On June 24, 2022, the radical, activist, and far-right-wing conservatives on the U.S. Supreme Court did something that even the über conservative Lochner-era Supreme Court didn’t do. The (Trump) Court, in a 5-4 decision authored by Justice Samuel Alito Jr. in Dobbs v. Jackson Women’s Health Organization, 142 S.Ct. 2228 (2022), reversed a pair of cases that Justice Antonin Scalia’s acolyte, Judge Michael Luttig, had called “super stare decisis” – Roe v. Wade, 410 U.S. 113 (1973) and Planned Parenthood of Southeastern Pennsylvania. v. Casey, 505 U.S. 833 (1992). In doing so, the five radical right-wing Justices took away a fundamental constitutional right (the right to choose) for the first time in U.S. history. Perhaps most surprising about the Dobbs decision is that the right to choose was cavalierly stolen from the Country even though it was repeatedly affirmed and re-affirmed year after year for nearly 50 years in opinions written by and/or concurred in by 16 Justices – 10 different Republican Justices nominated by 5 different Republican Presidents and six Democratic Justices.
Justice Clarence Thomas, in his concurring opinion, advocated for the Supreme Court to go even further toward a dystopian world straight out of The Handmaid’s Tale and reverse all of the Court’s prior substantive due process decisions, including Griswold v. Connecticut, 381 U.S. 479 (1965), which held that the right to privacy protected against state restrictions on contraception.
In response to both the horrific Dobbs decision and threats by Republicans to take away other reproductive rights Americans have taken for granted for decades, Governor Newsom signed SB 523, the Contraceptive Equity Act of 2022, into law on September 27, 2022. This law amends California’s Fair Employment and Housing Act (“FEHA”) to add “reproductive health decision-making” as a legally protected category. “Reproductive health decision-making” is defined to include, but not be limited to, “a decision to use or access a particular drug, device, product, or medical service for reproductive health.”