Ericka Cruz Guevarra [00:01:38] So April, back when Roe v Wade was overturned, I remember it was just such an emotional time. Is this prop a direct result of the decision to end federal abortion rights? Can you tell us about how this sort of came to be?
April Dembosky [00:01:54] It is a direct result after the Supreme Court decision was leaked. Pretty much immediately lawmakers went to work drafting the constitutional amendment that would eventually become Proposition 1.
Sound from California Assembly floor [00:02:10] Senate Constitutional Amendment ten by Senator Akins and others. And I believe in two fundamental rights. Mr. Speaker, you may 11. Thank you, Mr. Speaker. Members, colleagues (fades under).
April Dembosky [00:02:19] The very last vote which occurred on the floor of the Assembly actually took place three days after the official decision came down. So even though people had been anticipating it, the reality of it actually happening just really clearly hit people.
Christina Garcia [00:02:37] The last 72 hours has taught us anything is that we can't assume a right we've had for 50 years will be available for us in the future.
April Dembosky [00:02:46] One of the lawmakers who spoke is Assembly member Christina Garcia. She represents the L.A. area and she's one of the coauthors on the bill.
Christina Garcia [00:02:53] We struggle with those feelings of anger, disappointment, disillusionment, whatever else it might be. I'm proud that I live in California. And so we must fight to ensure that we are a beacon of hope. We must fight to ensure that we are a role model for the rest of the states out there and for Congress. And we must fight because this is this, right? But tomorrow it'll be something else.
Ericka Cruz Guevarra [00:03:14] So let's talk more about Prop 1. What would it do exactly?
April Dembosky [00:03:18] At the simplest level, lawmakers just wanted to say loud and clear, we want to give abortion and contraception rights the strongest protection we can. And we're going to do that by explicitly naming those rights in our state constitution. So it's basically saying, you know, if someday in the future, the political tides in California were to change, and suddenly we had an influx of lawmakers who were not as favorable to abortion rights, and they tried to change some of our laws to be more restrictive, this amendment will make it a lot harder to do that. It will also do the same for contraception. There's some concern that the way the U.S. Supreme Court is thinking about abortion, saying that it's no longer a federal right, they may use a similar reasoning in the future to weaken the right to contraception. So, Prop 1 includes a right to choose contraception. It also includes a right to refuse contraception. And that refers to some dark history in California. California has a really terrible track record of forced sterilizations. Women of color, Native American women, people who are incarcerated, basically being sterilized so they can never have children again. And this was happening against their will, sometimes even without their knowledge. And so there's an attempt at reproductive and racial justice included in Proposition 1 as well.
Ericka Cruz Guevarra [00:04:50] Let's get into who is for and against this proposition. Tell me which groups again are for and against this.
April Dembosky [00:04:59] So the groups that are for this are a range of health groups. Planned Parenthood affiliates of California is leading the charge, but there's a list of other women's health organizations, doctors groups. You've got the California Medical Association, the California Nurses Association, other reproductive justice groups and civil rights groups. Those are the groups that are for it. And then on the other side, the groups that are opposing it are more religious based groups. The California Conference of Catholic Bishops, the California Family Council, as well as fiscal conservative groups. So groups who are, you know, just sort of complaining about the amount of taxpayer money that goes toward supporting abortion services.
Ericka Cruz Guevarra [00:05:49] Who's funding the for and against campaigns and how much money has been spent on this?
April Dembosky [00:05:56] On the yes side, there's a campaign committee put together by Planned Parenthood and State Senator Toni Atkins. She's the primary author of the amendment. And they've raised about $8.8 million. The no side has raised less than $400,000 so far, and that's mainly coming from churches and individuals. So, it's pretty lopsided.
Ericka Cruz Guevarra [00:06:23] Now, I want to get into the arguments here. Let's talk about the no side. What happens if this proposition fails and what's the argument against passing it.
April Dembosky [00:06:35] If the proposition goes down there isn't any immediate change for anybody in California. We still have really strong protections for abortion and contraception services. And so what you hear from the no side is actually “Prop 1 is unnecessary. We don't need it.” But they also raise some concerns because they say that, you know, the measure doesn't just enshrine the status quo. It actually expands abortion rights. You know, one of the things that's pointed out is that the constitutional amendment doesn't say anything about viability. Viability is, in the simplest terms, a reference to when a fetus is able to survive outside the womb without any kind of heroic medical interventions. Historically, people have put a number on that. And in California, it's 24 weeks. After that, in California, women can still get abortions if their health or life is in danger or if something goes wrong with the fetus. But the language of Proposition 1, if you read it, there's no mention of viability and there's no number of weeks in there. There's no time limit mentioned. The opponents are concerned about this.
Jonathan Keller [00:07:57] Our large concern with Proposition 1 is that even if it represents a small percentage of overall abortions, it really is just an extreme position that is out of step with the majority of California voters.
April Dembosky [00:08:09] I talked to Jonathan Keller. He's the head of the California Family Council. He and other opponents are interpreting Proposition 1 to mean you can't place any restrictions on abortion.
Jonathan Keller [00:08:23] We already have currently abortion up to 24 weeks. Why do we need to push it beyond that? Why do we need to go beyond the point of viability? Why do we need to go up to potentially the moment of birth? Aren't able to say that that is a step too far even for California?
April Dembosky [00:08:44] They may be opposed to abortion altogether, but their arguments on Prop 1 are really specified toward this question of viability, this question of at what point does a fetus become a person?
James Gallagher [00:08:58] My twin boys are alive and they are people. And they were alive and they were people at 18 weeks. At 30 weeks, they did come.
April Dembosky [00:09:07] You know, Republicans like James Gallagher, he was one of the people who testified on the Assembly floor.
James Gallagher [00:09:14] And so babies like my twins at 30 weeks, their lives could be taken. And I don't think that's the right balance, folks.
April Dembosky [00:09:25] Their view that they've come to is that these are people, you know, they're alive, they're babies, and they deserve to be protected.
Ericka Cruz Guevarra [00:09:38] It sounds like some people are concerned that without specific guidance on how late into a pregnancy an abortion can be performed there's this sort of fear that this opens the door for all these abortions at any point in pregnancy. What do supporters of Prop 1 have to say about that?
April Dembosky [00:09:58] To be honest, the authors of the amendment had trouble answering this question. They had trouble answering it conclusively for sure, but sometimes didn't know how to answer it at all. But then, in the last couple of months, some of the supporters of the bill have come out and said, no, no, no, no. This is this is just about enshrining current law. It doesn't change anything about the viability rules. So, if you read in your voter guide, you know, that's mailed out to all the voters in that rebuttal section, it actually says, no, we're just preserving the status quo. But several legal scholars that I've talked to have said, no, it does open the door. It may actually get rid of the viability standard. And the thing is, is that some of these legal scholars, as well as doctors will say and what's wrong with that? In other words, that's actually the point.
Dr. Pratima Gupta [00:10:51] Every pregnancy is individual and it's a continuum.
April Dembosky [00:10:56] So one of the doctors I talked to is Doctor Pratima Gupta. She practices in the San Diego area and she was also involved in drafting the constitutional amendment. And she says, straight up, we left it out on purpose.
Dr. Pratima Gupta [00:11:10] They updated some of the language and the specific word viability was removed, and that was in conjunction with ACOG and medical experts.
April Dembosky [00:11:21] So Dr. Gupta basically explains, you know, if you want to talk about viability in in more scientific terms, it's nothing that can be determined based on gestational age limit alone, that there's a whole host of factors that go into determining whether a fetus can live outside the womb.
Dr. Pratima Gupta [00:11:40] So whether somebody has resources and their health status entering their pregnancy, such as anemia, their preexisting medical conditions like diabetes, high blood pressure, obesity that they might have prior to entering the pregnancy.
April Dembosky [00:11:56] And so, you know, one fetus who may be able to survive at 23 weeks, another may not.
Dr. Pratima Gupta [00:12:03] Put a specific gestational age limit, it doesn't truly represent our medical practice. And viability is really nuanced. You know, we as physicians are medically and ethically obligated to practice within the scope of the law and treat each patient individually and incorporate their own individual experiences and medical issues into their care.
April Dembosky [00:12:30] Doctors are basically saying it doesn't make sense to put a number on it, that it makes sense to leave it up to the doctor’s judgment. And, in fact, this whole line of thinking, it's not just, you know, one doctor in southern California, this is actually coming from the American College of Obstetrics and Gynecology, which is the, you know, advisory group for all OB-GYNs in the country. And that group themselves has removed the word viability from the guidance that it gives out to doctors. And it says, you know, look at all these range of factors if you are helping a woman decide if abortion is the right choice.
Ericka Cruz Guevarra [00:13:13] Well, April, we've been talking so much about this one word or the absence of it in this proposition, “viability,” and sort of the arguments for and against this proposition because of that word. Do you think voters are going to be reading that deep into the nitty gritty of this, given just the fact that so many Californians seem to be generally supportive of protecting abortion rights?
April Dembosky [00:13:43] I think we have to take all of this in the context of what is happening more broadly.
Mary Ziegler [00:13:48] Why you're seeing such tremendous support for Prop 1 is in part because the stakes are so much higher.
April Dembosky [00:13:56] I talked to Mary Ziegler. She is a law professor at UC Davis and she's also a historian of the abortion debate.
Mary Ziegler [00:14:03] Californians, I think, quite strongly support that basic idea that there is a right to reproductive autonomy, that abortion bans are unacceptable.
April Dembosky [00:14:11] She points out, first of all, polling for Proposition 1 is pretty high. And even though there are polls that say that Californians generally favor restrictions on abortion later in pregnancy, she's basically suggesting, you know, maybe people's feelings have changed.
Mary Ziegler [00:14:30] Before, anti-abortion groups could say, you know, there's already this federal right to choose abortion. So why do you need even more? Anti-abortion groups can't say that anymore. And not only can they not say that anymore. There are concerns that other states are going to be trying to affect what Californians do.
April Dembosky [00:14:47] If people look around and see bans, you know, happening in other states, if, you know, they're thinking about the federal right to abortion being erased, maybe they're not interested in quibbling about some of these viability arguments.
Mary Ziegler [00:15:01] And in a world where there is no Roe, I think what you're seeing is California legislators trying to write into law or asking voters to vote into our state constitution, you know, a kind of blank slate, better idea of what reproductive autonomy could be. That isn't just, you know, Roe part two.
Ericka Cruz Guevarra [00:15:19] Do we know the chances that this will pass?
April Dembosky [00:15:22] Polls from August say that 71% of Californians say they're going to vote for it. That's a pretty wide margin. I think that might be difficult to chip away at even in the last month or so of the campaign.
Ericka Cruz Guevarra [00:15:41] April. Thank you.
April Dembosky [00:15:42] Thanks so much.
Olivia Allen-Price [00:15:45] That was the Bay's Erica Cruz Guevara in conversation with KQED health correspondent April Dembosky.
We'll be back tomorrow with what may be the most eagerly awaited episode of Prop Fest ever. I'll be breaking down Props 26 and 27 with Guy Marzorati. Those are the sports gambling props that you almost certainly have been seeing campaign ads for. It's a doozy, but we will get through it together. That's tomorrow on Prop Fest.
Be sure you're subscribed to Bay Curious so you don't miss it. Prop Fest is a production of the Bay. That's Ericka Cruz Guevarra, Allen Montecillo and Maria Esquinca, and us here at Bay Curious — Katrina Schwartz, Amanda Font, Brendan Willard and me, Olivia Allen-Price. Darren Tu is creating video versions of our Prop Fest series. Follow at KQED on Instagram and TikTok so you catch them when they land. I'm Olivia Allen Price. Thank you for listening.