Abortion measure brings a hint of uncertainty to California’s midterms

The Washington Post / Scott Wilson

16:59 JST, October 10, 2022

SANTA CLARITA, Calif. – This is quintessential Southern California suburbia, low stucco homes with front-yard lemon trees, soccer fields so safe the goal nets never come down, the blue-ribbon elementary school just across the street.

It is a visual time-capsule of the neighborhoods that grew up and out north of Los Angeles with the post-World War II aerospace boom, safe and prosperous for decades and now vulnerable to circumstances rising in its toss-up House contest.

A high school shooting here almost three years ago killed three students, including the one who pulled the handgun’s trigger between classes. Economic anxiety is commonplace. Water shortages have left front yards and the sharp hills that surround the city a parched, dusty tan.

This year, though, the race between a first-term Republican and the same Democratic challenger he narrowly defeated two years ago is also a prime test of California’s activist approach on the resurgent issue of abortion after the Supreme Court’s decision to overturn Roe v. Wade.

The state budget passed this summer included $200 million in public funds for abortion services, including $20 million to help defray the travel costs of poor women from newly restrictive states seeking the procedure in California. The state now operates a website designed to help women, inside and outside the state, navigate the array of abortion services California offers.

And, alarmed that the Supreme Court decision showed that rights not specifically guaranteed could be lost, Democratic lawmakers rushed to place on the November ballot an amendment to the state constitution that would explicitly protect abortion rights.

Proposition 1, as the measure appears on the ballot, is heading to an easy victory, according to several recent polls, with support even from a significant chunk of Republicans statewide.

But how the amendment will affect other races in the state – particularly a handful of competitive congressional contests – has puzzled political analysts, largely because it is uncertain what type of people the amendment might inspire to vote. Several national political observers rate this race a toss-up, one of roughly five of 53 congressional contests in the state considered highly competitive, meaning that even slight variations in the electorate are potentially meaningful.

Democrats, confident that the amendment will drive up party turnout in an off-presidential year election, have promoted the ballot measure. But others see risks that the amendment, along with the high-profile steps to expand abortion access taken by Gov. Gavin Newsom (D) and other state officials, will bring out Republicans who, in a funk of futility, might have otherwise sat out the race. If so, Democrats may have inadvertently and unnecessarily made themselves vulnerable at the margins in key contests.

“I think the extreme position does not play well in these districts, and Republicans have traditionally painted themselves into that corner,” said Rob Stutzman, a Republican political strategist who is not working on the Proposition 1 campaign or the congressional contest here. “But that image shifts with Newsom talking about California as a sanctuary state for abortions. That may not sit well with more moderate voters.”

At a recent town hall here at Wiley Canyon Elementary School, Democratic enthusiasm for the issue among those in line to hear Christy Smith, the Democratic challenger, was plain to see.

Linda Lott, a retiree, wore a T-shirt featuring the outline of coat hanger with the words “this is not a medical instrument” written beneath. Campaign volunteers wore pink T-shirts reading “Smith 27 Pro-Choice,” the number referring to the congressional district at stake.

“I’m 44 years old, and this is the only world I have ever known,” said Cindy Maynard, a health-care worker with a 10-year-old daughter, as she leaned against the school’s breeze-block wall. “And I can’t believe that today my daughter is growing up in another place.”

Rep. Mike Garcia (R), a former Navy fighter pilot and Iraq War veteran who opposed certifying the 2020 presidential election, stresses the uncertain economy, the over-$6-a-gallon gas prices, rising homelessness and crime in his public appearances and on his campaign website. Abortion is a subject he has largely avoided.

Garcia defeated Smith in 2020 by 333 votes, making it the third-closest congressional race in the country that year. This race is taking place in a newly drawn district more Democratic than it was when Garcia triumphed. It is also occurring in a more unpredictable environment since the Supreme Court’s June decision in Dobbs v. Jackson Women’s Health Organization.

“California is obviously a liberal state, a state that has been very supportive of Roe v. Wade,” said Richard Temple, the chief political strategist for the “No on Proposition 1” campaign. “But the recent ruling has opened up questions about abortions in large and small ways, and there are voters in the state, including Democratic voters, who differentiate on the issue in these ways.”

Democrats, who hold a 2-to-1 edge statewide in voter registration over Republicans, dismiss that possibility.

Newsom has been picking political fights with Republican governors to heighten his national appeal, and in doing so, has made abortion virtually the centerpiece of his reelection campaign.

Last month, he signed a dozen abortion-related bills, including one that has raised deep concern among antiabortion activists because it protects doctors and patients from criminal charges or civil litigation for complications that lead to a fetus’s death before birth. It also prohibits a coroner’s death certification from being used in criminal proceedings against patients in such cases.

With only nominal opposition in November from a Northern California Republican state senator, Newsom has also dipped into his campaign account to elevate the issue. Most recently, he rented 18 billboards in various Republican states now restricting abortion rights, showcasing California as the place to come for the procedure.

“California is ready to help,” reads one billboard, among a series that also feature images of women in handcuffs.

But the question of why Proposition 1 is needed – why the Democrat-dominated legislature didn’t simply leave well-enough alone – continues to trouble some abortion rights advocates in a state where access to the procedure is under no threat at all. Abortion is legal here until a fetus is determined to be “viable” – able to survive outside the womb – and after that with medical approval.

“Democrats don’t seem to understand the law of unintended consequences,” wrote the author Wendy Voorsanger in an essay for CalMatters, a news site that covers state politics. “Or perhaps they don’t comprehend the fierce determination of Republicans to eliminate women’s reproductive rights.”

Those pushing for the measure say it will add a necessary level of protection by specifically naming abortion as a protected right, citing the Supreme Court ruling as an example of the ease with which a law rather than explicit constitutional guarantees can be overturned.

“If we have learned anything by the Dobbs decision it is that the right to privacy is no longer enough,” said Jodi Hicks, the chief executive and president of Planned Parenthood Affiliates of California and co-chairperson of the “Yes on Proposition 1” campaign.

“What we know is that patients are confused, not only in California but those coming here from other states,” she said. “California must continue to be a beacon of hope amid this confusion and fear, and passing this proposition is a way to send that message loud and clear.”

Susan Swift, vice president of legal affairs for the antiabortion Right to Life League, called the proposition “at best, virtue signaling by pro-abort legislators.”

“But at worst it opens the door to a host of unforeseen consequences because of its overly broad, very vague wording,” Swift said. “The broad granting of this right will encourage exploitation.”

The antiabortion movement has interpreted the proposition’s text to mean that no limits – including on late-term abortions – can be enforced if the measure passes. Swift goes further, saying any sexual act, including illicit ones between adults and minors, could be deemed legal if courts find that a prohibition interferes with the couple’s “reproductive freedom.”

Proponents say the additional constitutional protection preserves the right of lawmakers and state courts to regulate abortion – addressing, if needed, some of the more extreme hypotheticals that opponents raise. But any future changes to an explicit constitutional right would require a far greater level of judicial scrutiny from the courts than if abortion access only existed as a privacy right subject to interpretation.

“What Dobbs did was kick abortion down to a more general category of rights that no longer needed that high standard,” said Cary Franklin, director of the Center on Reproductive Health, Law and Policy at the UCLA School of Law. “The amendment prevents Dobbs from happening in California.”

Beyond the legal questions, Swift and other antiabortion rights advocates say the Supreme Court ruling has inspired the Republican base here.

“We know it’s possible now,” Swift said. “There is no more Roe fig leaf, and I know the energy is very much on the red side right now.”

But polling suggests otherwise. In addition to Proposition 1 securing about 70 percent support, according to the most recent statewide survey by the Public Policy Institute of California, a higher proportion of Democrats called the issue “more important” than Republicans did.

In the 27th District, the debate around the proposition has added even more uncertainty.

Garcia’s skin-of-the-teeth victory over Smith turned the district from blue to red, part of a shifting control between the parties here since the 2014 departure of Rep. Buck McKeon (R), who represented northern Los Angeles County and a conservative slice of southern Ventura County for more than two decades.

After defeating the Republican incumbent in 2018 in the district then labeled the 25th, Democrat Katie Hill held the seat for less than a year until she was forced to resign after acknowledging a prohibited sexual relationship with a campaign staff member. Garcia won a special election to replace her before his November 2020 victory over Smith.

While the new 27th District is more favorable to Democrats, one in five of the district’s voters are unaffiliated with either party, an independent streak that could determine the outcome of the race.

At Smith’s recent town hall here, about 50 or so interested residents settled into folding metal seats in a bright, if warm, auditorium for a moderated Q&A session with the candidate. Water was passed out. Hand fans fluttered near faces.

The notecard questions sought Smith’s positions on climate regulations and “girls” rights, covid-19 restrictions and gun-control initiatives, rancorous partisanship and the rising threat to voting rights and other democratic institutions.

Abortion rights arose twice during the roughly 70-minute event, and Smith’s support for them drew strong applause. Smith is the mother of two daughters, both born after high-risk pregnancies, a story she shares on the campaign trail.

“This issue is incredibly personal to me,” she said in a backstage interview after the event.

Since the Supreme Court ruling, Smith has elevated abortion access as a primary issue in her campaign. Her advertising on social media, some of it critical of her opponent’s record, reflects her view that a strong majority of the district supports abortion rights.

“I would not back off of this even if that weren’t the case,” said Smith, who is 53. “This is a very galvanizing issue for voters, and we have found that it is appealing to voters who may not usually vote in midterm elections.”

Garcia’s decision to mute the abortion discussion in his campaign stands in contrast with his well-defined record against it.

Soon after taking office in 2020, he co-sponsored the Life at Conception Act, which granted legal protections for the fetus from the moment of conception. Garcia also signed an amicus brief asking the Supreme Court to overturn Roe, and he has opposed several other bills to protect abortion access, including the ability of women to travel to other states to have the procedure.

But immediately after the Dobbs opinion was issued, Garcia released a statement emphasizing that the court had placed the issue in states’ hands.

“As Californians, even after this ruling, you will continue to live under the same laws and access to abortion,” the statement said. Garcia declined to be interviewed for this story.

Ron Bischof attended a recent Garcia town hall, and on a quiet Sunday, he lined up to see what Smith had to say in hers. He said many of the questions Garcia received focused on inflation, crime and the economy, issues Garcia is stressing most.

Bischof is 64 and retired from a Fortune 500 company, the father of three sons, whose chief concerns are protecting Second Amendment rights, improving the economy and reducing the size of government. He was a “no party preference” voter before 2016, then signed up as a Republican.

He said he appreciated Garcia’s endorsement of what Bischof called “constitutional government,” meaning, fundamentally, the smaller the better. “And he’s quite critical of California, which is de facto one-party rule,” Bischof said.

As for abortion access, he said the issue ranks “very low” among his concerns. While he will vote “no” on Proposition 1, he said, “I’m not opposed to it being on the ballot to let citizens decide.”

Many others waiting with Bischof listed the threat to voting rights, faltering transportation infrastructure and a rapidly changing climate as top concerns. For most, though, abortion access remains a chief reason to vote for the ballot measure and Democrats for federal office.

“I don’t even list abortion protections on my list of concerns,” said Kathryn Marsailes, who is 66 and a senior graphics designer at the California Science Center, as she waited to enter the town hall. “I almost can’t say it because, at my age, I just can’t believe it’s even in danger again. It’s a fundamental human right.”