Proposition 1 unlikely to remove limits for when abortions are allowed, legal experts say

Besides casting their votes for candidates during the midterm elections, Californians also are voting on seven constitutional amendments. And social media posts are sounding an alarm about one of them. 

"This election, Vote NO on Proposition 1 — an amendment to the CA Constitution to include a right to abortion up-to-birth!" said the caption on a Nov. 1 Instagram post. The post says, "Did you know the abortion up till birth will be on your ballot this November if you live in Californa?" 

The post was flagged as part of Facebook’s efforts to combat false news and misinformation on its News Feed. (Read more about our partnership with Meta, which owns Instagram and Facebook.)

Despite the post’s message about "up-to-birth" abortions, that outcome is unlikely under the amendment’s wording, legal experts said. 

The California Legislature voted in June to add the proposed amendment to the ballot. It’s one of at least four states putting abortion measures up for a vote, following the U.S. Supreme Court’s June 24 ruling that overturned Roe v. Wade, CNBC reported Nov. 7.   

Professors and legal analysts said Proposition 1 seeks to protect existing abortion rights. 

Under current California law, abortion is legal until fetal viability, which is when it is possible for a fetus to survive outside of the womb, typically around 24 to 26 weeks of pregnancy. After that, abortions are allowed only when the mother’s life or health is at risk. 

Proposition 1 would "protect the right to abortion explicitly, so that the California Supreme Court cannot turn around, in the future, and say that the liberty and privacy provisions of the California constitution do not actually extend to abortion," said Cary Franklin, a  University of California, Los Angeles law professor and faculty director at the Center on Reproductive Health, Law, and Policy. 

"Proposition 1 shores up existing constitutional protection by stating explicitly that the Constitution protects abortion," Franklin said.

The amendment’s language is broad and does not mention viability. 

The measure’s opponents say that because it does not specify when abortions can be performed, the measure opens the door to possibly legalizing late-term abortions beyond what’s currently allowed.

Luke Koushmaro, a senior fiscal and policy analyst at the Legislative Analyst’s Office, the nonpartisan fiscal and policy adviser for the California Legislature, said Proposition 1 would not change existing state laws that limit abortions. 

"There are statutory limitations to the right to abortion in California," including if a physician determines that a fetus is viable, an abortion can only be performed if pregnant person's life or well being is at risk, Koushmaro said. "Proposition 1 wouldn’t change that statute. That would stay on the books."

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Erwin Chemerinsky, dean of the University of Califrnia, Berkeley School of Law, told the Los Angeles Times that the state’s Constitution is currently being interpreted as protecting abortion rights and yet there are restrictions after viability.

"There is no reason why this right would not be interpreted the same way," Chemerinsky said. "Rights are not absolute even if enumerated. Free speech is an example. The same would be true of abortion rights. I think the opponents’ argument is misguided."

If the amendment passes and is challenged in court — a likely scenario — it’s unlikely that courts would remove all restrictions for abortion, said Mary Ziegler, a legal historian and professor of law at the University of California, Davis School of Law. She said recognizing something as a right does not mean that courts will remove limits on it. 

"A court would have to interpret it to say that this right means that the government can’t regulate at all," Ziegler said. "If you have a right to free speech, that doesn’t mean that the government can’t regulate speech at all, right? It usually means the government has to justify what it’s doing pretty carefully." 

Margaret Russell, a constitutional law professor at Santa Clara University School of Law, agreed. 

"It is very clear that this Proposition 1 is clear about affirming the already-existing law in these areas," Russell said. "The intent and context are clear, and a court’s sensible and obvious interpretation of Proposition 1 would have to take this background into account."

An Instagram post says California’s Proposition 1 includes "a right to abortion up-to-birth."

If passed by voters, the constitutional amendment would not change existing state laws, which already outline when abortions can be performed. 

The amendment does not directly address the time frame for when abortions can be performed. If passed, the amendment could be challenged in court, but it’s unlikely that courts would rule to remove limits on abortion, experts said. 

The amendment is aimed at protecting existing abortion rights. Under current law, abortions are permitted beyond the point of fetal viability to preserve the health or life of the mother.

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