The Fundamental Right for a Woman to Choose Whether to Carry her Pregnancy to Term Already Exists Under the California Constitution

Why Calls to Codify Roe v. Wade and Planned Parenthood v. Casey Would Actually Restrict the Abortion Rights of Californians

Upon the news of the leaked draft United States Supreme Court opinion purporting to overturn Roe v. Wade (“Roe”) and Planned Parenthood v. Casey (“Casey”), some California leaders moved quickly to declare that they would propose an amendment to the California Constitution to enshrine abortion rights.¹

This claim is not only legally inaccurate but threatens the reproductive freedom rights that Californians currently possess. It promotes a false anti-choice talking point that could cost the lives of those who believe their constitutional rights are dependent upon the United States Supreme Court. Even worse, this misinformation could be used by pro-life forces to take away reproductive freedom rights in California.

The implied right to privacy in the federal constitution is what currently protects a woman’s right to choose.² This has always been controversial because the federal constitution does not explicitly provide a right to “privacy”.³ This is not to say that I do not believe one exists. I most certainly do. But the concept that privacy exists within the United States Constitution is purely a United States Supreme Court interpretation of the document and one that has always been subject to their own interpretation.⁴

Even from the outset, there has been debate over which part of the Constitution provides a right to privacy. The majority in Griswold v. Connecticut, the first United States Supreme Court decision to hold that the right to privacy existed, held that a right to privacy existed in the “penumbra of rights” stemming from the First, Third, Fourth, Fifth, and Ninth Amendments.⁵ Some Justices suggested that the Ninth Amendment guaranteed the right to privacy on its own.⁶ And some Justices believed that the constitutional right to privacy came from the Due Process Clauses of the Fifth and Fourteenth Amendments.⁷ Ultimately, the Supreme Court agreed that a constitutional right of privacy arose within the liberty clause of the Fifth and Fourteenth Amendments.⁸ But ultimately, those justices who did not agree with this right of privacy do not believe that the constitution protects a right of a woman to terminate her own pregnancy.

By contrast, the very first provision of the California Constitution (Article I, Section 1) 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.”⁹

What does “privacy” mean? As the California Supreme Court has explained, “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.”¹⁰

As held, “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.”¹¹ “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.”¹² “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].”¹³

Thus, the California Constitution independently guarantees the right to an abortion.¹⁴ This right exists independently of the federal Constitution, regardless of what the United States Supreme Court decides on abortion.¹⁵ As explained by the California Supreme Court, “the California Constitution is, and always has been, a document of independent force”.¹⁶ California, like all 50 states, is its own sovereign entity.¹⁷ And rights provided by the California Constitution exist independently of rights provided by the United States Constitution.¹⁸

Some history is important. After all, as Justice Antonin Scalia once argued, “the Constitution contains no right to abortion. It is not to be found in the longstanding traditions of our society, nor can it be logically deduced from the text of the Constitution.”¹⁹

The California Supreme Court first recognized the fundamental right to an abortion in our state constitution in 1969, four years before the United States Supreme Court decided Roe v. Wade.²⁰ At that time, the Court acknowledged that the word “privacy” did not exist in the California Constitution but nevertheless held that it was intertwined with liberty and life interests found explicitly within the document.²¹

In 1967, California had actually become the first state to statutorily legalize the practice of abortion, with California Governor Ronald Reagan famously signing the legislation into law.²² But the new abortion legalization law was extremely limited.

“The Therapeutic Abortion Act authorizes abortions ‘only’ if the abortion takes place in an accredited hospital; the abortion is approved by a hospital staff committee consisting of at least three licensed physicians and surgeons; and there is ‘substantial risk that continuance of the pregnancy would gravely impair the physical or mental health of the mother’; the pregnancy resulted from rape or incest; or the woman is under 15 years of age.”²³ Otherwise, seeking, performing, or even assisting an abortion in California remained illegal.²⁴

A well-respected physician had been convicted for assisting a young woman obtain a back alley abortion from an unlicensed doctor.²⁵ Holding the law was too restrictive, the Court reversed the conviction of the physician.²⁶ In a subsequent case, the California Supreme Court further expanded the right of a woman to choose whether to carry her pregnancy to term, rooted in the understanding that the California Constitution protected this right.²⁷

With an awareness of the California Supreme Court’s decisions, voters in California added the privacy provision to our State Constitution in 1972.²⁸ The voters are presumed to have been aware of the state of the law at the time they voted, effectively ratifying the Court’s interpretation of the California Constitution.²⁹

The California Supreme Court has recognized that because the term is explicitly included, it is broader than what the United States Supreme Court has defined as the right to privacy.³⁰ And in fact, in the past 50 years that we have had this provision in the California Constitution, not ONE single California Supreme Court Justice of any political party or ideological stripe has EVER argued the contrary.³¹

As the California Supreme Court has explained, “our state Constitution has been construed to provide California citizens with privacy protections encompassing procreative decisionmaking – broader, indeed, than those recognized by the federal Constitution.”³² “The constitutional right of privacy . . . guarantees a woman’s freedom to choose an abortion”.³³

“Under the California Constitution, the people of the state have decided that those value judgments must be reserved to the individual citizens whose lives are affected by such decisions. Neither legislators nor judges may constitutionally impose their system of values on a woman who must decide how to deal with procreation.”³⁴

So, then, why care then if a constitutional amendment simply restates what is existing in the law?

A few practical reasons.

1.      Money spent and volunteer hours mobilized to pass a constitutional amendment for constitutional rights that already exists is money not spent and volunteer hours not used for ballot measure fights in other states where a woman’s reproductive freedom is actually at stake.

2.      Money spent and volunteer hours mobilized to pass a constitutional amendment for constitutional rights that already exists is money not spend and volunteer hours not used to elect pro-choice candidates to Congress against pro-life candidates who could vote to codify Roe and Casey at the federal level in order to protect women in the other 49 states.

3.      If Roe and Casey are overturned by the United States Supreme Court, women, especially younger and vulnerable women, who are in need of an abortion will hear erroneous information that they have no right to an abortion under the California Constitution. Vulnerable and desperate, these women will erroneously believe they have no right to terminate their own pregnancy. Their own pro-choice elected leaders have told them so. Journalists have repeated the misinformation verbatim, confirming the erroneous belief. After all, if our own elected officials who swore an oath to uphold and defend the California Constitution are unaware of the California Constitution, how could we expect knowledge from of a young and vulnerable woman in desperate need of an abortion? Instead of obtaining a safe and legal abortion, these women will seek out dangerous alternatives to terminate unwanted pregnancies that could result in great self-harm. The rhetoric used by our elected officials matters here.

But there is yet another additional and even more important reason that this misinformation is dangerous.

The California Constitution does not just provide an independent right to an abortion, it provides MORE protections for women’s reproductive rights. And here lies a grave danger. If California voters voted to change the California Constitution to adhere to Roe and Casey, women would LOSE reproductive rights in this state.

You might be saying “Wait, what?”

It’s true.

Under Roe and Casey, the United States Supreme Court has held that government funding can be stripped for abortion services.³⁵ This in effect restricts the right of abortion for women who cannot afford medical services and are reliant on the government for medical services.³⁶

However, the California Supreme Court has held that the California Constitution requires Medi-Cal to cover all abortion services.³⁷

Under Roe and Casey, the United States Supreme Court has repeatedly upheld that states can enact laws requiring that minors must gain permission of their parents before obtaining an abortion.³⁸ Thus, if a 12 year old girl is raped by her father, the United States Supreme Court has held that it is perfectly fine for the state to make this girl go to her father (the rapist) for permission to terminate her resulting pregnancy (or go through a judicial process).

Relying upon the United States Supreme Court holdings, the California State Legislature once made this the law of California. The only option that a minor had if she could not obtain parental consent was a so-called judicial bypass. Yes, if a 12 year old girl was raped by father, wanted to terminate the resulting pregnancy, and couldn’t ask her parents for permission, she could simply go to court, deal with lawyers and court staff who were complete strangers to her, and ultimately have a judge decide whether it would be appropriate for her to have a child.³⁹  

In a landmark 1997 opinion, the California Supreme Court struck down the law as a violation of California’s Constitutional right to privacy.⁴⁰ This did not come easily. Originally, in 1996, the California Supreme Court had ruled 4-3 that the state could permissibly enact this law requiring parental consent.⁴¹

However, shortly after the decision was rendered, two Justices retired and Republican Governor Pete Wilson made two new appointments to the Court, which voted immediately to rehear the case.⁴² Ultimately, the Court concluded that the government could not justify the parental consent law under Article I, Section 1 of the California Constitution.⁴³

While the decision may have seemed controversial at the time, the case was unanimously reaffirmed by the California Supreme Court only a few years later as the settled law of the state.⁴⁴ The battle at the courthouse was over. But the constitutional battle was not.

As you can imagine, the pro-life movement did NOT like that the California Supreme Court had allowed minors to obtain safe and legal abortions without parental consent. Realizing that they could not get the Court to change or the State Legislature to go along with this, they sought to change this at the ballot box. They should have succeeded.

In every other state (except Oregon) where the issue of parental consent for minors’ abortions has been on the ballot, voters have overwhelmingly voted to restrict abortion rights. Even most pro-choice voters believe in parental consent for minors to obtain an abortion.⁴⁵

Three times (in 2005, 2006, and 2008), pro-life activists placed a constitutional amendment on the ballot to overturn the California Supreme Court and require parental consent and notification for any minor seeking an abortion.

Each time, the ballot measures (Proposition 73, Proposition 85, and Proposition 4) very narrowly failed, with the final attempt, Proposition 4, coming the closest to passing. But every stop had to be pulled out and every tool used by pro choice activists – tens of millions of dollars spent and every pro-choice activist mobilized - to save this right. And even still, it was almost not enough. 48% of Californians voted in favor.

Notwithstanding the fierce opposition of the California Democratic Party, wide swaths of Democrats and Democratic leaning No Party Preference voters voted in favor of restricting abortion rights. What saved the reproductive rights of minors is that even though the California Republican Party and Governor Arnold Schwarzenegger strongly supported the constitutional amendment, enough Republican voters defected to narrowly defeat the measure. Had Republicans voted in favor on a party line vote, the measure would have passed, and women would have had their right to choose restricted.

Even after the victory in 2008, the issue has always remained looming in the background. Pro-life activists might try to change the California Constitution yet again. Every year, pro-life activists have filed paperwork to get the constitutional amendment back on the ballot.

The only reason it hasn’t reappeared is that pro-life forces have not decided to spend the money to do it, focusing their efforts elsewhere. But they always could. Pro-life forces are relentless. Their goal is stop as many abortions as they possibly can even when they cannot ban it outright. In California, they wish to restrict abortion rights even if they cannot ban them altogether.

They have been handed a golden opportunity by those spewing misinformation. Voters are frightened by the prospect of the United States Supreme Court reversing Roe and Casey. They could place a constitutional amendment on the ballot to change the California Constitution to codify Roe and Casey. They could thus get pro-choice voters to agree to restrict reproductive freedom rights.

Even if the State Legislature referred a different constitutional amendment to the ballot, the constitutional amendment of the pro-life forces would become the law if it received the most votes of the two propositions.⁴⁶ California voters are able to take away rights within the California Constitution and have done so in the past.⁴⁷ Furthermore, an amendment would create legal confusion to what is currently well-settled law.⁴⁸

Roe and Casey do not govern California. But making them the law of California would restrict reproductive rights of Californians.⁴⁹

Words have consequences, especially the words of elected officials. So, I beg and plead of anyone who believes in a woman’s right to choose, please stop the call to enact something that has existed explicitly in our state constitution for fifty years.

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.