The repeal of Roe v. Wade by the U.S. Supreme Court sent shockwaves throughout the country — and on Nov. 8, voters are poised to rattle aftershocks with their ballots.
Five states — California, Michigan, Vermont, Kentucky and Montana — have posed the future of abortion to their constituents in the upcoming midterm election.
California, Michigan and Vermont have proposed constitutional amendments that would offer an affirmative right to abortion and reproductive freedom.
By contrast, Kentucky’s measure, if approved, would assert that there is no constitutional right to abortion in the Bluegrass State. Montana’s measure asks voters to state that infants “born alive at any state of development” require doctors attempt lifesaving medical care — a simple statement that all but ensures a ban on most forms of surgical abortion.
But it all starts with Kansas, the Republican-leaning state that shocked the nation earlier this year when voters overwhelmingly beat back a referendum aimed at opening the door to a statewide abortion ban.
Kansas: A bellwether for 'red states'?
On Aug. 2, Kansas became the first state to have the right to abortion up for debate on a statewide ballot since Roe v. Wade was overturned.
And with an 18-point margin representing 165,000 votes, Kansans slammed a state constitutional amendment that would have allowed lawmakers to ban abortion outright.
Kansas, a one-time abortion safe haven in the midwest, became the canary in the coal mine in the battle for abortion rights, when the GOP-led state legislature sought to add its anti-abortion amendment to the state constitution.
In Kansas, the number registered Republican voters greatly outnumber both Democratic and unaffiliated registration, indicating that the amendment’s defeat came as a result of many coalitions — progressive and conservative alike — working together.
“This vote makes clear what we know: the majority of Americans agree that women should have access to abortion and should have the right to make their own health care decisions,” President Joe Biden said in a statement soon after the election results were clear.
The question in the aftermath was, was their effort replicable in other states? Organizers said yes — that the focus on coalition-building can be done anywhere.
“It takes a village, and by building community power, we have a path forward. But it has to come from us,” organizer Alejandro Rangel-Lopez told Spectrum News in August.
California’s constitution already provides a right to privacy, which the state Supreme Court has ruled covers the right to reproductive choices, which includes both abortion and contraception — a similar principle as the original U.S. Supreme Court ruling in Roe v. Wade.
However, Proposition 1 would amend California’s constitution to explicitly state that people have the fundamental right to choose whether or not to have an abortion, and whether or not to use contraceptives.
It also wouldn’t change California’s existing abortion law, which states that abortion is legal until the fetus is viable to survive outside the womb, around 24 to 26 weeks, or between the second and third trimesters of pregnancy.
The proposition is broadly expected to succeed. According to a September Public Policy Institute of California poll, 69% of likely voters support Prop. 1. But even if it failed, abortion and contraception rights would still exist under existing state laws.
California’s governor, Gavin Newsom, has bought ads in anti-abortion states to spread the idea that his state is an abortion sanctuary for people who need reproductive health care.
This proposition wouldn’t change that — rather, it would affirm that California’s status as a beacon of abortion rights on the West Coast.
Michigan has had four constitutions throughout its history as a state — three more than most states. The latest, which was approved and ratified by voters in 1963, charges Michiganders to “look forward” to “safeguard present and newly emergency liberties,” rather than clinging to the past, wrote the Michigan state judge who ruled the state’s 1931 ban on abortion as unconstitutional.
Michigan’s Proposal 3 would live up to that ideal, amending the state’s constitution to establish the individual right to reproductive freedom, including the right for decisions about pregnancy and abortion — essentially, proponents argue, it would restore rights granted to Michiganders in the 1973 Roe v. Wade decision.
The state legislature would still be allowed to regulate abortion after a fetus reaches viability — that same 24-to-26 week stage of pregnancy — though medically-necessary abortions may not be prohibited under the amendment.
Should the amendment fail, the future of abortion would fall onto the 1931 law that made abortion a felony in Michigan. Though the law is currently enjoined and unenforcible — and abortion was already allowed under a separate injunction — an appeal is possible.
In the court’s opinion, Judge Elizabeth Gleicher wrote that the state’s 91-year-old abortion ban “not only compels motherhood and its attendant responsibilities; it wipes away the mother’s ability to make the plans she considers most beneficial for the futures of her existing or desired children.”
“The law is facially unconstitutional because its enforcement would deprive pregnant women of their right to bodily integrity and autonomy, and the equal protection of the law,” Gleicher later adds.
Opponents to the proposed amendment argue that it is a “radical proposal” that would invalidate all previous abortion laws.
Supporters say that the amendment is a common-sense solution that ensures women have access to necessary health care, and protects doctors from going to prison for providing medical care.
Regardless, polls suggest that voters are likely to support the amendment. A Sept. 7 WDIV/Detroit News/Glengariff Group poll indicates that 60.3% of voters would support an amendment that would guarantee abortion rights.
In 2019, the Vermont State Legislature codified an individual’s fundamental right to reproductive freedom, explicitly protecting the freedom to choose to use or refuse contraception, and to carry a pregnancy to term, to give birth to a child, or to have an abortion.
On Election Day, voters have the opportunity to take it one step further by amending the state’s constitution to state that “an individual’s right to reproductive autonomy is central to the liberty and dignity to determine one’s own life course.” Proposal 5, if approved, would also add that the right to reproductive autonomy “shall not be denied or infringed unless justified by a compelling state interest achieved by the least restrictive means.”
Vermont is fairly loyal to progressive politics, with a supermajority Democratic legislature, bolstered by a scattered few members of the Vermont Progressive Party in each chamber. Of course, it’s also the home of Sen. Bernie Sanders, the independent who prominently competed for the Democratic presidential nomination in 2016 and 2020. Polling, unsurprisingly, indicates widespread support for Proposal 5 — a WCAX/University of New Hampshire poll indicates that 75% of respondents are supportive of the amendment.
Even Vermont Gov. Phil Scott, a moderate Republican, has spoken in favor of the amendment in an interview with WAMC.
“At the end of the day, the fundamental rights and liberties of all women will be defended, protected and preserved here in Vermont,” Scott said.
While the voters of three states are considering codifying the right to abortion in their constitutions, Kentucky is going the other direction. Constitutional Amendment 2, which was referred to the ballot by the state’s conservative General Assembly, seeks to add one sentence to the Kentucky Constitution: “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.”
Abortion has been outlawed in Kentucky since Roe was overturned by the U.S. Supreme Court, courtesy of a so-called “trigger” ban. That ban is one of the most limiting in the country — abortion is outlawed in nearly all cases, including if the fetus has developed serious birth defects, if the pregnancy was the result of rape, or if the pregnancy is detrimental to the birthing parent’s health. The only exception is if staying pregnant could cause the parent’s death.
Essentially, the amendment would ensure that no judicial body — including the Kentucky Supreme Court or state judges — can interpret the state’s constitution as protecting the right to abortion.
The state has a slight Republican registration advantage — 1.6 million Democrats to 1.62 million Republicans as of Oct. 17, according to the State Board of Elections. However, though its politics are decidedly conservative, Project Kentucky Access (a lead opponent to the amendment) has raised more than $1.2 million as of its most recent election finance statement, and more than $2.6 million this year, spending just over $2 million. Meanwhile, Yes For Life, a PAC that stands as a chief proponent for the amendment, has raised $158,710 over the last monthly period, and $507,157 over the last year, spending about $83,000.
How Kentuckians vote in November might have a tremendous effect on both its residents seeking abortions and its neighbors; since Roe was overturned, abortion clinics in Ohio have seen increased traffic from nearby states, including Kentucky.
“When Kentucky lost their access in April, that was the first test, the pilot run, so to speak, of how services might look post-Dobbs. There was panic. There were patients very concerned,” Planned Parenthood Southwest Ohio administrator Vanessa Hinsdale told Spectrum News in an interview. “When Dobbs happened, the amount of people that were yelling their frustrations of this law was at a thunderous rate that we have never experienced…I’m hoping it’s the change that we need to keep giving the states the ability to give access back to the patient.”
While Kentucky is looking to ensure that there is no Constitutional protection for abortion, the State Legislature of Montana — which already has an adjudicated constitutional right to abortion — is taking a roundabout way to squeeze medical providers.
The Montana Supreme Court decided in 1999, in the opinion deciding Armstrong v. State, that abortion access is protected by the state constitution, in accordance with Montanans’ constitutional right to privacy.
Legislative Referendum 131, which was referred to the ballot along party lines by the Montana Legislature, asks voters to agree, yes or no, that “infants born alive including infants born alive after an abortion, are legal persons,” adding that health care providers are obligated to “take necessary actions to preserve the life of a born-alive infant.”
LR-131 defines a “born-alive infant” as one who breathes, has a beating heart, or definite movement of involuntary muscles after being born or extracted from the birthing parent, as through natural or induced labor, cesarean section, induced abortion, or other methods. It also states that infants born during an attempted abortion are “born-alive.”
Providers found guilty under the act would face a fine up to $50,000, 20 years of imprisonment, or both. It also includes a mandatory reporting statute, requiring a health care provider, employee or volunteer of any facility or clinic to report failed compliance with the legislation.
A proponent of LR-131, Republican state Rep. Matt Regier, said that the bill is about “medical providers intentionally letting infants die.”
Opponents of the referendum argue that the law would force health care providers to take a newborn away from their family, even in cases where required life-saving measures would be futile and painful. They argue that families want to spend time with their newborn, especially in those last minutes of life.
“If you’ve seen a 19- or 20-week delivery, you can’t in good conscience go and do chest compressions and resuscitate a baby like that. That is cruel and unusual punishment,” Dr. Lauren Wilson, president of the Montana Chapter of the American Academy of Pediatrics, recently told the Flathead Beacon. “Doctors would be in a hard place because none of us want to do that, especially over a family’s objections. None of us want to go to jail, but that’s exactly where this legislation is putting us.”