A proposition put forward by California Democrats would allow abortions at any time and for any reason, pro-life advocates are warning, emphasizing that the media and Democrats are downplaying such concerns because Californians do not support late-term abortion.
Proposition 1, titled the “Constitutional Right To Reproductive Freedom,” is a legislative constitutional amendment that would change the California Constitution to state that California cannot “deny or interfere with a person’s reproductive freedom” and that Californians have the right to choose to have an abortion or to use contraceptives.
The proposition is a direct response to the Supreme Court’s June 24 overturning of Roe v. Wade in its Dobbs v. Jackson Women’s Health Organization decision, and Democratic California Gov. Gavin Newsom is dumping $2.5 million into a campaign urging Californians to back the proposition.
“The better we do on this, the more intensity, the more we dial it up, I also think it sends a message that reverberates across our borders,” Newsom told POLITICO in October.
“If a significant majority come out and vote for Prop 1, it sends a message to states that didn’t do anything this year—‘Why didn’t you? Where were you?’—and to take this moment seriously and get ahead of the next round of Supreme Court decisions.”
Newsom did not immediately respond to requests for comment for this article.
Rasmussen polling found in late October that most California voters are against late-term abortions. Only 14% of California likely voters think abortion should be legal at any time during pregnancy.
Catherine Hadro, campaign spokesperson for No on Proposition 1, pointed out that support for the abortion proposition has dropped significantly in just over a month: Rasmussen found in October that 59% of California voters support the proposition, while just 33% oppose it. In August, 66% of California voters supported the ballot measure.
In literature distributed to California voters, pro-life opponents of the measure point out that Proposition 1 does not contain the language “viability of the fetus,” thus apparently placing no limit on when the baby can be aborted.
“Prop 1 politicians are intentionally being deceitful because they know Californians do not support late-term abortion,” Hadro told The Daily Signal.
Hadro pointed out that current California law allows abortions “prior to viability” or “when necessary to protect the life of the woman,” noting that “Proposition 1 contains no such limits or language, allowing abortion at any time, for any reason—or no reason at all.”
“This is not by accident,” she added, stating that one of the authors of Proposition 1, Dr. Pratima Gupta, admitted in an interview with KQED that Prop 1’s authors left out viability language on purpose.
“They updated some of the language and the specific word ‘viability’ was removed, and that was in conjunction with [the American College of Obstetricians and Gynecologists] and medical experts,” Gupta said, according to KQED. She did not immediately respond to a request for comment from The Daily Signal.
Josh Craddock, a constitutional lawyer and an affiliated scholar with the Alexandria, Va.-based James Wilson Institute on Natural Rights and the American Founding, warned that the proposition has “extreme and far-reaching implications.”
“This broadly-worded proposal could erase all abortion restrictions in California and require taxpayer-funded abortions up until a baby’s due date,” he told The Daily Signal. “Unlike existing state constitutional provisions that are overlaid with judicial precedent, courts can interpret Proposition 1 from a blank slate to create one of the most radical state abortion regimes in the country.”
“There are serious questions about whether this measure, if enacted, would be consistent with the U.S. Constitution—which is supreme over state constitutions,” Craddock added. “The 14th Amendment requires states to extend ‘the equal protection of the laws’ to all persons. Proposition 1 necessarily deprives a class of human persons—those at the earliest stage of development—of equal protection, violating federal constitutional rights.”
California Attorney General Rob Bonta and pro-abortion activists have accused pro-life opponents of being alarmist.
“Prop 1 does not bar the Legislature from regulating contraception and abortion. It does not allow abortion up to the moment of birth,” Cary Franklin, director of the Center on Reproductive Health, Law and Policy at UCLA Law School, told the San Francisco Chronicle.
Brietta Clark, who teaches health care law at Loyola Law School in Los Angeles, told the publication that California will still have the ability to “regulate abortion,” noting that “constitutional rights are never absolute,” and late-term abortions are “extremely rare.”
But Elizabeth Kirk, director of the Center for Law & the Human Person at the Catholic University of America’s Columbus School of Law, argued that nothing in the language of the proposition provides a basis for the state to limit abortion in any way—including post-viability or late-term abortions.
“The language of Prop 1 is absolute and categorical: ‘the state shall not deny or interfere with reproductive freedom,’” she said. “Even under [Roe v. Wade and Planned Parenthood v. Casey], states were permitted to regulate abortion to express important state interests before viability, and after viability, they were even permitted to prohibit abortion (with some exceptions).”
Proposition 1 does not provide any interest that would justify a basis for California to interfere with abortions “at all,” Kirk said, whether before or after viability—”not to protect minors, not to ensure parental involvement, and not to prohibit late-term abortions.”
“And, as a constitutional amendment, Prop 1 would trump all existing state laws to the contrary and governs the interpretation of state law,” she added.
Hadro also insisted that “it is a fact that constitutional amendments override all existing state laws.”
“Proposition 1 goes beyond California’s law,” she said. “Support for Prop 1 has dropped by 7 points in just over a month, as more Californians are learning it would mean late-term abortion. In fact, 86% of Californians reject late-term abortion.”
“If Proposition 1 politicians truly want to enshrine California’s existing abortion law into the state constitution, why doesn’t the proposition language say that?” Hadro asked. “Prop 1 is an extreme position, and it’s not what Californians want.”
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