2022’s Proposition 1 was sold to California voters as something moderate and mainstream. Supporters presented the ballot initiative as a rational response to the overturning of Roe v. Wade, a state Constitutional amendment protecting legal abortion in California.
But voters got more than they bargained for. Prop 1’s incredibly broad language may have legalized brutal, unpopular third-trimester abortions with no legal limitations whatsoever. With new, “all-trimester” abortion clinics opening in the state, public officials who argued for Prop 1’s moderation owe voters an explanation.
California’s abortion law was contained in the Health and Safety Code, which permitted legal abortion up to the point of fetal “viability.” This is the point when a fetus can survive delivery, approximately 22-25 weeks into a 40-week pregnancy. After viability, abortion was only legal in cases where the pregnancy posed a risk to the mother’s life or health, as judged by a healthcare provider.
But Proposition 1, as its critics pointed out, made no mention of these specific provisions. It outlawed any state action “denying or interfering” with the “fundamental right to choose to have an abortion.” There was no qualification in Prop 1’s text for fetal viability, the mother’s health, physician judgment, or any other factor. Without those qualifications, Prop 1’s opponents reasonably concluded that the initiative would legalize controversial third-trimester abortions with no restrictions.
Even Prop 1’s supporters disagreed with each other on this point. Toni Atkins, the Democrats’ leader in the State Senate and one of Prop 1’s co-authors, repeatedly asserted that the initiative would not legalize third trimester abortion or otherwise change California abortion law. Most elected Prop 1 proponents would echo this party line.
However, Dr. Pratima Gupta, a San Diego physician who helped draft the law, explicitly affirmed that “viability” was deliberately left out of Proposition 1’s text. She stated this to KQED in San Francisco as part of a larger story on the concept of fetal viability, which more and more physicians like her oppose for its alleged lack of clarity. Clearly, within the pro-choice medical/public policy community, eliminating viability restrictions was a goal to pursue, and Gupta viewed Prop 1’s language as furthering that goal.
Physicians may correctly point out that “viability” is not a particularly concrete term within a medical context, but it has served an important ethical and public policy point for decades. “Viability” indicates the presence of a human organism who is alive and completely developed within the womb, indistinguishable from the tiny American citizens who receive care and protection in NICU’s all over the country.
The only difference between a “viable” infant in utero and a “preemie” is location. Killing such fully developed human beings would be barbaric, which is why eliminating the “viability” restriction is perilous and reckless.
It’s not a mystery why there would be a disconnect between Gupta and Atkins, the activist and the lawmaker. Senator Atkins is a savvy politician who knows only 13% of Californians support third-trimester abortions. She had an obvious incentive to portray Prop 1 as something moderate, and thereby more appealing to voters.
It is possible that Atkins and other Prop 1 supporters were trying to sneak a radical new abortion regime into the California Constitution under the guise of moderation. Reporting from the Wall Street Journal indicates that Governor Newsom’s staffers urged Prop 1’s authors to include explicit language limiting late-term abortions, but were rebuffed. Why would the authors oppose this language, if all they wanted was to restate existing law?
Regardless of Atkins’ words at the time, it seems like Dr. Gupta’s vision of Prop 1 is becoming the reality. In the run-up to Prop 1’s passage, a DC-based abortion entity called the DuPont Clinic announced that it would be opening its doors in Los Angeles, billing itself as an “all-trimester” abortion clinic. It advertises for third trimester abortions with no mention of needing a physician to verify that a pregnancy poses a risk to maternal health. Politico recently noted that DuPont would benefit from a $20 million state funding program to open new abortion clinics in Los Angeles.
If Atkins and other Prop 1 supporters weren’t lying, now would be the time to demonstrate it. Will California officials scrutinize the opening of a clinic like DuPont, and its receipt of public funds? Or did Atkins and other Prop 1 supporters just deceive California voters into adopting a radical new regime of abortion law? Voters deserve an answer.