by Corrina Konczal
On March 22, 2022, Governor Gavin Newsom signed SB 245 into law. Proponents of this law claimed the bill’s provisions would be a “critical step forward to ensuring that equitable, timely access to healthcare services [would be] attainable to all Californians” “regardless of an individual’s income, insurance type, status, race, zip code, or bank account.” They stressed that healthcare deductibles and copays made healthcare “cost-prohibitive for low- and middle-income families” and created a “barrier to care” which this bill would overcome.
Unfortunately, the only “healthcare” affected by SB 245 is abortion. The full name of the SB 245 is the Abortion Accessibility Act. It was introduced by state senator Lena Gonzalez (D-33) on January 22, 2021. It will go into effect for all new insurance plans after January 1, 2023.
Under existing law, women on Medi-Cal are already able to receive tax-payer funded abortions. All other insurance plans in California must provide coverage for elective abortion as “basic health care.” Many of these private plans, however, require women to pay co-pays or meet certain deductibles before coverage for medical costs, including abortion, kicks in. This new Act prohibits insurance companies from charging any deductibles or copays for abortions (as well as pre-operation or follow-up appointments).
Life Legal Defense Foundation reached out to several crisis pregnancy centers to discuss the implications of this Act on their services. Although the Senate Appropriations Committee expected only 97 women statewide would choose free abortion who might otherwise have chosen life, the implications of providing free abortion while prenatal doctor’s visits and childbirth remain expensive, could have severe consequences for the clients of these pregnancy centers—and the ability of pregnancy centers to offer them meaningful help. Many women who come to them seeking their services are on the fence, with money being a significant factor in their decision-making. Unfortunately, it will become much harder for pregnancy centers to convince poor and disadvantaged women to choose life for their unborn children when they can have a free abortion next door tomorrow.
Life Legal filed a lawsuit against the Act on October 5, 2022, on behalf of four California pregnancy centers. We followed shortly thereafter with a Motion for Preliminary Injunction, asking the judge to prevent the law from going into effect on January 1, 2023. A hearing was held on December 2, 2022. By the time of publication, the Court had not yet released its decision. However, LLDF is optimistic at our chances, since we have a very strong case.
At that hearing, attorney Katie Short, argued the highlights of Life Legal’s brief. First, the “right to privacy” in California specifically includes the right to choose whether or not to bear a child. In a remarkable case of history repeating itself—though in reverse—the California Supreme Court has already ruled upon a situation where the government has tried to fund only one of these choices. In 1978 the California legislature enacted a budget that limited funding for abortions under Medi-Cal while continuing to fully fund medical expenses for pregnancy under the same program. The Committee to Defend Reproductive Rights sued, claiming that these provisions, by distinguishing abortion from childbirth, violated a woman’s right to privacy, as guaranteed by the California Constitution. The state Supreme Court considered whether the government may withhold benefits from some people “because such persons seek to exercise their constitutional right of procreative choice in a manner which the state does not favor and does not wish to support.” (Comm. to Defend Reprod. Rights v. Myers (1980) 29 Cal. 3d 252, 256-57.) It held that women have a fundamental right to choose “whether or not to bear a child” and that restrictions that favored one over the other were unconstitutional. In fact, it explicitly held that, were the circumstances reversed, and abortion favored over childbirth, that law would be equally unconstitutional. It held that the government simply may not intrude into the private decision of whether or not to bear a child.
Confronted with this clear precedent requiring government neutrality, the Attorney General now is arguing, in response to Life Legal’s lawsuit, that ordering insurance companies to provide a service is not a “government benefit” and is, therefore, not covered by Myers. We pointed out, however, that ordering a farmer’s market to provide free apples to consumers is just as much of a benefit as the government giving money to people to buy apples for themselves at no cost. The government cannot hide its unconstitutional actions behind a directive to the insurance companies to provide free services.
They also argued that women do not choose abortion solely because of financial reasons, without acknowledging that a lack of finances in the short term can indeed convince a woman to have an abortion (especially a free one), which is the very reason pregnancy centers exist—to help women think long term about their futures when they are in a crisis.
Secondly, the Equal Protection Clause of the Constitution requires that persons, and classes of persons (like pregnant women), must be given equal treatment under the law. The government has a very high burden to meet when justifying denial of equal protection on a fundamental constitutional right, such as the right to privacy (here, the right to choose abortion or childbirth). Life Legal’s Motion for Preliminary Injunction points out that, when it comes to funding, low-income women who desire to give birth to their children should be treated equally to women who choose to abort their children.
Proponents of the Act stressed the difficultly many women face in trying to scrape together the money to pay their co-pay or deductible for their abortions. Yet they gave no thought to women who must scrape together the money needed to pay for their childbirth—or the costs the come before. In fact, 73% of women in one study said they chose abortion because they “can’t afford a baby now,” another found that 40% of women cited “financial reasons” as a reason they wanted an abortion. And, unfortunately, a large portion of women who said they were seeking an abortion due to “possible fetal health problems” were, in fact, just concerned about the health of their infant due to their lack of prenatal care.
The State argued that women who were denied a “wanted abortion” due to its cost would suffer a variety of harms—including increased risk of poverty and needing financial assistance, access to prenatal care, and maybe even specialized health care for high risk pregnancies. We pointed out that these are the same exact things that women who were denied financial assistance for wanted pregnancies also need. Without additional funding, these women are at a higher risk of serious injuries or even death from their pregnancies. For example, black women are two to four times likely to die from pregnancy related complications than white women, in large part because they cannot afford medical care generally, or prenatal care specifically. Yet the State passed a law to help only those women who wanted abortions, not those who wanted to keep their children. This is not equal treatment. Proponents of SB245 pushed through a bill that forces women to choose between a free abortion and the choice of a more expensive, more dangerous pregnancy. So much for healthcare. So much for choice.
Finally, the Motion points out that enjoining the Act will maintain the status quo—those who want abortions will continue to pay for them themselves. However, if the Act goes into effect, poor women will be forced to weigh a free abortion versus a pregnancy that may not include much, if any, prenatal care, which will put themselves and their children at risk. The pregnancy centers that strive to support these women will be put at a disadvantage, too, working uphill to convince women to choose life while the State has made it so easy to reject life.
We hope to be able to report positive news to you in our next issue. Whether or not the judge rejects our Motion for Preliminary Injunction, rest assured that we will litigate this case all the way to the finish line in order to have this law found unconstitutional and removed from the books. If the State of California wants to order insurance companies to provide free abortions, then Life Legal will be here to insist that the State must also order insurance companies to provide free maternity care.