In California, Abortion Could Become a Constitutional Right.


Sacramento, California. In November, Californians will decide whether to enshrine the right to abortion in the state constitution.

If they vote yes on Proposition 1, they will also fix a right that has received less attention: the right to birth control.

If this measure succeeds, California will be one of the first states, if not the first, to clearly articulate constitutional rights to both abortion and contraceptives.


Lawmakers and activists behind the constitutional amendment have said they hope to strike a decisive blow: to protect abortion in California after the U.S. Supreme Court overturned the federal constitutional right to abortion in Roe v. Wade, and to get ahead of what they see as the next front. in the fight for reproductive rights: birth control.

“The United States Supreme Court has held that the protection of privacy and liberty in the United States Constitution does not apply to abortion,” said UCLA law professor Kary Franklin, an expert in constitutional law and reproductive rights who testified before the legislature. caucus of California in support of the amendment. “If they said no to abortion, they will probably say no to contraceptives too, because they have a similar history.”

In June, the U.S. Supreme Court’s Dobbs v. Jackson Women’s Health Organization struck down the federal right to abortion and gave states the power to regulate the service. In his concurring opinion, Judge Clarence Thomas said the court should review other cases that have protected Americans on the basis of an implicit right to privacy in the US Constitution, such as the 1965 Griswold v. Connecticut case, which established a federal right to privacy. contraceptives. for married people, which was later extended to unmarried people.


Some Democrats in Congress are now trying to enshrine the right to contraceptives in federal law. In July, the U.S. House of Representatives passed the Right to Contraception Act, which gives patients the right to access and use contraceptives and providers the right to provide them. But the bill has little chance of success in the US Senate, where Republicans have already blocked it once.

Protecting access to contraceptives is popular among voters. A national poll conducted by Morning Consult and Politico in late July found that 75% of registered voters support a federal law protecting the right to access birth control.

California isn’t the only state where voters include reproductive rights in their constitutions.


On Tuesday, Kansas voters strongly rejected a constitutional amendment that would allow state legislators to ban or severely restrict abortion. It fell by almost 18 percentage points.

Kentucky voters will face a similar decision in November with a proposed constitutional amendment that would declare that the state’s constitutional right to privacy does not apply to abortion.

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Vermont is moving in the opposite direction. In November, voters will pass a ballot resolution that will add the right to “personal reproductive autonomy” to the state constitution, though it does not explicitly mention abortion or contraception. In Michigan, a proposed constitutional amendment guaranteeing the right to both abortion and contraceptives is expected to go to the November vote.


In California, Proposition 1 would not allow the state to deny or interfere with an individual’s “reproductive freedom in his most intimate decisions, including his fundamental right to have an abortion and his fundamental right to choose or refuse contraceptives.”

The proposed constitutional amendment does not detail what it would mean to enshrine the right to contraception in the state constitution.

California already has some of the strictest birth control access laws in the nation, and lawmakers are considering additional proposals this year. For example, government-regulated health insurance plans must cover all FDA-approved contraceptives; pharmacists should dispense emergency contraception to anyone with a prescription, regardless of age; and pharmacists can prescribe birth control pills on the spot. State courts have also interpreted the California constitution to include a right to privacy, which extends to reproductive health decisions.


The amendment, if passed, could provide a new legal path for people to file lawsuits when they are denied contraceptives, said Michelle Goodwin, UC Irvine chancellor law professor.

If a pharmacist refuses to write a prescription for contraceptives or a cashier refuses to call for condoms, she says, shoppers can claim their rights have been violated.

Clearly including abortion and contraceptive rights in the state constitution — rather than relying on the right to privacy — would also protect against shifting political winds, said State Senate leader Toni Atkins (D-San Diego), who was director of the Women’s Health Center in the 1980s. While California lawmakers and officials are strong supporters of the right to abortion, she said, the composition of the legislature and the interpretation of laws by the courts could change.

“I want to know for sure that this right is protected,” Atkins said at a legislative hearing in June. “We are protecting ourselves from future courts and future politicians.”

The amendment will solidify California’s role as a sanctuary of reproductive rights as much of the country moves away from birth control, Goodwin added.

Experts say two forms of birth control that are vulnerable to restrictions in other states are intrauterine devices, or IUDs, and emergency contraception, such as plan B. These methods are often incorrectly combined with abortion pills, which end a pregnancy rather than prevent it.

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According to the Guttmacher Institute, a research organization that supports abortion rights, nine states have laws restricting emergency contraception, such as allowing pharmacies to refuse to dispense it or excluding it from state family planning programs. In Alabama and Louisiana, anti-abortionists passed legislation this year that would restrict or ban abortion and also cover emergency contraception.

“We are seeing a deterioration in access to abortion that is showing up in public facilities across the country that also have and will continue to target contraceptives,” said Audrey Sandusky, senior director of policy and communications for the National Family Planning and Reproductive Health. Association.

Susan Arnall, vice president of the California Right to Life League, said the proposed amendment is symbolic and simply echoes existing laws. Arnall believes the campaign is mostly about Democratic politicians trying to score political points.

“It just allows pro-abortion legislators to trumpet and give them talking points about how they are doing something about the Roe v. Wade case being overturned,” she said. “This is a signal of political virtue. I don’t think it does anything else.”

Goodwin argues that the symbolism of this measure is significant and belated. She pointed to the era of the Civil War, when enslaved people in the southern states could turn to the free states for spiritual hope and material help. “Symbolically, it meant a kind of beacon of hope that these places really existed, where humanity could be appreciated,” Goodwin said.

But California’s reputation as a birth control haven may not be fully justified, said Dima Kato, an assistant professor at the USC School of Pharmacy. In her 2020 Contraceptive Availability Survey in Los Angeles County, which has one of the highest rates of teen and unwanted pregnancy in the country, Kato found that only 10% of pharmacies surveyed offered pharmacist-prescribed contraceptives. Pharmacies in low-income and minority communities were the least likely to offer this service, Kato said, exacerbating inequalities rather than eliminating them.

Cato supports the constitutional amendment but said California should focus on improving and enforcing the laws it already has.

“We don’t need more laws unless we address the root cause of these laws being ineffective in these communities,” Kato said. “Lack of enforcement and accountability disproportionately affects communities of color.”


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