By Alexei Koseff, CalMatters
Proposition 1, the Nov. 8 ballot measure that would create an explicit protection for “reproductive freedom” in the California Constitution, is not written to expand abortion access into the final months of pregnancy and, despite warnings from opponents, legal experts say that is a highly unlikely outcome if it passes.
The simple yet sweeping language of the measure — “the state shall not deny or interfere with an individual’s reproductive freedom in their most intimate decisions” — has been a source of contention, even among some supporters of abortion rights, since it was introduced this summer.
If Proposition 1 fails, access to abortion in California would not change. But opponents warn in dire terms that, if it passes, the measure would override existing restrictions in state law, which limit the procedure after a fetus is considered viable, thereby permitting abortions up until the moment of birth.
Margaret Russell, a professor of constitutional law at Santa Clara University School of Law, said it is understandable to question whether Proposition 1 would expand abortion access, but its language must be considered in context.
Because proponents have been clear that their intent is simply to reaffirm the right to abortion in California, she said, a court would not realistically ignore that evidence and interpret Proposition 1 as allowing abortions for any reason at any time.
“This isn’t a bait-and-switch,” Russell said.
Why Proposition 1 is on the ballot
Proposition 1 is a response to the U.S. Supreme Court ruling in June that overturned Roe v. Wade and eliminated a constitutional protection for abortion nationwide.
That decision did not change access to abortion in California, where it is protected by state law and through a right to privacy in the state constitution.
But fearing that future lawmakers could change their minds, or that judges could follow the lead of the Supreme Court and reinterpret the right to privacy, Democratic politicians put Proposition 1 to voters. They argued that Californians need a stronger guarantee that they will not lose abortion access.
The measure provides that 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 opposition campaign, led in large part by the Catholic Church, has focused heavily on what’s not in Proposition 1 — any mention of limitations on abortion.
‘Tsunamis of the law’
A state law adopted in 2002, the Reproductive Privacy Act, lays out a “a fundamental right to choose to bear a child or obtain an abortion prior to viability of the fetus,” when it would be able to survive outside the womb without extraordinary medical intervention, as determined by the “good faith medical judgment of a physician.”
That is generally considered to be up to about 24 weeks of pregnancy. Beyond that, abortion is only legal in California if “necessary to protect the life or health of the woman.”
Christopher Bakes, a trial attorney who opposes Proposition 1, said the expansive text of the measure conflicts with the viability framework and is a stealthy way to legalize abortions after that point.
“If it didn’t intend that, then a sensible statute would have said so,” he said.
At a rally against Proposition 1 on the steps of the state Capitol in early October, Bakes called constitutional amendments “the tsunamis of the law. They overwhelm all in their path, eliminating any obstacles” because they take legal precedence.
He told CalMatters that vague wording in Proposition 1 could result in unintended consequences that would require the courts to step in and sort out the meaning, such as a father asserting his reproductive freedom and suing to prevent an abortion. Opponents may bring their own legal challenges if Proposition 1 passes to prevent abortions after viability.
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