Should abortion return to the front lines of the nation’s political battles, as President Trump selects a pivotal new justice to join the U.S. Supreme Court, the outcome likely will have little practical impact in California.
For that, you can thank Kenneth Cory — and voters, who played a key role in this story as they have in so many tales of governing the state.
Cory, who died almost two decades ago after a long tenure as the state’s controller, was serving as an Orange County assemblyman when he was alarmed about the lack of guaranteed privacy — more specifically, how government could easily intrude into a person’s life. It took him two years to get legislators to place Proposition 11 on the Nov. 7, 1972, statewide ballot.
“The right to privacy is the right to be left alone,” Cory, a Democrat, wrote in that year’s ballot guide. “It is a fundamental and compelling interest.”
Nine years after its passage, the constitutional amendment and its broad guarantee of privacy made its way into a California Supreme Court ruling on abortion. The case involved an existing ban on abortion services for women whose healthcare was funded by Medi-Cal, the program serving the state’s poorest residents. Refusing to fund the procedure, the women argued, was a de facto ban on their right to decide for themselves. A majority of the justices agreed.
“The restriction at issue undermines the right of privacy guaranteed under our California Constitution in that it threatens not only the woman's interests in life, health, and personal bodily autonomy but also her right to decide for herself whether to parent a child,” Justice Mathew Tobriner wrote for the majority.
Proposition 11 never contemplated decisions over reproductive rights and responsibilities. But its creation of an “enumerated,” specifically invoked, right of the state’s residents has carried great weight. There is no similar specific language in the U.S. Constitution. And in California, subsequent court cases on abortion kept coming back to Cory’s small but important 1972 ballot measure.
It’s also the underpinning of a series of California laws supporting abortion in the decades since passage. A June survey by the Guttmacher Institute, a nonprofit that supports reproductive rights, found California to be one of only nine states that “protect the right to choose abortion prior to viability or when necessary to protect the life or health of the woman.”
The statutes have run the gamut in size and sweep. In 1994, the state enacted its own version of a federal law allowing safe access to clinics. Two years later, family planning services were created for low-income adults. The range of professionals who can perform abortions was expanded in 2002. More recently, lawmakers created statutes allowing women to seek reproductive services without a referral from their primary doctor and to obtain a year’s supply of birth control in a single pharmacy visit and without a prescription.
Rarely do state efforts get curtailed, as they were last month when the U.S. Supreme Court ruled against a California law that required abortion information be provided in faith-based “crisis pregnancy” centers.
In every statewide poll on the issue, Californians seem firmly in favor of legal abortion rights. Seventy-one percent of those surveyed by the nonpartisan Public Policy Institute of California last winter said government should not interfere with access. An equal number wanted the federal landmark ruling in Roe vs. Wade to be upheld. Even at its lowest point — among Republicans — support for the 1973 ruling stood at 59%.