As soon as the leaked U.S. Supreme Court decision overturning Roe v. Wade published in May, threatening the federal right to abortion, California Democrats went to work writing an amendment to the state constitution, explicitly protecting the right to an abortion here.
Californians will vote on the amendment in the form of Proposition 1 come November, but as the election approaches, lawmakers still do not agree whether the measure would merely enshrine abortion rights as they are currently articulated in state law, which allows abortion up to 24 weeks, or whether it would expand abortion rights, so as to permit abortions at any point in pregnancy, for any reason.
Throughout the legislative debate over the amendment, there were several awkward moments when Democrats were stumped by this question from Republicans, most notably when Assemblymember Kevin Kiley, R-Rocklin, posed it point-blank before the final vote in June.
“California law generally bars the performance of an abortion past the point of fetal viability,” he said. “Would this constitutional amendment change that?”
The floor went quiet. For a full 30 seconds, no one said anything. Assembly Speaker Anthony Rendon whispered with colleagues, asked to have the question repeated, then promised to answer later. He never did.
Viability has long been a controversial concept, plaguing ethicists on both sides of the abortion debate since it was embedded in the Roe v. Wade decision in 1973. The Supreme Court justices wrote that a woman’s rights to bodily autonomy and privacy were protected only up to viability — the point when a fetus is capable of “meaningful life outside the mother’s womb,” which the court said occurs between 24 and 28 weeks after conception.
Since then, many doctors have bemoaned the legal and political bastardization of the medical concept, arguing viability is much more complex than gestational age alone. But the public has clung to it, with abortion-rights opponents and supporters both looking favorably on restricting access to the procedure later in pregnancy.
Current California law incorporates the viability limit from Roe, allowing abortion for any reason through the second trimester, and after that only if the mother or fetus’s health is in danger.
But the constitutional amendment outlined in Proposition 1 doesn’t mention the word "viability" anywhere. Even among legal scholars, there is no consensus as to whether that means the viability standard will remain if Proposition 1 is approved, or if time limits on abortion will be eradicated in California.
“It at least opens the door,” said UC Davis law professor Mary Ziegler, noting that courts are likely to make the final interpretation of Proposition 1 after the election, if it’s approved.
The V-word debate revived
When Assemblymember James Gallagher, R-Chico, spoke during the final floor debate in June, his voice wavered with emotion. He could not support the state constitutional amendment on abortion “because of what’s missing from it,” he said.
He even choked up at one point talking about his twin boys, who were born two-and-a-half months premature and almost needed heart surgery in utero.
“They were alive and they were people,” he repeated throughout his speech, pointing at the lectern for emphasis each time he mentioned their development as fetuses: 18 weeks, 23 weeks, 30 weeks.
With no time limits or restrictions on a woman’s right to an abortion, Gallagher said, the amendment did nothing to protect the rights of the fetus.
