Abortion is directly on the ballot in at least five states this year

Originally published by The 19th.

Voters will directly weigh in on the future of abortion in at least five states, with a record number of measures on midterm ballots this year that would either limit or expand abortion protections.

Voters in California, Kansas, Kentucky, Montana and Vermont will be asked whether they want to change their state constitutions or laws. Michigan is expected to join that list, following a citizen-led initiative that wrapped public signature collections this week.

The unfolding dynamics show the complicated terrain for abortion regulation at different levels of state government and the judicial system. The ballot measures carry additional significance following a U.S. Supreme Court ruling in June that overturned federal abortion rights.

“The states have become even more of a battleground for reproductive freedom,” said Jessica Arons, senior policy counsel with the ACLU, which supports some of the measures that would expand abortion protections. “That is why we are also seeing both supporters of reproductive freedom and opponents turn to ballot measures as another tool to advance their position.”

Five or more abortion-related ballot measures in one election year surpasses a record of four first set in 1986, according to Ballotpedia, which tracks the issue. In some, voters will weigh in on legislative efforts to add something to the state constitution.

The ballot measures expected before voters this year:

• California: Within days of the court ruling that overturned Roe v. Wade, the Democratic-controlled legislature finalized legislation by the necessary two-thirds majority that would add abortion and contraception protections to the state constitution.
• Kansas: The Republican-controlled legislature approved a bill last year that would explicitly declare that abortion is not guaranteed under the state constitution and that the state won’t pay for it. The measure is in response to a 2019 Kansas Supreme Court ruling that affirmed abortion is protected under the state constitution’s bill of rights.
• Kentucky: In a similar move, Republicans who control the statehouse approved a proposal last year that states: “To protect human life, nothing in this Constitution shall be construed to secure or protect a right to abortion or require the funding of abortion.”
• Michigan: On Monday, organizers submitted nearly 754,000 signatures for a ballot measure to enshrine abortion access in the state constitution, nearly double the amount required. The signatures will now be reviewed to check if enough are valid for the proposal to move forward.
• Montana: Republican lawmakers approved legislation last year that would codify into state law legal rights for “infants born alive after an abortion.” For now, the right to an abortion is recognized under the Montana constitution’s right to privacy clause.
• Vermont: Democratic lawmakers approved a bill in February that states an individual’s “right to personal reproductive autonomy” shall not be “denied or infringed unless justified by a compelling State interest achieved by the least restrictive means.” The right to an abortion is already codified in state law.

Abortion-related ballot measures, whether as a proposal by a state legislature or a citizen-led initiative, have historically been led by anti-abortion lawmakers and groups. That may begin to shift: The ballot measures in California and Vermont, and possibly Michigan, represent the first time that voters will consider constitutional protections to abortion access.

“Let this be an important sign to all that the Supreme Court will *never* have the last word on our reproductive freedom. As long as we can organize and mobilize, there will be legally protected abortion access in America,” tweeted Reproductive Freedom for All, the group behind the Michigan ballot measure. The group did not respond to requests for comment.

The Michigan Supreme Court is considering whether a 1931 abortion ban that was previously dormant should go into effect following the Roe ruling. The Republican-controlled legislature has indicated support for the nearly century-old law while the state’s Democratic governor opposes it.

A coalition of anti-abortion groups under the name Citizens to Support MI Women and Children have launched a campaign against the ballot measure, arguing the text is too broad and will have unintended consequences on health regulations.

“We plan on launching a full campaign to protect our constitution from this can of worms and to protect Michigan’s women and children from the dangerous consequences of this amendment,” said Christen Pollo, a spokesperson for the group. “So they’ll be hearing a lot more from us if this does end up on the ballot.”

Citizens have also led efforts on abortion-related ballot measures in Arizona and Colorado. Arizonans for Reproductive Freedom announced earlier this month that it failed to collect enough signatures to add the question to the November ballot.

Tori Fewell, campaign chair for the group, noted that the group formed only after news reports of the Roe leak, giving organizers just 60 days to collect 356,000 signatures. The group, which ended up with 175,000 signatures and 3,000 volunteers, plans to try again for the 2024 election cycle.

“It was a very successful effort, and it would have been successful, I believe, if we had had more time,” she said. “I think going forward, we will have the luxury of more time and we will make it a priority to collaborate with our community partners in reproductive health care.”

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In Colorado, anti-abortion organizers face an August 8 deadline to collect enough signatures in support of a ballot measure that wold place an abortion ban in the state constitution. The text defines the “murder of a child” as “intentionally causing the death of a living human being at any time prior to, during, or after birth while the child is under the age of 18 years by using or prescribing any instrument, medicine, drug, or any other substance, device, or means, and causing death.”

Similar efforts to add abortion restrictions to the state consitutions have failed repeatedly in recent years, including in 2020.

According to Ballotpedia, there have been at least 47 abortion-related ballot measures since 1970. All but seven were supported by organizations that oppose abortions. Just 11 of the anti-abortion measures were approved.

In the past decade, voters approved multiple ballot measures that explicitly declared that abortion access is not protected in a state constitution. Voters approved such measures in Tennessee (2014), Alabama (2018), West Virginia (2018) and Louisiana (2020). An effort in Florida failed in 2012. During this time, voters in at least four states rejected amendments that attempted to define a constitutional right to life before birth.

Arons with the ACLU said the successful ballot measures that limited abortion protections have so far tied up legal options to challenge abortion restrictons in Alabama, where abortion is now banned, and Tennessee, where a ban after six weeks of pregnancy is in effect.

“When they put language like that in the state constitution, it means that politicians can pass these bans with no legal recourse,” she said.

In Kansas, Republican lawmakers passed the suggested constitutional amendment with one vote more than the two-thirds majority necessary for such a change. A similar effort failed in 2020 when some Republicans voted against the amendment.

If a majority of voters approve the measure, it is expected to open the door for Kansas Republican lawmakers, who control the legislature, to approve abortion restrictions that can withstand legal challenges.

Elisabeth Smith is the director of state policy and advocacy at the Center for Reproductive Rights, which supports ballot measures that expand abortion access. She said many of the measures that propose restricting abortion protections in state constitutitons carry different weight now that federal abortion protections have been overturned.

“We are obviously in a totally new world,” she said. “So those restrictive ballot initiatives, which in many states were seen as more of a political statement than an actual page to the law that had effects, now we know that such constitutional limits will affect abortion rights and access in the state.”

Value Them Both, a coalition of anti-abortion groups, is leading efforts to get the amendment passed in Kansas. The coalition, which did not respond to a request for comment, has focused its messaging on a 2019 Kansas Supreme Court ruling that determined abortion access is protected under the state constitution.

“A recent Kansas Supreme Court ruling removed the legal foundation for all existing laws that permit basic regulations on abortion,” according to the group’s site. “Value Them Both simply allows for these existing laws to be protected.”

Ashley All, a spokesperson for Kansans for Constitutional Freedom, a group that opposes the amendment, noted that Republican lawmakers placed the ballot measure in a primary election when fewer voters turn out. She said the group has been focused until now on getting people to register to vote ahead of a key deadline this week. That will shift to get-out-the-vote efforts now that early voting for the Kansas primary began Wednesday.

“I’m cautiously optimistic and hopeful that people will show up,” All said. “I mean, that’s the key.”