Midterms bring major constitutional wins for abortion rights
The first major election of the post-Roe era yielded new protections for abortion rights, as voters in three states approved measures to add constitutional protections guaranteeing access to the procedure.
Driving the news: California, Michigan and Vermont backed ballot measures that effectively make it impossible for state lawmakers to enact bans.
- Kentucky voters rejected a proposed amendment that said a constitutional right to an abortion does not exist in the state, the Associated Press reported, delivering a surprise win for abortion rights in the red stronghold.
State of play: The projected results send a "powerful and positive statement" that the public believes "this health care service should remain legal and accessible," said Elisabeth Smith, director for state policy and advocacy at the Center for Reproductive Rights.
- Without Roe, "state constitutions are now the best vehicle to protect abortion rights and ensure access," Smith added.
The other side: Ballot initiatives are not anti-abortion groups' strong suit, which they argue is due to being outspent by abortion rights organizations in political ads.
- Anti-abortion groups tend to be more successful when a candidate is involved "because we have an advocate we don't have to pay for on our side," said Marjorie Dannenfelser, president of Susan B. Anthony Pro-Life America, one of the largest anti-abortion organizations in the U.S.
The big picture: Advocates on both sides of the abortion debate zeroed in on midterm elections, calling attention to how states can have the last say in absence of federal protections.
- "To see the court sort of step in in this way and overturn rights people thought were secure, then means that people see that they need their policymakers to reflect their actual values," said Elizabeth Nash, lead state policy analyst for the Guttmacher Institute.
- Without Roe, abortion has become "part of the political discourse in a way that it just hasn't been" in the past, Nash added.
Don't forget: While the common narrative around abortion, particularly among Republicans, has been that it is now a state issue, the Supreme Court's opinion specifically gave "elected representatives" the power to regulate abortion.
- This means that while state lawmakers have a say in the matter, the U.S. Congress does as well.
- Such a bill would be "our number one" issue, said Dannenfelser of SBA Pro Life America, which has close ties to top Republican leaders.
Voters approved a constitutional amendment to create a right to "reproductive freedom," including protecting abortion access in the state, the Associated Press reported.
- The petition to add the amendment to the ballot earned the most signatures of any ballot initiative in state history
The amendment — which takes effect 45 days after the election — effectively bars enforcement of the state's 1931 pre-Roe abortion ban, but it does not repeal it, according to Steven Liedel, legal counsel for Reproductive Freedom for All, which campaigned in favor of Prop 3.
- In order for a law to be repealed in Michigan, either the state legislature must take action, citizens could begin the initiative process to reject a law, or there could be some executive branch action, such as a notice from the state's attorney general.
Voters in California — which already has a law protecting abortion before viability — approved a state constitutional amendment, which says that a person has a "fundamental right to choose to have an abortion," the Associated Press reported.
- The amendment protects an individual's reproductive autonomy in general, holding that "[t]he state shall not deny or interfere with an individual’s reproductive freedom in their most intimate decisions," which includes getting an abortion and using contraceptives.
Voters overwhelmingly backed adding an amendment that protects abortion access under the state's constitution, the Associated Press reported.
- The amendment states 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."
Voters in the state, which has two abortion bans in place, rejected a state constitutional amendment that would have made it impossible to protect abortion access.
- The proposed amendment would have added a sentence to the state's constitution, saying that "[t]o protect human life, nothing in this Constitution shall be construed to secure or protect a right to abortion or require the funding of abortion."
Kentucky is now the second state in the post-Roe era to reject an anti-abortion ballot measure, following Kansas in August.
- Rejecting the amendment opens the way for the state Supreme Court to nullify Kentucky's abortion bans, which are facing legal challenges.
- The state's highest court in August denied a request from abortion rights advocates to block an appellate court's ruling allowing for two abortion bans to take effect in the state. However, it decided to hear oral arguments in the case on Nov. 15 to decide on the constitutionality of the laws.
- "The Kentucky Supreme Court scheduled oral arguments on the trigger ban post-election for a reason. They want to see what Kentuckians have to say in the General Election before they decide the fate of pregnant people across the Commonwealth," said Angela Cooper, spokesperson for the ACLU of Kentucky, one of the groups challenging the state bans.
What they're saying: Sara Tabatabaie, chief political officer for #Voteprochoice, told Axios that abortion rights groups will continue to focus on red states like Kentucky in future elections "because we know that there’s an opportunity to regain ground."
Montana voters rejected a state law that would have given infants "born alive" at any stage of the pregnancy "legal person" status, and would impose criminal penalties for health providers who do not act to sustain their lives, even if they are nonviable, the Associated Press reported.
- Montana's was the last abortion-related ballot measure to be called. The voters' rejection means that all states where the procedure was on the ballot voted in favor of abortion rights.
What they're saying: "Reproductive freedom was on the ballot this election and voters in Montana and across the country showed up to defend their right to bodily autonomy and self-determination," said Alexis McGill Johnson, president and CEO of the Planned Parenthood Federation of America.
- "They’ve seen the impact of these bans and restrictions in their communities and nationwide, and fought back at the ballot box — proving without a doubt that this is a winning political issue," she added.
Editor's note: This is a developing story, please check back for updates.