Uber-vague SCA 10 provokes further debate on late-term abortions
Californians will vote on Prop 1 (SCA 10) this Nov., which appears on the surface to neatly pen the state’s pro-choice legal stance into its constitution. However, responses across the Golden State have ranged from apathy to disappointment to disgust—as experts/orgs can’t agree on how SCA 10 would inform late-term abortion restrictions. In this latest Opp Now exclusive, prominent legal experts and advocacy nonprofits (from multiple viewpoints) parse the bill. To receive daily updates of new Opp Now stories, click here.
Kelly Chang Rickert, Family Law and Constitutional Law Attorney in Pasadena, CA:
The current law, California Health and Safety Code 123466, states: “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.”
Proposed Prop 1 states: “The state shall 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 and their fundamental right to choose or refuse contraceptives. This section is intended to further the constitutional right to privacy guaranteed by Section 1, and the constitutional right to not be denied equal protection guaranteed by Section 7. Nothing herein narrows or limits the right to privacy or equal protection.”
The operative words “fetal viability” and “women's health” are missing in the proposed Prop 1, removing any limits for abortions.
No limits means no limits!
The only purpose of California’s proposed amendment is to enshrine abortion up to the moment of birth in its state constitution. It even goes far beyond what was allowed under Roe v. Wade.
Most Americans do not support late-term abortions. According to a 2018 Gallup poll, only 13% of Americans favor allowing abortion in the last three months of pregnancy—something this proposed amendment would allow. And Gallup polls have consistently shown that a majority of Americans oppose abortions during the second trimester.
In addition, 75% of nations either don’t permit abortions at all or limit them at 12 weeks. Only a small handful of countries in the world allow abortion on demand past the point of viability—countries like North Korea and China.
Since most do not support late-term abortions, Prop 1 is unnecessary. It will open the door for late-term abortions (permission by omission) and go against what people support.
Ederlina Co, University of the Pacific Associate Professor of Law, Reproductive Rights Scholar:
Proposition 1 is designed to shore up protections for the right to abortion and the right to contraception by amending the state constitution to explicitly protect these rights. The California Supreme Court has long interpreted the state’s constitutional right to privacy to include the right to abortion. In addition, California has enacted the Reproductive Privacy Act, which prohibits interference with the right to choose abortion. Under the current state of law, women and pregnant people may have an abortion up to viability, and an abortion can be performed after viability only if the patient’s health or life is endangered. If passed, Proposition 1 would not appear to change existing law; rather, Proposition 1 would provide enhanced protection for reproductive rights by writing them directly into the constitution.
Without explicit protection of the right to abortion in the constitution, it is possible a future court could decide the right is not constitutionally protected in the state. For example, in June, the Iowa Supreme Court decided its state constitution does not protect the right to abortion even though that same court, composed of different judges, had concluded that it was protected in 2018.
Although some have expressed concern about Proposition 1 allowing abortions to take place later in pregnancy, statistically speaking, the vast majority of abortions take place during the first trimester of pregnancy. As for abortions that take place around viability, they make up one percent of abortions nationwide and are obtained most often because the woman’s health is in danger or the fetus has a poor diagnosis or severe abnormality. That being said, after the U.S. Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization, the country may see an increase in abortions taking place later in pregnancy. Although women and pregnant people may seek abortions early in pregnancy, new bans on abortion will force more patients to have to travel from their home state, increasing the cost and time associated with abortion care. With fewer providers, patients will also encounter longer wait times for abortion care.
Kevin McGary, President of Every Black Life Matters, Chairman of the Frederick Douglass Foundation of California (FRED):
What SCA 10 does is it nuances any parameters around limiting abortions. Because it’s not explicitly stated that SCA 10 will continue to recognize existing laws that prohibit late-term abortion, it will open up the floodgates for expectant mothers to abort their babies up to the actual day of delivery.
California, under the “leadership” of Gavin Newsom, is going down a path of extreme, unethical, and immoral treatment of babies. Newsom actually pounds his chest proudly in stating that he is going to pass these kinds of laws, do these things that are so heinous. Other civilized societies around the world don’t allow abortions as radical as what SCA 10 proposes, with the exception of communist countries like North Korea, China, and Cuba.
Olivia Summers, Associate Counsel of the American Center for Law & Justice (ACLJ):
Yes, SCA 10 opens the door to legalizing all abortions in California through all stages of pregnancy. California currently restricts abortions pre-fetal viability, which is about twenty-four weeks gestation, and the exceptions for late-term abortions are rape, incest, and the health of the mother. Interestingly, this proposed amendment doesn’t acknowledge those existing limitations or how it pivots away from them. But it could absolutely be used to legalize unlimited abortions for any reason at any point of the pregnancy, making it so that rape, incest, and the mother’s health aren’t the only limiting factors in late-term abortions.
SCA 10 doesn’t at all explain what, if any, limiting factors there would be on a “fundamental” right to abortion, or the exact meaning of that phrase. For that reason, SCA 10 opens the door to a lot of questions that the California Supreme Court will have to answer – at the expense of taxpayers. For instance, would the state now have to provide funding for abortion? Would all hospitals be required to have an abortion doctor present, even if they’re opposed to performing them? The bill poses expansive implications that could strip away current protections for organizations morally against abortion. And because the previously often-cited federal cases related to abortion rights were recently undermined by the Supreme Court, the state doesn’t have an existing case – at the Federal level – to define the terms of SCA 10. Instead, California has to do their own interpretation, which will probably conclude in our court system. If this bill were to go to court and litigated the questions of “at what stage does the state of California have an interest in restricting abortion” (which, again, is currently viability), there’s the potential for any legal scenario to occur. In all likelihood, the court will loosen abortion limitations and protect the right to late-term abortions (e.g., by determining that the state has no interest in preventing abortion through all nine months of pregnancy), but they could also potentially further restrict local legislation.
In sum, pro-abortion advocates are always trying to advance unfettered access to abortion. So, of course they will take this case to the California Supreme Court to establish the new constitutional right to abortion, thus undermining the current law that hinders access to late-term abortions.
Additionally, if the state tries in the future to pass legislation requiring parental notification for abortion procedures on minors (which is very unlikely in California, where it’s extremely challenging to pass pro-life laws), SCA 10 could prohibit that from being passed, as it might infringe on the state-based “fundamental” right to abortion. And if the state constitutional right to abortion is in place, it could also jeopardize the rights currently given to babies born alive after botched abortions; it could take away existing law that requires them to be provided the same medical care as prematurely born babies.
Most Americans, when polled, say that they didn’t want Roe to be overturned. However, the more questions are asked regarding specific limitations (e.g., should it be legal through all nine months of pregnancy?), the more pro-life they are revealed to be. Americans and Californians don’t want abortion to be legal up until birth for any reason, but that the logical next step of SCA 10 being passed.
Shawn Carney, CEO and President of 40 Days for Life:
It’s not very secretive: California legislature wants to perform as many abortions for any reason as possible. They lit up the Empire State Building to celebrate legalizing abortions up until birth, through all forty weeks of pregnancy, putting us in the same category as China and North Korea. We’ve heard the left tirelessly advocate for permitting abortion in all and any cases; SCA 10 feels like a desperate attempt to push their agenda after Roe was overturned earlier this summer.
“Viability” these days is an essentially meaningless term. It’s this condescending, cruel, and eugenic notion that unless you can survive without physical help from your parents, you’re on your own. Through and beyond SCA 10, California’s endorsing and promoting that idea, saying it’s a sophisticated mindset when it’s truly barbaric.
Over time, it will be proven that California’s taking the wrong step after Roe was overturned. They will be viewed as clearly being on the wrong side of history.
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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.