Incongruent readings of controversial CA abortion amendment persist

Attorneys and advocacy organizations independently address if SCA 10/Prop 1—the hotly-contested CA constitutional amendment—could open the door to legalizing all CA’n late-term abortions. Read the first article in this Opp Now series here. New conflicting readings of the proposed amendment are below.

Joshua J. Schroeder, Founder/Owner of SchroederLaw (an Immigration Law, Intellectual Property Law, and Constitutional Law Firm in Oakland, California):

At this point, I believe that addressing the certain month or week in a pregnancy at which a woman may be able to obtain a legal abortion in California after the Constitutional Amendment is a bit out of touch, and is at least premature. The discussion today is about whether women have a right to get an abortion at all. The proposed constitutional amendment says women have the right to abortion, but the U.S. Supreme Court may not agree as the Bruen decision set forth a rationale by which the proposed Amendment may be struck down in the future. If the Court strikes down this Amendment under Bruen, according to the incorporated federal rights of the fetus to live, it will mean that the States cannot secure rights to abortions at all, at any point in the pregnancy including possibly where the mother's life is in jeopardy or in cases of rape or incest. 

Dobbs did something that was never done before by overruling a widely relied upon, popular, judicially protected right. So it is not genuine to describe Dobbs as if it were just another swing of the pendulum of political momentum. Treating Dobbs as an ordinary swing of the political pendulum can lead to a warped view of exactly how badly the liberal states, including California, lost. It can also result in a miscalculation of what, in fact, the proposed CA Constitutional Amendment means, because that amendment cannot be characterized as simply another swing in the pendulum of ordinary politics either, because this is not ordinary politics. 

We cannot know what abortion rights will be like in California under the proposed amendment, because the Court is reworking federalism at the same time it purports to return the issue of abortion to the states. It is a mistake, in my opinion, to presume that there is a rationally coherent way that state laws like the proposed amendment will work under Bruen and Dobbs. The conservatives that once defended ideals of federalism in a more coherent way are no longer on the court, and the so-called conservatives who are on the court appear to be radically reforming federalism as a "one-way ratchet" for their own political agendas. [Footnote 1] 

Footnote 1: I am consciously appropriating the term "one-way ratchet" from the January 6 coup attempt architect John C. Eastman's Claremont Institute's Dobbs amicus brief, which the Court appears to have followed. In that brief, Eastman wrote that Roe v. Wade transformed the U.S. Supreme Court into an illegitimate political body, without democratic support. This argument worked, even as it came from a man who tried to end American democracy on January 6, 2021 through a pressure campaign against Mike Pence to throw out slates of legitimate electors, and who likely knows that the Janus-based rationale he pushed, and Dobbs applied, may also be used to overrule "one person, one vote," as set forth by Gray v. Sanders in 1963 -- Eastman's primary target on January 6.

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.

Neil Mammen, President of the Values Advocacy Council in San Jose, California, Cofounder of Every Black Life Matters:

On the question of SCA 10 permitting all late-term abortions, I actually take a slightly different view.

First of all, the SCOTUS should never have sent the legal decisions back to the states. They should have banned all abortions. Note while I believe that everything should be legislated at the lowest local level, issues regarding our unalienable rights, which the federal government is designed to protect, should not. For instance, should individual states or cities be allowed to decide if a slave is a human being? Never. Can a city decide if I can park on the left side of the public street on Tuesdays? Sure. So allowing state governments to legislate abortion is allowing them to decide if an unborn child is human and has the right to life—that's not something that should ever be left to the states. It's a big mistake by the Supreme Court.

Second of all, this amendment and other bills use the term “privacy” to defend abortion. However, some unalienable rights supersede other rights; there’s a hierarchy, and privacy is the lowest priority. I can’t kill someone in private and be legally protected. (Now, pro-abortion advocates argue that they’re only aborting a clump of cells, but science has proven that is false: It's self-growing and has its own unique human DNA. Abortion should only be legal if we know 100% that an unborn child isn’t human—the burden of proof is on those who want to kill it—and they can't do that. To illustrate this point, what if you were hunting in the forest and see a deer, but there’s a 10%, 5%, or even 1% chance it’s actually a child? Would it be okay to shoot that “deer” if you weren’t 100% sure it wasn’t a human? No! When the CA Legislature can prove 100% that the fetus/embryo/blastocyst is not human, then they can pass a law to allow killing it.) Privacy doesn’t supersede those other unalienable rights such as life. It’s hypocritical for SCA 10 to assume life doesn’t trump privacy.

With all that in mind, I think SCA 10 is just a way for these CA legislators to make a grand statement in support of abortion. Pro-abortion activists have a super majority in the House. If they want to completely legalize abortions up to the second a baby leaves the birth canal, they don’t need to play games with it. If this amendment was being tried in a moderate state politically, then I’d say they’re trying to covertly open the door to all late-term abortions. But this is California. They’re just making the effort to say, “We care about abortion.” It’s not about substance.

Eric J. Scheidler, Executive Director of Pro-Life Action League:

That SCA 10 may open the door to legalizing all late-term abortions in California is really a very serious concern. Some of its advocates assert that it won’t change anything about the state’s current legislation, but how a measure plays out is determined by what its words actually say, not legislators’ claims about it. Accordingly, I’ve looked into the language of SCA 10. There’s nothing to prevent the measure’s language from being used to require abortion to be available on demand throughout a woman’s entire pregnancy.

Also, it’s important to note that constitutional provisions take precedence over individual statutes, and they establish fundamental rights; thus, if SCA 10 establishes a right to abortion, as it appears to, this right can’t be taken away or constrained in any manner (just as our unalienable right to free speech isn’t limited by a number of words).

Therefore, I believe that SCA 10 can easily be used to justify permitting Californian abortions up until birth.

Follow Opportunity Now on Twitter @svopportunity

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.

Image by Wikimedia Commons