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The V Word: Proposition 1 Revives Historic Abortion Debate Over 'Viability' in California

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PRo-choice protesters at a rally in SF, holding signs. Oone sign says: 'Codify Roe Now.'
Hundreds of demonstrators gather in front of City Hall in San Francisco to protest the US Supreme Court's decision to overturn Roe v. Wade, on Friday, June 24, 2022. The Court's decision overturned the 50-year-old Roe v. Wade case, removing the federal right to abortion. (Beth LaBerge/KQED)

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.

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“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.

“Babies like my twins at 30 weeks, their lives could be taken. And I don't think that's the right balance,” he said. “We can do better.” 

Proponents of Proposition 1 have said the intention of the amendment was only to preserve the status quo. But in various committee hearings, the bill’s supporters seemed confused by the language of their own bill at times and scrambled to answer questions definitively about whether the amendment would preserve the viability limit or discard it.

But doctors who were involved in drafting the law, like Dr. Pratima Gupta, say that was no mistake. They left the word "viability" out on purpose.

“Every pregnancy is individual and it's a continuum,” said Gupta, an OB-GYN in San Diego.

People come into pregnancy with a range of preexisting health conditions, she said, like diabetes, anemia, high blood pressure, and obesity. They may not have much money or access to good medical care with the latest technology. All of these very nuanced factors, and not some arbitrary number, determine whether a fetus is viable, she said.

“If I see a patient who has broken their bag of water at 23 weeks of pregnancy, that doesn't mean that it's viable or not viable,” she said.

Doctors who consulted on the amendment were following the lead of the American College of Obstetricians and Gynecologists, the leading advisory group for OB-GYNs, which itself removed the term "viability" from its own guidance on abortion last May. The term has become so politicized that it barely has any medical meaning anymore, the group said, and deciding whether and when to have an abortion should be left to the patient and doctor.

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The demise of Roe v. Wade, in a strange way, is what has freed doctors of the vagaries of the viability framework as it was outlined in Roe. If the Supreme Court could put an end to 50 years of constitutional protections for abortion, doctors seem to be saying, the court could take all the flaws of their decision with it.

“In a world where there is no Roe, I think you're seeing California legislators trying to write into law a kind of blank slate, a better idea of what reproductive autonomy could be that isn't just Roe Part Two,” Ziegler said.

Why women get abortions later in pregnancy

In recent years, at least three other states have removed viability and gestational age limits from their abortion laws. Colorado, New Jersey, Vermont and Washington, D.C., now allow abortion throughout pregnancy.

Abortion opponents argue that if California follows suit by passing Proposition 1, it will be a free-for-all, with women lining up for abortions when they’re eight months pregnant, for no reason at all.

“We already currently have abortion up to 24 weeks. Why do we need to push it beyond that?” said Jonathan Keller, president and CEO of the California Family Council, a religious nonprofit. “Aren't we able to say that that is a step too far, even for California?”

Research indicates such scenarios are a fantasy. Abortions at or after 21 weeks are extremely rare, representing only 1.2% of all abortions, according to data from the Centers for Disease Control and Prevention.

Other studies show that the reasons women seek abortions at this time in pregnancy are varied. It is primarily because of medical complications, where a pregnancy is desired, but the mother finds out late about a complication that puts her own life at risk, or a fetal abnormality that will make it impossible for the baby to survive after birth. 

Increasingly, women face legal and logistical barriers that make it difficult for them to access abortion care as early as they want to, said Elizabeth Nash, policy analyst at the Guttmacher Institute, a research organization focused on reproductive rights. As more states ban the procedure in the wake of the Supreme Court eviscerating Roe, fewer clinics offer it.

“The timing is not always up to the patient, particularly now,” Nash said. “It may be that they're delayed because there are lots of restrictions they have to comply with. It may be because they need to travel for an abortion. It may be that they can't get time off of work.”

Women may have trouble raising the money they need to pay for the procedure, or they may have an abusive partner who exerts control over their decisions and movements. “It may be that they don't recognize that they're pregnant,” Nash said.

Still, even in a state like California that champions abortion rights and is even positioning itself as an abortion sanctuary, voters are more uncomfortable with the procedure the later it gets in pregnancy. An August poll showed only 13% of voters said they were OK with abortion through the third trimester.

But when it comes to securing abortion rights in general through Proposition 1, 71% of Californians say they’re going to vote for it.

“The politics of viability have changed,” said law professor Ziegler.

With the Supreme Court toppling the federal right to abortion, and more than half the states banning or trying to ban the procedure, Ziegler said, “these viability arguments — that had obviously been compelling for decades — don’t land the same way.”

The polls indicate voters are not inclined to nitpick right now. Ziegler predicts that they’ll accept the ambiguity in Proposition 1 and let the courts sort out the details later.

This story was made possible as part of The California Newsroom – a collaboration of California’s public radio stations, NPR and CalMatters.

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