May 25, 2022
Becoming a modern day Harriet Tubman on the Overground Reproductive RailroadSee more on Becoming a modern day Harriet Tubman on the Overground Reproductive Railroad
How pro-choice Californians (including lawyers) can help those in "no choice" states seeking reproductive health care. Six steps California lawyers can take as America awaits the final opinion in Mississippi (Dobbs) v. Jackson
While many have taken to the nation's streets to protest the impending death of Roe v. Wade, in the advent of the release of U.S. Supreme Court Justice Samuel Alito's draft opinion in Dobbs (Mississippi State Department of Health) v. Jackson Women's Health Organization, a group of lawyers in Los Angeles have been discussing options for a more targeted ground response. On May 10, Los Angeles Women Lawyers Association (WLALA), one of the oldest bar associations in California established in 1919, and the largest women-focused bar association in the state with over 1,200 active members (to include men and institutions), held a virtual town hall forum to discuss reproductive access in a post-Roe world.
Mary McKelvey, WLALA's president, and partner at the Polsinelli law firm, explained that WLALA's decision to present a "hands on deck" Zoom meeting four days after the leak of the Alito draft opinion, was prompted by a deluge of emails and calls among the membership. McKelvey stated this comports with WLALA's mission statement which calls for the organization and its membership to "promote the full participation of women of diverse perspectives and racial and ethnic backgrounds in the legal profession" and to "improve the status of women by supporting among other things, equal rights, representation and reproductive choice." WLALA
The consensus from the WLALA communication traffic? Collective outrage. WLALA's Board decided to create a forum for membership to discuss and identify strategic courses of action. Attendees (some 50 on the Zoom session) wanted to know what to do as we await the final version of the Supreme Court opinion from the Mississippi case, while others wanted to strategize about what to do after.
Alito's draft opinion is in the case entitled Mississippi v. Jackson which is also referred to as Dobbs.
Note: The Supreme Court draft opinion published by Politico on May 2, is currently referred to as the "Dobbs opinion," after Mississippi's top state health department director, Thomas Dobbs. Dobbs , in his official capacity, is the petitioner in a Fifth Circuit case brought by respondent Jackson Women's Health Organization, et al., (United States Fifth Court of Appeal, 19-1392).
The Jackson Women's Health Organization (JWHO), a Mississippi-licensed clinic located in Jackson, Mississippi which provides, among other services, medication abortions up to 11 weeks and surgical abortions through 15 weeks of pregnancy, had successfully challenged a Mississippi state law that outlawed abortion after 15 weeks.
JWHO prevailed too at the Fifth Circuit, which has federal appellate jurisdiction in Mississippi, Louisiana and Texas. In December 2019, the Fifth Circuit affirmed the district court's decision invalidating the Mississippi 15-week ban. The Fifth Circuit's opinion held that the Mississippi law that banned abortion after 15 weeks was unconstitutional in that the Mississippi ban "violated an unbroken-line" of Supreme Court cases that established "and affirmed, and re-affirmed... a woman's right to choose an abortion before viability."
Justice Alito's draft opinion goes well beyond permitting Mississippi's 15-week ban to stand. Instead, the draft - if adopted - would permit all abortions at any stage of pregnancy to be outlawed. As there are multiple reproductive cases at the Supreme Court to include Texas' 5-week (missed one period) ban, SB 8 in United States v. Texas (Docket 21-588). In that case, reproductive health providers challenged SB 8, which in addition to the ban contained a private cause of action provision permitting any state citizen (apart from the state itself) to sue in state court the abortion provider and any aider and abettors (any facilitators), and if successful in the suit, extract a payment of $10,000 from the civil defendant. Providers challenged the Texas law, and the U.S. Supreme Court rejected the provider's challenge to the law. After the law went into effect, the providers filed again to stop the law, as did the Biden administration (the U.S. Solicitor General). The federal district court stayed the law temporarily, but the Fifth Circuit stayed the injunction. U.S. DOJ asked the Supreme Court to reinstate the injunction. The Supreme Court refused in December 2021, and SB 8 remains in effect.
There was also another case brought against SB 8 in Texas (21-463) about a pre-enforcement challenge to the statute. Additionally, there are cases being prepared to percolate up to the Court including challenges to Louisiana's 2022 law concerning banning abortion at the first detection of an embryonic heartbeat ban, with more legislation there forthcoming to ban abortion entirely.
In order to reduce confusion, in this article the case that begot the Alito draft opinion is referred to as Mississippi v. Jackson.
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Many on the WLALA Zoom call were California lawyers born well after Roe issued in 1973. Others had practiced law or been alive in a pre-Roe America and shared stories of personal and anecdotal macabre reproductive disasters that had happened in several corners of the nation in a pre-Roe world. Several spoke about what the Alito draft opinion portended on "the impact of access" in America, and all who spoke agreed that it would be (as it was before Roe) that the underclasses would be most harmed by the lack of abortion and other reproductive care.
One attendee commented that "regardless of legality, the wealthy and privileged can count on access," while others explained that, in pre-Roe America, those with financial resources had access to doctors, while the poor or unconnected had self-induced abortions, went to back-street butchers, and/or had unwanted pregnancies.
Some at the WLALA event made clear that looking back was not the answer to the current moment. Many sought ideas for immediate action. Several attendees discussed contributing funds to facilitate travel from anti-choice states of those seeking abortion access to California, a pro-choice state. One idea was that funds could be raised to help defray the out-of-state access-seekers to include transportation costs, lost wages, medical services, and childcare (the latter being key as the Guttmacher Reproductive Research Center reports that 59% percent of women in American who seek abortion services already have children at home.) In this way California "contributing" lawyers could follow Starbucks HQ's lead and fund travel for those seeking reproductive autonomy.
Becoming modern day Harriet Tubmans
One of the most direct and immediate action ideas proposed at the forum was for Californians to provide "on-the-ground" help by traveling to anti-choice states and helping transport women to California to access reproductive health care. This would involve ordinary folk (lawyers or not) becoming modern day "Harriets" as part of a force on the 21st century over ground reproductive railroad.
The WLALA attendee proposing the idea, this article's author, was referring to Harriet Tubman (c. 1822-1913), a former enslaved woman who jeopardized her own figurative and literal liberty interests to transport other enslaved people to freedom along secret paths between the South and North on the Underground Railroad. Tubman, whose face may one day yet grace the $20 bill, made at least 13 successful incursions into slave territory in the run up to the Civil War.
Tubman's conduct, that of risking her own freedom to help others denied their own, could serve as today's "north star" to many in pro-choice states who support abortion access everywhere.
In response to the Harriet Tubman action idea, one attendee mentioned that repercussions to the Alito opinion would go far beyond abortion access. Alito's draft made that clear. He wrote, in his draft at page 66, that the Supreme Court would be serving the "legitimate interests" of prenatal life. "These legitimate interests include respect for and preservation of prenatal life at all stages of development." (Alito draft opinion, p. 66).
This "preservation-of-all-prenatal life" mandate will certainly curtail certain forms of pre-implantation birth control (such as IUDs) and in vitro fertility treatments in many quarters. Dr. Katherine Farris, chief medical officer of Planned Parenthood, takes this view too, explaining that as "IVF works by using a combination of medicines and surgical procedures to help sperm fertilize the egg, and help the fertilized egg implant the uterus." Application of Alito's approach would complicate in vitro fertilization and "make it impossible to treat ectopic pregnancies."
The majority is poised to decide that a woman has no right to privacy
Alito's draft shows that he finds no need to pit the rights of the unborn fetus against the privacy rights of a woman hosting the fetus, because the woman has no right to privacy. Privacy is a fiction. The word is not in the constitution, Alito heralds.
"Roe...was remarkably loose in its treatment of the constitutional text. It held that the abortion right, which is not mentioned in the Constitution, is part of a right to privacy, which is also not mentioned." (Alito draft opinion, p. 9)
Multiple times in the body of the 67-page draft opinion which also contains a 31-page two-part appendix on state abortion laws, Alito, with Sherlockian fervor, announces that the word privacy is nowhere in the Philadelphia-crafted 1787 Constitution. (Alito draft opinion, pp. 9, 10, 44-45, 51). For Alito, that absence is dispositive.
There's no debate anywhere that the word is not there, but for over 50 years, Americans have possessed and enjoyed "privacy rights" culled from the constitution by the Supreme Court.
That Alito's opinion (once finalized) will impact many privacy dimensions of reproductive autonomy is not far-fetched because Roe, and its 1965 privacy predecessor, Griswold v. Connecticut (which held that states could not ban birth control for married women) are both grounded on an "emanation right" derived from the 14th Amendment.
In order to appear to maintain the reproductive rights landscape and 14th Amendment precedent, Alito could have discretely emulated the plurality in the Roe-modifying 1992 Supreme Court case Planned Parenthood v. Casey, 505 U.S. 833.
In Casey, then-justices Kennedy, O'Connor, and Souter, deftly and without the lay-public realizing - jettisoned the Roe trimester viability framework.
The Court "reaffirmed" Roe, but as a result of Casey, a woman no longer had an unfettered right to abortion in the first trimester. The Casey court significantly downgraded a woman's privacy right, permitting it to be legislated against at any time in pregnancy, but only if the restrictions did not pose an undue burden on the woman's exercise of the right pre-viability.
Seemingly forgotten or never known by the public, is that the Casey court upheld four of five of Pennsylvania's 1982 anti-abortion law provisions. After Casey, any state could, like Pennsylvania, (i) impose a 24-hour waiting period, (ii) require minors to notify parents, (iii) require providers to report to state authorities and keep records about the details about the procedures performed, and (iv) define and restrict what would constitute a medical necessity permitting emergency abortions. The only Pennsylvania provision that was invalidated in Casey, by the Supreme Court, and failed the new "undue burden" standard was the mandatory husband notification requirement.
Instead of chiseling away at Roe's 14th Amendment approach (as Chief Justice John Roberts who did not join in Alito's majority would have surely preferred), Alito, writing for the Mississippi v. Jackson majority, has decided to bludgeon not just abortion but (arguably) all of the 14th Amendment derived privacy rights.
The only question before the Supreme Court in the case of the draft opinion is whether Mississippi's ban on abortions after 15-weeks (pre-viability) violates Roe and Casey
This is despite the fact that the only question before the Supreme Court in Mississippi v. Jackson is whether the 15-week ban passed by Mississippi and successfully challenged by Jackson's Women's Health organization in the lower federal courts violates Supreme Court precedent in Roe as modified by Casey. The Fifth Circuit held that under Roe and Casey, "[s]tates may regulate abortion procedures prior to viability so long as they do not impose an undue burden on the woman's right."
But Alito, who at his 2006 confirmation hearings refused to call Roe "settled law," and who told the Senate that precedent alone does not bind the high court, is using the Mississippi v. Jackson draft opinion as a "clarion call de coeur" to protect the rights of the unborn.
With the divine sanction of the three justices appointed by the previous president, and that Justice Clarence Thomas who as the most long-serving member of the majority selected Alito to write the majority opinion, Alito's reasoning is anchored on the theological proposition that "[a]bortion destroys what those decisions call 'potential life' and what the law at issue in this case regards as the life of an 'unborn human being.'" (Alito's draft opinion, p. 32).
Other rights non-reproductive rights "sourced" in the 14th Amendment that could be on a future chopping block? The right to gay marriage, Obergefell v. Hodges (2015). Why? "Marriage" - be it gay or straight - is not in the constitution.
The 14th Amendment-derived right to equal-access-to-education, which the Court "breathed into life" in the 1954 case Brown v. Board of Education, 347 U.S. 483, could be another. In Brown, the nine-member court unanimously held that segregation in education violated the 14th Amendment's equal protection clause.
The Supreme Court in Brown expressly rejected Plessey v. Ferguson's separate but equal doctrine. Plessy, 163 U.S. 537 (1896).
Is it any wonder that several federal judicial nominees in recent years, who espouse textualism and originalism, declined to endorse Brown v. Board of Education? That's because education and equal access to it are not in the constitution. And if they are inputted there - so could other "rights."
Justice Alito's draft opinion characterizes Roe as egregiously wrong and equates it to the egregiously wrong, separate-but-equal Plessey v. Ferguson
Curiously, in the draft opinion, Alito eviscerates Plessey, describing it as "egregiously wrong on the day it was decided." (Alito draft opinion, pp. 39-40) and uses the same invective characterization in the next sentence, for the Roe. His words: Roe was "egregiously wrong and deeply damaging" (Alito draft opinion, p. 40.)
Nowhere does Alito acknowledge that the corrective case, Brown v. Board of Education, is also firmly moored on the 14th Amendment.
With no 14th Amendment foundation on which to hang his hat, Alito resorts to quoting Justice John Marshall Harlan's Plessey dissent, in support of America's commitment to "equality under the law." (Alito draft opinion, pp. 39-40).
Note to Justice Alito: the word "equality" is not in the constitution either. Thomas Jefferson, did, however, include the word in the Declaration of Independence written, 11 years before the constitution. Both documents were written in Philadelphia, but the future President Jefferson was in France and did not appear at the 1787 Philadelphia constitutional convention.
Dust off the Ninth and Thirteenth Amendments if the final decision hews to the draft opinion
If Alito's draft opinion stands, it will be the time to dust off the Ninth Amendment (rarely used but it's in the constitution). The Ninth Amendment states that "[t]he enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." The Madisonian "omnibus clause" explicitly recognizes for future generations, a placeholder for rights that the framers might have not listed.
Surely, privacy, abortion, birth control, marriage, and education could find a place to anchor there. And some who have had forced pregnancies or who, unlike Justice Amy Coney Barrett, equate a compelled pregnancy (whether or not it ends in adoption) with slavery or involuntary servitude, the Thirteenth Amendment is ripe for resurrection.
Constitutional law professor Geoffrey Stone of the University of Chicago, was asked recently about what will happen if the final opinion mirrors or hews closely to the Alito leaked opinion. Stone stated that "it's perfectly plausible that [the Supreme Court] will say, 'We already decided it. There's no right of privacy in the Constitution.'"
Women Lawyers Association of Los Angeles (WLALA) Commits to Future Reproductive Access Programming and Encourages Input, Guidance and the Exchange of Ideas to Facilitate Retrodictive Access Nationwide
With many of the post-Roe cataclysmic consequences discussed at the WLALA forum, several lawyer-attendees voiced concerns about whether any sort of out-of-state, on-the-ground assistance in anti-choice states. These would include those states with private cause of action and bounty hunter provisions (like Texas' S.B. 8 which award private citizen plaintiffs $10,000 to be paid by the defendant access facilitators if civil judgments are entered, in Texas courts, against access facilitators). Also problematic for lawyers are those laws that have or will not only criminalize abortion but also criminalize the conduct of those who assist access (e.g., Louisiana's S.B. 184).
All of these would expose the California lawyer to criminal, civil or bar-disciplinary risks. A few WLALA participants had reservations about engaging in "extraterritorial" conduct that would jeopardize their professional livelihoods. At least one other exclaimed that she was retired and was ready to get to work.
The WLALA forum concluded with a WLALA member asking for more regular programming concerning reproductive access and a board member agreeing to the request.
The WLALA event hosts agreed to host more town halls once some of the participants had put some meat on the bone and come up with some guidance about what can be done now within the confines of California law. Participants were asked to "report back" on steps that could be taken to address the concerns raised in the forum.
In anticipation of the next WLALA town hall, here is what this author (a WLALA member, and California lawyer) submits is a place to start.
What follows is my report proposing six reproductive access action items for WLALA and fellow members of the California bar to consider and implement. None of these six suggestions individually is foolproof to inoculate against bar action or civil or criminal exposure. All of the steps can be taken at the same time and not in any particular order.
Each is just an arrow in a reproductive access facilitator's quiver. None purport to be an ace, but the combination, in the same suit, and in the right hands, might serve as a Royal Flush to combat negative consequences that could befall California lawyer-Harriets seeking to help out-of-state seekers of California's reproductive access.
Six steps to pursue in California while awaiting and after the issuance of the final Mississippi v. Jackson opinion
(i) Step 1, the First Reproductive Access Action Proposal
Requesting that the California State Bar's Standing Committee on Professional Responsibility and Conduct (COPRAC) issue an advisory opinion permitting Californians (who are lawyers) to aid out-of-state women seeking reproduction autonomy, so long as the assistance is legal in California.
The California State Bar advertises on its website that the Standing Committee on Professional Responsibility and Conduct (COPRAC) will give guidance to California lawyers on ethics issues.
COPRAC's website directs lawyers with questions that cannot be easily handled by the bar's ethics hotline to make a written request "by mail" of COPRAC's lead program analyst in San Francisco.
"California lawyers rightly worry that facilitating reproductive access to out-of-staters could expose the lawyer to disciplinary proceedings, in California and through reciprocal discipline actions from certain anti-choice states," said nationally renowned legal ethics expert Diane Karpman.
"It's a good idea," said Alexandra D'Italia, a law professor at Southwestern Law School who teaches both advanced legal writing and a women and the law seminar, "for California lawyers seeking to facilitate access to write cogent and concise written requests of COPRAC requesting a formal opinion from the State Bar." D'Italia states that a written request would seek guidance (which later it could be argued, constituted some degree of "permission" or "cover") "to facilitate reproductive access." This would include specifying conduct as conceivably benign as providing funds, or more concrete physical steps such as entering an anti-choice state in a car and transporting a woman seeking reproductive access into California and driving her back to her home state. "Any of these actions, depending on the state, could constitute arguable grounds for attorney discipline," cautioned D'Italia.
California lawyers seeking to help out-of-state reproductive access can take a page from California lawyers who advise or are involved in the state's marijuana businesses.
Marijuana distribution and cultivation remains federally illegal in practically every corner of America under President Richard Nixon's 1970's Comprehensive Drug Abuse Prevention and Control Act, specifically Title II, the Controlled Substances Act (the CSA).
The CSA classifies marijuana, along with heroin and LSD, as Schedule I federally illegal controlled substances. This is the case, even though 47 states and four of the five inhabited U.S. territories have all adopted some degree of state or territorial marijuana legalization.
However, when California became the first state to legalize medical marijuana in 1996 and joined a host of other states (to date, some 19) legalizing adult recreational marijuana, some California lawyers worried about bar discipline. Their worries were justified. California lawyers have a duty and swear at the time of admission to support and uphold the U.S. Constitution, federal law, as well as the laws of the state of California. See Bus. & Prof. Code § 6068(a). Violations of any of the laws could result in disciplinary action.
California lawyers sought the bar's "blessings" to advise clients about and participate in marijuana businesses - industries that remain, to this day, federally illegal.
This corresponded with the California State Bar's 2018 ethics rules overhaul. As a result, the State Bar (after the required public comment period) issued Formal Opinion 2020-202.
In sum, COPRAC Formal Opinion 2020-202 permits a California lawyer to advise a client concerning compliance with California state-legal conduct and that may even assist the client in the conduct to make the "business functional and profitable" (although in a limited way - short of acquiring an ownership interest in the business) "despite the fact that the client's conduct may violate federal law."
Given that there are only rare occasions when a lawyer's conduct (even personal activity) is not adjudged through the lens of the disciplinary rules in each state of attorney-licensure, and understanding that lawyer-Harriets may not contemplate or expect that driving someone to and from California does not invoke an attorney-client relationship (it could), California lawyer reproductive access seekers should seek COPRAC opinions.
The language requested of COPRAC should include the following:
"California lawyers are permitted to take actions, so long as legal in California, to assist individuals who may or may not be clients, seeking reproductive access in California,
despite the fact that the lawyer's 'assisting conduct' may violate state law, in states other than California, and which may create private causes of civil action and attorney disciplinary grounds, in states other than California."
To be clear, the issuance of a COPRAC opinion as proposed is not a fail-safe against disciplinary action prompted from conduct that violates the law of another state.
Many COPRAC opinions contain wiggly disclaimer language making them merely persuasive authority. No matter, COPRAC opinions have been cited to in both California appellate and state Supreme Court cases as persuasive authority. Persuasive authority is better than no authority. Now is surely the time for California lawyers to seek guidance opinions of this sort from COPRAC as well as from other state and local bar ethics committees.
(ii) Step 2, the Second Reproductive Access Action Proposal
Requesting a statement (a priorities memoranda) from the head of the office of chief trial counsel stating that if California lawyers facilitate reproductive access for out-of-state access seekers, and those lawyers' actions are legal in California, that the State Bar will not entertain attorney original or reciprocal discipline proceedings against the California licensee.
In California, the State Bar Court hears charges filed by the State Bar's Office of Chief Trial Counsel (OCTC) against attorneys whose actions allegedly involve misconduct. Those cases are investigated and prosecuted by OCTC lawyers.
The Chief Trial Counsel of the OCTC is the prosecutor in charge of the entire California attorney discipline system. The Chief leads the state bar prosecutors and establishes state bar prosecution priorities to include what cases justify the expenditure of state bar investigatory and prosecution resources. Given the impending proliferation of extraterritorial infringements on reproductive freedom outside of California, and the interest of California lawyers (as evidenced by the WLALA forum) in aiding out-of-state individuals' access to California's reproductive health care, California pro-choice lawyers should call upon the current Chief Trial Counsel to create and announce an OCTC "priorities memoranda." The memoranda would state that the OCTC will not devote resources or bring disciplinary actions against California lawyers who facilitate out-of-staters access California's reproductive choice system so long as those actions would be legal in California.
The current chief, George S. Cardona, is just the person to craft such a priorities memoranda.
Cardona, a long-time former federal prosecutor, is well known for his keen intellect, common sense and thoughtfulness. He served the United States at the Los Angeles United States Attorney's Office from 1991 to 2018, (including stints in major frauds and the appellate section) and held front-office leadership positions, e.g., Chief of the Criminal Division (1999-2000), First Assistant U.S. Attorney (2002-2015) and Acting United States Attorney.
Cardona was often one of the U.S. Attorney's Office management team who would alert line prosecutors to U.S. DOJ's changes in prosecution priorities. One memorable change occurred in 2013, when First Assistant Cardona was informed, in August 2013, of U.S. Deputy Attorney General James Cole's change of position with respect to the federal prosecution of marijuana crimes. The Cole Memo stated that even though marijuana remained federally illegal under the 1970 CSA, "in the light of state ballot initiatives" legalizing marijuana under state law and because those states provide for the regulation of marijuana, DOJ would no longer prosecute marijuana offenses of those who comply with their state's medical marijuana regulations.
Additionally, Cardona was one of the members of U.S. Attorney management to include the then-head of the narcotics section, who disseminated and explained the new position of the Department and its impact on any pending investigations and prosecutions. In sum, low-level non cartel marijuana offenses, even though the conduct remained federally criminal - would not be prosecuted. And the "non-pros" policy remained in effect, through January 4, 2018, when President Donald Trump's then-Attorney Jeff Sessions rescinded the Cole memo and "directed all U.S. Attorneys to enforce the laws enacted by Congress and to follow well-established principles when pursuing prosecutions related to marijuana activities."
OCTC Chief Cardona could issue a Cole-memo type document in which he states that the OCTC/State Bar will not enforce or investigate bar actions against California lawyers who facilitate or assist women, from a state other than California, seeking reproductive autonomy or reproductive services (to include birth control, abortion, and IVF) in California, so long as the facilitation conduct does not violate California law.
This is not to say that if asked, Chief Cardona, would craft such a priorities memoranda. He might decline on the grounds that other lawyers engaged in non-reproductive access conduct deemed illegal in other states would then seek the same treatment of the OCTC based on equal protection grounds. Regardless, it would not hurt to ask. And even if he graced requesting lawyer-Harriets with something less than a priorities memoranda from Cardona, perhaps even an email reply, that alone could not prevent disciplinary actions. However, it could be part of an iron dome mosaic against extraterritorially instigated California licensure action.
(iii) Step 3, the Third Reproductive Access Action Proposal
Requesting an open session of the California State Bar of California's Board of Trustees seeking a resolution in which the board "announces and resolves" that California lawyers are permitted to facilitate reproductive access for out-of-state women so long as those lawyers' action would be legal in California.
Step Three? Calling upon the State Bar's governing body, the California State Bar's Board of Trustees, the bar entity that develops the State Bar's guiding policies and principles) to hold a public session and issue a resolution in support of the California lawyer-Harriets.
A review of a decade of open session agenda and meeting minutes (available on the Bar's website), reveals that the Board of Trustees holds public sessions and issues resolutions on a myriad of issues affecting California lawyers. Many concern the parameters of attorney discipline, and others address civil justice strategies and public interest issues.
The Board of Trustees meeting minutes are replete with sessions prompted by reports and issues from a variety of bar-sub-entities (committees, subcommittees, and task forces). At some of these public meetings, the sub-entities make presentations, discuss findings, and most apropos here, seek Board of Trustee resolutions. These definitive articulations in the formal minutes of the Board of Trustees are recited under the capitalized word "RESOLVED." Most recently, many of these resolutions concerned the management of state bar operations in the time of COVID, and the Board of Trustees pronounced its resolutions on the topics of concern to its sub-entities and bar members.
There are lawyers in California as the WLALA forum demonstrated, who wish to participate in out-of-state efforts to help people access reproductive care. The Board of Trustees or its designee should call an open session meeting. At the session, the Board can issue a resolution in support of California lawyers who facilitate access to reproductive justice beyond the state's borders, on the condition that the conduct would be legal in California. Again, this step alone - - even if entertained by the Board of Trustees, would not definitively preclude discipline to include extraterritorially requested disciplinary action. But a defending legal ethics lawyer could use the Board's resolution and the other steps so far discussed and make a compelling case against discipline for the lawyer-Harriets.
(iv) Step 4, the Fourth Reproductive Access Action Proposal
Requesting that attorney malpractice carriers offer reasonably priced specialty policies that would cover intentional conduct and demonstrating to carriers that there is a burgeoning niche market for attorneys seeking coverage (legal representation) for engaging in conduct to facilitate reproductive access in no-choice states.
California lawyers are not required to maintain malpractice insurance. The California Rules of Professional Conduct only require that a lawyer who does not have insurance disclose that fact to his or her clients. See Rule of Professional Conduct 1.4.2.
One participant at the WLALA Forum proposed that the lawyer-Harriets carry malpractice insurance to cover the conduct. Ethics expert Diane Karpman noted the emergence of a new kind of specialty "misconduct" insurance, such as those policies that cover sexual harassment and sexual misconduct in the workplace.
Karpman stated that "insurance companies are businesses, and businesses want to make money, so if enough lawyers want to pay for insurance policies that cover facilitation of reproductive access, insurance companies will comply and create niche coverage."
In short, step 4? Call the carrier.
(v) Step 5, the Fifth Reproductive Access Action Proposal
Support the passage of legislation in the California State Assembly to "Good Samaratanizes" reproductive access facilitators. The legislation would block enforcement of anti-choice states' civil bounty hunter provisions; permit suits in California for damages against access blockers; direct California Courts to not issue and not honor out-of-state subpoenas related to the denial of reproductive access, and bar extradition from California to an anti-choice state, for criminal conduct related to the facilitation of reproductive access that is legal in California.
A more effective tack that could provide legal cover in California, for lawyers and non-lawyers alike, would be for the California legislature to pass legislation which "Good Samaritanizes" the facilitation of reproductive access. Three days after the release of the draft Alito opinion in Mississippi v. Jackson, Connecticut's governor Ned Lamont signed that state's reproductive good Samaritan legislation. See, Connecticut Public Act 22-19 (May 5, 2022). Connecticut's legislation (passed as the antidote to Texas' S.B. 8 private cause of action, bounty hunter law) protects Connecticut-Harriets who provide or facilitate reproductive services in Connecticut or who provide funding to others from anti-choice states to obtain abortions in Connecticut and are then sued extraterritorially in anti-choice states.
The Connecticut legislation (which will become effective on July 1, 2022) enables an access facilitator who has had a civil judgment lodged or entered in an anti-choice state for conduct legal in Connecticut (specifically, receiving, providing or helping a person obtain legal abortion services in Connecticut) - can sue for damages in Connecticut.
The Connecticut legislation also blocks Connecticut state officials (to include prosecutors) from assisting in interstate anti-access investigations or prosecutions. It also bars Connecticut's judicial branch employees from issuing or honoring subpoenas related to access is legal in Connecticut, and bars Connecticut's governor from complying (under comity principles) with an another's states extradition application for matters involving reproductive access actions legal in Connecticut but illegal in the state requesting extradition.
California has enacted protective measures to cover abortion and establishing a fund to assist with abortion costs. Additionally, Governor Newsom on May 11, announced his proposal for the passage of a "Reproductive Health Package to Strengthen Protections, Expand Access, and Welcome Businesses from Anti-Abortion States."
However, California has not directly taken on Texas' S.B. 8, and has not passed anything remotely close to what Connecticut has done. Note: Such a proposal cleared California Assembly on May 23.
It's time for California to act. There's no reason that our vast "Golden State" abutting the Pacific Ocean, and home to almost 40 million inhabitants should trail the tiny "Constitution State" of just 3.5 million on the Atlantic. Contact your state representatives and Governor Newsom's office, pronto.
(vi) Step 6, the Sixth Reproductive Access Action Proposal
Adopt a new state constitutional amendment to specifically provide the right to reproductive autonomy to include aborion, IVF and birth control, in the California Constitution.
California has a privacy right in its state constitution. The word is specifically mentioned in a provision added, in 1972, through a California voter initiative. California's constitution (Cal. Const. Art. I, section 1) provides that "All people are by nature free and independent and have inalienable rights. Among these are enjoying and defending life and liberty, acquiring, possessing and protecting property, and pursuing and obtaining safety, happiness and privacy."
The breadth of California's privacy right has been litigated in California courts and the Center for Reproductive Rights includes California as one of 11 states where state courts have interpreted privacy broadly.
The ascension of originalists and textualists to the federal judiciary who constrain the meanings of words to 18th century vernacular and who would have made former Treasury Secretary Alexander Hamilton bemoan more than the absence of the words "to create a national bank," make clear that the protection of personal liberties other than uber Anglo-Saxon-originated-religious-rights (think Christian beliefs as in "life-begins-at-conception" which the author, a practicing Jew, does not abide), will be the province of the states. Not all states, of course, but just the pro-reproductive access states, like California and Connecticut.
To safeguard against state-jurist versions of Justice Alito who toss stare decisis when an ideological religious quorum is formed, from here on in put the precise rights concerning the penumbra of privacy rights on paper. Even now, better yet especially now, state constitutions are one of the best recourses to protect abortion rights and health care access "independently from and more strongly than the U.S. Constitution."
On May 2, 2022, within hours of the publication of the Alito draft opinion in Mississippi v. Jackson, Governor Newsom and California legislative leaders Senate President pro Tempore Toni G. Atkins (D-San Diego), Assembly Speaker Anthony Rendon (D-Lakewood), announced that they would propound a reproductive choice amendment to the California Constitution.
Governor Newsom proclaimed that "California will not stand idly by as women across America are stripped of their rights and the progress so many have fought for gets erased." Newsom also stated that since the U.S. Supreme Court cannot be trusted "to protect reproductive rights...California will build a firewall around this right" in California's constitution.
How many moons must we wait? As with Step 5, contact your state representatives and Governor Newsom's office, without delay.
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Helping others protect individual reproductive liberties has personal risks.
With 26 states predicted to ban abortion access once the Supreme Court removes the Roe/Casey impediment and with almost half of those having passed trigger laws that will immediately ban abortion should the final opinion in Mississippi v. Jackson look much like Alito's draft, a multi-faceted action approach is necessary.
The reproductive access Mason-Dixon line is taking shape. There are hostile states and there are welcoming states. It feels a lot like what it must have felt to recently inaugurated President Abraham Lincoln when shots were fired in April 1861 at Fort Sumter in South Carolina's Charleston Harbor. Alito's final opinion is coming soon and could be America's figurative Fort Sumter bringing with it a decisive fracturing of America into pro and anti-choice states.
So, what's a pro-choice California-licensed lawyer to do at this very moment?
• Understand first that preserving and securing reproductive autonomy for individuals in the 26 anti-choice states comes with significant personal and professional risks.
• Look to history for guidance and know that our forebearers who sought to protect the enfranchisement and liberty interests of Black Americans in states that had seceded in Lincoln's time - faced greater risks. Those who boarded buses in the North during the Freedom Summer of 1963 to register Southern minority voters, violated many state laws including laws promoting segregation. Many voter registration activists like Freedom Summer's field orchestrator, Fannie Lou Hammer, were beaten "until their eyes were fused shut" by Southern law enforcement, and others to include Andrew Goodman (age 20), James Chaney (age 21) and Michael Schwerner (24) were murdered in Mississippi for their efforts. Speaking out and taking action for the common good in America has practically always posed risks.
• Harness your inner Harriet and act.
Several participants at the WLALA Zoom forum said they understood the risks and would be willing to act. I will be one of them.
I urge all pro-choice California lawyers to emulate Harriet Tubman. She lived until 1913, over a decade into the 20th Century. She was alive at a time when the civil war narrative was being rewritten and the very success of Reconstruction that enabled some 2000 African Americans to hold office in America and even more to participate in the political process - was recast as failure. The myth that slavery was a benign institution and that slave masters had actually enhanced the lives of their slave-commodities took hold.
Tubman would have none of this and never had. In a book by abolitionist Benjamin Drew (1812-1903) recounting the life stories "testimonies" of formerly fugitive slaves, Tubman's words from the 1850's took a torch to the egregiously false and pernicious Southern lie that slavery was good for slave. Tubman stated, "I have seen hundreds of escaped slaves, but I never saw one who was willing to go back and be a slave."
Now is not the time to go back. Lawyers take out your car keys and empty your wallets to help fund the overground reproductive railroad. Join me in my Honda minivan and we can split the cost of gas.