rachel rebouche, Temple University
The abortion landscape in the US has been turned on its head in the past five months as many clinics offering the procedure have closed and people have traveled across state lines to obtain abortions where they remain legal. The percentage of legal abortions has also fallen.
Disagreement over abortion didn’t start when the Supreme Court gave up constitutional protections for abortion rights in Dobbs v. Jackson Women’s Health Organization in June 2022 — but the decision sparked state-level referendums on whether or not abortion should be allowed.
Eighteen states, from Alaska and Arizona to Wyoming and Washington, allow voters to change a state’s constitution directly through voting actions.
Electoral measures — or referenda — could show the power of direct people voting in setting abortion law at the state level.
During the November 2022 midterm elections, voters added abortion protections to the constitutions of California, Vermont and Michigan. Kentucky voters were asked an inverted version of that question — whether the state constitution should ban abortion. They said no.
The vote in Kentucky is similar to an August 2022 abortion referendum held in Kansas. Fifty-nine percent of people in Kansas — a state with a history of anti-abortion policies and activism — voted to retain the state’s constitutional protections for abortion rights.
As an expert on reproductive health and justice, I think the referendum results in places that are often thought of as red or purple states, like Michigan, Kentucky, and Kansas, show how diverse and complex abortion beliefs and opinions are in the world United States are.
Voting action could, perhaps in the short term, provide a way to protect or restore abortion availability in states where policies tend to be more conservatively skewed. Simply put, not all conservatives want to ban abortion.
Legal landscape of abortion
The legal terrain of abortion has changed in the US since Dobbs.
Abortion law is increasingly a patchwork quilt from state to state, with people on the East and West Coasts able to have an abortion, but people in parts of the South and Midwest can’t have one in their home states at any point during the pregnancy.
According to Dobbs, 17 states have banned abortion before viability, the point at which a fetus can live outside the womb, typically at 23 or 24 weeks gestation. Thirteen of those states, like Alabama and Wisconsin, now ban abortion from the earliest moments of pregnancy.
Before Dobbs, 15 states had laws or constitutional provisions protecting state abortion rights. These guarantees ensure that abortion will remain legal in the state, no matter what the Supreme Court decides.
Other new state abortion laws
In recent months, six states have passed so-called safeguards laws designed to protect health care providers from liability for legal abortions on out-of-state residents.
Shield Laws are not just prophylactic measures. As I wrote with co-authors David Cohen and Greer Donley, the emerging legal landscape is punctuated by conflicting state abortion policies, especially as states seek to enforce their policy decisions as much as possible, even across state lines. A Missouri bill introduced in the spring of 2022 proposed doing just that, giving private individuals the right to sue anyone who assists a Missouri resident with an abortion — regardless of where the abortion takes place.
Any state that attempts to apply its laws outside of state lines can face constitutional problems — for example, the US Constitution guarantees the right to travel and prohibits states from encumbering interstate commerce, which proves to be a legal obstacle to enforcing extraterritorial laws could have an effect. But these arguments are largely untested or underdeveloped.
Of course, the legislation that post-Dobbs states passed reflects disagreements about abortion itself. But in some places where abortion has been banned or restricted, anti-abortion legislators may not reflect the beliefs of their constituents. This is shown by the latest voting measures.
Importance of abortion referendums
A September 2022 poll showed that 65% of Americans polled believe Roe’s death is a “major discredit.” This result is consistent with polls showing that in a number of conservative states, a majority of voters want some or most abortions to remain legal.
In Kentucky, the vote to keep open the possibility of state protections for abortion rights could send the same message as these polls. Electoral initiatives could also override the will of anti-abortion politicians who have the issue firmly in hand.
Take Michigan as an example. The referendum passed in the midterm elections expands constitutional protections for abortion in the state and repeals the now-enacted law banning abortion in the state — a law that has been on the books since 1931.
Believing in voting measures is a risky and expensive proposition. Expensive because, as the Kansas vote shows, groups supporting opposite sides of the issue have spent millions convincing voters of their positions. Risky because voting restrictions and maneuvers can dilute the power of people’s votes in some places.
But the votes in Kansas, Kentucky and Michigan could demonstrate the ability of abortion rights advocates to pool their funding and messages to take abortion issues away from state legislatures and put them in the voting box.
Rachel Rebouche, Dean, James E. Beasley Professor of Law, Temple University
This article was republished by The Conversation under a Creative Commons license. Read the original article.