Abortion ballot measures seen as a critical — but tricky — strategy

This article by Christine Vestal originally published in Stateline, an initiative of The Pew Charitable Trusts.

The landslide victory for abortion rights in a Kansas primary election this month was the first direct expression of voter sentiment on the issue since the U.S. Supreme Court overturned the nearly 50-year-old constitutional right to abortion in June.

Even abortion rights supporters were surprised by the large majority of voters in conservative Kansas who rejected a GOP-backed state constitutional amendment that would have said there is no right to an abortion in the state. Adopting the amendment would have paved the way for the Republican-dominated state legislature to further restrict or ban the procedure.

Two more initiatives opposing abortion rights and three supporting it are slated for ballots in November — the most on record in a single year. And state lawmakers and advocates already are preparing ballot initiatives in a handful of states for the 2023 and 2024 elections.

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Two more initiatives opposing abortion rights and three supporting it are slated for ballots in November — the most on record in a single year. And state lawmakers and advocates already are preparing ballot initiatives in a handful of states for the 2023 and 2024 elections.

But legal and political experts on both sides of the issue remain circumspect about what the Kansas vote may mean for future elections in the rest of the country.

“What worked for abortion rights supporters in Kansas may not work in other states where abortion is restricted,” said Elizabeth Nash, principal policy associate at the Guttmacher Institute, which supports abortion rights.

“It’s not clear exactly what motivated voters to come to the polls in such huge numbers,” she said. “Kansas was a very important vote, but it didn’t turn Kansas into California overnight.”

For abortion rights supporters, the biggest challenge likely will be a ballot question in Kentucky, where former President Donald Trump won by an even wider margin in 2020 than he did in Kansas.

The Kentucky “No Right to Abortion in Constitution Amendment” will ask voters whether the state constitution should be amended to say that it does not include a right to abortion nor require government funding for abortion.

Another anti-abortion measure, in Montana, asks voters to approve a law that would require infants born alive at any stage of development to receive medical care after an abortion or other pregnancy outcome and would establish a penalty of 20 years in prison and/or a $50,000 fine for violators.

On the other side of the issue, voters in California, Michigan and Vermont would decide whether their state constitutions should establish an affirmative right to abortion. California’s and Vermont’s measures already have been certified for the ballot, and Michigan’s is expected to be by the end of this month.

Although California and Vermont voters are expected to approve their proposed constitutional amendments, the vote is less certain in Michigan. And after Kansas, the outcomes of the anti-abortion ballot questions in Kentucky and Montana are also in doubt.

“People thought the Kansas amendment was going to be approved and, if it failed, it would be by a very small margin,” said Rachel Rebouché, dean of Temple University’s law school in Philadelphia.

“That didn’t happen,” she said. “It’s a clear statewide and national message that people’s views aren’t locked in along party lines.”

Planned Parenthood wrote in an email to Stateline that it would continue to include constitutional ballot measures in its abortion rights arsenal.

“Ballot initiatives have always been a part of Planned Parenthood Action Fund’s strategy, and we will increasingly pursue them where they are the best strategy for defending or increasing access to sexual and reproductive health care. That said, everything is on the table,” wrote Sarah Standiford, the organization’s national campaigns director.

Clarke Forsythe, senior counsel at Americans United for Life, which opposes abortion, said: “The outcome in Kansas will certainly cause [anti-abortion] leaders in other states to take a closer look at constitutional amendments.”

But no matter what is determined to be the cause of the Kansas initiative’s failure, Forsythe said, abortion opponents aren’t going to be deterred.

“In some states, ballot initiatives will be absolutely necessary,” he said.

Forsythe noted that state Supreme Court decisions in Alaska, Florida and Minnesota, all states that may otherwise have the political will to restrict abortion, could be used by a court to strike down abortion laws.

There are only so many ways to overturn state Supreme Court decisions that support abortion, Forsythe said.

“Ask the same judges to rehear the case, appoint new judges and try the case again or ask voters to approve a constitutional amendment.”

In 2018, the Iowa Supreme Court affirmed a state constitutional right to abortion, but a new set of judges overturned that ruling in June, days before the U.S. Supreme Court overturned Roe.

Last year, Iowa lawmakers approved a measure for the 2024 ballot that would amend the constitution to say that it does not recognize the right to an abortion. The legislature will have to approve the amendment again next session before it can appear on the ballot.

Also expected on the 2024 ballots are citizen-initiated abortion rights amendments in Arizona and South Dakota and a proposed statute in Nevada that would require parental notification before a minor can get an abortion.

Washington state lawmakers revised a citizen-initiated measure that would roll back the state’s abortion rights law, which allows the procedure up to viability (generally 24 weeks), to bar it after 15 weeks of pregnancy. The 2023 ballot will ask Washington voters whether they want to replace the current abortion law with one of the 15-week bans or to leave the law as it stands now.

Pennsylvania lawmakers approved a measure that would amend the state constitution to explicitly affirm that it does not grant the right to abortion.

Voters in four states already have approved constitutional amendments explicitly affirming that their state constitutions include no right to or protections for abortion. Tennessee’s measure was approved in 2014, Alabama’s and West Virginia’s in 2018 and Louisiana’s in 2020.

On the other side of the issue, New York’s legislature this year approved a constitutional amendment ballot measure that would create a right to reproductive autonomy. The New York Assembly will have to approve the measure again next year for it to appear on the 2023 ballot.

A poll conducted in June and July by the Pew Research Center found that 62% of Americans believe abortion should be legal in all or most cases. But state polls indicate wide variations among states. (The Pew Charitable Trusts funds both the Pew Research Center and Stateline.)

Temple University’s Rebouché said she expects advocates on both sides of the abortion issue to vigorously pursue ballot measures, particularly constitutional amendments, because they tend to have greater longevity than statutes.

But she said, their strategies will have to be more nuanced, given the upset in Kansas.

“The way we thought about abortion law before Dobbs [the Supreme Court decision that overturned Roe v. Wade], was that it was an on-off switch. States either permitted it or restricted it. That’s still true when characterizing states like California vs. Texas.

“But I think that in the next few months we’ll see some surprises,” Rebouché said. “I expect voters to react very differently to what’s happening in real time in their states since the Dobbs decision. Who’s coming into the state, who’s leaving the states, and who’s being denied medical care.”

Images courtesy of Bruce Parker/TNR and Public domain
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