Prop. 1 should be pulled by the state to clarify viability limits

In November, Californians will vote on Proposition 1, which would amend the California Constitution to read: “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.”

Proposition 1 was put on the ballot by the California Legislature rather than by voters’ signatures, to counter the June ruling by the United States Supreme Court that the U.S. Constitution did not create a right to abortion. States, rather, were free to regulate abortion as each state wished.

Banning abortions entirely, permitting abortions with the restrictions the U.S. Supreme Court had allowed before the June decision, or allowing abortions without restriction were alternatives now open to the states. With Proposition 1, Californians would be choosing the third option.

The proponents of Proposition 1 claim they did not intend that result. However, many supporters of a woman’s right to choose objected to restrictions on abortion rights that the U.S. Supreme Court had, over the years, allowed states to impose, like forcing a woman to wait several days after her initial consultation, or to read literature urging her not to have an abortion, before being allowed to proceed.

The words of Proposition 1 accord with a widespread belief among pro-choice advocates that abortion should be a decision left to the woman, not the government. That’s what Proposition 1 accomplishes.

It is naïve to believe its drafters did not intend what it plainly says. Rather, they are “not letting a good crisis go to waste.” Outrage against the U.S. Supreme Court’s reversal of

Roe v. Wade is palpable in California. If there is a time to enshrine an absolute right to an abortion, their reasoning goes, it is now; and voters might not

focus on the fine print.

The Democratic supermajority in the Legislature claim they didn’t intend to prevent any restrictions on abortion. Rather, they claim, a woman’s “fundamental right to choose to have an abortion” means as that right was construed by the U.S. Supreme Court before this June, including the restrictions then allowed.

They argue that’s what the California Supreme Court has said in construing the existing right to privacy in the current state constitution. Less than two years after Roe, California added “privacy” to the list of fundamental rights guaranteed under the same section of the California Constitution now proposed for amendment. In interpreting that phrase, the California Supreme Court quoted liberally from Roe v. Wade. They noted that a woman’s “privacy” diminishes when another person is involved. The voters who put “privacy” into California’s constitution in 1974 could have said “abortion.”

Instead, they used a term that allowed the woman’s right to be restricted as the state’s interest in preserving potential or actual life grew with the number of months of gestation.

If that’s what they meant to protect, Proposition 1’s drafters could have written that the California Constitution protects a woman’s right to “abortion up to viability of the fetus.”

Indeed, they could have not offered Proposition 1 at all and stuck with the concept of “privacy.”

There is no emergency; abortion is not about to be outlawed in California. It is protected under state law and California Supreme Court precedent.

Instead, they chose the word “abortion,” as somehow preferable to “privacy.”

Applying the California Supreme Court’s logic, the only difference is that “privacy” would allow some state restrictions. Evidently, the proponents did not want that.

If California imposes any restrictions on abortion in years to come, we can expect the California Supreme Court to strike them down, if Proposition 1 passes.

The Legislature can withdraw Proposition 1 and offer an alternative that protects the right to an abortion up to viability — current state law, in other words. The absolute position is not what Californians want — and not what the proponents claim they want, either.