This Week in Abortion, Ballot Measures

A collection of good reads, legal updates, and legislative tracking on abortion.

May 06, 2023

Welcome back to your weekly roundup of good reads, legal updates, and legislative tracking on abortion. Ballot measures are a trending policy lever, so this week we are talking about what they are and how they are being used, including some updates from this week.

Good Reads

The Dobbs anniversary is coming up and the summary articles have started. Sarah Resnick wrote a particularly good, concise summary of the different strategies advanced by anti-access folks.

Last week we shared that Nebraska has failed to pass a six-week ban, likely tanking the issue for this session. The bill failed by a single vote. The Nebraska Examiner profiled the Republican State Senator. The former hospital administrator is not what most people consider pro-access. He does not approve of the state’s 20-week restrictions. Instead, he is holding the line for a 12-week ban. We keep asking ourselves, what is the pro-access community supposed to do with Republicans like Riepe? He wants less access than is available now, but he is keeping the state from something much worse and is under great pressure from his colleagues and the pro-life community. Embracing him is impossible and leaving him out in the cold is dangerous.

If you’re in Texas (or Idaho, Indiana, South Carolina, or Mississippi, (and likely soon North Carolina) best not to tell your doctor if you’ve had an abortion. Fellow substacker Jessica Valenti has a piece covering “abortion complication” reporting in these states. The reporting rules seem to require providers to tell the government when women who have ever had an abortion have any one of a huge list of conditions. This is required even if there is no actual link between the condition and abortion. Examples include “shock,” “pre-term delivery in subsequent pregnancy”, and “adverse reaction to anesthesia.” The idea is that this reporting will produce false “complications of abortion” data that legislators can feed as negative messaging about abortion. More reason to expect headlines of “where did all the doctors go?” in these states in 10 years.

Project Drawdown recently released a report reminding us all that better family planning and sex education means fewer humans, which means less consumption, which means less emission, and better climate prospects. Since some anti-access groups are trying to cancel birth control based on its harm to the environment, the reminder seems like an unfortunately necessary one.

Events of the Week

North Carolina passed a 12-week ban on abortions. The vote is veto-proof thanks in part to Rep. Tricia Cotham who has had an abortion and previously co-sponsored a bill to codify Roe v. Wade. Rep. Cotham recently switched parties, and apparently a lot more than that. No explanation from her so far.

Rhode Island’s House passed a bill that would allow Medicaid and the state employee insurance program to cover costs for abortion care.

The Centers for Medicare and Medicaid Services determined that two hospitals broke the law when they failed to provide abortion care to a woman carrying a nonviable pregnancy and at risk of infection. The finding is a reminder that federal laws trump local in emergency situations. That’s a start. However, it came only with a warning, no fines or anything else. This is to be expected from a federal agency that is just looking to signal. Unfortunately for practitioners, some of whom face the possibility of criminal penalties, that signal is probably just more static.

Starting July 1, qualifying pharmacists in Indiana will be allowed to prescribe a six-month supply of birth control pills. This trend is at least one outcome of the Dobbs crisis that we can all be happy about.

There was more good news in Maryland and Michigan.

It was a bad week in Montana. The Governor signed five anti-abortion bills. One law bans abortion after 24 weeks others add additional administrative and operational burdens. Most of these run contrary to the decision of the State Supreme Court that abortion is a protected right. But, one of the laws states that abortion is not a right in the constitution, contrary to decisions of the State Supreme Court. Lots of lawsuits to look forward to.

Legal Updates

In good Montana news, a judge temporarily stopped a recent rule that adds administrative barriers and restricts abortion procedures under Medicaid. Abortion providers in the state sued to prevent the rule from taking effect, arguing that the rule is unconstitutional.

The two women at the center of the country’s first-of-its-kind wrongful-death case are countersuing. The women are facing jail time for helping their friend get an abortion, their countersuit claims that the husband - who brought the case - knew about his wife’s plan to have an abortion beforehand and was abusive. Eleanor Klibanoff observes, “The countersuit…raises several potentially important legal arguments about how and when Texas’ intersecting abortion laws can be enforced.”
Laws that effectively banned abortion clinics in Utah did not become active this week after a judge called the reasoning for the ban “nebulous” and approved an injunction.

Feature: Ballot Measures Alone Won’t Save Us

Back in November, ballot initiatives were the hottest item. Rachel warned that they were not going to be the strategy that brought access back to the nation. But, they are still very much in the news. So, today we are revisiting the tactic, organized by:

What exactly is a ballot measure?
Legislator-driven measures
Citizen initiatives
What happens next? Should we care?

The short answer: Ballot measures are often a necessary procedure to pass constitutional amendments. We are likely to see more of these types of measures, particularly in pro-access states where legislators know that voters want these rights fully secured. Although we are seeing citizen-drive ballot initiatives in some anti-access states, the experience so far is a cautionary one.

1. What is a ballot measure?

First, a quick primer.

A “ballot measure” is an issue or law put onto a ballot. A ballot measure that passes generally results in a changed law, while a failure merely maintains the status quo.
All states allow some form of ballot measure, and many states (like Kansas) require constitutional amendments go to the voters via ballot initiative before becoming law.
Only 25 states1 allow citizens to put measures on the ballot directly, typically after petitioning voters and collecting signatures.

Between 1960 and 2022, only 38 abortion-related ballot measures went to voters. Then, last year 6 abortion initiatives were on the ballot - the most in any one year, and 8 are already in the works for 2024. (Ballotpedia has a nice read for anyone who wants to dig into the nuances.)

2. Legislator-Driven Measures

Until this year, anti-abortion ballot measures were more popular than measures to expand rights. Long before Dobbs, in Arkansas, Alabama, Louisiana, West Virginia, and Tennessee voters approved ballot measures that carved out abortion from the protected rights in their constitutions. These were all legislative-drive measures, amendments that were referred to voters by legislators.

Similar measures were put to voters and lost in Kansas and Kentucky last year. Since then, anti-access groups have rightly lost their confidence. It’s easy for states with clear majority Republican governments to pass anti-abortion laws. Unless legislators are 100% confident that voters are with them, why rock the boat?

Where we could see more legislator-driven measures is in pro-access states. When Roe was in place, asking voters to amend the state constitution wasn’t seen as worth the risk and cost. (Again, why rock the boat?) That has changed.

So far we’ve mostly seen this strategy in states where amendments will win by a landslide (e.g. California and Vermont). But, we may start to see more of this as legislators in pro-access states try to prove themselves to their constituents and inspire people to vote. Maryland and New York will have pro-access measures for the 2024 cycle. Hawaii is also considering it. A lot will depend on which party is looking good in 2024. If it starts to look like Republicans are going to gain seats, we’ll see blue states like Illinois rush to get language on their ballot.

3. Citizen-driven initiatives

In casual conversation (because who doesn’t talk about abortion at parties) a lot of people point to citizen initiatives as the solution to abortion rights in America. Citizen initiatives, where voters put an amendment on the ballot themselves, definitely seem like a good way to get around a legislature that isn’t in line with voters - i.e. a good option in anti-access states.

But, let’s say that you are in a state that allows for constitutional initiatives, which half of the country does not. The tale of Missouri should serve as a cautionary one for pro-access advocates.

This week, we learned that Missouri’s AG has been pressuring the State Auditor to inflate the cost of a pro-rights ballot initiative and the AG has also approved2 a summary that paints the initiative in the worst possible light. It says the amendments will create “dangerous, unregulated, and unrestricted abortions.” Like in most states, advocates will be forced to use these costs and summaries as they collect petitions and the summary is what will appear on the ballot. If the initiative even gets on the ballot - the ACLU is suing to force the Secretary of State to issue a final approval so that signature collection can begin.

Meanwhile, we’ve seen anti-access legislators (looking at you, Ohio) rush to change the rules for how ballot measures can get approved, increasing signature requirements, and adding hurdles around the number of elections a measure must pass on. (None of this is good for general democracy, as it adds barriers to voters having a say in the direction of their state, far beyond abortion.)

4. What happens next? Should we care?

Most of the ballot measures you see in the news today are legislator-driven initiatives. They are constitutional amendments that are great because they enshrine rights, but boring because it’s essentially a foregone conclusion that they will win. Applaud them. Appreciate that if the federal government comes along and tries to take the right to an abortion away, states like Vermont will have a leg up in the fight to stop them. But also know that measures like this are unlikely to change the trajectory of the broader national debate.

On citizen initiatives, approach with serious caution. Initiatives take a lot of resources and they are not a golden ticket for either side. While it feels good to say, "Let the people vote on it.” It’s rarely so simple. And, often it’s not even an option. What we are facing as a country can’t be fixed by one election, it’s a much much longer fight that requires education, advocacy, political gamesmanship, and movement-building. So settle in, we are going to be here for a while.

Corrections: The emailed newsletter said “26 states,” we have rewritten this as 25 to account for the fact that Mississippi’s right to a ballot initiative is a technical one that the supreme court has found cannot be implemented.

Correction: The emailed newsletter incorrectly said, “AG has also written a summary,” this was corrected to reflect that the Secretary of State drafts the summary while the AG approves it.

This Week in Abortion