Abortion could become a constitutional right in California. So could birth control.

Abortion could become a constitutional right in California. So could birth control.

Californians will decide in November whether to enshrine the right to abortion in the state constitution.

If they vote “yes”. Proposal 1 They will also enshrine a right that has received less attention: the right to contraception.

If the measure is successful, California would become one of the first states — if not the first — to create explicit constitutional rights to both abortion and contraception.

Lawmakers and activists behind the constitutional amendment said they hope to achieve a one-two punch: protect abortion in California after the U.S. Supreme Court upheld the constitutional right to abortion under Roe v. Wade has ended, and will be one step ahead of what they see as the next front in the fight for reproductive rights: birth control.

“The United States Supreme Court said that the protections of privacy and liberty in the United States Constitution do not extend to abortion,” said UCLA law professor Cary Franklin, an expert on constitutional law and reproductive rights who testified before the California legislature in support of the amendment. “If they said ‘no’ to abortion, they will probably say ‘no’ to birth control because that has a similar story.”

In June, the U.S. Supreme Court's decision in Dobbs v. Jackson Women's Health Organization ended the federal right to abortion, leaving states to regulate the service. In his unanimous opinion Justice Clarence Thomas said the court should reconsider other cases that have created protections for Americans based on an implicit right to privacy in the U.S. Constitution, such as: The case of 1965 Griswold v. Connecticut, which established a federal right to contraception for married people - which was later extended to unmarried people.

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

Protecting access to contraceptives is popular with voters. A national poll from Morning Consult and Politico Conducted in late July, it found that 75% of registered voters support a federal law that protects the right to access birth control.

California isn't the only state where voters are adding reproductive rights to their constitution.

On Tuesday, Kansas voters a constitutional amendment was decisively rejected that would have allowed state legislatures to ban or drastically restrict abortion. It failed by almost 18 percentage points.

Kentucky Voters will face a similar decision in November, with a proposed constitutional amendment that would declare that the state's constitutional right to privacy does not cover abortions.

Vermont goes in the opposite direction. Voters there will weigh a November ballot measure that would add a right to “personal reproductive autonomy” to the state constitution, although it does not specifically mention abortion or contraception. In Michigan, a proposed constitutional amendment that would guarantee a right to both abortion and contraception is likely 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 making his or her most intimate decisions, including his or her fundamental right to choose an abortion and his or her fundamental right to choose or refuse contraception.”

The proposed constitutional amendment does not go into detail about what enshrining the right to contraception in the state constitution would mean.

California already has some of the strictest contraceptive access laws in the country — and lawmakers are considering more proposals this year. For example, federally regulated health plans must cover all FDA-approved contraceptives; pharmacist must provide emergency contraception for anyone with a prescription, regardless of age; and pharmacists can Prescribe contraception Pills on site. State courts have also interpreted the California Constitution to include a right to privacy that covers reproductive health decisions.

The amendment, if adopted, could provide a new legal avenue for people to sue if they are denied contraceptives, said Michele Goodwin, Chancellor's Law Professor at the University of California-Irvine.

If a pharmacist refuses to fill a contraceptive prescription or a cashier refuses to ring up condoms, customers could claim a violation of their rights, she said.

Making the right to abortion and contraception explicit in the state constitution — rather than invoking a right to privacy — would also protect against political winds, said state Senate leader Toni Atkins (D-San Diego), who was director of a women's health clinic in the 1980s. Although California lawmakers and leaders are solid supporters of abortion rights, she said, the composition of the Legislature and the courts' interpretation of laws could change.

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

The change would solidify California's role As one Reproductive Rights Sanctuary So much of the country is losing access to birth control, Goodwin added.

Experts say two forms of contraception that face restrictions in other states are intrauterine devices, or IUDs, and emergency contraception such as Plan B. These methods are often mistakenly equated with abortion pills that end a pregnancy rather than prevent it.

Nine states have laws that restrict emergency contraception — for example, by allowing pharmacies to refuse to provide it or excluding it from government family planning programs — according to the Guttmacher Institute, a research organization that advocates for abortion rights. In the Alabama and Louisiana This year, abortion opponents introduced legislation that would restrict or ban abortion and also apply to emergency contraception.

“We are seeing an erosion of abortion access playing out in statehouses across the country that also target contraception and will continue to do so,” said Audrey Sandusky, senior director of policy and communications for the National Association for Family Planning and Reproductive Health.

Susan Arnall, vice president of the California Right to Life League, said the proposed change is symbolic and simply reflects current laws. Arnall believes the campaign is largely about Democratic politicians trying to score political points.

“It just allows pro-abortion lawmakers to trumpet and give them talking points about how to do something about overturning Roe v. Wade,” she said. "It signals political virtue. I don't think it does much else."

Goodwin argues that the symbolism of the measure is significant and overdue. She pointed to the Civil War era, when enslaved people in the South could look to free states for spiritual hope and material assistance. “That symbolically meant a kind of glimmer of hope that these places existed where one's humanity could be recognized,” Goodwin said.

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

Qato supports the constitutional amendment but said California should focus on improving and enforcing the laws that already exist.

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

This story was produced by KHN which published California Healthline an editorially independent service California Health Care Foundation.

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