Former Governor Arnold Schwarzenegger often referred to California as a “nation state”. As a nation state, California has often charted its own course in politics, coordinating with states like New York or even other countries rather than the federal government.

California has forged an innovative policy by deviating from federal law in many areas. He has repeatedly demonstrated the potential of federalism – the division of powers between the states and the federal government – ​​to support left-wing action. It has developed environmental policy and cap and trade programs in coordination with international governments. He explicitly resisted contrary federal laws and policies by acting early to legalize medical marijuana and more recently to counter Trump-era immigration restrictions through sanctuary city policies.

The Supreme Court’s decision to overturn Roe v. Wade makes abortion the last area where California can lead independently of the federal government.

The majority opinion in the case explicitly discusses the possibility of divergent state regulation of abortion, noting that “in some states, voters may believe that the right to abortion should be even broader than the right as the Supreme Court had previously recognized and claims the ruling returns abortion issues “to the people and their elected representatives,” that is, to the state legislatures. Judge Brett Kavanaugh’s agreement makes even more explicit reference to the continued validity of individual states’ abortion regulations or protections.

There are reasons based on federalism why abortion could remain a state matter. For example, the regulation of public health and safety as well as the medical profession have traditionally been considered part of the police powers of states. For this reason, there is a constitutional presumption in favor of state rather than federal regulation. Reliance on states for health and safety rules has been clear most recently in the area of ​​COVID-19 regulations, where mask requirements and other rules have diverged widely from state to state.

But there are two primary ways that federal law can limit a state’s police powers — if a federal constitutional right exists or if federal law prevails or supersedes state law. Neither is abortion now that the Supreme Court has struck down Roe v. Wade.

The powers of the California police have at times been limited due to conflict with constitutionally protected individual rights. Last year, the Supreme Court overturned a number of California’s COVID-related restrictions on religious gatherings in public places of worship and in private homes based on the right to free exercise of religion under the first amendment.

The Supreme Court struck down the individual’s constitutional right to abortion. As a result of this ruling, the regulation of abortion and related medical procedures would likely fall under state control.

So how can California use its state authority to lead reproductive justice?

Discrimination based on pregnancy offers a striking example. California has not always been at the forefront of reproductive rights. In the early 1970s, California law excluded pregnancy-related job loss from coverage under its disability law. Carolyn Aiello, a hairstylist who suffered from an ectopic pregnancy and needed surgery to remove it, sued on behalf of a class of women claiming the law discriminates on the basis of sex in violation of the Equal Protection Clause of the Fourteenth Amendment.

The Supreme Court dismissed the women’s claims in 1974 in a rambling opinion, saying California law did not discriminate on the basis of sex because not all women would get pregnant. National outrage over this and related rulings escalated, culminating at the federal level with the Pregnancy Discrimination Act of 1978.

Under Governor Jerry Brown, however, California went even further than the federal government by passing the Pregnancy Disability Leave Act of 1978, which guaranteed job security for those unable to work for several months due to pregnancy, childbirth or related medical conditions. This law itself has been challenged.

Opponents claimed the California law was invalid because it protected pregnant women more than the federal law. They argued, in other words, that the federal anti-discrimination law provided the ceiling as well as the floor for the available regulation of pregnancy discrimination. The Supreme Court, however, upheld the California measures, finding nothing inconsistent with federal law.

By striking down constitutional abortion protections, the Supreme Court opens the door for California to integrate abortion rights laws into a broader reproductive justice framework that emphasizes equitable access to all resources related to procreation, including abortion. Putting reproductive freedom on the ballot of California voters in November and launching a multi-state coalition to protect reproductive rights are valuable steps already underway toward that goal.

Just as it leads the nation and the world on environmental issues, California should seize this opportunity to provide a model of reproductive justice across the country.

Bernadette Meyler is the Carl and Sheila Spaeth Professor of Law at Stanford Law School.