Proposition 1 addresses reproductive rights

The official name for Proposition 1 is the “Constitutional right to reproductive freedom.” The California Legislature initiated a proposal to amend the state constitution to give individuals the sole right to decide their reproductive actions — whether that is contraceptives to prevent conception or to terminate after conception.

The actual language of the proposed amendment is: “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.”

A yes vote on Prop 1 supports amending the California State Constitution to establish an individual’s right to decide their own reproductive actions. Therefore, neither state nor local laws would interfere with an individual’s decision, for example to use contraception or to obtain an abortion.

A no vote would prevent this amendment to the California constitution. Thus, state and local lawmakers could enact local edicts that state courts would ultimately have to rule on if subsequent litigation occurred.

History

In 1969, the California Supreme Court ruled that the state constitution’s express right to privacy extends to any individual’s decision concerning whether or not to have an abortion. Currently, this case (People v. Belous (1969), 71 Cal.2d 954) is the final arbitrator.

Three years later, in 1972, California’s voters agreed to a constitutional amendment that added “the right of privacy to inalienable rights of people” in the state.

In 2002, the state Legislature passed the Reproductive Privacy Act to ensure these privacy rights were protected. This law specifies that the fundamental right to choose to bear a child or to choose and to obtain an abortion is the official law of California.

The Legislative Analyst Office’s (LAO) analysis of Prop 1 noted that California courts have interpreted the right to privacy such that the state can only restrict abortions when needed to meet certain state interests such as public health and safety.

According to the LAO, these restrictions include requiring abortion providers to be licensed. “In addition, abortions can only be performed on a viable fetus if the pregnancy puts the health or life of the person who is pregnant at risk. Under state law, a fetus is considered viable if the fetus likely would be able to survive outside the uterus.”

Impetus for Prop 1

In January 1973, the U.S. Supreme Court issued a 7–2 decision (Roe v. Wade, 410 U.S. 113 1973) holding that the due process clause of the Fourteenth Amendment to the U.S. Constitution provides a fundamental “right to privacy.” This ruling protects a pregnant woman’s right to an abortion; however, the decision did not grant an absolute right to abortion. The court also held that an abortion must be balanced against the government’s interests in protecting women’s health and prenatal life. This is how and why the trimester of a pregnancy became instrumental in subsequent state laws.

Roe v. Wade has been litigated in state and federal courts ever since its ruling nearly 50 years ago. However, in May of this year, Politico released a draft Supreme Court decision on one of these cases.

“The Supreme Court has voted to strike down the landmark Roe v. Wade decision, according to an initial draft majority opinion written by Justice Samuel Alito circulated inside the court and obtained by Politico,” wrote reporters Josh Gerstein and Alexander Ward. In the future, the issue would be dependent upon state laws.

In anticipation of the final ruling, California State President Pro Tempore Toni Atkins (D-San Diego) and Assembly Speaker Anthony Rendon (D-Lakewood) submitted this proposal on June 8. It quickly moved through Senate hearings and was sent to the Assembly on June 20, where it was approved.

On June 24, the U.S. Supreme Court released its decision on Dobbs v. Jackson Women’s Health Organization, which did override the Roe v. Wade ruling.

On June 27, the California State Senate with 58 aye votes, 17 nay and five abstentions sent the proposed state constitutional amendment to the secretary of state, who formally enrolled it on June 29 and prepared it for the November ballot.

State constitution amendments

California has two means to amend its constitution. The Legislature can initiate a proposed amendment. It must pass both houses by a two-thirds vote. This legislative action does not require the governor’s signature. But it becomes part of the constitution only if the electorate approves it at the next general election. This is how Prop 1 came to the voters in this election.

Of course, the state constitution also can be amended through the initiative process. A sufficient number of voters’ signatures on a petition can place the petition on the ballot. The Legislature does not need to take any action in this process and cannot prevent it from occurring.

Arguments

Supporters want the state sonstitution to enshrine and to protect reproductive decisions, especially abortion decisions. They do not want these rights to be a political volleyball dependent upon which party controls the Legislature or governor.

Opponents not only believe Prop 1 is unnecessary because of the 1972 amendment and subsequent state laws, but it egregiously goes beyond and threatens existing abortion limitations. They fear that the breadth of Prop 1 would override the prohibition on an abortion when the fetus is viable on its own outside the womb. This can occur near the 24th week of pregnancy. California restricts these late-term abortions to situations where the mother’s life is in jeopardy.

The California Catholic Conference vehemently opposes Prop 1. In their statement, the bishops said, “[Prop 1] looks to enshrine the most extreme forms of abortion into the California Constitution. We believe in protecting life at every age in every stage. We are extremely troubled by the language in Prop 1, which is so broad and unrestrictive that it would encourage and protect even late-term abortions, which most Californians oppose.

“This constitutional amendment, as written, will legalize and protect abortion up to the point just prior to delivery. It is distressing that so many California leaders would push an amendment that allows the taking of a human life moments before birth.”

And supporters say the measure does nothing to change that. In the Official Voter Information Guide, the supporters rebut this argument. “Prop. 1 does not change how or when a person can access an abortion in California. Existing California law provides that women have the right to choose to have an abortion prior to viability, or to protect the woman’s life or health. Proposition 1 will not change that.”

And Cary Franklin, McDonald/Wright chair of law at the University of California, Los Angeles (UCLA) and faculty director of UCLA’s Center on Reproductive Health, Law and Policy, said in a press release supporting Prop 1, “Constitutions are designed to provide the skeletal outline of a legal system, enabling legislatures to fill in the details. With Prop 1, the California State Legislature has the capacity to be more specific regarding abortion regulation if it chooses.”

Polls

The Institute of Governmental Studies (IGS) at the University of California, Berkeley, and the Public Policy Institute of California (PPIC) have conducted polls of likely voters and their opinion of Prop 1. California voters have consistently supported its approval.

In August, IGS found that 81% of state voters consider abortion to be important to them in this year’s state and local elections. More than three in five voters rate the issue “very important.” In this survey, 71% said they would vote yes on Prop 1.

This is consistent with the finding that 68% of the voters disapprove of the U.S. Supreme Court’s decision to overturn Roe versus Wade.

In early September, PPIC surveyed likely voters and found that 69% would vote yes. While only a quarter of them would vote no, only 6% are undecided.

Democrats and Independents strongly support the proposition, but a majority (61%) of Republicans would vote no.

Cost to implement

The LAO’s evaluation of Prop 1 said, “Because these rights already exist in California, the proposition would have no direct fiscal effect.”

The LAO did qualify its conclusion. If a court were to find that Prop 1 expanded existing rights, then there might be fiscal consequences on the state budget.

Currently, the state pays for abortions and contraceptives for many low-income Californians through the Medi-Cal program. This program is largely funded through federal Medicaid and shares the cost of contraceptives. However, the cost of any abortions is fully California’s responsibility.

Also, for Californians who buy health insurance through Covered California, the costs of abortions and contraceptives is covered in these policies. However, only the state pays for the plans to cover abortions for these insurance subscribers.

Finances

Supporters are financing their views with a committee called Yes on Proposition 1. Through Sept. 24, the committee had raised $9.2 million and has received another $3.1 million since then. Gov. Gavin Newsom’s Campaign Committee gave nearly $1.25 million and another four individual donations were greater than $100,000.

The largest single contribution was $5 million from the Federated Indians of Graton Rancheria. The California Medical Association gave $1 million and two teachers’ groups gave a total of $500,000. Planned Parenthood has given $840,000.

On Sept. 24, Yes on Proposition 1 had $8 million in cash for the final six weeks before the election.

Opponents also have a committee Stop Prop 1 — a Committee in Opposition to Proposition 1. However, it appears to be a formality. Through Sept. 24, it has reported only $70,000 in contributions. Since then, it has received $74,000, of which $49,000 came from an Arizona conservative group.

Expenditures by religious groups are not shown in the secretary of state’s campaign finance reports for Prop 1.