Proposed abortion amendment to California Constitution is flawed, say 2 scholars, authors say it's not

Is a proposed constitutional amendment to embed abortion rights in the California Constitution fatally flawed as written? That’s what a research fellow and student at two California law schools have concluded.

However, the authors said the proposed law is clear on what it aims to do.

SCA 10 would “prohibit the state from denying or interfering with an individual’s reproductive freedom.”

In a Wednesday post, Allison Macbeth and Elizabeth Bernal wrote that SCA 10 lacks the specific language and references to recent federal case law needed to uphold abortion rights in the state. They also believe these problems could be fixed. Their arguments hinge on concepts including privacy rights and fetal viability.

Their piece was posted on SCOCA Blog, published by the California Constitution Center at UC Berkeley School of Law and the Hastings Law Journal. Macbeth is a senior research fellow at the center. Bernal is a student at UC Hastings College of the Law and an editor at the journal.

“The problem with SCA 10 is that it doesn’t say whether it codifies existing abortion rights, expands them, or does something else,” commented David A. Carrillo, executive director of the California Constitution Center, in an email. “We have been talking about this issue ever since the Supreme Court granted review in Dobbs v. Jackson and have reviewed the leaked Justice [Samuel] Alito opinion closely,” said Senate President pro Tempore Toni Atkins, D-San Diego, in an email. “We agree that SCA 10 is clear in what it does: explicitly enshrines into the text of our Constitution the rights that Californians have to reproductive freedom, including the rights to have an abortion and use contraception.” Atkins and Assembly Speaker Anthony Rendon, D-Lakewood, jointly wrote the proposed amendment.

Atkins was referring to Dobbs v. Jackson Whole Women’s Health (S. Ct., filed June 15, 2020). This is the pending U.S. Supreme Court decision, leaked on May 3, which appears poised to overturn the constitutional right to abortion established in Roe V. Wade (1973).

“Speaker Rendon is confident that no change is needed to the amendment language,” spokeswoman Katie Talbot, said in an email.

SCA 10 passed 7-2 in a special hearing of the Assembly Judiciary Committee on Thursday. But opponents zeroed in on the amendment’s potential ambiguity. This led to a tense exchange between Assemblyman Kevin Kiley, R-Rocklin, and Lisa C. Ikemoto, a UC Davis School of Law professor who was invited to testify in favor of the bill.

Kiley noted the amendment would “bind future legislatures” and asked if there was any limit on passing laws allowing abortion up until days before birth.

“Any state restriction would be subject to very rigorous scrutiny,” Ikemoto said. “But I couldn’t tell you, yes or no, what types of regulations would be sustained.”