Abortion advocates aim to outflank lawmakers with election measures for 2024

Read more Stateline coverage of how states are either protecting or restricting access to abortion.

Emboldened by six wins — and zero losses — in this month’s midterm elections, pro-choice advocates are considering another round of election measures in 2024 that would enshrine reproductive freedom in state constitutions.

This time, they’re targeting mostly states that already have strict abortion restrictions, hoping to outperform lawmakers and courts in anti-abortion states that aren’t keeping up with most residents.

Based on the Midterms, the presence of such initiatives on the ballot could give a boost to Democratic candidates as well. Contrary to predictions, abortion was the top issue for a large percentage of voters, particularly in states that had an abortion measure on the ballot, according to Exit polls.

Only 17 states allow citizens, not just lawmakers, to initiate ballot proposals to amend the state constitution. Among them, pro-choice advocates in at least 10 states with abortion bans or severe restrictions – Arizona, Arkansas, Florida, Missouri, Montana, Nebraska, North Dakota, Ohio, Oklahoma and South Dakota – are already discussing strategies and tactics for introducing abortion initiatives in the 2024 presidential election .

“You’re starting now because the process of getting any kind of measure on the ballot takes a very long time,” said Kelly Hall, executive director of the Fairness Project, which provides technical support for state ballot initiatives.

Abortion rights lend themselves particularly well to the voting process, she said, because it gives voters the power to determine how they are governed when elected leaders disagree with public opinion.

Signs of the pro-abortion protesters
(Photo by Astrid Riecken/Getty Images)

According to a June 2022 Pew Research Center poll, 6 in 10 Americans nationwide say abortion should be legal in all or most cases. (The Pew Charitable Trusts fund the center and state border.)

In an October poll, 59.1% of Ohioans said they would support amending the state’s abortion rights constitution. In July, 57% of Florida residents said they were comfortable with the US Supreme Court decision in Roe v. knocking Wade down, disagree. And even in crimson Arkansas, a whopping 79% of respondents to a poll released earlier this month said abortion should be legal, at least in certain circumstances.

In the most recent election, progressive electoral policies to expand Medicaid to low-income people, legalize marijuana use, and raise the minimum wage have been successful in both blue and red states.

“Our experience of using voting measures in conservative states is that even in conservative parts of the country we can win if we are able to rid certain issues of partisan labels, and that’s exactly what we have this year with abortion and procreation seen rights,” Hall said.

Ahead of the midterm election, Clarke Forsythe, an anti-abortion senior counsel at Americans United for Life, said he was concerned about pro-abortion constitutional amendments in California, Michigan and Vermont because he said they would take the issue out of the hands of elected officials guides.

intermediate access

According to Ballotpedia, which tracks elections in all 50 states, only pro-choice advocates in Oklahoma and South Dakota have submitted constitutional amendment initiatives for the 2024 election. Additionally, according to recent newspaper articles, advocates in Ohio are publicly discussing a similar measure.

But for the roughly 34 million women of childbearing age who live in the 25 states that now have or will soon have bans on abortion, waiting more than two years to access the procedure in their home state is not an option .

For this reason, national abortion rights advocates are urging states where abortion remains legal to continue investing in resources to help low-income women who would have to travel for the procedure. Proponents are also urging pro-abortion states to use government revenues to prop up clinics to prepare for an influx of patients.

In the meantime, state and national abortion advocates intend to pursue all legal and political strategies to provide access to as many patients as possible. Even so, prospects for expanding access to the trial over the next two years in states with GOP-dominated lawmakers and conservative courts after the midterm elections are slim.

More than 1,000 protesters in Nashville.
More than 1,000 Nashville protesters packed the city’s streets on Friday to express their displeasure at the US Supreme Court decision in Dobbs v. Jackson. (Photo: John Partipilo, Tennessee Lookout)

Hence the focus on the 2024 constitutional amendments. According to state legal experts, ballot measures that enshrine abortion rights in state constitutions are the most sustainable way to protect those rights from future policy changes.

But until the overwhelming success of the initiatives in the midterm elections, political experts were unsure whether the rarely used strategy would work. Now they expect abortion rights ballots to appear in many more states in 2024.

“Constitutional changes have received underappreciation,” said John Dinan, a political science professor at Wake Forest University in North Carolina. “People tend to focus primarily on state litigation. But constitutional amendments are a far more enduring way to ensure abortion rights than any court process.”

The first step for state abortion-rights advocates is to formulate language that appeals to the political will of their state’s residents, while leaving very little leeway for state Supreme Court judges to hear future cases based on the amendment will decide. said hall.

To successfully make it onto the 2024 ballot, Hall said, the language must be submitted by the first quarter of 2023.

Demonstrators hold up signs during a protest outside the Texas state capital May 29, 2021 in Austin, Texas. Thousands of protesters turned out in response to a new abortion ban bill signed into law by Texas Gov. Greg Abbott after six weeks. (Photo by Sergio Flores/Getty Images)

A long game

This year voters in California, Michigan and Vermont approved measures to amend their constitutions to include abortion rights.

In Kansas and Kentucky, voters rejected anti-abortion measures that would have clarified that the state constitutions do not guarantee the right to an abortion. A measure in Montana that could have penalized health care providers who did not provide life-saving care to all babies born prematurely or after an attempted abortion also lost.

The amendments, passed in California and Vermont, where abortion rights are already enshrined in state statutes and state Supreme Court precedent, are intended to deter any future attempt to limit abortion rights.

The New York legislature this year approved a similar measure to appear on the 2023 ballot, and the New Jersey legislature plans to place a measure on the 2023 ballot.

While such proposals are welcomed by abortion advocates, they are not designed to change the status quo.

But voting initiatives like the one approved in Michigan aim to immediately expand access to abortion by forcing the state Supreme Court to overturn any law that violates the constitutional right that confers it.

In Michigan, the constitutional amendment approved by voters, which goes into effect in January, is expected to result in the state Supreme Court quickly overturning a 1931 abortion ban that a state court issued.

“It’s very important how a constitutional amendment is drafted,” said Dinan of Wake Forest University. “And Michigan’s amendment was very clear. It would be hard to imagine that a judge, today or in the future, would stare at the plain language of the state constitution and rule negatively.

“In any state where reproductive rights are at risk,” he added, “the question is whether pursuing constitutional change should be as high a priority as campaigning for liberal Supreme Court justices or pursuing legal processes to create one Supreme Court precedent, an easy call.”

But for national abortion rights advocates, the immediate needs of patients and providers may be a more pressing priority, said Elizabeth Nash, senior policy fellow at the Guttmacher Institute, which supports abortion rights.

“We want to do everything, but with limited resources, we often have to choose priorities,” she said. In some states, she said, helping patients who can’t afford to travel to another state for an abortion or investing in abortion clinics may be more important than elective action.

“Choice action is a very long-term strategy,” Nash said. “We put them there to last for decades. But in every state, they may not have the immediate impact of, say, a $20 million fund for abortion patients who can’t afford to travel.”

Hall of the Fairness Project echoed this sentiment. “States considering voting actions for 2024,” she said, “are asking whether now is the right moment or whether a new type of litigation or investment in new candidates would be most effective.” All of these things have to be decided locally in a state process.”