California Democratic Legislators Advance Restriction of Existing Abortion Rights

Why the California State Legislature Should Amend SCA10 Before it Goes to the Voters

California lawmakers have introduced SCA10, a constitutional amendment that reiterates that Californians have a right to abortion and contraception under the California Constitution. It has passed the State Senate and appears to be sailing through the respective legislative committees. However, as currently written, SCA10 could potentially weaken existing abortion and contraception rights and should be amended before it is presented to voters.¹

SCA10 would add the following language to Article I, Section I of the California Constitution:

Section 1.1. The state shall not deny or interfere with an individual’s reproductive freedom in their most intimate decisions, which includes their fundamental right to choose to have an abortion and their fundamental right to choose or refuse contraceptives. This section is intended to further the constitutional right to privacy guaranteed by Section 1, and the constitutional right to not be denied equal protection guaranteed by Section 7. Nothing herein narrows or limits the right to privacy or equal protection.²

While this looks good on the surface, this proposed constitutional amendment is problematic because this language would limit existing constitutional rights to abortion and contraception in California.

Article I, Section 1 of the California Constitution provides that “All people are by nature free and independent and have inalienable rights. Among these are enjoying and defending life and liberty, acquiring, possessing, and protecting property, and pursuing and obtaining safety, happiness, and privacy.”³

What do we know about this constitutional provision?

1. The California Constitution’s Right to Privacy unquestionably protects a woman’s right to choose whether to bring her pregnancy to term and an individual’s right to contraception.⁴

2. The California Constitution’s Right to Privacy will not change even if the United States Supreme Court overturns Roe v Wade and Planned Parenthood v. Casey.⁵

3. No Justice of any political or ideological stripe has ever disagreed that the California Constitution’s right to privacy protects a woman’s right to abortion and an individual’s right to contraception.⁶

4. The constitutional right to an abortion in California and the explicit constitutional protection of one’s right to privacy predate Roe v. Wade.⁷

5. The California Constitution’s Right to Privacy applies not just to the government, like most constitutional provisions, but also applies to private actors as well, protecting one’s right to privacy from invasions of privacy by other private parties.⁸

This final prong is important because it has provided an additional abortion and contraception protection in California. Generally, constitutional rights protect an individual from the actions of the government, but not the actions of private parties.⁹

However, the California Constitution operates differently in the protection of certain individual rights. While there is usually a state action requirement present for a California Constitutional right to be exercised and while the standards applied are usually less rigorous for private parties, there are constitutional rights in the California Constitution that protect individuals from the actions of other private individuals.¹⁰

The constitutional right to privacy is one of those constitutional rights under the California Constitution.¹¹

Thus, in California, one’s right to an abortion and contraception is not just protected against government interference but against interference from private actors as well.¹²

What does this mean in real world consequences?

• Could a private landlord evict a tenant for obtaining an abortion? No.¹³

• Could a private employer discriminate against an employee or potential employee for having used contraception or having an abortion? No.¹⁴

• Can private parties generally interfere with a woman’s right to choose? No. Because the right to an abortion is a fundamental one in California that is held by individuals against all others.¹⁵

As currently written, SCA10 would potentially change that. The language of this proposed constitutional amendment will for the first time specify that the constitutional rights of abortion and contraception are those that are protected against the state and only against the state.¹⁶ It will limit an individual’s freedom by removing a prohibition against private parties from restricting those freedoms.¹⁷ It would remove one of the key elements of the California Constitution that has often contributed to the expansion and protection of individual rights.¹⁸

One might argue that these individual rights can be statutorily protected. But why do that?  The current constitutional protections provide an additional measure of protection if the statute does not apply.¹⁹ Taking them away and requiring them to be statutorily enacted defeats the whole purpose of enshrining one’s constitutional rights.

Now, one might also point out that the language of SCA10 purports to not take away existing rights. But any creative lawyer can point to this amendment and make the argument that the California Constitution previously did not protect one’s right to abortion and one’s right to contraception. After all, this is the position of Governor Gavin Newsom and current state legislative leadership.

That lawyer will argue that the right came into existence on November 8, 2022, when the voters of California enacted SCA10 at the ballot box. And that lawyer will argue that the right to an abortion or contraception is specifically one held against the state, as per the explicit definition in the California Constitution. Therefore, this constitutional protection exempts private parties, and a private party is free to interfere with an individual’s right to abortion and contraception.

Do I agree with this reasoning? No.

But could it be reasoning employed across California by private actors to restrict abortion and contraception rights? Yes.

Could it be accepted by a trial court judge in one of California’s 58 counties and possibly accepted by a Court of Appeal? Yes.

For the sake of argument, I will assume that should this issue ever reach the California Supreme Court, the Court would unanimously reject this argument. However, not every restriction on abortion and contraception will be litigated. People often don’t have the resources to engage in protracted and expensive litigation.

We should ask ourselves, who are we protecting?

If abortion is outlawed once more in the United States, the wealthy will likely still find ways to obtain abortions. Those who lack resources, however, are most likely to be forced to carry unwanted pregnancies to term or seek out potentially dangerous options for terminating a pregnancy. Those who find themselves discriminated against for exercising their fundamental rights (which are already in existence) are going to be unlikely to have the resources to wage legal battles to protect themselves. The point of these abortion access laws should be to clarify any confusion in the law and promote access to abortion.

Here, SCA10 does the opposite. It creates uncertainty by creating potential limits on the exercise of abortion and contraception rights. In doing so, it will create new legal uncertainty where none exists now.

Before the State Legislature sends SCA10 to the ballot, it should be amended to remove the language that defines one’s right to an abortion and contraception as a right that the state may not infringe upon. Instead, it should specify that the right to abortion and contraception are fundamental rights that all Californians possess and that they may not be infringed upon by anyone.

Here would be my proposed amendment to SCA 10:²⁰

SEC. 1.1. 

(a) For purposes of Section 1 of this Article, the term “privacy” includes, but is not limited to, an individual’s fundamental right to choose to have an abortion and an individual’s fundamental right to choose or refuse contraceptives.

(b) This section does not otherwise define or limit the right to privacy guaranteed by Section 1. This section is intended to further the constitutional right to privacy guaranteed by Section 1. Nothing in this section narrows or limits the right to privacy guaranteed by Section 1 or equal protection guaranteed by Sections 7, 8, and 31 of this Article.

(c) This section shall be self-executing. If any part or parts of this section are found to be in conflict with federal law or the United States Constitution, the section shall be implemented to the maximum extent that federal law and the United States Constitution permit. Any provision held invalid shall be severable from the remaining portions of this section.

1. The author of this article is an attorney licensed to practice in the State of California and the District of Columbia. This article and all of the works on this Substack page are statements of the opinions of the author, only, and do not constitute legal advice; they are not intended to be relied upon by any individual or entity in any transaction or other legal matter, past, pending, or future. A paid subscription to this Substack page supports the author’s scholarship and provides access to research that the author has compiled, but does not establish an attorney-client relationship. The author does not accept unsolicited requests for legal advice or representation, and this Substack page is not intended as legal advertising. The opinions expressed on this Substack page reflect the personal views of the author only.

2. https://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=202120220SCA10 (emphasis added).

3. Cal. Const. Art. I, § 1(emphasis added).

4. American Academy of Pediatrics v. Lungren, 16 Cal. 4th 307, 319 (Cal. 1997)(explaining that “the electorate’s adoption of an explicit California constitutional right of privacy in November 1972, provided additional protection of a pregnant individual’s right to choose whether to continue or terminate her pregnancy.”); Conservatorship of Valerie N., 40 Cal. 3d 143, 163 (Cal. 1983)(“The right of a woman to choose whether or not to bear a child and thus to control her social role and personal destiny, is a fundamental right protected by [Article I, Section 1 of the California Constitution].”); Committee to Defend Reproductive Rights v. Myers, 29 Cal. 3d 252, 262 (Cal. 1981)(holding that “under article I, section 1 of the California Constitution all women in this state -- rich and poor alike -- possess a fundamental constitutional right to choose whether or not to bear a child.”). See also Warfield v. Peninsula Golf & Country Club, 10 Cal. 4th 594, 630 (Cal. 1995)(explaining that the “state constitutional right [to privacy] provides protection that is distinct from, and in some respects greater than, that provided by the federal Constitution”).

5. See Hi-Voltage Wire Works, Inc. v. San Jose, 24 Cal. 4th 537, 567 (Cal. 2000)(Brown, J.)(“Unlike the [federal] equal protection clause, [Article I,] section 31 [of the California Constitution] categorically prohibits discrimination and preferential treatment. Its literal language admits no ‘compelling state interest’ exception; we find nothing to suggest the voters intended to include one sub silentio.”); Gerken v. Fair Political Practices Commission, 6 Cal. 4th 707, 711 (Cal. 1993)(holding that federal constitutional decisions cannot impact state constitutional law decisions); Sands v. Morongo Unified School District, 53 Cal. 3d 863, 902-903 (Cal. 1991)(Lucas, C.J., concurring in the judgment)(“The California Constitution is the supreme law of our state--a seminal document of independent force that establishes governmental powers and safeguards individual rights and liberties. [Citations.] As the Supreme Court of California, we are the final arbiters of the meaning of state constitutional provisions. [Citation.] Our authority and responsibility in this regard is part of the basic structure of California government; it cannot be delegated to the United States Supreme Court or any other person or body. [Citation.] When we construe provisions of the California Constitution, we necessarily do so in light of their unique language, purposes, and histories, in accordance with general principles of constitutional interpretation established in our case law. Nor do we act differently when the state constitutional provision in issue contains the same language as a federal constitutional provision. In such a case, we are not bound by a decision of the United States Supreme Court or any other court. We must consider and decide the matter independently.”); Vinson v. Superior Court, 43 Cal. 3d 833, 841 (Cal. 1987)(Mosk, J.)(“[The constitutional right to privacy] protects both the marital relationship and the sexual lives of the unmarried. More significantly, California accords privacy the constitutional status of an ‘inalienable right,’ on a par with defending life and possessing property. California’s privacy protection similarly embraces sexual relations.”); People v. Pettingill, 21 Cal. 3d 231, 248 (Cal. 1978)(“Respect for our Constitution as ‘a document of independent force’ [citation] forbids us to abandon settled applications of its terms every time changes are announced in the interpretation of the federal charter.”)(quoting People v. Brisendine, 13 Cal. 3d 528, 549-550 (Cal. 1975)).

6. American Academy of Pediatrics v. Lungren, 16 Cal. 4th 307, 386-388 (Cal. 1997)(Mosk, J., dissenting)(“Although Myers and Belous upheld an adult woman’s right to be free of undue intrusion or burden in making the intimate and fundamental decision whether to bear a child, those precedents are not readily applicable to young adolescents who may lack the maturity and understanding to exercise informed choice without parental or other adult oversight.”); Id. at 416 (Baxter, J., dissenting)(“Nor, even by the closest scrutiny of the entrails of the 1972 constitutional change can we discern a basis for concluding that the voters realized that they had excised, and intended to excise, from all other parental and state authority over minors, the right of parents and the state to control a child’s access to abortion.”); Id. at 424-425 (Brown, J., dissenting); Johnson v. Calvert, 5 Cal. 84, 100 (Cal. 1993)(Panelli, J.); Committee to Defend Reproductive Rights v. Myers, 29 Cal. 3d 252, 298 (Cal. 1981)(Richardson, J., dissenting)(“The issue is not whether a woman’s constitutional right to abort may be exercised without undue governmental interference or whether women have a right to an abortion. They do. The essential question before us is whether they have a right to abort free of charge and at taxpayer expense.”).

7. American Academy of Pediatrics v. Lungren, 16 Cal. 4th 307, 322 (Cal. 1997)(“Past California cases firmly and unequivocally establish that the interest in autonomy privacy protected by the California constitutional privacy clause includes a pregnant woman’s right to choose whether or not to continue her pregnancy.”). See also People v. Belous, 71 Cal. 2d 954, 963-964 (Cal. 1969)(holding that women have a fundamental privacy right to decide whether to terminate their pregnancies).