California's Abortion Law: A Road Not Taken

California's Abortion Law: A Road Not Taken

By Lou Cannon - April 4, 2013

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.

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

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