California's Abortion Law: A Road Not Taken

By Lou Cannon - April 4, 2013

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By Lou Cannon

Forty-six years ago California Gov. Ronald Reagan reluctantly signed into law a liberalized abortion bill that was widely viewed by supporters and opponents alike as the harbinger of a national trend.

Indeed, it might have been.

During the next six years, many states liberalized abortion statutes, often following California’s lead in permitting abortions when doctors determined that pregnancy endangered the physical or mental health of the mother. By the time the Supreme Court established a constitutional right to abortion in the 1973 Roe v. Wade decision, 20 states had liberalized abortion and measures to do so were pending in several others. Four states -- New York, Alaska, Hawaii and Washington -- permitted abortions simply on a mother’s request.

For years, conservatives have complained that Roe overreached by short-circuiting legislative action on an issue that was traditionally the responsibility of the states. Last year, Supreme Court Justice Ruth Bader Ginsburg weighed in from the liberal side, criticizing Roe for cutting off legislative debate and, in so doing, empowering the anti-abortion movement.

“It’s not that the judgment was wrong, but it moved too far, too fast,” said Ginsburg, a supporter of abortion rights, in a speech at Columbia Law School. She said the high court could have decided Roe more narrowly, overturning the restrictive Texas anti-abortion law on which the case was based without shutting down the legislative debate in other states.

Ginsburg’s remarks have been cited in various briefs to the court, which is now pondering rulings in two same-sex marriage cases. One of these is California’s Proposition 8, an initiative prohibiting same-sex marriage that was approved by voters but deemed in violation of the California constitution by state and federal courts. The Supreme Court could, if it chooses, let these lower-court rulings stand and allow same-sex marriage to become legal in California without extending it to other states.

As with liberalized abortion four decades ago, time would appear to be on the side of those favoring gay marriage. Voters legalized it in three states last fall, and polls show overwhelming support for it among younger voters.

I was a Sacramento-based reporter when the California Therapeutic Abortion Act was being debated in 1967 and covered the issue closely for the San Jose Mercury-News. It was a fascinating story in which the dialogue was often more constructive than the unflinching exchanges that have been commonplace in the national abortion discourse since Roe.

Today, while same-sex marriage hangs in the balance, and several states (led by North Dakota and Arkansas) have imposed new restrictions on abortion that may again test Roe before a more conservative Supreme Court, it is instructive to look back and re-examine what happened when abortion was liberalized in California.

The phrases “pro-life” and “pro-choice” were barely known in 1967, when abortion reform was largely uncharted territory. Although any abortion discussion is emotional by its very nature, the debate in California was also remarkably civil. That was partly because the issue crossed party lines and partly because the bill’s author, a Democratic freshman state senator named Anthony C. Beilenson, was at once politically skillful and high-minded.

“I respect and admire the sincerity and moral convictions of the views of those who are opposed to abortions for any reason,” Beilenson said in presenting his bill on the Senate floor. “This bill is a request that they respect the sincerity, the religious beliefs, and the convictions of the majority of their fellow Californians.”

Beilenson was a liberal lawyer from Beverly Hills, Jewish in his faith. A majority of the bill’s legislative supporters were Protestants, and most of its opponents were Catholics. The Roman Catholic Church, which had ignored a similar bill in Colorado, was determined to defeat the Beilenson measure in microcosmic California, recognizing the influence its passage could have in the rest of the country.

Nevertheless, a survey by the respected pollster Mervin Field in March 1967 found that 67 percent of Catholics in the state wanted to liberalize the abortion law, which in California then permitted abortions only to save the life of the mother. Abortion mills flourished in Southern California and across the border in Mexico, and it was widely estimated that 100,000 illegal abortions were performed every year in the state.

The issue gained traction in Sacramento after nine physicians in the San Francisco Bay Area were charged with performing abortions on women with German measles, which can cause deformity in a child. Four suburban women quickly gathered 8,000 signatures on a petition urging that the doctors not be punished and that the law be changed. They dumped their petitions on the desk of a Republican state senator, a Catholic who received them courteously but told them that the church opposed changes in the law. One of the women responded that she was Catholic and had collected many of the signatures from co-religionists.

Still, Beilenson’s bill was almost buried in the Senate Judiciary Committee, from which the chairman, a Republican named Donald Grunsky, pried it loose on a 7-6 vote. One of the votes was Beilenson’s. Five of the other six votes came from Republicans.

Grunsky was a lawyer and usually savvy politician, widely respected by his colleagues. He told his fellow Republicans that they should vote for Beilenson’s bill so they could put abortion behind them once and for all.

The bill passed the Senate, 21-17, receiving the minimum number of votes required for passage. It was supported by 12 Democrats and nine Republicans. The only Catholic who voted for it was George Moscone, a Democrat and later mayor of San Francisco.

In the Assembly, liberalized abortion was also backed by a bipartisan coalition of liberals who wanted women to have more access to abortions and conservatives who objected to what they called the coercive power of the state. The coalition was headed by Craig Biddle, a Republican from Riverside and a former assistant district attorney, who was under pressure from the governor’s staff to stop the Beilenson measure from reaching the governor’s desk. Reagan had said at a press conference that he objected to the bill because it allowed abortions if a fetus were deformed. When a reporter pressed Reagan on whether he would sign the bill if this provision was removed and another more minor change was made, he said he would.

Beilenson promptly amended his bill to eliminate the provisions that offended Reagan. When the governor’s staff made still other objections, Biddle bluntly told fellow Republicans that Reagan would be reneging on his word if he did not sign the bill. The measure passed, 48-30, with 29 Democrats and 19 Republicans in the majority and 12 Democrats and 18 Republicans opposed.

These were “awful weeks,” Reagan told me two years after the measure had become law. He had been governor for barely six months when the Beilenson bill reached his desk, and he acknowledged that he would not have signed it if he had been more experienced. It would be the only time in his two terms as governor and two as president of the United States in which Reagan second-guessed his actions on major legislation.

Looking back at it, as a Reagan biographer, I’m more sympathetic than I was at the time about the governor’s predicament. Reagan knew that the California law was overly restrictive and was particularly bothered that it made no exception for rape or incest. But he was also receptive to the argument that abortion was the taking of a human life.

In wrestling with his decision, Reagan was bombarded by conflicting recommendations. He was poorly served by his staff, which split along religious lines and clumsily interfered in the legislative debate without ever making a coherent recommendation to the governor. Reagan’s chief of staff, Phil Battaglia, a Catholic, wanted the governor to veto the bill. His legal affairs secretary, Ed Meese, a Lutheran, wanted Reagan to sign it. (Like Biddle, Meese had been a county prosecutor and was well informed on the horror stories that too often attended illegal abortions.)

Nor did Reagan get respite at home. His wife, Nancy, who is believed to support liberalized abortion although she never said so in public, suggested to her husband that he talk to her father, Loyal David, former physician who was reactionary on many political issues but strongly supported permissive abortion laws, as most doctors did. Small wonder that Reagan veered from side to side, unable to make up his mind.

Subsequently, troubled by the millions of legal abortions that were performed in California after the Therapeutic Abortion Act became law, Reagan became a staunch foe of permissive abortion. It’s easy to say, as some have, that the conversion came too late to make a difference, but Reagan was sincere, and his opposition helped rally anti-abortion forces when he was in the White House.

For all of that, the changes in the California law wrought by the Beilenson bill and by similar laws in other states reflected a democratic process that arguably left in its wake less acrimony than did Roe, under which an estimated 55 million abortions have been performed since 1973.

All sides, including the Catholic Church, believed they had a chance to be heard in the California legislative debate over abortion, which was searing but fair-minded. Charges were dropped against the doctors who operated on the mothers with German measles. Most legislators on both sides of the Beilenson bill were re-elected. The abortion bill was not an issue when Reagan was re-elected in 1966. Beilenson went on to have a long and successful career in Congress.

The nation remains divided on the wisdom and morality of abortion. Gallup surveys show a majority of Americans favor retaining Roe and support abortions during the first trimester of a woman’s pregnancy. But these polls also show strong opposition to abortions during the second and third trimesters.

Would the issue be more settled if the Supreme Court, as Justice Ginsburg suggested, had overturned the Texas law on narrow grounds and let the legislative process continue in other states? And would the divisions be as ideological and regional as they are today? The South, for instance, is strongly opposed to permissive abortion law now, but six states of the former Confederacy passed abortion laws that were virtually identical to California’s in the six years between the passage of the Therapeutic Abortion Act and the Supreme Court decision nullifying state abortion laws.

We will never know what would have happened if the Supreme Court had allowed the states to continue down the road that California trail-blazed on abortion in 1967. What we would know, however, is that the abortion laws throughout the land truly expressed the will of the people. 

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Lou Cannon, who is traveling in Scotland, has written about the campaign for RealClearPolitics.

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