Abortion advocates aim to outflank lawmakers using 2024 ballot measures

By: Christine Vestal - November 24, 2022 6:00 am

Abortion rights advocates rally in Washington D.C. (Photo by Sarah Silbiger/Getty Images)

Encouraged by six victories — 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 mostly aiming at states with tight abortion restrictions already on the books, hoping to outflank anti-abortion state lawmakers and courts that are out of step with most residents.

Based on the midterms, the presence of such initiatives on the ballot also could give a boost to 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 lawmakers, to initiate ballot proposals to amend the state constitution. Among those, abortion rights supporters in at least 10 states with abortion bans or tight restrictions — Arizona, Arkansas, Florida, Missouri, Montana, Nebraska, North Dakota, Ohio, Oklahoma and South Dakota — are already discussing strategies and tactics for putting abortion initiatives on the 2024 presidential election ballot.

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

Abortion rights are particularly well-suited to the ballot measure process, she said, because it gives voters the power to determine how they’ll be governed when elected leaders are out of sync with public opinion.

Abortion rights protestors' signs — (Photo by Astrid Riecken/Getty Images)

Nationwide, 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 Stateline.)

In an October poll, 59.1% of Ohioans said they would support an abortion rights amendment to the state constitution. 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 participants in a poll released earlier this month said abortion should be legal in at least some circumstances.

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

“Our experience in using ballot measures in conservative states is that when we’re able to take the partisan labels off of 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.

Leading up to the midterm elections, Clarke Forsythe, senior counsel at Americans United for Life, which opposes abortion, said he was concerned about abortion-affirming constitutional amendments in California, Michigan and Vermont because he said they would take the issue out of the hands of elected leaders.

Interim access

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

But for the roughly 34 million women of reproductive age who live in the 25 states where abortion is now or soon will 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 to invest in funds to help women with low incomes who would have to travel for the procedure. Advocates are also urging abortion-friendly states to use state revenue to shore up clinics in preparation for an influx of patients.

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

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

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

But until the initiatives’ overwhelming success in the midterm elections, political experts were uncertain whether the rarely used strategy would work. Now, they’re expecting abortion rights ballot measures to crop up in many more states in 2024.

“Constitutional amendments have been underappreciated,” said John Dinan, a political science professor at Wake Forest University in North Carolina. “People tend to focus mainly on state litigation. But constitutional amendments are a far more durable way to ensure abortion rights than any court actions.”

The first step for state abortion rights advocates is to craft language that addresses the political will of the residents of their state and, at the same time, leaves very little wiggle room for state Supreme Court justices who will decide future cases based on the amendment, Hall said.

To successfully make it onto the 2024 ballot, Hall said, the language will have to be filed by the first quarter of 2023.

Protesters hold up signs at a protest outside the Texas state capitol on May 29, 2021 in Austin, Texas. Thousands of protesters came out in response to a new bill outlawing abortions after six weeks signed by Texas Gov. Greg Abbott. (Photo by Sergio Flores/Getty Images)

A long game

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

In Kansas and Kentucky, voters defeated anti-abortion measures that would have clarified that the state constitution did not guarantee abortion rights. A measure in Montana, which could have penalized health providers who didn’t offer life-saving care to all infants born prematurely or after an attempted abortion, also lost.

The amendments that passed in California and Vermont, where abortion rights already are secured in state statutes and state Supreme Court precedents, are designed to ward off any future attempt to restrict abortion rights.

New York lawmakers approved a similar measure this year that is slated 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 aren’t designed to change the status quo.

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

In Michigan, the voter-approved constitutional amendment will take effect in January and is expected to result in the state Supreme Court quickly overturning a 1931 abortion ban that a state court has enjoined.

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

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

But for national abortion rights advocates, the immediate needs of patients and providers can be a more pressing priority, said Elizabeth Nash, principal policy associate 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 very much a long-game strategy,” Nash said. “We’re putting them there to last for decades. But in any given state, they may 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 that are considering 2024 ballot measures,” she said, “are asking whether now is the right moment or whether a new type of litigation or investment in new candidates would be most effective. All of these things have to be locally decided in a state-by-state process.”

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