regulatory frameworks for crypto. REGISTER HERE.

MIXTAPE

SHAKEN UP — "Damage reported after two quakes — magnitudes 4.4 and 3.9 — jolt the S.F. Bay Area," by the San Francisco Chronicle's Julie Johnson and Jordan Parker.

LIFE IS A… — "The Great Highway debate is missing the point. The ocean is rising and coming for the road," by the San Francisco Examiner's Jessica Wolfrom.

— " Firefighters hold line in Foresthill after flare-up pushes Mosquito Fire past 50,000 acres," by the Sacramento Bee's Michael McGough and Sam Stanton.

— " Southern California mudslides damage homes, carry away cars," by the Associated Press' Marcio Sanchez and Christopher Weber.

— "Prosecutors want California's Sherri Papini to serve 8 months for admitted kidnapping hoax ," by the Sacramento Bee's Sam Stanton and Ryan Sabalow.

— "How Folks In Pacoima Are Fighting The Heat — With Asphalt Paint," by LAist's Brian De Los Santos and Evan Jacoby.

BIRTHDAYS

Julia Cohen

A message from Clean Air California:

We have always had wildfires, but as California gets hotter and drier, the fires are getting worse. The smoke from wildfires combined with pollution from tailpipe emissions has resulted in our state having the worst air quality in the country. Prop 30 is the solution we need. It was drafted by climate experts to address the problems at the source, by reducing tailpipe emissions that cause pollution, and preventing the wildfires that create toxic smoke. It will provide better forest management to reduce dry fuels and more state firefighters and equipment, to contain fires before they grow. Prop 30 will help clean the air we all breathe.

That's why environmental groups, state firefighters, public health groups, consumer advocates and climate experts are supporting Prop 30 — the Clean Air Act. Join us and be a part of the solution. Learn more at www.Yeson30.org.

CALIFORNIA POLICY IS ALWAYS CHANGING: Know your next move. From Sacramento to Silicon Valley, POLITICO California Pro provides policy professionals with the in-depth reporting and tools they need to get ahead of policy trends and political developments shaping the Golden State. To learn more about the exclusive insight and analysis this subscriber-only service offers, click here.

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