Ballot measures could shore up — or obliterate — abortion rights.
Abortion rights are literally on the ballot in both red and blue states this year following the US Supreme Court’s decision to overturn Roe v. Wade.
In early August, Kansas rejected a measure that would have clarified that its state constitution does not establish a right to an abortion; Kentucky is set to weigh a similar measure in November. Voters in California and Vermont will consider ballot measures that would enshrine the right to abortion in their state constitutions (and voters in Michigan are likely to as well). Meanwhile, Montana is considering whether to provide personhood protections to infants born alive after attempted abortions.
It’s the highest number of abortion-related ballot measures that have been considered in a single year to date. There have been 47 abortion-related ballot measures since 1970.
Here’s a rundown of what states are considering.
States voting to codify abortion rights
Vermont and California, both heavily Democratic states that have sought to become abortion safe havens, are voting this November on constitutional amendments to even further secure abortion access.
Vermont — which allows abortions at any stage of pregnancy and has already enacted a state law codifying abortion rights — has certified a ballot measure, Proposal 5, that recognizes that the “right to reproductive liberty is central to the exercise of personal autonomy and involves decisions people should be able to make free from compulsion of the State.” It says that codifying that right in the state constitution is “critical to ensuring equal protection and treatment under the law and upholding the right of all people to health, dignity, independence, and freedom.” It’s likely to pass, given that about 70 percent of voters in the state support legal abortion in all or most cases.
In California, where abortion is legal up to the point of fetal viability, the state legislature voted on June 27 with overwhelming support in both chambers to put a similar proposal, Senate Constitutional Amendment No. 10, on the ballot. It would “prohibit the state from denying or interfering 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.” It is designed to protect the state constitutional right to privacy and equal protection under the laws, it reads.
It’s also likely to pass, given that a poll last year by the Public Policy Institute of California found that roughly four out of five voters in the state oppose the overturning of Roe. Though Gov. Gavin Newsom’s approval isn’t needed for it to go into effect, he has vowed to “fight like hell” to protect abortion access.
Abortion advocates in Michigan spent the last few months gathering a record number of signatures — over 750,000, nearly double what they needed — to put a state constitutional amendment affirming abortion rights on the ballot in November. A vote on the amendment isn’t official yet, since the signatures have to be verified by the Bureau of Elections and validated by the Board of State Canvassers, but it’s expected to be cleared.
The stakes are high: Michigan has a pre-Roe abortion ban that was first enacted in 1931 and has no exceptions for rape or incest. The GOP-controlled state legislature isn’t likely to overturn that ban, so Gov. Gretchen Whitmer, a Democrat, asked the Michigan Supreme Court to strike it down and affirm that the state constitution includes the right to access an abortion. That legal battle is still playing out, and the ban has been blocked by other courts for now. If the amendment passes — and it likely will, given that 58 percent of Michigan voters opposed the Supreme Court’s decision to overturn Roe — that would invalidate the ban.
States voting to curb abortion rights
Kansas was the first state to consider a post-Roe ballot measure on abortion. Roughly 47 percent of eligible voters — more than 900,000 Kansans — cast ballots on the issue during their August 2 primaries, and soundly rejected it, 59 percent to 41 percent, with turnout well exceeding expectations.
The measure, known as the “Value Them Both Amendment,” would have “affirm[ed] there is no Kansas constitutional right to abortion or to require the government funding of abortion.” It would have also codified the state legislature’s power to pass laws that regulate abortion, including in cases of rape or incest, or when necessary to save the life of the mother.
Kentucky will consider a similar measure on November 8 that would amend 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.”
Kentucky is one of 13 states that enacted a “trigger law” in anticipation of the end of Roe that allowed abortions only to save the life of the pregnant person or to prevent disabling injury, with no exceptions for cases of rape, incest, or disabling fetal anomalies. That law briefly went into effect following the Supreme Court’s ruling but has been temporarily blocked by a state court for now, allowing abortions until 15 weeks of pregnancy to resume.
In a near-party-line vote last year, Montana legislators referred a measure known as the “Medical Care Requirements for Born-Alive Infants Measure” to go on the ballot in November. It would declare that infants born alive at any stage of development are “legal persons” and would require that medical care be provided to them following induced labor, cesarean section, and attempted abortion. It would also set a $50,000 fine and a maximum 20-year prison sentence for violators.
Of the measures that have yet to be decided, the one that is most likely to pass is Kentucky’s, given that a majority of voters in the state say that abortion should be illegal in all or most cases. It’s less clear whether the Montana measure will pass given that a majority of voters in the state say it should be legal in all or most cases.
Other states could still certify additional abortion-related ballot measures
Other states besides Michigan have yet to certify abortion-related measures to go on the ballot, but some are still attempting to do so this year or in future election cycles.
Both chambers of the New York state legislature voted in July in support of an “Equal Rights Amendment” to the state constitution. It would affirm in the state constitution the right to an abortion and to access contraception, as well as bar the government from discriminating against anyone based on race, ethnicity, national origin, disability, sex, sexual orientation, gender identity, gender expression, and pregnancy. It would have to pass the newly elected state legislature next year before it would go on the ballot, which could happen as early as 2023, but more likely in 2024.
Abortion advocates in Arizona failed to meet a July 7 deadline to gather enough signatures to put a state constitutional amendment affirming abortion rights on the ballot this year. They needed at least 356,467 signatures, but only collected about 175,000 signatures over the course of a two-month campaign. They’re still hoping to get it on the ballot in 2024.
Update, August 8, 4:50 pm ET: This story has been updated with information on Kansas’s vote to preserve abortion rights and on how other ballot measures have progressed.
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