California’s top Democratic leaders late Monday said they would ask voters to add the right to an abortion in the state constitution, hours after a draft opinion overturning the federal right to abortion access came to light.
In a joint statement, Gov. Gavin Newsom (D), Senate President Toni Atkins (D) and Assembly Speaker Anthony Rendon (D) said they would propose a constitutional amendment they would ask voters to approve.
“California will not stand idly by as women across America are stripped of their rights and the progress so many have fought for gets erased. We will fight,” the three Democrats said. “We know we can’t trust the Supreme Court to protect reproductive rights, so California will build a firewall around this right in our state constitution. Women will remain protected here.”
The pledge came just after Politico published a draft majority opinion, apparently authored by Justice Samuel Alito, striking down both Roe v. Wade, the 1973 decision that established a federal right to an abortion, and Planned Parenthood v. Casey, the 1992 decision that upheld much of Roe’s precedent.
In oral arguments last year over a Mississippi law banning virtually all abortions after 15 weeks of pregnancy, Alito, appointed to the court by former President George W. Bush in 2006, called Roe “egregiously wrong.”
Politico reported that Alito’s draft came after Justices Clarence Thomas, Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett — all Republican appointees — signaled in conference they would vote to strike down Roe.
The opinion represents a worst-case scenario for abortion rights advocates and the best possible outcome for abortion rights opponents. It has not yet been published; the Supreme Court typically waits until the end of its yearly session in June to issue its most fraught and contentious rulings.
But it immediately threatens to upend an electoral campaign season in which Democrats found themselves on the back foot, facing electoral headwinds and low approval ratings along with economic pressures of rising inflation and the potential of a looming recession.
It is not clear exactly how California’s top Democrats will proceed. An amendment to the state constitution requires a supermajority vote in both the state Senate and Assembly; in both chambers, Democrats control a supermajority of seats. But Democrats will have to act fast to get such a measure on the ballot the November.
Abortion rights advocates have been preparing for the day the Supreme Court strikes down Roe, moving to enshrine laws protecting abortion access in the absence of federal protections. Sixteen states and the District of Columbia have laws on the books protecting the right to an abortion, according to the Guttmacher Institute, which supports abortion rights.
Four of those states and Washington, D.C., protect the right to an abortion throughout pregnancy, while another dozen states explicitly permit abortion prior to viability or when necessary to protect the life or health of the mother.