What happens after the Abortion Vote is Won?
The measures in Colorado, Maryland and Nevada would codify the existing abortion rights. Some of these states have explicit abortion protections. Colorado’s proposed constitutional amendment would also end a ban on public funding for abortion, allowing Medicaid to cover abortion in all circumstances.
On the other hand, in Arizona, Florida, Missouri, Nebraska, and South Dakota, abortion is either banned or significantly restricted. In these states, voters have the chance to restore or improve abortion access. In Nebraska, however, there are two opposing measures that support and denounce abortion rights. It sounds easy–vote against your state’s ban on abortion. But there is a problem. Establishing a constitutional right does not automatically invalidate existing state laws that stand in the way. This is especially true in states where legislatures, attorneys general, or governors are opposed to abortion.
“These ballot initiative measures to protect abortion are critical,” said Autumn Katz, associate director of U.S. litigation at the Center for Reproductive Rights (CRR). “But they’re not a magic bullet.”
The reality is that in some states where voters have already cast ballots in favor of abortion access, advocates are still chipping away at abortion restrictions a year or two later.
Kansas
To the surprise of many pundits, Kansas was the first state where voters showed up to overwhelmingly declare their support for abortion rights, just over a month after the Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization in 2022.
But this ballot measure wasn’t an affirmative one. The proposed amendment would have made abortion illegal in Kansas. The proposed amendment was in response to a Kansas Supreme Court ruling from 2019 that stated that the state constitution guaranteed the right to abortion. By blocking conservative lawmakers’ attempt to change that, voters allowed ongoing litigation against abortion restrictions to continue.
“These ballot initiative measures to protect abortion are critical. They’re not a miracle cure.”
– Autumn Katz is the associate director for U.S. litigation for the Center for Reproductive Rights
And in the summer of 2018, CRR won a victory for Kansas abortion providers. Building on the 2019 ruling, the Kansas Supreme Court permanently overturned a ban against dilation and evacuating, also known as D&E. This procedure Alice Wang, CRR Staff Attorney, said that when we presented this case to the Supreme Court the state argued that Kansas’ constitutional right to an abortion should be reversed as well after Dobbs. It was not only disingenuous, but also outrageous that the state would make such a false argument in response to the ballot initiative, claiming to be returning the right of abortion to the voters. And in Kansas, the legislature continued to pass new abortion restrictions in 2023 and 2024.
CRR continues to represent Kansas abortion providers as they challenge these restrictions, including the forced waiting period, state-mandated counseling, a law requiring abortion providers to tell patients–incorrectly–that medication abortion can be “reversed,” and a new requirement that providers ask patients their reason for having an abortion.
Kentucky voters similarly rejected an anti-abortion constitutional amendment in 2022. There, abortion is banned entirely, but advocates say that as in Kansas, voters’ rejection of the amendment leaves a legal path open to restoring access.
“That’s the great utility of these ballot initiatives,” Wang said. “They’re setting a standard, though advocates still have to enforce it through legislation or litigation.”
Michigan
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In 2022, Michigan voters approved Proposition 3 adding a right of reproductive freedom to the state constitution. Chelian says that NFP and CRR were ready to file a lawsuit to begin the process of eliminating Michigan’s abortion restrictions as soon as Proposition 3 passed. State legislators told NFP and CRR they had to wait. She said, “We want to take this up.” Michigan’s TRAP law was repealed in 2023 by lawmakers. In June, they won a preliminary injunction blocking these restrictions while litigation proceeds. They won a preliminary order in June that blocked these restrictions until the litigation is completed. Having it suspended, even temporarily, has already made a significant difference, Chelian said.
Michigan’s law requires patients to receive physical copies of state-mandated forms 24 hours before their appointment, and though they were not required to pick these forms up in person, they would be turned away on the day of their appointment if they couldn’t access them online and print a physical confirmation. Chelian estimates at least five patients were turned away each week and had to reschedule their appointments. The American Civil Liberties Union filed a lawsuit to overturn Michigan’s Medicaid funding ban. Chelian also has a concern.
“I don’t believe people understand that if our legislators flip at any time they can still pass unsound constitutional restrictions,” she said. “We are in a much, much better place than we were … but it is not a magic potion to have this in the Constitution.”
Ohio
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In 2023, more than 56 percent of voters approved a constitutional amendment protecting the right to abortion until the point of fetal viability. This medically variable point is generally thought to occur between 24 and 26 weeks of pregnancy. In 2023, over 56 percent of voters approved an amendment to the Constitution protecting the right to abort until the point of viability. This is a medically variable time period that occurs between 24 and 26 week of pregnancy. After the pro-abortion results in 2022, conservative legislators in Ohio wanted to prevent a similar outcome in their state. They held a special election in August 2023 in which voters were asked to weigh in on a measure that would have made it more difficult for the state’s constitution. They mounted a special election in August 2023 in which voters were asked to weigh in on a measure that would have made it more difficult to change the state’s constitution.
That August measure, which was unsuccessful, was known as “Issue 1.” So was the abortion rights amendment that was on the ballot in November.
“We had to run a ‘Vote No on Issue 1’ campaign for the August special election and then immediately turn around and tell everyone to ‘Vote Yes on 1’ in November,” Close said. But Ohio voters showed up to support abortion rights–and they did it with a Republican trifecta in control of their state legislature and in the governor’s office, making Ohio the only state to have passed an affirmative measure with a Republican-controlled state government.
Many Republican lawmakers immediately expressed a desire to undermine Issue 1. The Reproductive Rights Law initiative at Case Western Reserve University School of Law, led by Jessie Hill and a cooperating lawyer with the ACLU of Ohio’s, surveyed abortion providers in the state to determine which restrictions they should tackle first. There were several versions of the law, and depending on which version you are talking about, they have been in place for at least 20 years. In August, a court temporarily blocked the biased counseling and waiting period requirements. Weeks later, another judge issued a temporary injunction against restrictions on the abortion pill mifepristone, and a law preventing APCs from providing medication abortion.
From a legal perspective, Hill said, Issue 1 has given advocates much stronger footing. She said that in terms of public perception, it’s “really hard to keep momentum going.” “I think the problem is that the groups who are running these campaigns are exhausted after November comes and goes, and funders have spent millions of dollars on this campaign … they thought they were done opening their pocketbooks.”
But advocates want Ohio voters to stay tuned, because this November, they have the opportunity to flip their state’s supreme court–the very court that will make the final rulings on whether abortion restrictions stay or go.
“So many people don’t even know that there is a state supreme court,” Close said. “Even just getting over that barrier, let alone trying to make people understand which judges will be more values-aligned–because judges are expected to be unbiased–there are just so many barriers to the general population, the average Ohioan, feeling well-informed.”
“In addition to that, especially this year, with everything that’s happening at the top of the ticket, there is a very deep sense of voter apathy, which is completely understandable,” Close added. “There’s genocide happening… and abortion funding can’t help people the way we do.” “So we really prioritize … making sure that we’re building partnerships with other direct service resources so that we can be a political home for people to get the things that they need, so that they do feel empowered to be more civically engaged.”
Looking ahead to 2025
Though Katz declined to share CRR’s plans for future litigation, she said they are “certainly looking very carefully at some of the pending ballot initiatives that are in states that have many restrictions on the books that make it difficult or almost impossible for patients to access care.”
However, another limit of citizen-led ballot initiatives is that the process doesn’t exist in every state.
“In those states that do have citizen-initiated ballot petitions, it is incredibly important for people to vote and to be able to make their voices heard,” Katz said. However, “there really is a need for federal legislation that would protect our bodily autonomy and our ability to make reproductive decisions for ourselves.”
What shape federal legislation might take is still a question mark. Since becoming the Democratic nominee for president, Vice President Kamala Harris is largely mum on her plan to restore abortion. But if current ballot measure campaigns are any indication, there will likely be disagreement within the reproductive rights and justice movements about the best path forward in the event Harris is elected.
State-level ballot initiatives have already been controversial within the movement because several protect abortion rights only until the ill-defined point of fetal viability. It is important that people vote in states with citizen-initiated petitions and have their voices heard. Our six-week ban lasted 82 days and was absolutely horrible. Close says that a ban on abortion is a ban no matter when it occurs. But shifting the broader movement’s priorities in line with that value would require culture change work within and outside the movement.
“I’ve seen a lot of the heat being turned on organizers that are just trying to make things better in their states that are faced with the choice of telling people that they have to continue their pregnancies or campaigning to make their state 50 percent better,” Close said. I think the focus on viability clauses should be directed at the wrong people. It speaks to me of the need for reform in electoral campaigns.”
