By: Elena LaCorte
Abortion rights have become an issue at the forefront of the American psyche since the Supreme Court’s overturning of federal abortion protections in June 2022.[1] Since Dobbs was decided, and trigger laws went into effect, Americans have seen a torrent of dismal headlines: 65,000 people living in states with abortion bans, varying from the moment of conception to fifteen weeks, became pregnant as a result of rape.[2] People have been forced to carry wanted pregnancies with grave fetal diagnoses to term,[3] and have faced permanent risks to their fertility[4] and lives.[5] All the while, states with abortion bans are experiencing a rise in maternal,[6] and infant,[7] mortality rates, and simultaneously, the fleeing of obstetricians and maternal-fetal medicine specialists[8] from the same. These unabating realities have mobilized reproductive rights groups to effect change at the state level.
In states that allow for such measures, reproductive rights advocates have worked to gather signatures to put the issue of abortion to voters directly. So far, this has worked: Each time that this issue has been presented to voters since Dobbs, voters have overwhelmingly voted in favor of abortion rights, even in states considered GOP strongholds.[9]
Allowing each state to make its own abortion laws was a central tenant of Dobbs, in which the Court claimed abortion too political an issue for the judiciary to resolve, and one better left to the ballot box.[10] With this in mind, one would imagine that the form of pure democracy that ballot initiatives offer would be welcomed. Rather, as I will briefly illustrate below, the opposite has proven true—instead of giving this decision back to voters, anti-abortion lawmakers have responded with a series of tactical power grabs to prevent voters from having a say on such a political issue.
In Ohio, after more than 700,000 signatures were gathered to put abortion on the ballot, anti-abortion activists and legislators scrambled to prevent this. Two state-level Republicans sued to keep the measure off the ballot, alleging that the language didn’t adequately inform voters of the laws that would be repealed.[11] An August special election was held to change the threshold for a constitutional amendment from a simple majority to 60%.[12] Anti-abortion groups funded ads to scare and confuse voters with anti-trans messages under the guise of parental rights.[13] Ohio Secretary of State, Frank LaRose, after admitting that the August special election was “100% . . . about abortion,”[14] changed the language of the text of the ballot, including replacing “fetus” with “unborn child.”[15] The attempts failed, and Ohioans voted to amend the state constitution to include abortion rights on November 7, 2023. Two days after the vote and undeterred by the will of their constituents, four anti-abortion lawmakers threatened to strip state courts of their power in order to block the amendment, citing election interference at the hands of “foreign billionaires.”[16]
Before Michiganders successfully added the Reproductive Freedom for All amendment to their state constitution, the proposal faced similar challenges. After hundreds of thousands of Michiganders’ signatures had been collected, the anti-abortion group Citizens Supporting Michigan Women and Children alleged the proposed amendment was illegible. Of the text of the proposal, the group claimed the “collections of letters are not ‘words.’ They are nonsensical groupings of letters that are found in no dictionary and are incapable of having any meaning.”[17]
After Floridians Protecting Freedom collected enough signatures to put abortion on the November 2024 ballot, anti-abortion lawmakers responded similarly. Rick Roth, a state GOP representative, introduced legislation to raise the threshold for an amendment to pass to 66.67%.[18] At the same time, Attorney General Ashley Moody challenged the ballot measure’s language concerning viability before the Florida Supreme Court, claiming it arbitrary and misleading to voters.[19]
In Mississippi, where Dobbs originated, lawmakers recently revived the ballot initiative process, with one exception: No ballot measures can go forward that would challenge the state’s abortion law, which criminalizes abortion from the moment of conception.[20]
This post only constitutes a brief snapshot of state-level tactics used to thwart abortion rights initiatives. Direct democracy ballot initiatives—and accepting the outcome of such initiatives—are a cornerstone of our constitutional democratic republic. As the fight over reproductive rights only grows more visible, and as the 2024 presidential election only grows closer, some anti-abortion lawmakers may find themselves agreeing with Rick Santorum’s rather telling statement after the passing of Ohio’s Issue 1: “thank goodness that most of the states in this country don’t allow you to put everything on the ballot because pure democracies are not the way to run a country.”[21]
[1] Dobbs v. Jackson Women’s Health, 597 U.S. 215 (2022).
[2] Selena Simmons-Duffin, Raped, pregnant, and in an abortion ban state? Researchers gauge how often it happens, NPR, (Jan. 24, 2024, 11:02 A.M.), https://www.npr.org/sections/health-shots/2024/01/24/1226161416/rape-caused-pregnancy-abortion-ban-states.
[3] Nadine El-Bawab, ‘I had to carry my baby to bury my baby’: Woman says she was denied abortion for fetus without skull, ABC NEWS, (Aug. 26, 2022, 4:49 P.M.) https://abcnews.go.com/US/carry-baby-bury-baby-woman-denied-abortion-fetus/story?id=88890813.
[4] Ava Sasani, Kate Cox case: what led to the Texan fleeing the state for an abortion?, THE GUARDIAN, (Dec 12, 2023, 1:26 P.M.) https://www.theguardian.com/world/2023/dec/12/kate-cox-texas-abortion-case-explained#:~:text=Doctors%20informed%20Cox%20and%20her,probably%20jeopardize%20her%20future%20fertility.
[5] Nadwa Tawfik, She was denied an abortion in Texas – then she almost died, BBC, (June 17, 2023) https://www.bbc.com/news/world-us-canada-65935189.
[6] Orlana Gonzalez, Report: Mothers in states with abortion bans nearly 3 times more likely to die, AXIOS, (Jan 19, 2023) https://www.axios.com/2023/01/19/mothers-anti-abortion-bans-states-die.
[7] Doha Madani, States with more abortion restrictions have higher maternal and infant mortality, report finds, NBC NEWS, (Dec 14, 2022, 12:01 A.M.)https://www.nbcnews.com/health/health-news/abortion-restrictions-higher-maternal-infant-mortality-rcna61585.
[8] Shira Fishbach, States With Abortion Bans Are Losing a Generation of Ob-Gyns, WIRED, (Jun 20, 2023, 6:00 A.M.) https://www.wired.com/story/states-with-abortion-bans-are-losing-a-generation-of-ob-gyns/.
[9] Alice Miranda Ollstein, Megan Messerly, & Jessica Piper, The Supreme Court dismantled Roe. States are restoring it one by one, POLITICO, (Nov 9, 2023, 6:17 P.M.) https://www.politico.com/news/2023/11/09/abortion-rights-elections-red-states-00126225.
[10] Dobbs v. Jackson Women’s Health, 597 U.S. 215 (2022).
[11] Jessie Balmert, Lawsuit asks Ohio Supreme Court to block abortion rights measure from November ballot, CINCINNATI ENQUIRER, (Jul 29, 2023, 10:09 A.M.) https://www.cincinnati.com/story/news/politics/2023/07/29/gop-lawsuit-seeks-to-boot-abortion-rights-measure-from-november-ballot/70490982007/.
[12] Julie Carr Smyth & Samantha Hendrickson, Voters in Ohio reject GOP-backed proposal that would have made it tougher to protect abortion rights, THE ASSOCIATED PRESS, (Aug 9, 2023, 9:26 A.M.) https://apnews.com/article/ohio-abortion-rights-constitutional-amendment-special-election-227cde039f8d51723612878525164f1a.
[13] Adam Edelman, Conservatives are making the Ohio abortion amendment about trans rights, NBC NEWS, (Jul 20, 2023, 6:58 P.M.) https://www.nbcnews.com/politics/politics-news/anti-abortion-groups-make-proposed-ohio-amendment-trans-rights-rcna94991.
[14] Morgan Trau, Sec. of State LaRose admits making constitution harder to amend is ‘100% about . . . abortion’, OHIO CAPITAL JOURNAL, (Jun 5, 2023, 5:00 A.M.) https://ohiocapitaljournal.com/2023/06/05/ohio-sec-of-state-larose-admits-making-constitution-harder-to-amend-is-100-about-abortion/.
[15] Marilou Johanek, LaRose pushes unfair, inaccurate language for voters on November Ohio reproductive rights amendment, OHIO CAPITAL JOURNAL, (Aug 29, 2023, 4:30 A.M.) https://ohiocapitaljournal.com/2023/08/29/larose-pushes-unfair-inaccurate-language-for-voters-on-november-ohio-reproductive-rights-amendment/.
[16] Ohio House of Representatives, 135th General Assembly, DECEPTIVE OHIO ISSUE 1 MISLED THE PUBLIC BUT DOESN’T REPEAL OUR LAWS, (November 9, 2023), available at https://ohiohouse.gov/news/republican/deceptive-ohio-issue-1-misled-the-public-but-doesnt-repeal-our-laws-117412.
[17] Clara Hendrickson, Challenge to Michigan abortion amendment over missing spaces could face uphill battle, DETROIT FREE PRESS, (Aug 19 2022, 4:37 P.M.) https://www.freep.com/story/news/politics/2022/08/19/challenge-michigan-abortion-amendment-could-see-obstacles/10347341002/.
[18] The Constitution of Florida, as of February 2024, requires a 60% threshold to add a constitutional amendment. Richard Winger, Florida Bill to Require Initiatives to Pass with 66.67% of Vote Advances, BALLOT ACCESS NEWS, (Feb 4, 2024) https://www.myfloridahouse.gov/Sections/Bills/billsdetail.aspx?BillId=78913.
[19] Brendan Farrington, Florida attorney general, against criticism, seeks to keep abortion rights amendment off 2024 ballot, ASSOCIATED PRESS, (Nov 1, 2023, 5:46 P.M.) https://apnews.com/article/abortion-ashley-moody-florida-politics-0db0a1a4deb47fa1b82410b7670b16e3.
[20] Michael Goldberg, Mississippi ballot initiative proposal would not allow challenges to abortion laws, ASSOCIATED PRESS, (Jan 24, 2024, 8:33 P.M.) https://apnews.com/article/mississippi-ballot-intiative-abortion-2da2169722fc76035d2200f9d3cc3e4c.
[21] Julie Carr Smyth & Christine Fernando, Voters back abortion rights, but some opponents won’t relent. Is the commitment to democracy in question?, ASSOCIATED PRESS, (Nov 19, 2023, 7:40 A.M.) https://apnews.com/article/abortion-democracy-threats-republicans-ballot-initiatives-ohio-3d6e2f0d0f5993ddd75522b662d2eb34.
