Abortion rights protesters march on Market Street in San Francisco on June 24, the day the Supreme Court overthrew Roe v. Wadeprovided federal abortion rights.
Josie Lepe / Josie Lepe / AP
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Abortion rights protesters march on Market Street in San Francisco on June 24, the day the Supreme Court overthrew Roe v. Wadeprovided federal abortion rights.
Josie Lepe / Josie Lepe / AP
The November 8 election in California included a ballot measure that asked voters whether they should amend the state constitution to explicitly protect abortion rights.
The majority of Californians support reproductive rights, so this measure, known as bill 1, is expected to pass. But the Supreme Court of Dobbs The decision last June to reverse federal abortion rights has increased urgency and raised stakes.
But exactly what Californians are voting for is not entirely clear. Some lawmakers say the amendment will Simple altar abortion rights in the state, while others say the amendment would extend abortion rights.
Current state law permits abortions for as long as the fetus is alive, generally at 24 weeks of gestation. But the proposed constitutional amendment does not address the timing issue, raising the possibility that abortion will be allowed at any point in the pregnancy – and, critics say, allowed because of any what reason.
This uncertainty has emerged in the legislative debate over the ballot amendment and how it will be worded. There were some awkward moments when Democrats were confused by this question from Republicans – most notably when Congress member Kevin Kiley (R-Rocklin) left the question blank before the vote. Parliament’s final vote in June.
“California law generally prohibits abortions beyond the term of a fetus’s viability,” says Kiley. “Will this constitutional amendment change that?”
The floor is quiet. For a full 30 seconds, no one said anything.
Congressional Speaker Anthony Rendon whispered to his Democratic colleagues, asked to repeat the question, and then promised to answer later.
He never did.
Three Democratic lawmakers in California just after the June 27 vote to finalize the language for a state constitutional amendment in favor of reproductive rights. (LR: Pro Tempore State Senate President Toni Atkins, State Senator Nancy Skinner, and Speaker of Congress Anthony Rendon)
Rich Pedroncelli / AP
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Rich Pedroncelli / AP
Three Democratic lawmakers in California just after the June 27 vote to finalize the language for a state constitutional amendment in favor of reproductive rights. (LR: Pro Tempore State Senate President Toni Atkins, State Senator Nancy Skinner, and Speaker of Congress Anthony Rendon)
Rich Pedroncelli / AP
Fetal viability has long been a controversial concept, baffling ethicists on both sides of the abortion debate since its introduction. Roe v. Wade decision in 1973.
In that ruling, the Supreme Court justices wrote that a woman’s right to privacy is protected only to the extent practicable – the point at which a fetus is capable of “meaningful life outside the mother’s womb”. .” The court said that it happened between 24 and 28 weeks after conception.
Since then, many doctors have voiced complaints about the legal and political distortions of the medical concept, arguing that viability is far more complex than gestational age. But the public has clung to it, and both opponents and advocates of abortion rights appear to benefit from limiting access to the procedure later in pregnancy.
Current California law incorporates viability limits from Roeallows abortion for any reason for most of the second trimester and thereafter only when the health of the patient or fetus is in jeopardy.
But the constitutional amendment outlined in Proposition 1 does not contain the word “viability”. Even among legal scholars, there is no consensus on whether that means the current viable standard will remain if Prop 1 is passed, or if the time limit on abortion will removed in California.
“At least it opens the door,” said Mary Zieglerprofessor of law at the University of California-Davis, with the courts likely to issue a final interpretation of Proposition 1 after the vote, if it is approved.
The ‘viability’ debate revived
When Council member James Gallagher (R-Chico) spoke during the final floor debate in June, his voice wavered with emotion. He could not support a constitutional amendment, he said, “because of what is missing in it.”
At one point he choked up when talking about his twin son, who was born two-and-a-half months premature and nearly needed heart surgery in utero. “They’re alive, and they’re human,” he repeated throughout his speech, pointing to the podium for emphasis each time, as he recounted his wife’s pregnancy at 18, 23 and 30 weeks.
California Representative James Gallagher, Republican minority leader, urged lawmakers to reject proposed constitutional amendments to abortion rights for the November vote, in the final debate on Nov. June at the Capitol in Sacramento, California.
Rich Pedroncelli / AP
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California Representative James Gallagher, Republican minority leader, urged lawmakers to reject proposed constitutional amendments to abortion rights for the November vote, in the final debate on Nov. June at the Capitol in Sacramento, California.
Rich Pedroncelli / AP
Gallagher said that without any time limit on abortion, the amendment skewed the balance between mother and fetus rights.
“We can do better,” he said.
Proposition 1 supporters say the intention is solely to preserve the status quo. But during the various committee hearings, advocates sometimes seemed confused by the language of their own bill and tried to give a definitive answer when asked if the amendment maintained limits on its ability to do so. test or remove it.
But the doctors involved in drafting the revision, like Dr. Pratima Guptaindicates no mistake has been made: The word viability has been intentionally omitted.
“Every pregnancy is individual, and it’s a continuum,” says Gupta, an OB-GYN doctor in San Diego. She explains: “People enter pregnancy with a range of pre-existing health conditions, including diabetes, anemia, high blood pressure and obesity. They may not have much money or access to good medical care, with the latest technology. All these nuanced factors determine whether a fetus will survive, she says, not some arbitrary number.
“If I see a patient with a ruptured sac at 23 weeks of pregnancy, that doesn’t mean it may or may not survive,” says Gupta, explaining that the fetus can. survived premature birth at this stage in some cases, but not in others.
The doctors who consulted on the revision followed the direction of the American College of Obstetricians and Gynecologists, the leading advisory group for Obstetrics and Gynecology, which removed the term viability from its guide to abortion in the May. The group explains that the term has become so politicized that it hardly has any medical meaning anymore, and that deciding whether and when it should be delivered to patients and doctor.
Strangely enough, the demise of Roe v. Wade liberated doctors from the ambiguity of the viability framework, as it was stated in that ruling.
“In a world without RoeI think you’re seeing California legislators trying to write into law a kind of blank media, a better idea of what reproductive autonomy might be. Roe Part 2,” Ziegler said.
Why do women have abortions later in pregnancy?
In recent years, at least three other states – Colorado, New Jersey and Vermont – and Washington, DC, have removed gestational age limits from their abortion laws.
Opponents of abortion argue that if California follows suit, it will be a free place for all, with women lining up to have an abortion when they are eight months pregnant.
“We’re now 24 weeks pregnant. Why do we need to push it beyond that?” Jonathan Keller, president and chief executive officer of California Family Council, a religious non-profit organization. “Can’t we say that’s a step too far, even for California?”
Research indicates that such scenarios are highly unlikely. Abortion at or after 21 weeks accounts for only 1.2% of all abortions, according to data from the Centers for Disease Control and Prevention. And studies show that At that time, the reasons women sought abortions varied widely, from life-threatening medical complications to the patient or fetus to increasing legal and logistical barriers.
Elizabeth Nash, a policy analyst at Guttmacher Viện Institute, a research organization advocating abortion rights. “It could be that they couldn’t take time off work. Or, it was a wanted pregnancy and something happened.”
However, even in California, which considers itself an abortion sanctuary, voters become more uncomfortable with the procedure the later in pregnancy. One August poll found that only 13% of voters are likely to say they are OK with abortion through the end of the third trimester.
But another poll found that on the issue of guaranteeing abortion rights in general, 71% of California voters said they would vote on Proposition 1.
“The politics of viability has changed,” said law professor Ziegler.
With the Supreme Court overturning federal abortion rights and more than half of the states banning or attempting to ban the procedure, Ziegler says that “these possible arguments – apparently convincing for decades – are – don’t land the same way.”
Polls show California voters are not inclined to support nitpick. Ziegler predicts they will accept the ambiguity in Proposition 1, and then let the courts sort out the details later.
This story comes from NPR’s reporting partnership with KQED and KHN (Kaiser Health News).
