Abortion battle explodes on ballots across nation

Photo by toner / CC BY-NC-SA 2.0.

Voters in half a dozen states get to decide whether to expand or contract abortion rights through ballot measures this year, providing a preview of fights to come across the nation after the U.S. Supreme Court overturned the constitutional guarantee to access an abortion.

The first ballot test came in August, less than two months after the Dobbs v. Jackson decision, when abortion-rights opponents suffered a surprising defeat in deep-red Kansas. The others will take place in California, Kentucky, Michigan, Montana and Vermont in November.

It’s the most abortion-related ballot measures to go before voters in any single year, despite much of the push beginning only after the Dobbs draft opinion leaked in May.

“That is a huge trend for this year that we anticipate will continue in the post-Roe world,” said Chris Melody Fields Figueredo, executive director of the Ballot Initiative Strategy Center, which supports progressive causes.

California’s Democratic-controlled legislature referred a constitutional amendment to voters in the weeks after the leak. The amendment, if passed, would add a constitutional right to reproductive freedom.

“It is our duty as legislators to fight for the people of California and their right to make decisions about their own bodies and access critical health care. This constitutional amendment is the additional armor we need for that battle,” state Senate President Pro Tem Toni Atkins (D) said as she introduced the measure, which passed the legislature on a party-line vote.

Vermont voters will also have the chance to include a “right to personal reproductive autonomy” to the state constitution.

In Michigan, a proposed constitutional amendment guaranteeing the right to reproductive freedom is headed to the state Supreme Court, after the state Board of Canvassers deadlocked over whether it would qualify. Abortion-rights proponents who gathered more than 750,000 signatures are confident that the court, which leans toward Democrats, will send the measure to the ballot.

“The amount of signatures that they were able to gather in the amount of time they had, it’s historic, but it’s also awe-inspiring,” said Michigan state Rep. Laurie Pohutsky (D), who chairs the Progressive Women’s Caucus. “With the way the court was shaping up, people knew that the right to an abortion was likely not guaranteed at the federal level.”

Opponents of abortion rights are campaigning for an amendment to Kentucky’s constitution that would include language explicitly stating that there is no fundamental right to an abortion. Voters in Montana will decide on an initiative referred by the legislature that would confer legal status to infants born at any stage of development, and require medical care for those born alive after induced labor, cesarean section or an attempted abortion.

In Kansas, voters turned out in significant numbers in the August primary to reject an amendment that would have clarified there is no right to an abortion in the state constitution. The 18-point margin was shocking given the state’s partisan lean to the right.

That contest has served as a guidepost for campaigners in other states — evidence, for abortion-rights supporters, that they can win even in conservative territory, and lessons, for abortion-rights opponents, about how to hone their own message.

The first state to vote since Roe v. Wade was overturned illustrated “the power of organizing” and the unpopularity of abortion bans, Figueredo said in an interview.

“It was very clear that reproductive freedom transcends party lines,” she said, “and what we have seen in the last years, often ballot measures can receive higher turnout than candidates.”

Addia Wuchner, a former state representative who heads Kentucky Right to Life and is leading the campaign to amend her state’s constitution, said her organization “looked very closely at what happened in Kansas,” noting that abortion-rights supporters are “well equipped with lots of money and lots of deceptive messaging.”

“We’re refining some of our steps that we’re taking for clarification and the next steps of the campaign, with an awareness of what happened in Kansas,” Wuchner said.

In many states where measures will be on the ballot, proponents of abortion rights have outraised opponents by wide margins.

Reproductive Freedom for All, the chief group backing the Michigan measure, has reported more than $10 million in contributions, about half of which came from divisions of the American Civil Liberties Union. The main group opposing the amendment, Citizens to Support MI Women and Children, had raised less than half a million dollars as of the last reporting period.

Vermont for Reproductive Liberty has raised half a million dollars for its campaign supporting the constitutional amendment, most of it from two arms of Planned Parenthood Action Fund. Their opponents, Vermont Right to Life, reported just $1,200 raised.

And in California, the group backing the proposed amendment, spearheaded by Atkins, has reported raising $3.1 million. Women for Reproductive Facts, the committee that has registered to oppose the amendment, has not reported any contributions.

Opponents of abortion rights raised $8 million to back the Kansas initiative, much of it funded by the Archdiocese of Kansas City and several other Catholic groups. But abortion-rights backers raised more than $11 million to oppose the amendment, much of it in the closing days of the race when they dominated the airwaves.

“We’ve always expected to be outspent. We will not be out-valued,” Kentucky’s Wuchner said.
Those tracking ballot measures say this year’s record will likely soon be shattered as advocates for and against abortion rights prepare a new round of initiatives and referenda.

Abortion-related ballot measures have a mixed record of success. In the half-century since the Supreme Court issued the Roe v. Wade ruling, 41 measures seeking to limit abortion rights have appeared on state ballots; about three-quarters, 30, have been rejected by voters. Since 1970, seven measures seeking to expand abortion access have been on the ballot, and just four passed.

Legislatures have been much more fertile ground for abortion-related bills. More than 2,000 bills or provisions related to sexual and reproductive health were introduced in the 46 states where the legislature met this year, according to a tally by the Guttmacher Institute, which supports abortion rights. Forty-two bills restricting abortions in some manner passed in 11 states, all of which are controlled by Republicans. Another 11 states passed 19 measures protecting abortion rights; just one of those states, New Hampshire, is controlled by the GOP.

The Supreme Court’s decision to overturn Roe is likely to lead to even more aggressive steps to curb or protect abortion rights — and to invite a backlash from voters.

“The states can completely outlaw abortion now. You’re going to have some state legislatures that are going to engage in that,” said Joshua Dyke, who chairs the political science department at the University of Massachusetts-Lowell and who has written extensively on the history of ballot initiatives. “You’re going to see a direct democracy response to that.”