☆ CA’s Prop 1 late-term abortion polemics perpetuate
While advocacy organizations from multiple angles continue analyzing the State’s contentious (and confusing) SCA 10/Prop 1, Californian press remains, for the most part, oddly quiet. In the latest Opp Now exclusive, local attorneys and organizations interpret whether this bill would alter existing restrictions on late-term abortion operations. An Opp Now exclusive.
Catherine W. Short, Life Legal Defense Foundation Esq., Vice President of Legal Affairs:
The confusion about whether SCA 10/Proposition 1 will allow or expand late-term abortions is due to the fact that proponents of the measure don’t want to admit that late-term abortion is already unrestricted in California and that the supposed restrictions on late-term abortions in current California law are just wordplay, verbal smoke-and mirrors. They would be revealing the tricks of the trade if they acknowledged that “reasonable restrictions” based on terms like “viability” (as judged by the abortionist) and “health” of the mother (same) are so malleable that there is zero chance of anyone being prosecuted for, much less convicted of, an illegal late-term abortion.
Nancy Reiko Kato, National Mobilization for Reproductive Justice in San Francisco Organizer:
Abortion is legal in California. Codifying the right to abortion in the state constitution will not guarantee that anyone who wants and needs an abortion can get one. Proposition 1 is a missed opportunity to strengthen the right to abortion and bodily autonomy. SCOTUS denied the right to abortion on a national level, and now some of the judges are looking to overturn same-sex marriage, contraceptives, and consensual same-sex sexual relations. Decades of civil rights gains are under threat, and the CA state legislators have an opportunity to take a needed stand to not only defend current rights, but to extend them. As a global economic power and with a super-majority in the state legislature, Democrats could easily pass a healthcare-for-all bill. That would be the type of defiant act to effectively counter the overturn of Roe.
While supporting Prop. 1, we stand with many Californians who want more than our rights on paper. Legal abortion was won in the streets, and we will need to return there in order to defend all of our rights.
Raymond Hebert, Civil, Estate, Family, and Constitutional Law Attorney in Visalia, CA:
The proposed amendment will not only allow and sanction abortion throughout the nine months of pregnancy, but is doubtless meant purposefully to do so. In addition, it would likely protect the termination of life of a child in the perinatal stage of development, defined as up to thirty days beyond birth—the subject of a bill currently in debate. Because abortion is permitted currently by California law, the amendment could be considered largely symbolic; however, lawmakers wanting more deeply to enshrine the permission to abort into our legal fabric may have viewed this step as needed and warranted if not essential.
The wording itself is somewhat out of character with the language often found in a constitution in that it focuses on a narrow issue—to ensure that women can have abortions performed with impunity. The language is also euphemistic, referring to “reproductive freedom” when what is meant is, in effect, the opposite: the freedom not to reproduce. This point raises the question as to whether this amendment could be used to defend the desire of a woman or couple to allow a child in utero to continue living and be carried to term if California or the United States were to adopt a policy similar to that in China, in which abortions are required under certain conditions. In that case, the term “reproductive freedom” would carry a meaning more aligned with its language.
The amendment further is at odds with (i.e., contradicts) at least one other foundational and explicitly-stated right and principle in the California Constitution: viz, Article 1, Section 1, protecting the right to enjoy and defend life. The amendment, and current statutes that are of the same mindset, flatly deny that right to children awaiting birth (the most helpless, innocent, and vulnerable among us), and to those who would defend their right to live.
Susan Swift Arnall, Right to Life League Esq., Vice President of Legal Affairs:
The Right to Life League’s Executive Director, Theresa Brennan, Esq., and I have looked at SCA 10/Prop 1, and we have the same take as James Brent in your first installment.
Prop 1 is unnecessary, over-broad virtue signaling that says, “California likes Roe v. Wade, and you can’t overturn it.” Prop 1 would establish an overbroad, vague “right” in an attempt to protect sweeping legislation eliminating viability as a consideration so as to advance the abortion culture through all nine months of pregnancy and beyond (e.g., AB 2223, a bill which ignores fetal viability standards and decriminalizes “fourth-term” abortion after birth).
With that said, we believe that citizens need to send a strong message of disapproval to radical pro-abortion legislators.
Myron Steeves, Founder of Church Law Center, Dean Emeritus of Trinity Law School, Retired Professor of Constitutional Law:
Right now, by statute, Californians have the right to pre-viability abortions under the Reproductive Rights Act. There is not currently a statute that establishes, or even addresses, the right to post-viability abortions.
Given that California is a very progressive state with a high tolerance for expansive abortion rights imbedded in its general culture, it’s peculiar and feels outdated and almost anachronous to have a statute that’s still limited to viability. Of course, this is the legacy of Roe v. Wade and Planned Parenthood v. Casey.
This constitutional amendment would mean that the state wouldn’t be able to deny a post-viability abortion based upon limitation on statute. Looking at Opportunity Now’s posted articles on this topic, I notice a suggestion that this statute is dependent on Planned Parenthood v. Casey remaining the operative constitutional interpretation of abortion rights—that if you get rid of Casey, the Reproductive Rights Act makes no sense. However, that’s really not a logical conclusion. Granted, from a progressive's position, there’s no need for California to have a statute that only addresses pre-viability abortions if we don’t have the restraint of Planned Parenthood v. Casey; but it doesn’t make Prop 1 a violation of Dobbs because it still contains a viability standard. Rather, post-Dobbs, a state could ban all abortions, allow all abortions, or take a middle ground, such as what California presently has.
If SCA 10/Prop 1 is approved by California voters, were a state agency to refuse the right to an abortion pre-viability, that would be a denial of the longstanding statute of the Reproductive Privacy Act. A court would not invoke the new constitutional amendment to address that act, since it can be resolved at the statutory level. However, if a pregnant woman was seeking a post-viability abortion, this statute would no longer be relevant and couldn’t be invoked, as it doesn’t address post-viability procedures at all. Rather, it would become an issue that invokes the new constitutional right. This is consistent with a principle of constitutional interpretation that courts must resolve matters at the statutory level if there is a relevant statute—unless the statute violates the Constitution. Realistically, however, the Reproductive Privacy Act will remain on the books in obscurity—never overruled since it does not violate the Constitution, but never being invoked because of the high visibility of the new constitutional clause.
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This article is part of an exclusive Opp Now series. Local and national attorneys and advocacy organizations interpret SCA 10/Prop 1’s implications for late-term abortion legislation in the Golden State in several installments:
first (including SJ law professor, Right to Life of Central CA’s E.D., etc.),
second (including SJ-based Values Advocacy Council’s president, etc.),
third (including Pasadena constitutional attorney, Associate Counsel at the American Center for Law & Justice, etc.).
In the fourth series article, the Pro-Life Action League’s E.D. Eric Scheidler examines the Merc’s gauzy defense of this controversial amendment,
The fifth article continues highlighting perspectives on how the bill will inform late-term abortion law in the Golden State. It includes Visalia constitutional attorney, National Mobilization for Reproductive Justice in San Francisco, etc.
In the sixth article, locals/advocacy orgs parse the bill’s implications for pregnancy resource centers.