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Calif. amendment sparks debate about the concept of fetal viability during pregnancy


California voters are deciding whether to add a state constitutional amendment that protects abortion rights. But specifics are hard to come by. KQED's April Dembosky reports.

APRIL DEMBOSKY, BYLINE: Before the final legislative vote on the amendment, one Democrat after another stood up and declared their commitment to women's health, autonomy and equality. But then Republican Kevin Kiley asked a pointed question.


KEVIN KILEY: California law generally bars the performance of an abortion past the point of fetal viability. Would this constitutional amendment change that?

DEMBOSKY: The legislative chamber went quiet.


DEMBOSKY: For a full 30 seconds, no one said anything. Democratic assembly speaker Anthony Rendon whispered with colleagues. He asked to have the question repeated. Then he went quiet again.


ANTHONY RENDON: I'll answer that question and others in my closing.

DEMBOSKY: He never did. Under current California law, abortion for any reason is allowed up to viability, the point at which a fetus can survive outside the womb. But the constitutional amendment doesn't mention the word viability anywhere.


JAMES GALLAGHER: And that's why I can't support this constitutional amendment today - because of what's missing from it.

DEMBOSKY: Republican assembly member James Gallagher says his twin boys were born 2 1/2 months premature.


GALLAGHER: And they were alive, and they were people.

DEMBOSKY: Without explicit time limits on abortion, he says the amendment gets the balance wrong between the rights of the mother and the fetus.


GALLAGHER: It says nothing about their rights.

DEMBOSKY: Throughout the debate, there were several awkward moments when Democrats scrambled to answer questions or even seemed confused by the language of their own proposed amendment. But doctors like Pratima Gupta, who helped draft the amendment, say there was no mistake here. The word viability was left out on purpose.

PRATIMA GUPTA: Every pregnancy is individual, and it's a continuum.

DEMBOSKY: She says people come into pregnancy with a range of pre-existing health conditions - diabetes, anemia, high blood pressure. All of these very nuanced factors determine whether a fetus is viable.

GUPTA: For example, if I see a patient who has broken their bag of water at 23 weeks of pregnancy, that doesn't mean that it's viable or not viable.

DEMBOSKY: In recent years, at least three other states have removed gestational age limits from their abortion laws, including Colorado, New Jersey and Vermont. Abortion opponents say if California follows suit, women will be lining up for abortions when they're eight months pregnant, for whatever reason at all. But the latest research suggests this is not going to happen.

ELIZABETH NASH: There's a very small percentage of abortions that take place at and after 21 weeks. It's about 1%.

DEMBOSKY: Elizabeth Nash is an abortion policy analyst at the Guttmacher Institute. She says women seek abortions later in pregnancy because of serious medical complications and, increasingly, legal barriers.

NASH: It may be that they're delayed because there are lots of restrictions they have to comply with, maybe because they need to travel for an abortion. It may be that they can't get time off of work or that it was a wanted pregnancy and something happened.

DEMBOSKY: Even in California, polls show voters get more uncomfortable with abortion the later it gets in pregnancy. But when it comes to this amendment, almost three-quarters say they're going to vote for it.

MARY ZIEGLER: The politics of viability have changed.

DEMBOSKY: Mary Ziegler is a law professor at UC Davis. With the Supreme Court erasing the federal right to abortion, she says the vast majority of Californians are not inclined to nitpick.

ZIEGLER: These viability arguments that had obviously been compelling for decades don't land the same way.

DEMBOSKY: Ziegler says, if the amendment passes, the wording does open the door to allowing abortion at any point in pregnancy, but it will likely be left to the courts for the final interpretation.

For NPR News, I'm April Dembosky.

MARTINEZ: This story comes from NPR's partnership with KQED and Kaiser Health News.


April Dembosky