☆ Clarifying new abortion law requires court battles?
In Opp Now’s latest exclusive, activists Eric Scheidler and Nancy Reiko Kato and lawyer Joshua Schroeder discuss: Now that CA Prop 1’s passed, what’s next—as far as interpreting its seemingly beclouded language on late-term abortions? Their varied perspectives below.
Eric J. Scheidler, Executive Director of Pro-Life Action League:
As far as getting clarity on Prop 1’s interpretation, I think it’ll have to come down to the courts. Someone will have to sue at some point.
The measure itself is worded vaguely enough that concerns raised by the pro-life community, that it can open the door for very late-term abortions or even infanticide, are warranted. I don’t think we can trust counterclaims that “We’ll never use it that way because it’s not what Prop 1 is intended to do.” We’ve seen again and again how the language of statutes is used to get what people want. Thus, I don’t think we can trust that Prop 1 is going to be more broadly interpreted just because someone says they want it to be.
In general, the new statutes of abortion that we’ve seen—California, Illinois, New York, Minnesota as of quite recently—appear to be acting out in defiance of the Supreme Court’s Dobbs ruling. These statues are performative in some sense, saying, “We reject what the Supreme Court said.”
However, I think by ushering in such extreme pro-abortion policies, they’re really overplaying their hand. Ultimately (over the years), the harm of abortion in these extreme states will become clearer. It will become more obvious that abortion is not making women’s lives better. It’s not raising them out of poverty; I believe abortion is amplifying poverty because it’s the only option we offer women (either abortion or “be a poor mom,” so women often choose abortion). Abortion isn’t solving the problem of women not being accommodated in the workplace, having the freedom to parent their children (e.g., more flexible work hours), being able to leave the workforce for a while and still have their skills valued when they come back.
Abortion empowers men to exploit women. It empowers employers to exploit women. And it empowers the government to exploit women. This will be harder and harder to deny in states like California that are so extreme on their abortion policies. Eventually, the truth will come out, and I believe policies will be rolled back. But there will be lots of suffering along the way.
Joshua J. Schroeder, Founder/Owner of SchroederLaw (an Immigration Law, Intellectual Property Law, and Constitutional Law Firm in Oakland, California):
Reproductive rights are now ratified as §1.1 of the California Declaration of Rights in the California Constitution.
Instead of gathering evidence of actual late term abortions, critics of §1.1 are discussing what appears to be a foundation for a future court case to overrule §1.1 as void for vagueness under an interpretation of the fetus’s federal right of life, as implied by Dobbs. This approach could ironically destroy women’s rights of life similar to the way Buck v. Bell undermined reproductive rights for “imbeciles.”
Curiously, the Supreme Court has not articulated a coherent test for vagueness.
This statement is the opinion of the author only, is not legal advice, and reading it does not create or constitute a lawyer/client relationship.
Nancy Reiko Kato, National Mobilization for Reproductive Justice, San Francisco:
Prop. 1 was a statement that said “the state shall not deny or interfere with an individual’s reproductive freedom….”
This is not about what the state is going to do. The amendment did not provide funding, create additional programs, or have specifics on how to ensure that folks could get abortions.
Civil liberties have always been won in the streets and court of public opinion—we must build an inclusive movement for reproductive justice to truly enshrine the right to bodily autonomy in all facets of life.
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