State Sen. Judy Ward, R-Blair, the architect of a proposed constitutional amendment that would declare there is no right to abortion in the state’s foundational document (Screen Capture).
WASHINGTON — Voters in at least three states will determine at the polls in November what abortion access looks like for their neighbors, colleagues, friends and family — becoming some of the first Americans to deliver their own verdicts on the U.S. Supreme Court’s decision to overturn Roe v. Wade.
Residents of California, Kentucky and Vermont will decide if their state constitutions should protect abortion access. Michigan voters appear likely to join them, though officials are working through a challenge from an antiabortion group, which argued the petition text is “confusing gibberish” due to numerous errors.
The ballot questions are expected to provide a clearer picture of voters’ opinions on abortion than which candidates they vote for during the midterm elections, in part because people rarely pick candidates based on just one issue.
That could make ballot questions a popular way for states to determine when and how pregnant patients can access elective or medically necessary abortions — potentially thwarting abortion bans levied in some states after the Supreme Court ruling. Ballot initiatives could even give some politicians escape routes from difficult debates.
“If I were a wise politician, this would be exactly what I would want to do,” said Lonna Atkeson, the LeRoy Collins Eminent Scholar in Civic Education & Political Science at Florida State University. “I’d want to take it out of my hands and try to figure out what the public wants, so it doesn’t create problems with my reelection goals.”
Atkeson, director of the nonpartisan think tank the LeRoy Collins Institute and a member of the MIT Data and Election Science Board, said ballot questions could give Republican candidates the ability to say “I’m pro-life, I think life is important … but I respect the people.”
“It’s even great for Democrats in a way,” she added. “If the electorate wants a more nuanced policy, if they want some limits, then I think that even offers Democrats the same relief valve. So that’s the huge advantage.”
Drives are underway in Iowa, Nevada, New York, Pennsylvania, South Dakota and Washington to get questions on the ballot in the next two years, according to Ballotpedia.
Kansas was first
Voters in Kansas were the first in the country to render an opinion on abortion access following the U.S. Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization, when the conservative justices opted to end the constitutional right to abortion and send the issue “to the people and their elected representatives.”
In an unexpected victory for abortion rights supporters, 59% of Kansas voters supported keeping abortion protected under the state’s constitution, while 41% wanted to remove those protections. Their removal would have given the green light to anti-abortion lawmakers who wanted to pass legislation that likely would have restricted abortion.
Ally Boguhn, communications director for NARAL Pro-Choice America, said the organization will be working with its partners in states to determine if ballot questions are a path forward for expanding, or keeping, abortion access.
“I think that the success we saw in Kansas is making people look again at ballot measures all over the place,” Boguhn said.
The margin of victory for abortion rights supporters in Kansas, Boguhn said, “leaves no doubt that this is a really winning issue and that voters are very eager to weigh in.”
Clarke Forsythe, senior counsel at Americans United for Life, which declined an interview request, said in a statement that ballot questions may “play a role” following the Supreme Court’s ruling on abortion this summer.
Abortion rights organizations, Forsythe said, “may believe that if they can outspend the pro-life side, ballot initiatives and referenda are a better forum for them” than moving bills through state legislatures.
“That may be part of the reality of the post-Dobbs political landscape that pro-life Americans will have to confront,” Forsythe said.
The outcome in Kansas contrasted with how Kansans have voted for statehouse and congressional candidates, possibly indicating that while Kansas voters generally favor GOP elected representatives and most of the policies they support, they also want to keep abortion legal.
Kansas voters haven’t sent a Democrat to the U.S. Senate since the 1930s and are currently represented by U.S. Sens. Jerry Moran and Roger Marshall, both of whom oppose abortion. The state House and state Senate have been controlled by Republicans for decades.
Beth Reingold, professor of political science and women’s, gender, and sexuality studies at Emory University in Atlanta, said because gerrymandering has skewed state legislative and congressional districts, ballot questions could be an avenue for majority rule on abortion.
“In some ways, I think many are looking at the ballot initiatives as the one last option, or the last great hope for majority rule,” Reingold said. “Because minority rule has sort of captured the legislatures and the courts.”
Reingold said it’s hard to predict right now if ballot questions will become a common way to address abortion rights in the post-Dobbs era, or if voters may consider ballot questions every few years, the way they vote on candidates’ reelections.
“It’s kind of hard to predict. But the more it seems like the ballot initiative is the only or best option for a particular side, then yeah,” she said.
Statewide votes on abortion
Not all states, however, have ballot initiatives, Reingold noted.
Twenty-five states have measures in place for direct initiatives, in which voters have a way to put questions directly on the ballot, or indirect initiatives, where the proposal is submitted to the state legislature first.
Alaska, Arizona, Arkansas, Colorado, Florida, Idaho, Maine, Maryland, Michigan, Missouri, Montana, Nebraska, Nevada, New Mexico, Ohio, Oregon and South Dakota are among the states with some path for residents to get a question on the ballot.
There are other ways of getting a statewide vote on abortion, however.
When voters head to the polls in California, Kentucky and Vermont later this year they’ll be voting on a legislatively referred constitutional amendment, in which state lawmakers first voted to amend the state’s constitution and are now getting the voters to sign off on the change.
Kentucky voters will be asked if they’re in favor of amending the state constitution to say: “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.”
California voters will get to decide if they support amending their constitution to say the state “shall not deny or interfere with an individual’s reproductive freedom in their most intimate decisions, which includes their fundamental right to choose to have an abortion and their fundamental right to choose or refuse contraceptives.”
Polling from the Berkeley Institute of Governmental Studies shows about 71% of state residents plan to support the ballot question.
Vermonters will vote on adding language to the state’s constitution that “an individual’s right to personal reproductive autonomy is central to the liberty and dignity to determine one’s own life course and shall not be denied or infringed unless justified by a compelling State interest achieved by the least restrictive means.”
Kansans similarly voted on a legislatively referred constitutional amendment this summer when they opted to keep abortion access protected under their state constitution.
State legislatures can also refer state laws to voters.
That’s what happened in Montana last year, when state lawmakers voted to place a question on this year’s ballot, asking residents whether they want state law to say that a “born-alive infant, including an infant born in the course of an abortion, must be treated as a legal person under the laws of the state, with the same rights to medically appropriate and reasonable care and treatment.”
More states in 2023
Since it can take months for state lawmakers or citizens to get a ballot question in front of voters, efforts have already gotten underway in a number of states to meet the requirements for abortion-related referendums.
New York, Pennsylvania and Washington are on track to address abortion ballot initiatives in 2023 followed by possible statewide votes in Iowa, Nevada and South Dakota in 2024, according to Ballotpedia.
In Pennsylvania, Senate Bill 106 — a constitutional amendment package that would make changes to voter ID law, the process for electing a lieutenant governor and alter the state’s foundational document to declare that there is “no constitutional right to taxpayer-funded abortion or other right relating to abortion” — is the subject of a lawsuit between Democratic Gov. Tom Wolf’s administration and the Republican-controlled General Assembly.
The package, which cleared the Legislature on first consideration in July, as lawmakers negotiated the 2022-23 state budget, needs to be approved by the General Assembly twice before it can reach voters for final approval.
Currently, abortion is legal until 24 weeks gestation in Pennsylvania, but reproductive rights advocates and health care providers have said that if approved, SB106 could block access to potentially life-saving reproductive health care and exacerbate existing health care inequities.
Wolf, a former Planned Parenthood escort, has long been the commonwealth’s last line of defense against legislation seeking to limit or ban abortion in Pennsylvania, vetoing six-week abortion bans as well as bills banning abortion on the diagnosis of Down Syndrome.
However, Wolf, who leaves office in January, cannot veto a constitutional amendment. The soonest the amendment could appear before Pennsylvania voters is May 2023.
Andra Gillespie, associate professor of political science at Emory University, said the language of future ballot questions could matter significantly in determining whether they’re approved or rejected.
“Especially in some of the Democratic-leaning states, if you put constitutional amendments on the ballot that say ‘There should be an unrestricted right to abortion, it doesn’t matter when it takes place in the course of the pregnancy,’ that may fare differently than a conservative ballot initiative or constitutional amendment referendum that would say ‘We’re gonna ban abortion at all times, with no exceptions,’” she said.
“So I think we’ll have to be really careful to remember that wording matters, and you’re not going to have quite an apples to apples comparison,” Gillespie added.
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