California Politics: What constitutional law experts say about the abortion ballot measure

 A billboard reads, 'Welcome to California where abortion is safe and still legal.'
A billboard in Rancho Mirage.
(Mario Tama / Getty Images)

With favorable polls and a pile of cash on hand, supporters of the California ballot measure to add abortion rights directly into the state Constitution have enjoyed an easy road in this election thus far. Gov. Gavin Newsom is using at least $2 million of his own campaign funds to air ads supporting Proposition 1, and supporters featured Hillary Clinton on a panel Thursday discussing the importance of further solidifying California’s abortion rights.

But the smooth sailing would end if it’s passed, the small and underdog opposition campaign is promising ahead of the Nov. 8 election.

“Because it directly conflicts with state law, it will unleash a tsunami of lawsuits that will ultimately be decided by judges, not voters,” said trial attorney Christopher Bakes.

Opponents say that since Proposition 1 omits language surrounding viability, there will be no limits to when abortions can be performed in California.

“This broadly worded proposal could erase all abortion restrictions in California and require taxpayer-funded abortions up until a baby’s due date,” said Josh Craddock, a lawyer and affiliated scholar with the James Wilson Institute, a conservative legal think tank that opposes abortion.

Supporters of Proposition 1 call these arguments an intentional effort to mislead voters. Or “fear mongering” as Molly Weedn, a spokesperson for the Yes on Prop. 1 campaign put it.

So what does it really do? I spoke to legal experts to help decipher the real implications if Proposition 1 is passed next month.

I’m Melody Gutierrez, a political reporter at The Times who has closely followed California’s efforts to insulate itself from the impact of Roe vs. Wade being overturned. I’ve followed this ballot measure since it was first introduced in June as Senate Constitutional Amendment 10 by Senate President Pro Tem Toni Atkins (D-San Diego). At the time, I remember thinking I was reading brief placeholder language and that more robust language would be amended into SCA 10 later.


It wasn’t. So I asked why.

What’s with the brevity?

Constitutional law experts say amendments speak broadly to rights, while state laws provide the parameters. And to that effect, California already has laws around when abortions can be performed. There will be lawsuits, proponents added, but there are always lawsuits attempting to challenge abortion rights.

“It’s real misinformation to critique a constitutional amendment in this manner,” said Cary Franklin, UCLA constitutional law professor and director of its Center on Reproductive Health, Law and Policy.

Franklin said it makes sense too that Proposition 1 does not mention viability. California law allows a person to have an abortion until the point that a physician determines “there is a reasonable likelihood of the fetus’ sustained survival outside the uterus without the application of extraordinary medical measures” or if the procedure is necessary in order to “protect the life or health of the woman.” In most cases, doctors have considered a fetus viable at 24 weeks, but that number changes depending on the pregnancy.

“Viability doesn’t have any constitutional significance,” Franklin said. “It’s not a constitutional principle. It varies and moves around according to technology and health and geography and the age of the pregnant person. ... It’s not a kind of word that you would put in a document meant to endure through time, because it’s a medical term that doctors need to work out with their patients using their medical expertise in each case.”

So will the broad language of Proposition 1 supplant state laws around viability? That’s not how it works, said Erwin Chemerinsky, dean of UC Berkeley Law. The state’s Constitution is currently being interpreted as protecting abortion rights and yet there are restrictions after viability, Chemerinsky said.

“There is no reason why this right would not be interpreted the same way,” he said. “Rights are not absolute even if enumerated. Free speech is an example. The same would be true of abortion rights. I think the opponents’ argument is misguided.”


Melissa Murray, a law professor at New York University who teaches constitutional law, said even if a lawsuit was filed to challenge the measure, it’s unlikely a court would interpret it as allowing abortions without the restrictions created by California laws.

“I think it is intended to obviate the prospect of a legislature putting in unnecessary restrictions like the requirement of an ultrasound,” Murray said.

She said opponents have repeated a common falsehood that pregnant people seek late-term abortions outside of medically necessary — and incredibly heartbreaking — circumstances.

“But will there be lawsuits about what the scope and substance of these protections are? Yes, of course, there will be,” she added.

Prepared to fight

If those lawsuits come, California Atty. Gen. Rob Bonta said he’s prepared to fight for Proposition 1.

“We’ll defend it in court and we will allow a court to do its constitutional role to interpret and define and clarify so that it’s clear, but it’s our job to defend the laws of the state of California,” Bonta said, noting that he typically does not take positions on ballot measures as he has with this one.

Bonta said he understands that there have been questions about the brevity of the language — “It’s three lines, it’s very short” — but that its intent has been clearly stated.

“I think if there needs to be some clarification, it can be clarified by a court without striking it down,” Bonta told Times reporter Hannah Wiley in a recent interview. “The court would determine the contours and limits if there are any, and we would make our best arguments to the court and so would anyone who challenges it, and then the court can decide.”

Big money from big oil

It took years of failed attempts before California passed a bill requiring buffer zones between new oil and gas wells and residential neighborhoods. The oil industry now has the next two months to try to stall, and potentially reverse, the new law by gathering signatures for a proposed referendum.

The proposed referendum to overturn Senate Bill 1137 is expected to garner big money from big oil, and the first check on Tuesday didn’t disappoint. Macpherson Oil Company out of Bakersfield contributed $1.5 million to the newly formed industry coalition called Stop the Energy Shutdown, which opposes the law.

The proposed referendum has until Dec. 15 to gather 623,212 signatures in order to qualify a measure for the next general election in 2024. More immediately, however, if the measure makes the ballot, the new law that is slated to partially go into effect Jan. 1 would be delayed until voters weigh in two years from now.

SB 1137 was a keystone in Newsom’s package of climate legislation signed during the legislative session that ended Aug. 30. Authored by state Sen. Lena Gonzalez (D-Long Beach), the law aims to ensure that new production sites are not plopped next to homes, schools or any building open to the public where the proximity can be harmful to a person’s health. Supporters argued that the 3,200-foot buffer on new or extensively retrofitted oil and gas wells will protect millions of Californians, particularly those living in low-income communities of color who already bear the brunt of existing drilling.

December showdown

The first — and sizable — contribution to the referendum efforts comes on the heels of Newsom calling a special legislative session so that lawmakers can weigh whether to impose a new tax on excess oil profits in response to rising prices at the pump. Newsom said the hikes are the result of “price gouging” in California, where residents pay $2.50 more a gallon than the national average.

Kevin Slagle, spokesman for the Western States Petroleum Assn., called Newsom’s announcement a “political stunt.” The association has been critical of Newsom’s climate bills, particularly SB 1137, which the group said will result in taxpayers in the state paying higher prices at the pump..

The special legislative session will begin Dec. 5, the same day lawmakers are already scheduled to reconvene in Sacramento after the November midterm election and 10 days before signatures are due for the proposed referendum. No matter where gas prices land in the next two months, it’s clear the political wrangling will keep going up.

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Want more election coverage?

— Got your ballot or prepping for the polls? Check out The Times’ guide to the 2022 California midterm election with deep dives on the races and what’s at stake.

— Democratic incumbent Eleni Kounalakis and Republican Lancaster official Angela Underwood Jacobs are competing for the position of California lieutenant governor — an under-the-radar office that has been a steppingstone for a few governors past.

— Proposition 28 asks voters to approve $1 billion for arts and music in California schools that proponents say will create more equitable classrooms and lead to a more diverse workforce in the state’s pivotal entertainment industry.

California politics lightning round

— Bonta said Wednesday that his office would investigate the Los Angeles redistricting process that took place last fall, saying an inquiry is needed to “restore confidence” in the line-drawing of the city’s 15 council districts. The announcement comes days after a leaked recording in which then-council President Nury Martinez is heard making racist remarks while talking with fellow Councilmembers Kevin de León and Gil Cedillo and labor leader Ron Herrera about how the city’s council district boundaries should be redrawn.

— The mystery behind the racist tape scandal that has triggered a cascade of outrage that reached all the way to the White House is: Who leaked it — and why?

— Columnist George Skelton writes that De León and Cedillo abetted Martinez’s racist talk. Now they’re paying the political price

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