In summary

The way to keep reproductive rights intact in California is to embrace what many progressives and Democrats often fear — states’ rights and federalism.

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By Mark Allen Gabe Cu, Special to CalMatters

Mark Allen Gabe Cu of Chula Vista studies public policy at Stanford University

The way to keep abortion rights in California lies in a legal concept that many Democrats often deride — states’ rights.

Republicans often invoke the legal argument to challenge federal policies they say encroach on protected rights of states to make their own rules. Democrats are skeptical of states’ rights because, historically, the concept has been exploited to protect some of our most oppressive laws, from slavery to Jim Crow. 

The most pronounced opposition to extending states’ rights, it should be noted, has arisen during eras of robust, liberal federal policies. Since 2016 and the election of Donald J. Trump to the presidency, however, Democrats have opposed federal rules imposing conservative policies and programs.

In short, Democrats now are experiencing the same kind of conflict as conservatives have in the past. It is time to redefine the way progressives look at federalism.

With Politico’s exclusive story based on a leak of a draft Supreme Court opinion reversing federal abortion rights guaranteed under Roe v. Wade — the law of the land for half a century — reproductive rights appear in jeopardy. The revelation has made more Americans question the trust we place in the U.S. Supreme Court, an institution that once was seen as operating above the political fray. 

If justices do vote to reverse Roe v. Wade, then each state will make its own laws about reproductive rights. 

Heather K. Gerken, a Yale professor of constitutional law, writing for Democracy Journal with Joshua Revesz, a law student, says progressive federalism is not dead. “If progressive leaders hold their ground, they can shield their constituents from the policies they most oppose, and maybe even force compromise.”

Federal resources would be wasted on a provision that would not be widely held by the majority of American citizens, forcing the federal government to legislate accordingly. 

As U.S. Sen. Alex Padilla, D-Calif., tweeted, “Now is the time to take the decisive action that a majority of Americans want to see.”

If California strengthens its position on the right to an abortion — a process state leaders have started — other states will follow, weakening the effects of the court’s decision and mitigating its enforcement nationwide. 

Take, for example, the progression of marijuana laws in the United States, an issue that flipped progressive and conservative views of states’ rights for the single issue of recreational marijuana use. Today, 18 states and the District of Columbia have legalized the use of marijuana while it remains illegal under federal law. 

Motions to make California a haven for those seeking reproductive services, promises to keep Planned Parenthood clinics open, and an announcement that the governor will propose an amendment to the state Constitution each show how California is working to keep progressive policies in place. 

This is how our state can negate the effects of the court’s decision, albeit via more indirect means. California leaders’ determination to not cooperate with the reversal of 50 years of accepted law suggests our state has the power to face down the conservative majority on the Supreme Court. 

We must see states’ rights and federalism as our protection against the return of policies with which the majority of Californians disagree.

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