The battle for abortion access is moving from the courts and legislatures to state ballots.
Why it matters: The effort to codify public support through a referendum illustrates what many experts say is the future of abortion rights in America. They envision a state-by-state battle to keep abortion legal as the Supreme Court’s conservative majority gears up to pare back or overturn Roe v. Wade.
What we’re watching: Twenty ballot measures addressing reproductive rights are in process for this year, according to the progressive Ballot Initiative Strategy Center.
Four have already qualified for their respective state ballot:
- A ballot initiative in Vermont, set for a vote on Nov. 8, would enact a state constitutional amendment declaring “an individual’s right to personal reproductive autonomy.”
- In Kansas, where the state Supreme Court has asserted a constitutional right to abortions, residents will vote in August on an amendment to eliminate that protection.
- In Montana, a ballot measure set to appear on the November ballot would require medical care for “any infant born alive.” It would do so by classifying the fetus as a “legal person,” with “the right to appropriate and reasonable medical care and treatment.”
- In Kentucky, residents will vote in November on a measure that would ensure the state constitution does not “secure or protect a right to abortion, or require the funding of abortion.”
The big picture: As Axios’ Oriana Gonzalez reported, a patchwork of state laws would govern the procedure if the nation’s highest court were to ultimately overturn the precedent established by Roe.
- That 1973 decision established the constitutional right to an abortion.
Between the lines: Many of the campaigns to amend state constitutions are happening alongside efforts to codify or roll back abortion rights in state legislatures or state supreme courts.
- In Michigan, a campaign backed by Planned Parenthood and the ACLU is collecting signatures for a constitutional amendment to establish a state right to reproductive freedom.
- Meanwhile, the state Supreme Court is preparing to weigh in on separate challenges brought by Gov. Gretchen Whitmer, a Democrat, and Planned Parenthood taking aim at a 1931 criminal ban on abortion.
- It could go back into effect if the federal protections provided by Roe v. Wade were eliminated.
What they’re saying: “[Supreme Court] Justice [Anthony] Kennedy’s retirement prompted action in Vermont, so that these rights in Vermont would be protected no matter what happens in Washington, D.C.,” Eileen Sullivan, communications director at the Planned Parenthood Vermont Action Fund, told Axios.
- Nicole Wells Stallworth, executive director of Planned Parenthood Advocates of Michigan, told Axios: “The ballot initiative seeks to enshrine the right to reproductive freedom in a more broad way into the Michigan constitution. That is far more durable. The legislature wouldn’t simply be able to go in and amend the Constitution.”
- Chris Melody Fields Figueredo, executive director of the progressive Ballot Initiative Strategy Center, told Axios: “It’s about taking power into their own hands and taking critical issues straight to the people and not waiting for a state legislature.”
The other side: “We see these initiatives as fighting back against activist state courts and neutralizing the state constitutions on the issue,” Billy Valentine, vice president of political affairs at the anti-abortion rights group Susan B. Anthony List, told Axios.
- “From there, it’s up to the legislature to decide on what limits to put in place.”
What’s next: “This is just the tip of the iceberg,” said Mary Ziegler, a law professor at Florida State University College of Law and visiting professor at Harvard Law School.
- “I think there’ll be much more of states turning outward, to think about what will happen as people cross state lines to have abortions,” Ziegler told Axios.