Reproductive Rights

Remove California’s viability standard for abortion and make it harder to restrict abortion in the future.

Background

In 2009, the California Legislature signed the Reproductive Privacy Act into law, which states:

The state may not deny or interfere with a woman’s right to choose or obtain an abortion prior to viability of the fetus, or when the abortion is necessary to protect the life or health of the woman.

Prop 1 adds this language to the California Constitution:

The state shall not deny or interfere with an individual’s reproductive freedom in their most intimate decisions, which includes their fundamental right to choose to have an abortion and their fundamental right to choose or refuse contraceptives. This section is intended to further the constitutional right to privacy guaranteed by Section 1, and the constitutional right to not be denied equal protection guaranteed by Section 7. Nothing herein narrows or Jimits the right to privacy or equal protection.

Prop 1 therefore makes two substantive changes:

1. Affirming the Reproductive Privacy Act in the California Constitution.
2. Omitting the Reproductive Privacy Act’s “prior to viability of the fetus” clause; California abortion providers interpret the viability standard as 23 to 24 weeks of gestational age, and legal experts generally agree that this would strip the Reproductive Privacy Act of its viability standard if it were challenged in court.

Proponents emphasize the former change in the wake of Dobbs. For instance, the Yes on 1 campaign’s fact sheet states:

Expressly stating a fundamental right to abortion in the state constitution will protect against potential future attacks at the federal level and from courts down the line.

Opponents emphasize the latter change. For instance, the No on Prop 1 website’s tagline is:

Prop 1 is too extreme. Late-term abortion without limit. At taxpayer expense.

Regarding the “taxpayer expense” concern, the legislative analyst says:

If a court finds that the proposition expands [abortion] rights, there could be fiscal effects to the state.

The Yes on 1 campaign generally doesn’t mention the viability change, but on the second page of its FAQ PDF file, it states:

The American College of Obstetrics and Gynecologists defines viability as a “…confluence of multiple complex factors, only one of which is gestational age. This complexity, which is different for each pregnancy, is best evaluated and managed within the context of a trusted relationship between a patient and their clinician. We all must work to combat misinformation and disinformation about reproductive health care. Statements about “abortion up until birth” are unscientific and crafted to polarize and politicize the conversation about abortion - an essential and incredibly common and safe medical procedure.”

The American College of Obstetrics and Gynecologists expands on this in its abortion policy and FAQ, which states:

ACOG strongly opposes any effort that impedes access to abortion care and interferes in the relationship between a person and their healthcare professional.

Unfortunately, ACOG’s other interests make it hard to disentangle the scientific question. Indeed, its abortion policy continues:

As such, clinicians should not be subject to criminal penalties, lawsuits, fines or other punishments for providing the full spectrum of evidence-based care. ACOG condemns stigma, violence, intimidation and threats against doctors, clinicians, and members of their professional teams and families.

The American Medical Association also states:

The Principles of Medical Ethics of the AMA do not prohibit a physician from performing an abortion in accordance with good medical practice and under circumstances that do not violate the law.

While Prop 1’s constitutional nature makes it harder to restrict abortion in the future, I view its nullification of the viability standard as its most immediate and tangible policy impact. So should abortions apply a viability standard?

Analysis

I have always considered myself pro-choice, and I opposed the Dobbs ruling, but this question leaves me uncertain. Like most liberals, I have zero qualms with birth control, but I oppose infanticide, so where do I draw the line? Birth seems arbitrary, so I doubt the optimal policy allows abortion in all cases. But I’m not voting to set the optimal policy; only the current rules and the constitutional amendment are on the table.

I analyzed the question in two ways:

1. Public opinion
2. Utilitarianism

Public opinion

For fuzzy moral questions, I value public opinion. For example, the charity evaluator GiveWell surveyed extremely poor people in 2019 to compare outcomes such as poverty alleviation, averting deaths (of children and adults), and averting suffering from disease. Despite human biases, our views reflect millenia of evolutionary social reflection.

On abortion, the most recent and complete public opinion data comes from a Pew poll from March 2022 (Politico published the leaked Dobbs opinion in May 2022). This shows that 22% of Americans support unrestricted abortion at 24 weeks, which is what California’s viability standard allows. Of this 22%, 6 in 7 support legalizing it in all cases. So if I’m going with public opinion, and if I’m OK with the viability standard, then removing it isn’t much of an issue.

This begs the question: Would I support California’s current 24 week limit if it weren’t in effect, or am I subject to status quo bias? Do I hold views on abortion more permissive than 78% of Americans?

On many other issues, I do consider myself in the top quartile of liberalism. In some respects, this might be one such issue---especially as I am atheist. The Pew survey finds that 53% of atheists believe abortion should be legal in all cases, and an additional 9% believe it should be legal at 24 weeks.

On the other hand, I suspect I’m more pronatalist than the average atheist, maybe significantly more. Summarizing data from the 2022 Demographic Intelligence Family Survey, Lyman Stone says, “women who never attended church reported a fertility rate of around 1.3 children per woman, vs. 2.1 for women who attended weekly.” As I wrote with my UBI Center colleague Ahmed Ahmed with regard to the Child Tax Credit, I believe the evidence shows that more children would make the US economy more dynamic into the future, and environmental reasons for antinatalism that might appeal disproportionately to atheists are vastly overblown, and maybe even wrong-signed.

However, one more angle pushes me toward Prop 1: 53% of Americans and 93% of atheists believe abortion should be legal when the baby is likely to be born with severe disabilities or health problems. As I elaborate on below, California’s viability standard prevents abortion after 24 weeks, even in such cases.

Overall, if I were deciding only on public opinion and my other views, I would support Prop 1.

Utilitarianism

The moral framework I place the greatest weight on is utilitarianism, the doctrine that prescribes actions that maximize well-being. Utilitarianism has guided my giving and involvement in the Effective Altruism community.

I could only find one utilitarian analysis of abortion. That high-level piece argues that, since fetuses are unlikely to experience much consciousness, the optimal abortion policy primarily hinges on the value of population growth.

A more thorough utilitarian analysis would estimate the consciousness of the fetus and its ability to feel pain, the welfare impacts on the mother, and the welfare impacts on society. For example, such an analysis might consider:

• Fetal brain development: Clouchot (2012) finds that they grow their brain size and activity at between 5 and 13 percent per week from their 25th through 37th week of gestational age
• The relationship between brain development and capacity for consciousness and pain (research of nonhuman animals finds it may not be linear, and in general, research by the Effective Altruism community for prioritizing animal welfare causes would likely be relevant)
• Medical reasons to believe abortion procedures may or may not involve pain to the fetus
• Well-being of babies with severe developmental disabilities if they are born
• Impact of abortion access on total fertility (i.e., do women replace their abortions with other children later?)
• Societal welfare implications of population growth, overall and with respect to the marginally-aborted
• The effect of abortion access on the well-being of (would-be) mothers, in the short and long term

And in particular it would do so on the current margin, evaluating Prop 1’s specific policy reform. On this front, two measures seem especially important:

1. The total expected increase in abortions from removing the viability standard
2. The share of that increase that would be due to babies with severe disabilities or health problems

I haven’t seen a study addressing the first question, though I suspect a difference-in-differences design could generate some estimates (though endogeneity is a concern). Eyeballing CDC data, more liberal states appear to have greater percentages of abortions occurring after 21 weeks. For example, such abortions represent one percent of all abortions in the states that reported them, but 1.9% in Colorado, which has no gestational limits.

The commonly cited figure that one percent of abortions occur after 21 weeks is based on data that excludes California and eight other states (California does not report abortion statistics). In the reporting areas, 4,882 abortions occurred after 21 weeks in 2019; assuming the same rates among non-reporting states, that would be about 6,400 abortions. For context, about 20,000 infants (babies in their first year) die in the US each year.

Regarding babies with severe disabilities, I could only find one article that raises concerns with California’s viability standard: an August 2022 Los Angeles Times piece that covers the experiences of two women who discovered that their babies would have severe developmental disabilities (that don’t threaten the mother’s health) after the 24th week. They both went to abortion providers outside of California (six states and D.C. do not have a gestational limit on abortion access).

The article does not include data on how commonly such diagnoses late in pregnancy spur women to seek abortions outside California. It quotes a UCSF researcher who estimates at least 100 leave California for abortions each year, but this isn’t limited to late diagnoses of fetal developmental disabilities, and I couldn’t find statistics on this reason.

Overall, if I were deciding only from a utilitarian perspective, I would probably vote no on Prop 1, largely because I expect large welfare gains from larger populations, but I would be very uncertain.

Decision

While I understand many will vote on Prop 1 purely as a reinforcement of California’s abortion law in response to Dobbs, voters should recognize that it presents a real and substantive policy change. Voting on abortion policy pushed me to research and introspect on it more than I have in the past, and as a result, I feel somewhat more confident identifying my preferred policy. If I had my way, I would limit abortions after 24 weeks to those where the mother’s health is at risk or where the baby is likely to have severe disabilities or health problems---essentially California’s current policy, plus exceptions for severe disabilities or health problems, for example those that make the baby unlikely to survive its first year.

I am closer to Prop 1 from a public opinion perspective, but farther from a utilitarian perspective. As a tie-breaker, I’ll inject a deontological belief that adults deserve control over their bodies, which favors Prop 1. Abortion is understandably a divisive issue, but more rigorous research can identify policies that better align with people’s values. Until then, my best guess is that greater abortion access is better on the margin, including in states as permissive as California.