By Katy Grimes

While other states have been passing laws restricting when a woman can have an abortion, for several years California politicians have been trying to move legislation in the other direction. Taking up efforts defeated last year, Assemblywoman Toni Atkins, D-San Diego, is pushing AB 154 to allow nurses, midwives and physician assistants to perform abortions.

California’s back-door into new policy

A California “pilot project” which started as a program to increase access to gerontology care in 1973 morphed into being used to train midwives and nurses to perform surgical abortion procedures.

The abortion program was quietly concealed in the pilot gerontology program behind a phrase in the code “expanding early pregnancy care.” But since 2006, this project has been used in some cities to train nurses and medical assistants to do abortions.

And state regulations were suspended in order to allow “Nurse Midwives, Nurse Practitioners and Physician Assistants” to do these procedures, according to former Assemblywoman Linda Halderman and former Sen. Sam Aanestad. Both lawmakers looked into the pilot program while still in office, and tried to get it stopped.

Planned Parenthood claims this bill is necessary to “integrate abortion care into current practice settings.”

39 states still prefer doctors

If signed into law, California would be the fifth state to permit non-physician abortions. Thirty-nine other states require a licensed physician to perform abortions.

Assemblyman Dr. Richard Pan, D-Sacramento, has another bill, AB 980, which would remove the current requirements that abortions are to be done in a medically surgical and sterile setting, with a post-abortion recovery area adequate for recovering patients, and a counseling area that is maintained and provides privacy for patients requesting it.

Planned Parenthood, the bill’s sponsor, says the existing requirements are contrary to public interest and are even unconstitutional.

I spoke with several nurses who said that midwives are unregulated and used primarily to assist with normal, healthy, full-term live births. A woman delivering with a midwife that shows any signs of complications is rushed to a doctor at a hospital in a sterile setting.

Previous legislation

Last year Sen. Christine Kehoe, D-San Diego, authored SB 1501, a bill originally written about boating and waterways. But Kehoe gutted it and replaced the language with the abortion bill.

Prior to SB 1501, there was SB 1338, also by Kehoe, which would have allowed nurse practitioners, nurse midwives and physician assistants to provide first-trimester abortions. Kehoe scaled her bill down to include only 41 providers that are involved in a UC San Francisco pilot program throughout the state. But a Senate committee deadlocked on the vote, and the bill failed to pass.

That bill was also sponsored by Planned Parenthoood, NARAL, the California Nurses Association, and the SEIU. Most of the bill’s analysis was provided by these organizations.

However, Kehoe took the language from the failed bill, then placed it in budget bill SB 623. Kehoe received much criticism for trying to cram a failed bill into a budget trailer bill without the usual  committee hearings, public notification or debate.

I wrote about Kehoe’s bills last year.

Back to the future

Atkins and proponents of the bill claim many women in California do not have access to abortion clinics, and end up waiting longer to obtain an abortion.

But as of 2009, California had 107 Planned Parenthood clinics around the state, the most of any state in the country. And that is just Planned Parenthood clinics; there are many clinics affiliated with Planned Parenthood, and many private doctors perform abortions.

So what’s the problem?

According to Planned Parenthood on its Web page advocating for AB 154, “Early abortion access is a critical public health issue. An estimated one in three women will decide to terminate a pregnancy by age 45. Yet many women often do not have sufficient access to early abortions because of the limited number of physicians providing the services in their communities. Almost half of the counties in California have no accessible abortion provider, requiring women to travel significant distances to terminate a pregnancy or wait for an appointment for services.”

This is ironic. An important Democrat political issue and campaign strategy for many years has been the claim that women needed access to doctor-performed abortions instead of illegal back-alley abortions by non-physicians.

“Existing law makes it a public offense, punishable by a fine not exceeding $10,000 or imprisonment, or both, for a person to perform or assist in performing a surgical abortion if the person does not have a valid license to practice as a physician,” language in the bill explains. Should these bills be passed by the Legislature and signed by Gov. Jerry Brown, that language would be eliminated by these bills, with non-physicians allowed to perform the abortions.

Opponents of these bills also say poor ethnic women are being unfairly targeted.

The Assembly passed Atkins’ legislation last week on a vote of 50-25. Only one Democrat, Assemblyman Rudy Salas of Bakersfield, voted with Republicans in opposition. Four Assembly members abstained from voting: Travis Allen, Ken Cooley, Steve Fox and Chris Holden.

The bill next will be heard and debated in the Senate.

By Chris Reed

In 1999, California Democrats celebrated Gray Davis’ election as governor the previous fall by sending him a slew of legislation they knew that his Republican predecessor, Pete Wilson, would never have approved. Most notoriously, they won Davis’ signature on SB 400, the giveaway of a retroactive 50 percent increase in the pension formula for state employees, triggering copycat “pension spiking” measures at the local government level that are now yielding chaos up and down the Golden State.

In 2011, California Democrats acted in similar fashion after Gov. Jerry Brown replaced Republican Gov. Arnold Schwarzenegger. But their most audacious power play of the year was barely noticed for many months. It involved the state Public Employment Relations Board, a quasi-judicial government agency that acts — or is supposed to act — as a de facto referee in disputes between governing bodies and unions over collective bargaining.

Now PERB has emerged as the leader of a union coalition that wants to throttle direct democracy, to ignore plainly written state laws on teacher performance and to argue that PERB — not the state court system — should interpret state laws when it comes to anything that involves public employees.

How did we get to this extreme state of affairs? Conspiracy devotees will be disappointed. The radicalization of PERB appears to be more a byproduct of the intense feud between the Schwarzenegger administration and the California Nurses Association than a calculated scheme to use an obscure state agency to advance the union agenda so broadly.

Nurses vs. UC, round one

After Schwarzenegger took over as governor in 2003, there is no evidence that PERB suddenly became a hotbed of anti-union fervor. He retained as PERB’s general counsel, and its most powerful official, a Gray Davis appointee named Robert Thompson. But when Thompson and PERB stood up to the California Nurses Association in 2005 and disputed the union’s claim that the Schwarzenegger administration had shown bad faith in contract negotiations,
Thompson and PERB set in motion a chain of events that transformed PERB.

In 2005, administration officials and the University of California balked at CNA demands that UC provide 9,000 union nurses at its five UC medical centers and 10 student health clinics with better benefits than other UC employees. Howard Pripas, then UC’s executive director of labor relations, said nurses also wanted raises of between 10 percent and 19 percent for 2006 after receiving a 13.5 percent average increase in 2005. UC rejected the demands, noting that UC nurses had “low vacancy and turnover rates, a higher than market number of paid holidays and exceptional retirement benefits as compared to key competitors.”

This display of prudent management enraged Rose Ann DeMoro, then as now the executive director of the CNA. She pursued an extreme tactic: organizing a one-day walkout of nurses at all UC health facilities that would put at direct risk the health of thousands of very sick patients.

But after PERB agreed with UC officials that the walkout may be illegal, was contrary to the public interest and short-circuited the collective bargaining process, a Sacramento Superior Court judge issued a temporary restraining order blocking the planned July 21, 2005 job action.

DeMoro said nurses were “outraged that [UC] would go to court to block their democratic right to strike.”

Nurses vs. UC, round two

In 2010, it was back to hardball time. Once again, to gain leverage in a contract fight, the CNA planned a one-day strike by its now-12,000 union nurses at UC medical centers and clinics. Once again, UC stood up to DeMoro, issuing a statement saying that “patient safety should not be leveraged by CNA leadership as a negotiation tactic.” Once again, PERB and state courts sided with UC and blocked the walkout on the grounds that it was an unlawful pressure tactic. PERB also held that the UC system could sue CNA for damages for threatening an unlawful strike.

But when union-allied Jerry Brown took over for Schwarzenegger in January 2011, the nurses’ union said, “Never again.”

On May 2, 2011, the governor appointed M. Suzanne Murphy as PERB’s general counsel. Murphy had served as the CNA’s general counsel in 2006 and 2007 after years working for a law firm and employee advocacy groups affiliated with labor interests. Brown also that day named Anita I. Martinez, a longtime PERB staffer who came to the agency after working for the Agricultural Labor Relations Board in Sacramento and the National Labor Relations Board in San Francisco, as chair of PERB’s governing board.

Attorney A. Eugene Huguenin was also named to PERB’s governing board. Huguenin had a 27-year history with the state’s most powerful union, serving as a consultant to the California Teachers Association from 1973 to 1979 and as CTA staff counsel from 1979 to 2000.

Soon after, when there were two vacancies on the five-member PERB governing board, Huguenin and Martinez formed a governing faction that worked with Murphy in changing PERB from being union-neutral to de facto union partner.

Meanwhile, Brown signed into law in October 2011 a bill that banned PERB from imposing penalties on public employee unions that pursued illegal strikes, immunizing unions from financial consequences for extreme tactics.

From union referee to union enforcer

In Feb. 2012, PERB’s radical change in course first became apparent when the agency for the first time in California history sought to pre-emptively keep a pending ballot measure — a June 2012 San Diego pension reform initiative — from going before voters. Murphy’s argument held that, because elected officials in San Diego were involved in drafting the measure, it amounted to an attempt to circumvent and thus violate union collective bargaining rights — even though the San Diego City Council declined to support the measure and it had been organized by private groups.

This argument, if upheld, arguably would set a precedent under which elected officials could never join in ballot petition campaigns to try to force changes in government policies, because such changes would have affected employees, and thus needed to be collectively bargained.

The unusual argument was eventually rejected, and San Diego voters approved the reform measure in June in a landslide. PERB nonetheless continues its all-out attempt to block the reform from taking effect.

In June 2012, the extent of PERB’s new radicalism was further confirmed when the legal arguments it had made as an intervening party in the case of Jane Doe, et al., vs. John Deasy, et al., finally came into focus. In the case, a group of parents of students in the Los Angeles Unified School District sued Superintendent John Deasy and others over the district’s failure to follow the Stull Act, a 1971 state law that among its many provisions required that teacher evaluations be based at least in part on student performance.

As I noted here last month, PERB argued that collective bargaining rights granted to teachers in 1975 by Brown during his first term as governor trumped the pre-existing state law, and that L.A. Unified had no authority to honor the 1971 state law without first having the issue be subject to collective bargaining.

Parents, butt out of PERB business

But PERB’s unusual arguments did not end there. PERB also asserted that it should have jurisdiction over the issue of Los Angeles’ schools’ compliance with the Stull Act, not the courts, because of its role as arbiter of collective bargaining.

In June, however, Los Angeles Superior Court Judge James C. Chalfant ruled that L.A. Unified had no choice but to honor state law for the simple reason that a collectively bargained agreement that violated state law was not a valid agreement.

But Chalfant also took subtle aim at PERB’s pretzel logic on the jurisdiction question. He noted that PERB had “acknowledged that petitioners” — the parents who sued L.A. Unified — “have no standing to appear at a PERB proceeding.”

In other words, PERB contended that parents who believed state laws involving teachers were being ignored couldn’t go to the courts to complain, because PERB had jurisdiction; but the parents couldn’t go to PERB either, because they weren’t among those eligible to bring a complaint.

So what could aggrieved parents do to force compliance with state law? Practically speaking, nothing but whine and hope someone listened and changed their mind.

Emasculating union obstacles

The parallels with the San Diego ballot measure argument are obvious. If elected officials can’t win policy changes because of union influence over governing bodies, can they use their influence and fundraising acumen to help ballot initiative campaigns to force such changes? Not if PERB gets its way.

So what could aggrieved lawmakers do to force change? Practically speaking, nothing but whine and hope someone listened and changed their mind.

This is the California that the radicals in charge of the state Public Employment Relations Board intend to create.

Thankfully, so far at least, their crusade is not going well.

“Up until the San Diego case, PERB had never lost an injunction case in court,” San Diego City Attorney Jan Goldsmith told me in an email. “Courts defer to quasi-judicial agencies and tend to grant their requests. In this case, PERB lost two injunction motions — one before and one after the election. They then lost their motion for reconsideration. That really is unheard of coming out of a supposed quasi-judicial agency.”

Goldsmith doesn’t believe Murphy, Huguenin or Martinez are likely to change their course. His hope is that Brown fills the two PERB governing board vacancies with responsible people not wedded to the daft idea that collective bargaining rights amount to the dominant principle in the California Constitution.

But would Brown do so, knowing it would cross Murphy’s and Huguenin’s former employers, the powerful unions he counts on in his push for higher taxes?

Maybe the Jerry Brown of myth would do it — the iconoclast with unconventional views and values. But not the Jerry Brown of 2012, who acts as the tax collector for the public employee state.

The courts are protecting us — so far

Yet as long as Superior Court judges keep properly interpreting clearly written state laws and long-established judicial precedents, perhaps Brown’s complicity with the union takeover of PERB won’t matter much.

No man is above the law. So long as state courts continue to hold that collective bargaining is not above state law, ultimately we could be safe from PERB’s perverse crusade.

In one final twist, as it turned out, the California Nurses Association didn’t need new leadership at PERB to allow lethal strikes at UC medical facilities to get its way in contract negotiations. In May 2011, the same month as the PERB shake-up, Brown’s administration and the University of California agreed to give union nurses at UC medical centers and student clinics a minimum 11 percent raise over 26 months. The deal also limited future increases in what nurses pay for their own health coverage and dropped various concessions that UC had initially sought.

CNA boss DeMoro’s triumph was finally realized, thanks to a man she declared in 2009 to be “the most sophisticated politician in the state.”

“Sophisticated” isn’t the word most taxpayers would use to describe Jerry Brown’s CNA giveaway and his stacking of PERB. Instead, a long list of harsh adjectives comes to mind — the mildest of which is heinous.

Reed is an editorial writer for the U-T San Diego newspaper. He can be reached at: chrisreed99@yahoo.com.