In California, abortion may become a constitutional right. So can give birth

SACRAMENTO, Calif. – Californians will decide in November whether to lock abortion rights into the state constitution.

If they vote “yes” on Proposition 1, they will also lock up a right that has received less attention: the right to birth control.

If the measure succeeds, California will become one of the first states — if not the first — to create clear constitutional rights to both abortion and contraception.

Lawmakers and activists behind the constitutional amendment said they hope to score a one-two punch: Protect abortion in California after the U.S. Supreme Court ended the federal constitutional right to abortion. Roe v. WadeAnd move on to what they see as the next front in the fight for reproductive rights: birth control.

“The United States Supreme Court has said that the privacy and liberty protections in the United States Constitution do not extend to abortion,” said UCLA law professor Carrie Franklin, an expert on constitutional law and reproductive rights who has testified before the California Legislature on the amendment “if they say ‘no’ to abortion.” , but they would probably say ‘no’ to birth control because it has a similar history.”

Last June, the decision of the US Supreme Court Dobbs v. Jackson Women’s Health Organization Ended federal rights to abortion and left states to regulate services. In his concurring opinion, Justice Clarence Thomas said the court should revisit other cases that built protections for Americans based on the right to privacy inherent in the U.S. Constitution, such as the 1965 case. Griswold v. Connecticutwhich established a federal right to contraception for married people — which was later extended to unmarried people.

Some congressional Democrats are now trying to codify contraception rights in federal law. In July, the US House of Representatives passed the Contraceptive Rights Act, which would give patients the right to access and use contraception and give providers the right to provide it. But the bill has little chance of success in the US Senate, where Republicans have already blocked it once.

Contraceptive access is popular with protection voters. A national poll by Morning Consult and Politico conducted in late July found that 75% of registered voters support a federal law protecting the right to access birth control.

California isn’t the only state where voters are considering reproductive rights in their constitutions.

On Tuesday, Kansas voters decisively rejected a constitutional amendment that would have allowed state lawmakers to ban or dramatically restrict abortion. It failed by about 18 percentage points.

Kentucky voters will face a similar decision in November with a proposed constitutional amendment that would declare the state’s constitutional right to privacy does not cover abortion.

Vermont is going in the opposite direction. Voters there will weigh a ballot measure in November that would add the right to “individual reproductive autonomy” to the state constitution, though it does not explicitly mention abortion or contraception. In Michigan, a proposed constitutional amendment that would guarantee the right to both abortion and contraception is expected to qualify for the November ballot.

In California, Proposition 1 would prevent the state from “denying or interfering with a person’s reproductive freedom in their most intimate decisions, including their fundamental right to choose abortion and the fundamental right to choose or refuse contraception.”

The proposed constitutional amendment did not elaborate on what it would mean to include the right to contraception in state constitutions.

California already has some of the strongest contraceptive-access laws in the country — and lawmakers are considering more proposals this year. For example, state-regulated health plans must cover all FDA-approved contraceptives; Pharmacists must provide emergency contraception to anyone with a prescription, regardless of age; And pharmacists can prescribe birth control pills on the spot. State courts have also interpreted the California Constitution to include privacy rights that cover reproductive health decisions.

University of California-Irvine Law Chancellor Professor Michelle Goodwin said the amendment, if adopted, could provide a new legal avenue to sue people who are denied contraception.

If a pharmacist refuses to fill birth control prescriptions or a cashier refuses to ring up condoms, he said, consumers can sue that their rights have been violated.

Enshrining abortion and contraception rights in the state constitution — rather than relying on privacy rights — would also protect against shifting political winds, said state Senate Leader Toni Atkins (D-San Diego), who is director of a women’s organization. Health clinics in the 1980s. Although California lawmakers and executive officials are staunch supporters of abortion rights, he said, the legislature’s composition and courts’ interpretation of the law could change.

“I want to know for sure that that right is protected,” Atkins said at a legislative hearing in June. “We are protecting ourselves from future courts and future politicians.”

Goodwin added that the amendment would solidify California’s role as a sanctuary for reproductive rights as much of the country remains out of birth control availability.

Experts say two types of birth control that are vulnerable to restrictions in other states are intrauterine devices, or IUDs, and emergency contraception such as Plan B. These methods are often mistakenly mixed with abortion pills, which end the pregnancy instead of preventing it.

Nine states have laws that restrict emergency contraception — for example, by allowing pharmacies to refuse to dispense it or exclude it from state family planning programs — according to the Guttmacher Institute, a research organization that supports abortion rights. In Alabama and Louisiana this year, anti-abortionists introduced laws that would restrict or ban abortions and also apply to emergency contraception.

“We’re seeing the erosion of abortion access playing out in statehouses across the country as well as maintaining targeted contraceptive care,” said Audrey Sandusky, senior director of policy and communications at National Family Planning and Reproductive Health. Association.

Susan Arnall, vice president of the California Right to Life League, said the proposed amendment is symbolic and merely an echo of current law. Arnal thinks the campaign is mostly about Democratic politicians trying to score political points.

“It just allows pro-abortion legislators to trump and give them talking points about how they’re doing something about repeal. Roe v. Wade,” he said. “It’s political virtue signaling. I don’t think it does anything else.”

Goodwin argues that the symbolism of measurement is significant and redundant. He pointed to the Civil War era, when enslaved people in the southern states could look to free states for spiritual hope and material help. “Symbolically, it meant a kind of beacon of hope, places that existed, where one’s humanity could be considered,” Goodwin said.

But California’s reputation as a haven for contraceptive availability may not be entirely warranted, said Dima Kato, an associate professor at the University of Southern California School of Pharmacy. In her 2020 study of contraceptive access in Los Angeles County, which has the highest teenage and unintended pregnancy rates in the country, Kato found that only 10% of pharmacies surveyed offered pharmacist-prescribed birth control. Pharmacies in low-income and minority communities were the least likely to offer the service, Kato said, exacerbating rather than solving disparities.

Cato supports the constitutional amendment but says California should focus on improving and enforcing the laws it already has.

“We don’t need more laws when we don’t address the root cause of the lack of effectiveness of these laws in these communities,” Kato said. “Lack of enforcement and accountability disproportionately affects communities of color.”

This story was produced by KHN, which publishes California Healthline, the editorially independent service of the California Health Care Foundation.

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