BILL ANALYSIS
AJR 3
Page 1
Date of Hearing: January 18, 2005
ASSEMBLY COMMITTEE ON JUDICIARY
Dave Jones, Chair
AJR 3 (Cohn and Karnette) - As Amended: January 13, 2005
SUBJECT : Reproductive rights
KEY ISSUE : SHOULD THE LEGISLATURE MEMORIALIZE THE PRESIDENT AND
CONGRESS OF THE UNITED STATES to PROTECT AND UPHOLD THE INTENT
AND SUBSTANCE OF THE UNITED STATES SUPREME COURT DECISION IN ROE
V. WADE ON ITS 32ND ANNIVERSARY?
SYNOPSIS
This joint resolution, like others passed by this Committee in
previous years, memorializes the President and the U.S. Congress
to protect and uphold the intent and substance of the U.S.
Supreme Court decision in Roe v. Wade relating to reproductive
rights. The resolution makes findings regarding the importance
of reproductive rights and of the constitutional limits
established by Roe v. Wade as to states' power to restrict the
right of a woman to choose to terminate a pregnancy.
SUMMARY : Memorializes the President of the United States and
Congress to protect and uphold the intent and substance of the
United States Supreme Court decision in Roe v. Wade .
Specifically, this bill makes the following findings:
1)January 22, 2005 is the 32nd anniversary of the historic
United States Supreme Court decision in Roe v. Wade
guaranteeing women's reproductive rights, an occasion
deserving of celebration and special public commendations.
2)The 1973 U.S. Supreme Court decision in Roe v. Wade
established constitutionally based limits on the power of
states to restrict the right of a woman to choose to terminate
a pregnancy.
3)Roe v. Wade is one of the most significant Supreme Court
decisions in the 20th century promoting women's rights.
4)Reproductive rights are central to the ability of women to
exercise their full rights under federal and state law.
AJR 3
Page 2
5)It is the right of every American woman to determine when, if,
and with whom to have children, and how many children to have.
6)Women's ability to control their reproductive lives has
facilitated their equal participation in the economic and
social life of the nation.
7)The state should not interfere with a woman's decision to
either bear a child or terminate a pregnancy through a safe
and legal abortion.
8)Women should not be forced into illegal and dangerous
abortions as they often were prior to the Roe v. Wade
decision.
9)During the first half of the 20th century, illegal abortions
accounted for about 50 percent of all maternal deaths.
10)Roe v. Wade has significantly reduced the mortality rate for
women terminating their pregnancies.
11)Roe v. Wade continues to protect the health and freedom of
women throughout the United States.
EXISTING LAW :
1)Recognizes a right to privacy protected under the United
States Constitution. ( Boyd v. United States (1886) 116 U.S.
616.)
2)Explicitly protects the right to privacy under the California
Constitution. (California Constitution, Article I, Section
1.)
3)Holds that the constitutionally protected right to privacy
limits a state's power to restrict a woman's right to
terminate a pregnancy. ( Roe v. Wade (1973) 410 U.S. 113.)
FISCAL EFFECT : As currently in print this resolution is keyed
non-fiscal.
COMMENTS : This joint resolution addresses the upcoming
anniversary of the landmark court case of Roe v. Wade . In 1973,
the United States Supreme Court held, in Roe v. Wade (1973) 410
U.S. 113, that the constitutional right to privacy extends to a
AJR 3
Page 3
woman's decision as to whether to terminate a pregnancy, while
acknowledging that some state regulation was permissible. The
case was filed by "Jane Roe," an unmarried woman who wanted to
end her pregnancy under safe and clinical conditions but who was
unable to get a "legal" abortion in Texas because her life was
not threatened by the continuation of the pregnancy and she
could not afford to travel to another jurisdiction. She claimed
that the Texas statutes abridged her right of personal privacy,
therefore challenging the Texas statute that made it a crime to
perform an abortion unless a woman's life was at stake. The
Court struck down the Texas law in finding for the first time
that the constitutional right to privacy "is broad enough to
encompass a woman's decision whether or not to terminate her
pregnancy."
Federal law . The United States Supreme Court has long
recognized constitutional protection of the right of privacy.
( See, e.g., Boyd v. United States (1886) 116 U.S. 616.) That
right has been held to extend to matters of procreation and
contraception. ( Skinner v. Oklahoma (1942) 316 U.S. 535;
Griswold v. Connecticut (1965) 381 U.S. 479.) In Roe v. Wade ,
the Court held that this right also extended to a woman's
decision as to whether to terminate a pregnancy. The Court also
held that there are two compelling state interests sufficient to
justify restrictions on a woman's right to choose. The Court
found that: 1) states may regulate the abortion procedure after
the first trimester of pregnancy in ways necessary to promote a
woman's health; and 2) after the point of fetal viability, a
state may, to protect the potential life of the fetus, prohibit
abortions not necessary to preserve a woman's life or health.
From the day it was issued, the decision in Roe v. Wade has been
the subject of much debate, politically and legally. The
application and continued validity of the decision have been
frequently contested in the courts. In 1992, in Planned
Parenthood of Southeastern Pennsylvania v. Casey (1992) 505 U.S.
833, the Court reaffirmed Roe v. Wade , while at the same time
restricting its protection. Under Casey , states may impose
abortion restrictions as long as they do not "unduly burden" a
woman's right to choose. Under this new standard, the Court
approved interventions by the state, including a 24-hour waiting
period, which it had previously found to violate the right to
privacy.
The decision in Casey upheld Roe by the slimmest margin (5-4).
AJR 3
Page 4
Any changes in the Supreme Court's membership could result in
further limiting or even overturning the Roe decision, thus
allowing states to substantially restrict a woman's right to
make reproductive choices. As further evidence of efforts to
limit a woman's right to make reproductive choices, in November
2003, Congress passed, and the President signed, the Partial
Birth Abortion Bill, which bans late-term abortions, without an
exemption to protect the health of the mother.
California law . Article 1, Section 1 of the California
Constitution reads, "All people are by nature free and
independent and have inalienable rights. Among these are
enjoying and defending life and liberty, acquiring, possessing,
and protecting property, and pursuing and obtaining safety,
happiness, and privacy." Thus California's Constitution, unlike
that of the United States, gives explicit protection to the
right of privacy, and the state has a long history of vigorous
protection of the privacy rights of its citizens. This measure
makes specific findings regarding the importance of continued
protection for a woman's right to choose. It would convey to
the President and the U.S. Congress the support of the
California Legislature for the protection extended under Roe v.
Wade on the occasion of the 32nd anniversary of the decision.
ARGUMENTS IN SUPPORT : In support of this legislation, Planned
Parenthood states:
At a time when women's reproductive rights are under attack at
the federal level, AJR 3 calls on Congress and the President
of the United States to protect and uphold the intent and
substance of the United States Supreme Court decision in Roe
v. Wade?.This decision has allowed millions of women to
control their reproductive health thereby improving the
quality of their lives and that of their families. It is
important to maintain awareness of women's health issues and
celebrate women's reproductive rights. That is why Planned
Parenthood Affiliates of California proudly supports AJR 3.
In support of a nearly identical resolution passed last session,
the California Commission on the Status of Women stated:
The 1973 decision in Roe v. Wade established constitutionally
based limits on the power of states to restrict the right of
women to choose to terminate a pregnancy. For thirty years
abortion has been a legal and constitutionally protected
AJR 3
Page 5
medical procedure nationwide. Consequently, women and
families today know that should they have to make the
difficult decision to terminate a pregnancy, they will have
access to a wide range of family planning services, including
a safe, legal abortion.
The California National Organization for Women last session
added:
Before, the Supreme Court decision thousands of women died
form illegal "back alley" abortions. Prior to the decision
made by the Supreme Court in Roe v. Wade illegal botched
abortion was the leading cause of maternal death. Therefore,
it is critical that we support every attempt to preserve the
right to choose so that women are ensured access to safe and
legal abortion? California NOW believes that choice is more
than the right to decide between alternatives. For women, it
is an issue of life and death.
ARGUMENTS IN OPPOSITION : In opposition to the nearly identical
resolution passed last session, the California ProLife Council
stated:
Under the reasoning and progeny of Roe v. Wade, the states
have been thwarted in almost every attempt to reasonably
regulate abortion. Roe v. Wade has prevented notification of
spouses when the death of their children is imminent.
Patients do not have the right to prevent abortions on their
minor children (even in the states which have parental
involvement laws, due to the required judicial bypass).
Grandparents are helpless to prevent the deaths of their
grandchildren. States cannot require that risky late, term
abortions be performed in hospitals. And every state law
brought before the Court to limit late-term abortions or
abortions after viability (babies big enough to hold in your
arms) has ultimately been declared unconstitutional. (It was
one of these decisions, Thornburgh v. American College of
Obstetricians and Gynecologists, which prompted Chief Justice
Burger, who had supported Roe, to say that Roe needed to be
revisited.)
AJR 2 [last session's resolution] seeks to protect a decision
AJR 3
Page 6
which has caused unspeakable death and destruction and the
emotional wounding of millions of women- not to mention a
spiraling disrespect for human life in the American culture.
It should be rejected.
Furthermore, last session the Committee on Moral Concerns
stated:
Quoting from Moral Principles & Medical Practice by Coppens,
"The school[ed] men of the middle ages, while condemning
abortion from the time of conception, preferred the opinion of
Aristotle, that the rational soul is not infused until the
foetus is sufficiently developed to receive it... All this
sounds very foolish now; and yet we should not sneer at their
ignorance; had we lived in their times, we could probably have
done no better than they... Modern science claims to have
proved beyond all doubt that the same soul animates the man
that animated the foetus from the very moment of conception."
This book was published in 1897. Over a century ago 'modern
science' understood that a fetus is an innocent, defenseless,
living human being? Now, we not only know where babies come
from, we have the pictures to prove it. This measure would
ask America to "celebrate" the most tragic denial of reality
in human history.
Also last session, the Catholics for Life, Sacramento Diocese
added:
As we approach the 30th anniversary of the tragic Roe v. Wade
abortion decision, it is with great sadness that we note that
many in the California Legislature are actually calling for a
celebration" in Assembly Joint Resolution 2. Yet thirty years
of abortion on demand have brought to our nation "a violation
of human rights incomparable in magnitude and an atrocity for
the whole human family. . . ."
REGISTERED SUPPORT / OPPOSITION:
Support
Lambda Letters Project
Planned Parenthood
California Commission on the Status of Women (supported last
session's legislation)
California National Organization for Women (supported last
AJR 3
Page 7
session's legislation)
Opposition
California ProLife Council (opposed last session's legislation)
Catholics for Life - Sacramento Diocese (opposed last session's
legislation)
Committee on Moral Concerns (opposed last session's legislation)
Analysis Prepared by : Drew Liebert and Meredith Nixon / JUD.
/ (916) 319-2334