HSJC Staff | Contributed
The right to an abortion is currently protected in California in two ways. In 2002, the Legislature passed the Reproductive Privacy Act, which made the right to obtain an abortion the official law of the state.
The other layer of protection is the privacy provision of the California Constitution, which was enshrined in 1972 and has been used by the California Supreme Court to strike down numerous attempts at abortion restrictions in the state ever since. Should voters pass Proposition 1 in November, it would add an even more formidable layer of protection, by enshrining these existing abortion rights into the state Constitution.
Why do we need to shore up protections Californians already have? Because the demise of Roe v. Wade at the hands of the Supreme Court in the Dobbs case this summer made clear that nothing is truly guaranteed, even in a progressive state like ours. Just as one California Legislature made a policy to protect the right to abortion, another could repeal it. Furthermore, the overturning of Roe showed the obvious danger in relying on court precedent to protect abortion rights.
The Supreme Court’s decision in the Dobbs case essentially said that previous courts were wrong when they ruled and maintained that the right to abortion is a fundamental liberty protected under the 14th Amendment of the U.S. Constitution. So what’s to stop a future California Supreme Court from doing something similar at the state level — turning its back on previous court precedents, and deciding that the privacy provision doesn’t actually protect abortion and contraception? Nothing.
This is exactly why California needs to pass Prop. 1. By explicitly adding protections for abortion and contraception to our state Constitution, the right to abortion will still be secure even if a future Legislature were to repeal the Reproductive Privacy Act or a future California Supreme Court decides the privacy provision no longer applies to reproductive rights. Some Californians may worry that Prop. 1 is an overreach, or that it will affect our current laws.
We believe this is fundamentally wrong. Prop 1 does not alter or displace the Reproductive Privacy Act, nor does it change any element of California’s existing reproductive laws. Instead, it explicitly bolsters these protections under current law. It states in no uncertain terms that nothing in the proposed amendment “narrows or limits the right to privacy or equal protection.” Rather, by spelling out that the state cannot “deny or interfere with an individual’s reproductive freedom…which includes their fundamental right to choose to have an abortion and their fundamental right to choose or refuse contraceptives,” Prop 1 identifies and secures the right to abortion and contraception as fundamental rights in our state.
Some opponents of the amendment, including the Republican Party of California and the California Catholic Conference, argue that the amendment’s language is too broad and will therefore allow the legalization of all abortions later in pregnancy, overriding current laws that restrict abortions to pre-fetal viability unless a pregnant person’s life is at risk.
That is not true. The three-sentence amendment is broad by design, much like the privacy provision that is currently used as the basis for abortion protection, because constitutional provisions are supposed to be skeletal outlines that the legislature can then use as the basis for drafting legislation. The privacy provision did not prevent the Legislature from adding some restrictions to abortions. Prop 1 won’t have that effect either.
It’s true that the threat to abortion and contraception in California seems low right now. Gov. Gavin Newsom and the Legislature have made clear their intention to make California an abortion sanctuary, as restrictions to reproductive care have ramped up in more than a dozen states across the country since the Dobbs decision. The majority of Californians support the right to an abortion in most, if not all, cases. Recent polling indicates that 69% of likely voters in California support Prop 1.
But likely votes don’t mean much until they’re cast. The rights to abortion and contraception are too important to be left beholden to any particular governor, Legislature or court. Prop 1 ensures that they are not.
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