Introduction

Proposition 1 is a statewide measure and legislative constitutional amendment on the ballot for the 2022 General Election. It seeks to add a new subsection to Article I of the California Constitution, the Declaration of Rights; this section would explicitly add the “fundamental right to choose to have an abortion” and the “fundamental right to choose or refuse contraceptives” as enumerated rights inalienable by the government.

These rights have previously been judged by the California Supreme Court to be covered by the constitution’s explicit right to privacy. The constitutional amendment would cast these rights as part of a broader construction, termed “an individual’s reproductive freedom in their most intimate decisions,” and would prohibit the state from “deny[ing] or interfer[ing]” with this freedom.

Proposition 1 was introduced in the California State Senate as Senate Constitutional Amendment 10 (SCA 10) on June 8, 2022 by President Pro Tempore Toni Atkins (D-San Diego). It was passed by the Senate on June 20, whereupon it was taken up by the Assembly and passed in that house on June 28. Governor Gavin Newsom signed his approval of the measure on June 29. The measure will pass or fail according to whichever side has a majority of 50% plus one vote.

The official voter guide for Proposition 1 can be found at the California Secretary of State’s website.

What The Vote Means

• A vote of “Yes” SUPPORTS amending the California Constitution to add explicit the explicit right to choose to have an abortion, to choose to use or not to use contraception, and to forbid the government of the state to deny or interfere with an individual’s reproductive freedom.
• A vote of “No” OPPOSES amending the California Constitution to add explicit the explicit right to choose to have an abortion, to choose to use or not to use contraception, and to forbid the government of the state to deny or interfere with an individual’s reproductive freedom.

How I am Voting

I am voting “Yes” in support of an explicit constitutional right to abortion and contraceptive access in California.

Analysis

SCA 10 was introduced in the State Senate one month following the publication of a draft decision by the Supreme Court of the United States in the Dobbs v. Jackson Women’s Health Organization case. The draft opinion, which was published by Politico, signaled that the court was prepared to withdraw constitutional protections from the right of a woman to terminate a pregnancy. This right had been extended by the court 50 years earlier in the case Roe v. Wade and reaffirmed in the 1990s with the court’s decision in Planned Parenthood v. Casey.

However, California’s actions to expand abortion rights did not start in May. The most recent round of legislative action on the issue was prompted by the Supreme Court’s inaction in summer 2021, when it allowed SB 8 to go into effect in Texas.

SB 8, called the “Texas Heartbeat Act,” banned the termination of a pregnancy following the detection of cardiac activity in an embryo, despite that the electrical signals to which the law refers are neither evidence of a developed cardiovascular system nor of a pregnancy which will eventually reach delivery. The law fell far short of the standard established in Roe, which held that abortion was a constitutionally protected act up until the point of fetal viability, i.e. the point at which a fetus could survive outside the womb.

SB8 thus became the most restrictive enforceable law on abortion in the United States for half a century, and, given that the Supreme Court had decided to hear the Dobbs case in May 2021, the signals all indicated that existing abortion rights would soon be repealed or significantly curtailed.

In response to this shifting national context, Governor Newsom, President Pro Tem Atkins, and Speaker of the California State Assembly Anthony Rendon (D-Lakewood) sought to convene a new group, the California Future of Abortion (“CA FAB”) Council, which would consist of healthcare and rights groups, abortion providers, and policy experts. The CA FAB Council developed a package of policy proposals which eventually became 15 bills and one constitutional amendment. By the end of September 2022, all had passed the legislature and been signed off by the governor.

The ballot measure, SCA 10, required the support of two-thirds of both chambers of the legislature to reach voters. Control of the legislature by the Democratic Party is at or above 75% of members in both the Senate and Assembly, making passage a matter of little doubt. In support of the bill, members of the party leadership spoke about the then-imminent repeal of Roe protections as necessitating California to shoulder forward in defense of women’s rights.

President Pro Tem Atkins spoke of her experience providing women’s healthcare and the human costs incurred when politics is allowed to interfere with the reproductive health of individuals. Senator Connie Leyva, Chair of the Senate Democratic Caucus, accused the Republican Party of desiring to prevent women from accessing contraception or terminating pregnancies, saying the party was about keeping women “in the kitchen, barefoot and pregnant.” Governor Newsom reviled both the Supreme Court and Republican Party as “extremists” ideologically bent on clawing back constitutional freedoms.

The most prominent organized opposition to the measure is the Catholic Church in the state. Through the California Catholic Conference, its policy advocacy arm, the church has accused the Democrat-controlled government of using the anger over the Dobbs decision to push through what it calls “the most egregious expansion of abortion this country has ever seen.” This is the most common theme of the No on Proposition 1 campaign, which is facing likely defeat in a state where abortion rights are popular and the kindest word many residents might find to call the Supreme Court is “illegitimate.”

Senator Melissa Melendez (R-Lake Elsinore) said on the Senate Floor that she felt the measure was a product of her Democratic opposition having irresponsibly stoked fears that a withdrawal of Roe protections would change the lived reality for child-bearing individuals in California. Senator Melendez further asked lead author President Pro Tem Atkins what restrictions, if any, Proposition 1 would place on the ability of an individual to get an abortion. Atkins responded that the measure was consistent with existing state law, which has been used by opponents to claim that Democrats either don’t know or don’t care about the scope of the constitutional amendment they have put on the ballot. This claim rests on the difference in language between Proposition 1 and the Reproductive Freedom Act.

The Reproductive Freedom Act (SB 1301 (2002)) is a California statute providing for the freedom of individuals to terminate a pregnancy free from government interference prior to fetal viability and, in limited cases, afterward; it is also the most commonly cited piece of legislation in reference to Proposition 1. The Reproductive Freedom Act was sponsored by outgoing Supervisor Sheila Kuehl and finds that both abortion and contraceptive access are necessarily covered by the state’s existing constitutional right to privacy.

While Proposition 1 seeks to import the phrasing of the Reproductive Freedom Act into the constitution, it notably does not set forth the same limiting language as the statute. The Reproductive Freedom Act uses the phrase “deny or interfere” at three points:

• “This bill would provide that the state shall not deny or interfere with a woman’s fundamental right to choose to bear a child or obtain an abortion prior to viability of the fetus, as defined, or when necessary to protect her life or health. The bill would specify the circumstances under which the performance of an abortion is deemed unauthorized.”
• “The state shall not deny or interfere with a woman’s fundamental right to choose to bear a child or to choose to obtain an abortion, except as specifically permitted by this article.”
• “The state may not deny or interfere with a woman’s right to choose or obtain an abortion prior to viability of the fetus, or when the abortion is necessary to protect the life or health of the woman.”

The language in Proposition 1 reads: “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.”

Whereas the language in the Reproductive Freedom Act is accompanied each time by some limitation, no definite bounds are exacted in the proposition. However, it is unclear that the absence of such provisions would constitute a dramatic expansion in abortion rights. The fetal viability standard that was in place in the United States for half a century protected the right to terminate a pregnancy until late in the second trimester. Other states, California included, permitted abortions beyond the point of viability when it was necessary to “protect [the mother’s] health].”

Nonetheless, statistics kept by the Centers for Disease Control and Prevention (CDC) and the Guttmacher Institute show that abortions of a fetus past 20 weeks gestation are rare. The CDC puts their occurrence at less than 1% of pregnancies terminated. Nearly all abortions happen much earlier in pregnancy. And this window begins at 21 weeks of gestational age, which is still in the middle of the second trimester. It should be expected that the third trimester, which begins at week 27, sees a minuscule number of abortions and that those abortions are conducted in situations of tragic, but extreme, need.

The National Right to Life Committee would seemingly agree: in a pamphlet of talking points they acknowledge the acceptability of conducting an abortion to save the life of the mother. They state: “When the mother’s life is imminently threatened by the pregnancy, the doctor must make immediate medical decisions in order to save her life. The actions taken in some cases may result in the death of the baby but the intention is to save the mother’s life. Thankfully, these situations are rare.” But the belief that there is to be a marked expansion in abortion rights upon passage of Proposition 1 requires one to believe that there is a demand for non-emergency abortions in the third trimester.

In the overheated rhetoric of American politics, it is not uncommon for Republican politicians, let alone their voters, to propound a belief that Democrats are working assiduously to create a world in which women regularly choose to carry a baby to term and then, with malice aforethought, murder it at the door to the delivery room. It is to the credit of the California Democratic Party that they have declined to engage on these terms, repeating with utmost frequency the reality that the termination of a pregnancy is a medical procedure, that “abortion is healthcare.”

It seems certain that if it passes, Proposition 1 will become yet another facet of the frothing anti-California propaganda to which the national Republican Party is addicted. But by construing the right to abortion and contraceptive access in broad terms, the legislature has put before voters a measure that treats women as adults capable of making difficult decisions informed by and with the support of their healthcare professionals.

One last note: both the Catholic Church and Republican detractors have claimed that constitutional protections are unnecessary given other constitutional and legal protections in the state. They have claimed that it is a cynical means for Democrats to whip their voters. And they have said that there is no reason to believe that the national context will shift beyond a repeal of Roe into more aggressive anti-abortion measures.

None of this is true.

Like in California, the United States also had a constitutional protection under the right to privacy. But a new court took power and withdrew that protection. In doing so, that new court asserted that the word “abortion” could be found nowhere in the constitution. If Proposition 1 passes, no new court in California will ever be able to say the same about the state constitution. When the Dobbs decision was handed down, anti-abortion activists immediately turned their attention to a federal ban, putting the lie (not for the first time) to the long-repeated delusion about conservatives and state’s rights. It is appropriate, right, and urgent that the state seize upon this moment to buttress the rights of Californians and all those who will be looking to California to exercise the freedoms they are losing at home.

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