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Last election cycle, abortion rights won in all six states with abortion ballot measures, including in red states like Kentucky and Montana that otherwise elected Republican lawmakers.
Now, this fall and in next year’s election, national liberal groups are planning to invest more heavily in ballot measure campaigns, seeing them as vehicles both to protect access to abortion care and to amplify their broader political message that abortion bans are out of step with voters.
Advocates in at least 10 states are considering ballot measure campaigns over the next two years to codify abortion rights. In some states — including Florida, South Dakota, Ohio, Arizona, and Missouri — the measures could help restore rights that have already been lost. In other states, such as Nevada, Maryland, Colorado, and New York, voters could enshrine existing state protections.
Anti-abortion activists, in turn, have vowed to spend millions more dollars to defeat them.
The results last year were “a wake-up call that taught us we have a ton of work to do,” Kelsey Pritchard, the state public affairs director for Susan B. Anthony Pro-Life America, told Politico in March. “We’re going to be really engaged on these ballot measures that are often very radical and go far beyond what Roe ever did.”
Some abortion rights activists do hope to codify protections beyond what Roe v. Wade guaranteed — sparking internal debates among reproductive rights advocates about tactical ballot measure language.
Most of these measures would be on the ballot in 2024. The exception is Ohio, where reproductive rights advocates are organizing for a new constitutional amendment to protect abortion rights during the upcoming election this November.
As campaigns to get abortion on the ballot begin, fights are also brewing about ballot measures themselves, which provide voters with opportunities to weigh in directly on state policy changes.
In some states, citizens can collect petition signatures to get measures on the ballot; in others, lawmakers have to first approve the proposals. The recent success of abortion rights measures has catalyzed efforts by Republican lawmakers to restrict these voter initiatives. As of late June, according to the Ballot Initiative Strategy Center, a progressive group that supports state referendum campaigns, 14 states are considering a total of 50 pending measures that raise new hurdles for ballot measures.
Republican lawmakers in Arkansas, for example, recently passed new requirements for ballot measures to have signatures of support from 50 counties, rather than just 15. (Three years ago, Arkansas voters had rejected a similar requirement.) Republican lawmakers in other states are seeking to raise the number of votes needed for a ballot measure to pass.
GOP elected officials say they want to protect the integrity of the ballot initiative process, which they argue is too easily influenced by out-of-state interests.
But abortion rights advocates see a direct response to their past victories. In Kentucky, Kansas, Michigan, and Montana in 2022, between 52 and 59 percent of voters cast their ballots in support of reproductive rights. If their referendum thresholds had been 60 percent, as some states now propose, all those initiatives would have failed.
While Republicans mostly deny their proposed changes to ballot initiatives are motivated by opposition to abortion rights, some of their less guarded remarks and contradictory behavior have suggested otherwise.
The fight over abortion rights and access to the ballot is playing out right now in Ohio. Advocates are organizing there for a new constitutional amendment to protect abortion rights, and last week filed more than 700,000 signatures to place it on the upcoming November ballot. They’ll need 413,487 valid signatures to qualify.
It’s not yet clear how many votes the referendum will need to pass. State Republican lawmakers, who voted last year to repeal August special elections as low-turnout wastes of money, recently authorized one anyway: This August, Ohio voters will determine whether to raise the vote threshold for passing future constitutional changes from a simple majority, as has been the case for 100 years, to 60 percent.
For months, Ohio Secretary of State Frank LaRose denied he had switched positions on August special elections because of abortion rights. In June, though, video footage reported by News 5 Cleveland and the Ohio Capital Journal showed LaRose admitting abortion was motivating his stance. “Some people say this is all about abortion. Well, you know what?” he was recorded saying. “It’s 100 percent about keeping a radical pro-abortion amendment out of our constitution — the left wants to jam it in there this coming November.”
Ohio Republican state Senate President Matt Huffman separately went so far as to say that holding a $20 million August special election would be worth it “if we save 30,000 lives as a result.” (There were 21,813 abortions performed in Ohio in 2021.)
Anti-abortion groups are casting Ohio’s abortion rights amendment as about parents’ rights and youth transgender health care instead
Ohio’s is the only abortion rights referendum battle expected this year, which means the messaging and campaign tactics for and against reproductive rights are being closely watched by leaders nationwide.
Since polling continues to suggest the proposed amendment for reproductive freedom has popular support — a poll last month found nearly 60 percent of Ohioans support the idea — opponents have been working to change the subject to health care for transgender youth, something they hope voters will find more politically objectionable.
Ohio’s proposed amendment would affirm that “every individual has a right to make and carry out one’s own reproductive decisions, including but not limited to decisions on contraception, fertility treatment, continuing one’s own pregnancy, miscarriage care, and abortion.” Opponents claim the language is so broad that it would create a new right to gender-affirming surgery, and therefore invalidate the state’s current requirement for parental consent.
Opponents organizing under the banner of “Protect Women Ohio” have made the trans youth health care argument central to their strategy, spending over $5 million on TV and digital advertising this past spring. They are regularly referring to the measure as an “anti-parent” amendment.
Jonathan Entin, a constitutional law professor at Case Western University, said it’s a “bogus” and “dishonest” interpretation of the amendment, noting that many things can have bearing on one’s ability to reproduce. “If you drink too much alcohol, if you ingest certain drugs, if you drive too fast — all of those things could have shorter or longer term implications for your ability to reproduce,” Entin told News 5 Cleveland. “That doesn’t mean that speed limits and drug laws and alcohol regulations are somehow going to be affected by this amendment if it’s adopted.”
Other experts say it could only affect parental consent laws if someone were to successfully challenge the rules as unconstitutional, though opponents allege that is the long-term goal of the ACLU. The civil liberties group has long opposed parental consent laws, and an ACLU Ohio lawyer in February said existing laws that conflict with a constitutional amendment “should not be enforced.” Andrew Everett, an ACLU spokesperson, told Vox they “currently have no plans to challenge parental consent laws in Ohio.”
Coalition leaders pushing for the abortion rights amendment say the focus on transgender issues is a desperate attempt to distract from the unpopularity of abortion bans, and that Ohio case law generally requires parental consent for youth medical care.
Nationwide, activists organizing for other abortion rights measures are preparing for similar opposition campaigns.
In May, activists in Florida launched a new campaign to place a constitutional amendment protecting abortion rights on the ballot in 2024. To preempt some of the attacks being deployed in Ohio, activists kept their proposed wording more narrowly tailored to abortion, and explicitly say that their proposed amendment “does not change the Legislature’s constitutional authority to require notification to a parent or guardian before a minor has an abortion.”
In Arizona, where activists are considering launching a constitutional ballot campaign to protect abortion rights in 2024, leaders are strategizing on how to word their proposal in light of the kinds of attacks being fired elsewhere. “We expect all those tactics in Ohio and other states to be exported here,” said Susan Shapiro, the director of Indivisible Northern Arizona.
Abortion rights leaders are debating whether to codify Roe v. Wade standards or push beyond them
The major ballot campaigns that have launched so far are mostly seeking to restore the rights that existed under Roe v. Wade, where women could end pregnancies up to 24 weeks, or the point at which a fetus could survive outside the womb — known as the “viability standard.”
More than 90 percent of US abortions occur within the first 13 weeks of a pregnancy, and those occurring later are typically due to a fetal complication, a life-threatening risk to the pregnant person, or an inability to pay. The ballot measures so far have generally sought to preserve exceptions for abortion beyond viability if a doctor recommends it.
In Florida, for example, activists are collecting signatures for an amendment that would ban restrictions on abortion “before viability or when necessary to protect the patient’s health, as determined by the patient’s healthcare provider.” In Ohio, the amendment says “abortion may be prohibited after fetal viability” except in cases when “the pregnant patient’s treating physician” deems it necessary to protect their life or health.
And in South Dakota, a state that has a long track record of winning progressive ballot measures, a group of activists who formerly led a winning campaign to expand Medicaid are now looking to pass a referendum that would ban restrictions on abortion during the first trimester, and allow regulation beyond that in consultation with the medical judgment of the pregnant patient’s physician. They are calling their campaign an effort to “restore Roe.”
But some advocates say it’s not worth investing time, money, and energy into codifying the viability framework that existed under Roe v. Wade, given that the exceptions to abortion often proved too difficult for women to use in practice. Many activists see an opportunity to fight for stronger protection now that the overturn of Roe has wiped the slate clean, similar to what activists passed on the ballot in Vermont last fall, which added language about reproductive autonomy to the state’s constitution, and made no mention of viability or restrictions at stages of pregnancy.
These tensions are evident in Missouri, a state that bans nearly all abortions. Activists have filed 11 versions of a proposed initiative petition to codify abortion rights in the state’s constitution. All versions would permit restrictions after fetal viability, or 24 weeks of gestation. (Some also make clear the state can enact parental consent laws for minors; others make no mention of that.) The precise version advocates might rally behind is not yet clear, but back in March, Planned Parenthood of the St. Louis Region and Southwest Missouri withdrew its support due to the proposals’ language around viability.
The Planned Parenthood affiliate argued in a memo that viability “is not a medical construct and has no relevance to clinical care. It is a political construct set under Roe v. Wade. We now know that the viability standard tried and failed to balance state and personal interests, and it did not work.” Pamela Merritt, the Missouri-based executive director of Medical Students for Choice, likewise told Politico in April her group would never advocate for a viability limit. “It’s a legacy of Roe that we don’t need to resurrect,” she said.
Colleen McNicholas, the chief medical officer at Planned Parenthood of the St. Louis Region and Southwest Missouri, told Vox they believe people deserve abortion access “locally where they are,” but that “we can not forget that the Roe framework did leave so many people behind.” On whether they would support a constitutional ballot measure if one emerged from the 11 proposed, McNichols said the group will “continue to stay engaged and will reassess our engagement every step of the way.”
Supporters of using the viability standard say advocates need to be practical about politics. According to Pew, just 22 percent of adults say abortion should be legal after the fetus can survive outside the womb, though most say there should be exceptions if the pregnant person’s life is in danger or the baby would be born with severe disabilities.
The ambivalence over these questions has led to muted support from national organizations for the ballot campaign in South Dakota — a red state with a real shot at overturning its abortion ban. A poll last year found 65 percent of South Dakotans thought their state’s restrictions on abortion were too strong, and that the question should be decided at the ballot box. In the last decade activists have won voter referendums on campaign finance, payday lending, medical and recreational marijuana, and most recently, Medicaid expansion.
Planned Parenthood North Central States, which represents Iowa, Minnesota, Nebraska, and South Dakota, has also not issued any public statements on the campaign, and did not return requests for comment.
Some pro-choice states are looking to ballot measures to strengthen abortion rights further
Following on the heels of Michigan, Vermont, and California in 2022, more blue and purple states are considering ballot measures as ways to both protect existing abortion rights and expand them further.
Maryland lawmakers have already voted to put abortion rights on their 2024 general election ballot, in a constitutional amendment that affirms every person has the fundamental right to reproductive freedom, including the ability to decide to prevent, continue, or end one’s own pregnancy. A poll from last year found 78 percent of Maryland voters supported the idea of a state constitutional amendment protecting abortion.
New York lawmakers also plan to put before voters an amendment to the state’s equal protection amendment that would bar discrimination based on “pregnancy outcomes” or “gender expression.” While they could put it on the upcoming November ballot, lawmakers are holding it until 2024 to boost its chances.
Nevada is a third state that is likely to place an amendment on the ballot to protect abortion rights, though not until 2026. A majority vote is required by the Nevada legislature in two successive legislative sessions, and a proposed abortion rights measure received its first round of approval this past spring. The next time lawmakers could vote on it would be in 2025. An April Nevada Independent poll found 62 percent of respondents said they’d support adding the right to obtain an abortion to the state’s constitution.
Whether Colorado activists will pursue an abortion rights ballot measure remains an open question, though leaders have been exploring the idea for the last nine months. “A decision has not been made about pursuing it,” Olivia Cappello, a spokesperson for Planned Parenthood Federation of America, told Vox. In 2020 Colorado voters rejected a ballot initiative that would have banned abortion after 22 weeks, and last year Colorado lawmakers enacted the Reproductive Health Equity Act, a statutory right to abortion.
Meanwhile, anti-abortion activists in Colorado are eyeing the ballot box once again for their own ends. Last month, the Colorado Life Initiative filed an amendment for 2024 that would define a “living child” as “any living human being during any developmental stage.” The proposal adds that anyone who intentionally causes the death of a “living child” would be held to “equal penalties” as those for “causing the death of any other living child.”
