Late term abortion concerns muddy California Constitution Amendment debate
On June 20th, the CA State Senate passed Constitutional Amendment (SCA) 10, which aims to “not deny or interfere with an individual’s reproductive freedom in their most intimate decisions, which includes their fundamental right to choose to have an abortion." George Skelton at the LA Times suggests that "Based on a simple reading, Proposition 1 would seem to push California abortion law far left by allowing pregnancy termination right up until birth." But some legal scholars see more nuance. Opp Now reached out to local constitutional law scholars and local/national advocates for their perspectives. State citizens will vote on SCA 10 in November.
James Brent, San Jose State University Professor of American Politics, Constitutional Law Scholar:
To me, it seems like SCA 10 is merely symbolic. This is just an opportunity for Democrats to appear they're taking action, and to force their Republican colleagues into an uncomfortable position.
Abortion rights are not under threat in California. State law already codifies the right to abortion. This would make it part of the California constitution, so in theory, it's more permanent. But what the voters approve, they may also revoke in a later election, so it's not very permanent at all. It's all so unnecessary, however, because there's zero chance that California will be adopting abortion restrictions anytime soon.
It's almost impossible to tell what this amendment would actually permit because it is worded so vaguely. Since it pointedly does not limit its terms to pre-viability abortions, it could certainly be read to extend to all nine months of pregnancy. But that will ultimately be for California courts to decide. And if Republicans at the federal level succeed in passing a nationwide abortion ban that is upheld by the courts, this will all be moot.
Margaret M. Russell, Santa Clara University Associate Professor of Law, Constitutional Law Scholar:
My understanding of SCA 10, after reviewing both the text of SCA 10 and the commentary of legislators introducing it, is that it proposes to amend Article I, Section 1.1 of the California Constitution to clarify, reinforce, and protect the already-existing constitutional rights to privacy (Section 1) and equal protection (Section 7) in the California Constitution, specifically with regard to access to abortion and contraception.
The clear legislative purpose leading to SCA 10 is to preserve existing California law regarding abortion in the wake of the U.S. Supreme Court's 2022 decision in Dobbs v. Women's Health Organization. Existing California law is found in California Supreme Court precedent, statutes, and regulations. Particularly relevant is the specific language of California's Reproductive Privacy Act (RPA), California Health & Safety Code 123460 et seq., namely: 123466. “The state may not deny or interfere with a woman's right to choose or obtain an abortion prior to viability of the fetus, or when the abortion is necessary to protect the life or health of the woman.” Further clarifying language in the RPA is in Sections 12362, 12366, and 12368.
Although the current text of SCA 10 does not include language regarding fetal viability, I think it is clear that SCA 10 logically and implicitly includes the fetal viability standard spelled out in the Reproductive Justice Act. Because the text of SCA 10 does not specify that definition, however, I recommend that specific language be added to proposed SCA 10 so that the bill is not susceptible to distortions, misrepresentations, and unintended consequences.
Alexandra Snyder, CEO of Life Legal Defense Foundation, Juris Doctor Graduate, Former Legislative Counsel to a CA Congress Member:
SCA 10 would do away with the viability restrictions as it prohibits any state interference with a person’s “fundamental right” to abortion. The amendment, if passed, would not restrict that “right” based on viability or any other standard.
John Gerardi, Executive Director of Right to Life of Central California, Attorney:
We definitely think Proposition 1 (the new name for SCA 10, as it will appear on the November ballot) will change existing CA law. Existing California law already protects a right to abortion prior to fetal viability (when the fetus could survive if delivered, approximately 22-24 weeks into pregnancy). After viability, abortion is legal when necessary to protect the woman’s life or health.[1] Prop 1 prohibits any state interference with the right to abortion, nowhere mentioning fetal viability.[2]
Because it is so much broader than existing California law and obviously omits any mention of viability or health, it overrides existing law, creating an unrestricted right to abort healthy children of healthy mothers through the ninth month of pregnancy.
[1] CA Health and Safety Code §§ 123462, 123466.
[2] SCA 10, Sec. 1.1.
I also think there could be an issue with Prop 1 interfering with conscience rights of pro-life hospitals and healthcare personnel.
Existing California law protects the rights of medical personnel not to participate in abortions for moral, ethical, or religious objections. Medical schools and other healthcare training programs cannot require students to perform abortions, or make openness to abortion a prerequisite for admission.[1] Religious, nonprofit hospitals or other facilities or clinics may not be forced to perform abortions.[2]
Prop 1 says that “The state shall not deny or interfere with an individual’s . . . fundamental right to choose to have an abortion[.]” Prominent advocates for legal abortion have argued that conscience-protective abortion opt-out provisions result in undue interference with patient access to abortion.[3] In line with this ideology, I believe Prop 1 could strike down conscience-protecting sections of the Health and Safety Code, deeming them state actions “denying or interfering” with the right to abortion.
[1] CA Health and Safety Code § 123420(a)-(b)
[2] CA Health and Safety Code § 123420(c)
[3] See Ronit Y. Stahl, Ph.D., and Ezekiel J. Emanuel, M.D., Ph.D, “Physicians, Not Conscripts—Conscientious Objection in Health Care," New England Journal of Medicine, 376: 1380-1385 (April 6, 2017).
Monica Snyder, Executive Director of Secular Pro-Life:
The Supreme Court ruling in Dobbs v. Jackson Women's Health posed no threat to Californians. Dobbs did not dictate any particular requirements for abortion law; it only returned the abortion debate to each state to decide for themselves. This means that California's already-existing permissive abortion laws are untouched, and SCA 10 is, at best, hollow posturing.
That said, the California legislature has yet to discover an abortion it doesn't approve of. Even before Dobbs, about 15% of our country's abortions took place in California, and the state is a trendsetter in forcing its public universities to provide abortions on campus. Some universities do so willingly, with a recent study out of UC Davis acknowledging aborting 235 healthy fetuses past 20 week gestations in a two year period. The language of SCA 10 is vague, and may be merely political showmanship. But if there were a legislature that would try to take this moment to further expand abortion incidence, it would be California's.
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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.
Image by Wikimedia Commons