California voters will decide whether to reinforce the state's abortion protections under Proposition 1, a measure that is expected to drive voters to the polls this November. And that was the whole point, opponents say.
The state's Democratic-controlled Legislature placed Proposition 1 on the ballot in response to the U.S. Supreme Court’s decision to overturn Roe vs. Wade, with lawmakers arguing that the ruling made it clear Californians need a safety net for their own reproductive rights. The meagerly-funded opposition campaign argues that the measure is simply a ploy by Democratic lawmakers to latch onto a hot-button issue that will motivate liberal voters still reeling from the ruling.
If the measure passes, the state's Constitution would explicitly say that California can't deny or interfere with a person's reproductive decisions, including "their fundamental right to choose to have an abortion and their fundamental right to choose or refuse contraceptives."
The measure, which has a significant lead in a recent opinion poll, follows a tidal wave of politically polarized reactions across the country, as conservative states have instituted abortion bans and liberal states have pushed to increase access. Gov. Gavin Newsom is expected to sign more than a dozen abortion bills passed by the Legislature this year after including $200 million in the state budget to expand reproductive services, including for out-of-state residents now unable to obtain reproductive care.
“California will not back down from the fight to protect abortion rights as more than half the states in this country, enabled by the Supreme Court, ban or severely restrict access,” Newsom said after Proposition 1 was placed on the ballot. “We are ensuring Californians will have the opportunity this November to enshrine the right to choose in our state Constitution.”
The state's Constitution currently guarantees a person's right to privacy, but does not define what that right includes. The California Supreme Court found the right to privacy included decisions related to reproductive choice, including whether to have an abortion or use birth control. Lawmakers have also added abortion rights into state law, but supporters of Proposition 1 said hostile attacks on abortion access have convinced them those aren’t enough. Laws and court rulings can be changed, supporters say.
Proposition 1 would ensure abortion protections couldn't be changed without voters weighing in. However, opponents of the measure have argued that the language of Proposition 1 is overly broad and does not limit when abortions can be performed.
Lawmakers placed the measure on the ballot by approving Senate Constitutional Amendment 10, which was authored by Senate President Pro Tem Toni Atkins (D-San Diego). It passed the Senate and Assembly with two-thirds approval in each house. Most bills require only a simple majority.
Atkins said the measure would make it "undeniably clear that in California, abortion and contraception are healthcare and are a private matter between a patient and their medical provider."
"I have seen what is at stake when people don’t have access to abortion — the real lives and real families that are at risk," Atkins said. "In California, we are resolute in our determination to protect women and families, no matter who happens to be wielding power at the federal level."
California law allows a woman to have an abortion until the point that a physician determines “there is a reasonable likelihood of the fetus’ sustained survival outside the uterus without the application of extraordinary medical measures.” An abortion can be performed after viability if the procedure is necessary in order to “protect the life or health of the woman.” Those protections apply to anyone who becomes pregnant, including minors, who under state law can consent to an abortion without a parent’s knowledge.
The exact point of viability is not defined in state law. That decision is left for physicians to make based on “good faith medical judgment.” In most cases, doctors have considered a fetus viable at 24 weeks.
Opponents of the measure say the overly broad language in Proposition 1, which does not mention viability restrictions, will override state law and allow abortions into the third trimester. Supporters and legal experts have said that is not the case and that the ballot measure will work in tandem with state laws.
"Even pro-choice voters oppose legalizing late-term, taxpayer funded abortion for any reason up until birth," said Karen England, executive director of the conservative group Capitol Resource Institute. "Abortion on demand is not the answer voters are looking for."
Other opponents point out that Proposition 1 will actually not do anything if passed, since it codifies existing statutes and precedents, making the measure an expensive waste of time that they say is only to score political points or drive Democratic voters to the polls and possibly sway close races for Congress and the Legislature. Opponents argue that the measure will likely be challenged in court, which could threaten abortion rights in the state.
Polling for Proposition 1 has shown the measure is on track for victory this fall, according to a UC Berkeley Institute of Governmental Studies poll last month. Seven in 10 California voters supported the proposed constitutional amendment.
Fundraising has been even more lopsided. Atkins' ballot measure committee has raised more than $7 million in just the past two months, while opponents have raised $1,000.
This story originally appeared in Los Angeles Times.