Legal experts: San Clemente abortion resolution unenforceable
California Attorney General Rob Bonta and two local law school professors said Wednesday San Clemente City Council members can pass a resolution outlawing abortion in the city, but it is unenforceable.
San Clemente City Council members are expected to consider a resolution at their Aug. 16 meeting declaring the city a “sanctuary of life,” as well as an “abortion-free zone.”
“In California, the right to choose remains fully protected, and abortion remains fully legal within our state,” a spokesperson for the Attorney General’s Office told City News Service. “Attorney General Bonta is committed to defending reproductive freedom and state law.”
Councilwoman Laura Ferguson told City News Service that she was approached by Mayor Gene James to introduce the resolution last month, but declined. She said Councilman Steve Knoblock brought it up at the July 19 meeting.
Ferguson said she has high regard for Knoblock and added, “He’s been a friend for years, but I just disagree with him on this one.”
Ferguson said she would prefer city officials spend more time discussing local issues the city has authority over.
“It’s something already legal and codified in state law,” Ferguson said of abortion rights.
Ferguson said the resolution would be a “symbolic, nonbinding resolution. It has no teeth. It clearly just states the position of someone on the council. I personally believe in a person’s liberties and freedoms.
“We’re out of our lane on this one,” Ferguson said. “It’s a huge distraction. We have issues, we have homelessness like most coastal cities do and the housing element to address.”
UC Irvine political science and law professor Tony Smith characterized the move as “cheap political theater.
“This is akin to The Little Rascals putting on a show,” Smith said, referring to a group of child actors who starred in a series of comedy short films from 1922 to 1944. “There’s nothing to this, no capacity for this to be successful.
“And this is absolutely not what any city voter wants their city council to be doing. Even city residents who believe abortion should be outlawed don’t want their city council deciding what rights they do and don’t have.”
Ferguson noted that when the City Council recently took up a gun rights resolution recently the meeting was “divisive and contentious” and took hours of public comment.
Chapman University law professor Mario Mainero pointed out that the issue of whether a city can act independently of state law has already been addressed in recent years when Huntington Beach failed in its lawsuit to stop the state’s sanctuary state policy for immigrants living in the country illegally and when the county failed to try to enforce a law to prohibit registered sex offenders from all parks. Legal precedent was set in the appellate courts on the question, Mainero said.
“Under state law abortions are legal at least to the point that the standard Roe had,” Mainero said. “State law preempts local law in most cases. Certainly on matters like this because even if San Clemente were a charter city this is not an item where a charter city could violate the state constitution. … So if San Clemente passes something like this, it’s void.”
UCI law professor Michele Goodwin agreed.
“There can be no such thing as an abortion-free community in the state of California where one’s rights according to the state constitution and legislative enactment are in force and in place,” Goodwin said.
“That’s true whether we’re talking post-Dobbs or pre Roe vs. Wade. The state of California has been very clear about the principles of reproductive freedom and that doesn’t change because there are elected council leaders who are seeking to get local or national attention by attempting to establish that community as an abortion-free zone.”