September 24, 2022

Sacramento — Californians will decide in November whether to lock the right to abortion into the state constitution.

If they vote “yes”. Proposal 1they will also lock down a right that has received less attention: the right to birth control.

If the measure passes, California would become one of the first states — if not the first — to create express constitutional rights for both abortion and contraception.

Lawmakers and activists behind the constitutional amendment said they hope to achieve a one-two punch: protect abortions in California after The US Supreme Court ended the federal constitutional right to abortion under Roe v. Wadeand to anticipate 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 Cary Franklin, an expert on constitutional law and reproductive rights who has testified before of the California legislature in support of the amendment. “If they said no to abortion, they’re probably going to say no to birth control because it has a similar history.”

In June, the US Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization ended the federal right to abortion and let the states regulate the service. In his agreementsaid Justice Clarence Thomas the the court should review other cases that have created protections for Americans based on an implicit right to privacy in the US Constitution, such as case of 1965 Griswold v. Connecticutwhich established a federal contraceptive right for married people—which was later extended to single people.

Some congressional Democrats are now trying to codify the right to contraception into federal law. In July, the US House of Representatives voted to Right to Contraception Act, which would give patients the right to access and use contraception and 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.

Protecting access to contraception is popular with 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 will consider reproductive rights in their constitutions.

On Tuesday, Kansas voters decisively rejected a constitutional amendment which would allow state lawmakers to ban or dramatically restrict abortions. It failed by nearly 18 percentage points.

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

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

In California, Proposition 1 would have prevented the state from denying or interfering with “a person’s reproductive freedom in their most intimate decisions, which includes their fundamental right to choose abortion and their fundamental right to choose or refuse contraceptives ».

California Billboard Promotes Legal Access to State Abortion
A billboard reads ‘Welcome to California, where abortion is safe and still legal,’ on July 12, 2022 in Rancho Mirage, California. The billboard was paid for by Planned Parenthood of the Pacific Southwest following the US Supreme Court’s decision that overturned Roe v. Wade.

Getty Images

The proposed constitutional amendment does not include details about what enshrining the right to contraception in the state constitution would mean.

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 contraception. pharmacists must administer 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 a right to privacy that covers reproductive health decisions.

The amendment, if passed, could provide a new legal avenue for people to sue when they’re denied birth control, said Michelle Goodwin, Chancellor’s Law Professor at the University of California-Irvine.

If a pharmacist refused to fill a birth control prescription or a cashier refused to ring in condoms, he said, customers could argue their rights had been violated.

Making abortion and contraception rights explicit in the state constitution — rather than relying on the right to privacy — would also protect against shifting 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 executives are staunch supporters of abortion rights, he said, the makeup of the Legislature and the courts’ interpretation of the laws could change.

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

The amendment will cement California’s role like reproductive rights shelter as much of the country rejects the availability of birth control, Goodwin added.

Experts said two forms of birth control that are vulnerable to restrictions in other states are intrauterine devices, or IUDs, and emergency contraception like Plan B. These methods are often mistakenly confused with abortion pills, which end a pregnancy instead of they prevent her.

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

“We’re seeing an erosion of abortion access taking place in state buildings across the country that have and will continue to target contraceptive care as well,” 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 Right to Life League of California, said the proposed amendment is symbolic and merely echoes existing laws. Arnall believes the campaign is mostly about Democratic politicians trying to score political points.

“It just allows pro-abortion lawmakers to trumpet and talk about how they’re doing something to overturn Roe v. Wade“, he said. “It is a message of political virtue. I don’t think he does much else.”

Goodwin argues that the symbolism of the measure is important and overdue. He pointed to the Civil War era, when slaves in the southern states could look to free states for spiritual hope and material help. “Symbolically, what it meant is a kind of beacon of hope, that those places did exist, where one’s humanity could be considered,” 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. Inside her study 2020 on contraceptive access in Los Angeles County, which has some of the highest teen and unintended pregnancy rates in the country, Qato found that only 10% of pharmacies surveyed offered prescription birth control. Pharmacies in low-income and minority communities were the least likely to offer 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 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,” Qato said. “The lack of enforcement and accountability disproportionately affects communities of color.”

This story was created by KHN (Kaiser Health News), a national newsroom that provides in-depth coverage of health issues and is one of its three main operating programs KFF (Kaiser Family Foundation). KHN is its publisher California Healthline, an editorially independent service of California Health Care Foundation.

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