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THE V WORD: PROPOSITION 1 RENEWS THE HISTORIC CALIFORNIA ABORTION DEBATE OVER “VIABILITY”

May Dembosky
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PRo-choice protesters at a rally in SF, holding signs. Oone sign says: 'Codify Roe Now.'

On Friday, June 24, 2022, hundreds of protesters gather in front of City Hall in San Francisco to voice their opposition to the US Supreme Court’s decision to overturn Roe v. Wade. The Roe v. Wade case, which was decided 50 years ago, was reversed by the Court, eliminating the federal right to abortion. (KQED/Beth LaBerge) California Democrats immediately got to work proposing an amendment to the state constitution guaranteeing the right to an abortion here after the leaked U.S. Supreme Court decision overturning Roe v. Wade threatened the federal right to one in May. In November, Californians will vote on the amendment known as Proposition 1 , but as the election nears, lawmakers are still divided over whether the measure would simply enshrine abortion rights as they are currently defined by state law, which permits abortions up to 24 weeks, or whether it would expand abortion rights in order to allow abortions at any point in pregnancy, for any reason.

There were several embarrassing instances during the legislative debate over the amendment when Democrats were perplexed by this Republican query, most notably when Assemblymember Kevin Kiley, R-Rocklin, posed it directly before the vote in June.

Similar Articles According to him, California law normally forbids performing abortions after the fetus has reached viability. Would that be altered by this constitutional amendment?

The room became silent. No words were exchanged for the entire thirty seconds. Anthony Rendon, the speaker of the assembly, muttered something to his colleagues, asked to have the question repeated, and then said he would respond later. Never did he.

Since it was incorporated into the Roe v. Wade ruling in 1973, the viability idea has long been a contentious one, troubling ethicists on all sides of the abortion issue. According to the Supreme Court’s ruling, a woman’s rights to bodily autonomy and privacy are only protected until viability, or between 24 and 28 weeks after conception, when a fetus can survive outside the womb.

Since then, a lot of medical professionals have lamented the political and legal distortion of the medical idea, claiming viability is considerably more complicated than gestational age alone. However, the public has stuck to it, and both proponents and opponents of abortion rights see merit in limiting access to the operation later in pregnancy.

The viability limit from Roe is incorporated into current California legislation, which permits abortions for any reason up until the second trimester and thereafter only if the mother’s or the fetus’s health is in danger.

But nowhere in Proposition 1’s proposed constitutional amendment does it use the word “viability.” If Proposition 1 passes, there is no agreement among legal specialists as to whether the viability test would remain in place or whether California’s time restrictions on abortion will be abolished.

It at least provides a pathway, according to Mary Ziegler, a law professor at UC Davis, who also noted that, should Proposition 1 be passed by voters, the courts will likely decide on the final interpretation.

THE V-WORD DISCUSSION RETURNED Assemblyman James Gallagher, a Republican from Chico, addressed during the last floor discussion in June with a trembling voice. Because of what was absent, he claimed, he could not support the state’s proposed modification to the constitution regarding abortion.

He even started crying while telling about his twin boys, who were delivered two and a half months early and nearly required heart surgery while still inside the womb.

Throughout his address, he emphasized that they were both alive and individuals, pointing at the lectern to emphasize each time he highlighted their progression as fetuses: 18 weeks, 23 weeks, and 30 weeks.

According to Gallagher, the amendment does nothing to protect the rights of the baby because there are no time restrictions or other limitations on a woman’s right to an abortion.

At 30 weeks, babies like my twins could pass away. I don’t think that balance is right, he added. We can improve.

According to Proposition 1 backers, the amendment’s only goal was to maintain the status quo. However, at various committee hearings, the bill’s proponents occasionally appeared perplexed by the wording of their own legislation and fumbled to provide clear responses to inquiries about whether the amendment would keep the viability limit or eliminate it. However, experts who worked on the law’s drafting, like Dr. Pratima Gupta, claim that was not an error. They purposefully omitted the word “viability.”

According to Gupta, an OB-GYN in San Diego, every pregnancy is unique and follows a continuum.

She noted that a variety of previous medical issues, including diabetes, anemia, high blood pressure, and obesity, affect pregnant people. They might not have a lot of money or access to high-quality, cutting-edge medical treatment. The existence of a fetus is determined by all of these intricate variables, not by some arbitrary number, she claimed.

She explained that just because a patient’s bag of water has broken at 23 weeks of pregnancy doesn’t necessarily indicate that the fetus is viable or not.

The primary OB-GYN advisory group, the American College of Obstetricians and Gynecologists, eliminated the phrase “viability” from its own guidance on abortion last May, and doctors who provided input on the amendment followed its example. According to the group, the term has become so politicized that it hardly has any medical significance anymore and whether or not to have an abortion should be left up to the patient and doctor.

In an odd manner, Roe v. Wade’s demise has liberated doctors from the whims of the viability framework as it was established in Roe. Doctors appear to be arguing that the Supreme Court could undo their flawed ruling if it could abolish the 50 years of constitutional safeguards for abortion.

According to Ziegler, in a world without Roe, legislators in California are attempting to draft a statute that is essentially a blank slate and a better definition of reproductive liberty than just Roe Part Two.

Why do women abort their pregnancies later? At least three other states have changed their abortion laws recently to eliminate viability and gestational age restrictions. Currently, abortion is legal throughout pregnancy in Colorado, New Jersey, Vermont, and Washington, D.C.

Proposition 1 opponents claim that if California adopts the same policy and passes it, it will result in a free-for-all where women will line up for unjustified abortions when they are eight months pregnant.

Abortion is already legal up to 24 weeks. Why do we need to make it go further than that? said Jonathan Keller, president and chief executive officer of the evangelical charity California Family Council. Is it possible to argue that even for California, that is a step too far?

According to research, such eventualities are unreal. Data from the Centers for Disease Control and Prevention show that Abortions at or after 21 weeks are extremely rare only accounts for 1.2% of all abortions.

Other research demonstrates that the reasons women seek abortions at this time in pregnancy are varied . In cases where a pregnancy is desired but the mother learns too late about a medical issue that puts her own life in danger or a fetal defect that will make it difficult for the baby to survive after birth, this is primarily due to medical issues.

According to Elizabeth Nash, policy analyst at the Guttmacher Institute , a research group focused on reproductive rights, women are increasingly confronted with practical and legal obstacles that make it challenging for them to seek abortion services as early as they wish to. Fewer clinics perform the operation as more states outlaw it as a result of the Supreme Court’s destruction of Roe.

Nash added that the time isn’t always up to the patient, especially just now. They can be behind schedule as a result of the numerous constraints they must follow. It could be that they have to travel in order to have an abortion. They might not be able to request time off from work.

Women may struggle to raise the necessary funds for the procedure, or they may be in an abusive relationship with someone who controls their decisions and behavior. According to Nash, it’s possible that they are pregnant but are unaware of it.

Voters are less comfortable with the procedure as pregnancy progresses, particularly in a state like California that supports abortion rights and is even promoting itself as an abortion sanctuary. A poll taken in August revealed only 13% of voters said they were OK with abortion through the third trimester .

However, when it comes to Proposition 1’s protection of abortion rights generally, 71% of Californians say theyre going to vote for it

According to law professor Ziegler, viability politics have altered.

According to Ziegler, these viability arguments, which had unquestionably been persuasive for decades, no longer hold water in light of the Supreme Court’s overturning of the federal right to an abortion and the fact that more than half of the states have banned or are considering banning the procedure.

According to the polls, voters do not currently have a nitpicking disposition. According to Ziegler, they will accept Proposition 1’s vagueness and let the courts work out the specifics afterwards.

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