Do abortion rights belong in the California constitution? Your questions answered
Across the country, states are staking out their places in the post-Roe v. Wade landscape. California voters will have the opportunity to weigh in this November by answering this question: Should reproductive rights be enshrined in the state constitution?
Supporters of Proposition 1 say it’s a necessary firewall, even for a state with strong abortion protections already on the books. Critics, including self-identified Democrats, worry that the measure amounts to risky overkill. Conservatives call it political grandstanding that’s out of step with voters.
Reproductive freedom is top of mind this election season. Where voters land on Prop. 1 will show just how aligned they are with Democratic lawmakers and Gov. Gavin Newsom, whose outspoken attacks on red state abortion restrictions have elevated him to a national role as a defender of reproductive rights.
Some thirteen states had “trigger laws” in place to ban abortion as soon as the Supreme Court issued its Dobbs ruling. Meanwhile, voters in conservative Kansas last month resoundingly rejected an amendment that would have removed the right to an abortion from the state’s constitution.
While several states have ballot measures addressing abortion, only California and Vermont are asking voters to embed the right to an abortion in their constitutions this fall.
What is Prop. 1 and what would it do?
A “yes” vote on Proposition 1 would amend the California Constitution to include reproductive rights to abortion and contraception. A “no” vote would block the amendment, and would have no effect on California laws protecting abortion access.
“The state shall not deny or interfere with an individual’s reproductive freedom in their most intimate decisions, which includes their fundamental right to choose to have an abortion and their fundamental right to choose or refuse contraceptives,” the amendment reads.
Support for the amendment originated in early May, not long after Politico published a leaked draft of the U.S. Supreme Court’s forthcoming decision to reverse Roe vs. Wade. A group of abortion rights advocates, including Planned Parenthood leaders, gathered with Senate leader Toni Atkins to discuss the California response.
She and other state Democratic leaders figured if the constitutional right to an abortion could fall after nearly half a century, it could happen at the state level — and foreshadowed an influx of women from other states traveling to California for the procedure.
A constitutional amendment would bolster decades of existing abortion law, they determined, alongside a string of abortion bills either signed by Newsom or awaiting his signature. The amendment passed in the Democratic-controlled Legislature with virtually no Republican support in late June.
Indications are that the measure is likely to pass. A poll released Aug. 24 by the UC Berkeley Institute of Governmental Studies found that 71% of registered voters are likely to support it.
What are opponents arguing?
Because the amendment text lacks any limits to late-term abortion, the No on Prop. 1 campaign, led by anti-abortion groups, faith-based organizations and the Republican Party of California, say it is too broad and would override existing abortion law.
Abortion rights in California are protected by decades of case law and statutes, including a 2009 law allowing a woman to have an abortion until fetal viability unless the mother is at risk.
The term “viability,” which is often politicized, refers to when a physician determines “there is a reasonable likelihood of the fetus’ sustained survival outside the uterus without the application of extraordinary medical measures” or to protect a mother’s life. Generally, a fetus is considered viable after 24 weeks of pregnancy.
In a statement, Fresno Republican Assemblyman Jim Patterson said without language clarifying existing law on viability, the constitutional amendment “will not only expand California’s existing abortion law to include late-term, third trimester abortions, but add to California’s ‘abortion sanctuary’ status, attracting thousands more abortion-seekers from other states.”
Susan Arnall, Vice President of the Right to Life League, called the measure “superfluous virtue signaling by Sen. Toni Atkins” and that the amendment combined with a string of abortion access laws signed by the governor go too far.
“They’re assuming that they can always rely on voters to turn out and to approve this. They may be wrong,” Arnall said.
Atkins, who directed a reproductive care clinic in the 1980s, defended the brief amendment as a practical change that will fortify the right to abortion for future generations.
The brief amendment doesn’t grant unfettered access to abortion, proponents say, but rather lays a fundamental foundation for lawmakers to complete with regulations.
“I don’t think this is a useless effort. I think it is a definite offensive play to make sure that women in California in the future do not end up in the same position that women today are facing across this country. This is a real threat,” she said.
Could it have unintended consequences?
In the weeks since the California Legislature placed the amendment on the November ballot, a small chorus of pro-abortion voices have warned that Prop. 1 could backfire — for lack of clarification about fetal viability and the simple risk of leaving such a critical decision to voters.
Joe Matthews, a California direct democracy expert and author of “The California Crackup,” an examination of the state’s failed efforts at reform, is one of those voices. He said he hopes polls are correct and the measure is overwhelmingly passed, but even then could open up the door for new anti-abortion legal assault.
“You’re adding the ballot measure on top of whatever else is out there, which can be quite complicated and the thing can boomerang against you very easily. When you’re dealing with rights this fundamental that are at danger nationally, why? Why screw with it?” he asked.
Wendy Voorsanger, author of the historical novel “Prospects of a Woman,” pointed to the 2008 passage of Proposition 8, which allowed voters to take away rights of same-sex couples to marry in California. It led to years of legal wrangling ending only when the U.S. Supreme Court made same-sex marriage the law of the land in the Obergefell v. Hodges decision.
“The Legislature just made a huge mistake by opening the door for anti-choice voters to deny women’s reproductive rights granted for the past 50 years,” she wrote in an op-ed for CalMatters.
Allison Macbeth of the California Constitution Center at Berkeley Law and Elizabeth Bernal, an editor of the Hastings Law Journal, also publicly urged the Legislature to incorporate limits that Roe and related cases put on abortion — mainly the term “viability”.
Failure to mention this aspect of existing law would “untether” Prop. 1 from legal foundations in privacy protection which could threaten reinterpretation of reproductive rights and other rights grounded in privacy, like marriage, in the courts.
Yet Cary Franklin, a constitutional law professor at UCLA, sees the ballot measure as meaningful change and a democratic opportunity to show widespread support she’s confident exists. She hopes the recent Kansas vote is only the first of more examples.
“What we’ve got is a law that could just be overturned by the Legislature at anytime, and we have a court interpreting the word privacy. That’s what we had, essentially in Roe and at the federal level,” she said. “It’s important for California to show that large majorities of Americans everywhere support rights to abortion.”
How would it stand up to a national abortion ban?
Abortion advocates worry that a “red wave” of Republican success in the November midterm elections could portend a nationwide prohibition on the procedure.
House leaders like California’s Kevin McCarthy say they would back a ban on abortion after 15 weeks of pregnancy, a longstanding goal of anti-abortion advocates.
In general, say constitutional experts, federal law overrides state law, including state constitutions. Yet a legal fight would almost certainly ensue over whether Congress actually has the authority to issue a national ban.
Whether a national ban would curb access to abortion in California, with or without passage of Prop. 1, is ultimately unclear.
“It’s sort of hard to think of all the possibilities,” said Lisa Ikemoto, a health and bioethics law professor at UC Davis. “We thought we had thought of those before this year, and it turns out there are a lot of unexpected paths these battles can take.”
This story was originally published September 7, 2022 at 5:00 AM with the headline "Do abortion rights belong in the California constitution? Your questions answered."