Proposition 1, the Nov. 8 ballot measure that would create protections for “birth control” in the California Constitution, was not written to extend abortion access to the last months of pregnancy, and despite the warnings of opponents, legal experts say it is. a highly unlikely outcome if passed.
The measure’s simple language — “the government shall not deny or interfere with the reproductive freedom of the individual in its best decisions” — is a point of contention, even among some who support the rights. abortion, since it was introduced this summer. .
If Proposition 1 fails, abortion access in California will not change. But opponents warn that, if passed, the measure would undermine restrictions in state law, which limit the procedure after a fetus is considered viable, thus allowing abortion. until birth.
Margaret Russell, a professor of constitutional law at Santa Clara University School of Law, said the question of whether Proposition 1 would expand abortion access is straightforward, but its language should be considered in light of the context.
Because supporters have made it clear that they want to reaffirm the right to abortion in California, he said, the court will ignore that evidence and interpret Proposition 1 as allowing abortions. for whatever reason at all times.
“This is not a bait-and-switch,” Russell said.
Why Proposition 1 is on the ballot
Project 1 is a response to the US Supreme Court’s decision in June that overturned Roe v. Wade and repealed legal protections for abortion nationwide.
That decision did not change access to abortion in California, where it is protected by state law and the right to privacy is protected by state law.
But fearing that lawmakers will change their minds in the future, or that judges will follow the Supreme Court’s lead and reinterpret the right to privacy, Democratic politicians let Proposition 1 to voters. They argued that Californians should take a stronger pledge so they don’t lose access to abortion.
The measure states that “the government shall not deny or interfere with the reproductive freedom of individuals in their most intimate decisions, including their fundamental right to choose an abortion and their fundamental right to choose or reject birth control.”
The protest movement, led largely by the Catholic Church, has focused on what was not included in Proposition 1 — a discussion of restrictions on abortion.
‘Tsunamis of the law’
A federal law passed in 2002, the Reproductive Privacy Act, sets forth the “fundamental right to choose to have a child or to have an abortion prior to fetal viability,” it can survive outside the womb without special treatment. intervention, as determined by the physician’s “honest medical judgment.”
It is usually considered to be about 24 weeks of pregnancy. In addition to that, abortion is only legal in California if it is “necessary to protect the life and health of the woman.”
Christopher Bakes, a trial attorney who opposes Proposition 1, said the broad text of the measure contradicts the pro-life framework and is a cynical way to legalize abortions after that time.
“If this is not the case, then it is considered a useful law,” he said.
At an anti-Proposition 1 rally on the steps of the state Capitol in early October, Bakes called the constitutional amendments “tsunami of law. They will crush everything on their way, they will eliminate problems” because they will have legal rights.
He told CalMatters that the ambiguous wording in Proposition 1 could have unintended consequences that would require the courts to step in and determine the meaning, such as when a father asserts his family freedom and insists on prevent abortion. Opponents could mount their own legal challenge if Proposition 1 is passed to ban post-life abortions.
“It can be attacked on federal constitutional grounds if, for example, life, liberty and property are deprived without legal justification,” Bakes said in an interview. “It’s all kinds of angles.”
‘A higher form of law-making’
Supporters of Proposition 1 dismiss this interpretation of the measure as alarming and misleading.
They point out that California has recognized a constitutional protection for abortion, which has coexisted with legal restrictions on the procedure for decades. Proposition 1 doesn’t change that right, they argue, but simply enshrines that right to an abortion in the California Constitution, so that a future court can’t take it away.
At a virtual conference hosted by the Proposition 1 campaign last week, Brietta Clark, a health care law expert at Loyola Law School, said the measure’s text is accompanied by “very precise language large” was used by the California Supreme Court when it first recognized it. abortion rights in 1969. It has been “interpreted to allow the prohibition of abortion,” he said.
Cary Franklin, a law professor at the UCLA School of Law and faculty director of the Center on Reproductive Health, Law and Policy, said the state of Document 1 is not unusual.
Even constitutional reforms that lay down broad principles, such as gun rights, he says, are not permanent. Lawmakers fill in the details with laws governing those rights, such as the age for buying a gun.
“They are very broad. And there’s a reason for that,” Franklin said of the constitutional amendments. “These should be kept in place. Those are supposed to be a higher form of law.”
Leave a lasting impression
Franklin and other experts said the pro-life language is missing from Proposition 1 because the limitations on when abortions can be performed are the type of information the Constitution should address.
As trends change and more public health data becomes available, our understanding of fetal health will change, says Sofia Gruskin, a professor at Southern University’s law school. California and director of the USC Institute on Inequalities in Global Health.
“This is something that needs to be done less and more effectively,” he said. “That’s not a legal question.”
Russell, the Santa Clara University law professor, said that the very language of constitutional reform presents its own problems in interpretation.
“There’s an argument that you’re stronger, and people will argue that there’s something else you should mention,” he said. “Then it becomes a vortex.”
Knowing the intention
In June, the California Constitution Center at UC Berkeley School of Law published an analysis of Proposition 1 that raised alarms about its broad language, calling it a “fatal flaw.”
David Carrillo, the center’s executive director, initially believed that the text of Article 1 was too broad to achieve its goals, comparing it to a “blank slate.”
“The simplicity of the common law opens the door to different judicial interpretations,” he said in an interview, including granting unrestricted access to abortion.
But supporters’ strong electoral campaign, which clearly shows the measure’s desire to preserve California’s historic abortion restrictions, has put those concerns to rest.
The official ballot argument for Proposition 1 and the counterargument to the measure in the federal voter guide is a reference to “the constitutional principle set forth by Roe v. Wade” and standard of living in California law. Based on that definition, Carrillo said, the court is unlikely to misunderstand the intent of Proposition 1 to expand abortion before the point of life.
“It’s more than just medical talk,” he said. “The constitution is his own.”