Abortion advocates are trying to outflank lawmakers using 2024 ballots

Read more Stateline coverage on how states protect or restrict access to abortion.

Buoyed by six wins — and zero defeats — in this month’s midterm elections, abortion rights advocates are considering another round of ballot measures in 2024 that would enshrine reproductive freedom in state constitutions.

This time, they’re targeting states with strong abortion restrictions already on the books, hoping to outflank anti-abortion state legislatures and courts that are out of step with most residents.

Based on the midterm elections, the presence of such initiatives on the ballot could also boost Democratic candidates. Contrary to predictions, abortion was the top issue for a large percentage of voters, especially those in states where an abortion measure was on the ballot, according to exit polls.

Only 17 states allow citizens, not just legislators, to vote on proposals to change the state constitution. Among them, abortion rights advocates in at least 10 states with abortion bans or strict restrictions — Arizona, Arkansas, Florida, Missouri, Montana, Nebraska, North Dakota, Ohio, Oklahoma, and South Dakota — are already discussing strategies and tactics to support abortion initiatives. to initiate. in the 2024 presidential election.

“They’re starting now because the process of getting any measure on the ballot is very long,” said Kelly Hall, executive director of the Fairness Project, which provides technical support for state ballot initiatives.

Abortion rights are particularly suited to the voting process, she said, because it gives voters the power to determine how they are governed when elected leaders are out of sync with public opinion.

Signs of protesters for abortion rights
(Photo by Astrid Riecken/Getty Images)

Nationally, 6 in 10 Americans say abortion should be legal in all or most cases, according to a June 2022 poll by the Pew Research Center. (The Pew Charitable Trusts funds the center and State border.)

In an October poll, 59.1% of Ohioans said they would support an amendment to the state constitution for abortion rights. In July, 57% of Floridians said they disagreed with the U.S. Supreme Court’s decision to strike down Roe v. Wade. And even in bright red Arkansas, a whopping 79% of respondents to a poll released earlier this month said abortion should be legal at least under certain circumstances.

In recent elections, progressive ballot measures to expand Medicaid to low-income people, legalize marijuana use, and raise the minimum wage have been successful in both the blue and red states.

“Our experience of using ballots in conservative states is that if we can remove the partisan labels from certain issues, we can win even in conservative parts of the country, and that’s what we saw happen this year with abortion and reproductive rights.” Hall said.

Ahead of the midterm elections, Clarke Forsythe, senior adviser at anti-abortion Americans United for Life, said he was concerned about abortion-affirming constitutional amendments in California, Michigan and Vermont, saying they would get the issue out of hand. would take from elected leaders.

Intermediate access

So far, only abortion rights advocates in Oklahoma and South Dakota have filed constitutional amendment initiatives for the 2024 vote, according to Ballotpedia, which tracks elections in all 50 states. In addition, lawyers in Ohio are publicly discussing a similar measure, according to recent newspaper articles.

But for the approximately 34 million women of childbearing age who live in the 25 states where abortion is now or will soon be banned, waiting more than two years to access the procedure in their home state is not an option.

That’s why national abortion rights advocates are urging states where abortion remains legal to continue investing in funds to help low-income women who would have to travel for the procedure. Advocates are also urging abortion-friendly states to use state revenues to support clinics in preparation for an influx of patients.

In the meantime, national and state abortion advocates say they intend to pursue all legal and political strategies to gain access for as many patients as possible. Still, the prospects for expanding access to the procedure over the next two years in states with GOP-dominated legislatures and conservative courts after the midterm elections are dim.

More than 1,000 protesters in Nashville.
More than 1,000 protesters in Nashville filled the city’s streets Friday to express their displeasure with the U.S. Supreme Court’s decision in Dobbs v. Jackson. (Photo: John Partipilo, Tennessee Lookout)

Hence the focus on the 2024 constitutional amendments. According to state legal experts, ballots that enshrine abortion rights in state constitutions are the most sustainable way to protect those rights from future political shifts.

But until the overwhelming success of the initiatives in the midterm elections, political pundits were unsure whether the rarely used strategy would work. Now they expect abortion ballots to appear in many more states by 2024.

“Constitutional amendments are underappreciated,” said John Dinan, a political science professor at Wake Forest University in North Carolina. “People tend to focus on state disputes. But constitutional amendments are a much more sustainable way to ensure abortion rights than legal action.”

The first step for state abortion rights advocates is to create language that appeals to the political will of their state’s residents while leaving very little leeway for the state’s Supreme Court justices who will decide future cases based on the amendment, said Hall.

To successfully pass the 2024 ballot, Hall said, the language must be submitted in the first quarter of 2023.

Protesters hold up signs at a protest outside the Texas capital on May 29, 2021 in Austin, Texas. Thousands of protesters came out in response to a new law banning abortion after six weeks signed by Texas Governor Greg Abbott. (Photo by Sergio Flores/Getty Images)

A long game

This year, voters in California, Michigan and Vermont approved measures to change their state constitutions to include a right to abortion.

In Kansas and Kentucky, voters rejected anti-abortion measures that would have made it clear that the state constitution did not guarantee abortion rights. A measure in Montana that could have penalized health care providers who failed to provide life-saving care to all babies born prematurely or after attempted abortions was also lost.

The amendments passed in California and Vermont, where abortion rights are already enshrined in state statutes and state Supreme Court precedents, are designed to ward off future attempts to limit abortion rights.

New York lawmakers approved a similar measure this year that is expected to appear on the 2023 ballot, and New Jersey lawmakers plan to put a measure on the 2023 ballot.

While welcomed by abortion rights advocates, such proposals are not intended to change the status quo.

But ballot initiatives like the one approved in Michigan aim to immediately expand access to abortion by forcing the state’s Supreme Court to overturn any law that violates the constitutional right it grants.

In Michigan, the voter-approved constitutional amendment will go into effect in January and is expected to prompt the state Supreme Court to overturn a 1931 abortion ban issued by a state court.

“It matters a lot how a constitutional amendment is worded,” said Dinan of Wake Forest University. And the Michigan amendment was worded very clearly. It would be hard to imagine a judge, today or in the future, staring at the clear language in the state constitution and ruling negatively.

“In any state where reproductive rights are at risk,” he added, “the question is whether pursuing a constitutional amendment should be as high a priority as campaigning to elect liberal Supreme Court justices or pursuing litigation to to set a precedent for the Supreme Court, an easy phone call.”

But for national abortion rights advocates, the immediate needs of patients and caregivers may be a more pressing priority, says Elizabeth Nash, chief policy officer at the Guttmacher Institute, which supports abortion rights.

“We want to do everything, but with limited resources we often have to choose priorities,” she said. In some states, she said, helping patients who can’t afford to travel to another state for an abortion or investing in abortion clinics may be more important than pursuing ballot measures.

“Ballot measures are really a long-term strategy,” Nash said. “We put them there to last for decades. But in a given state, they might not have the immediate impact of, say, a $20 million fund for abortion patients who can’t afford to travel.

Hall, of the Fairness Project, echoed that sentiment. “States considering 2024 ballots,” she said, “are wondering if now is the right time or if a new kind of process or investment in new candidates would be most effective. All of these things must be decided locally in a state-by-state process.”

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