This Week in Abortion: Election Edition
A collection of good reads, events from the week, and occasional insights from me, Rachel Leven.
This week, I’m writing all about the election - Surprise! Surprise! This is also the last newsletter of the year. I look forward to catching up in 2023!
Abortion access advocates certainly deserve the celebratory lap they have been taking this week. But, now that they have gone around once or twice, let me throw just a little bit of cold water on that fire.
Most of the political wins were temporary, some buying only a year or two. The overall direction hasn’t changed, with half of the states debating whether access should be restricted by viability or not, and the other half debating how far to regulate the few exceptions in their otherwise extreme bans. Here is my (always humble) take on what could and should be next.
In case you weren’t religiously following the news, you can also see more details on specific wins and losses at the end of the newsletter.
1. Ballot Initiatives/Referenda, mmmaaaaaybe
Ballot initiative wins were the biggest news of the week and they have a lot of people fired up. But, these initiatives are not going to become a major national strategy. Citizen initiatives are not available in every state, and even where they are, some only allow a (costly) change to the state’s statute, not to its constitution.
Wins in Michigan, California, and Vermont were exciting. But, these were states in which abortion was already allowed at least up to viability. For most states that already have access up to or after viability, citizen-driven initiatives will be potentially expensive and largely symbolic. Only in a few purple states, like Colorado, would an initiative be more meaningful.
In the states where it matters most, where rights are there but are limited, advocates can’t count on the same positive results, making any initiative risky. The sweet spot will be a state where anti-access legislators are credibly threatening existing rights and are therefore making an initiative a risk worth taking.
Considering this, Ohio, Arizona, and North Dakota are really the only states where an amendment initiative should be a major and immediate priority.
2. States. States. States. States. States. States. States. States. States. States. States. States. States. States. States. (Red) States. EVERYBODY
The biggest takeaway from this election is that investment in states pays off.
I’d expect the pro-access community to invest strongly in states where they eeked out largely temporary wins like Wisconsin and North Carolina as well as other historically purple states in which access could be threatened. But, there is also opportunity outside that narrow band of states and a way to get out of the total divide that we are still hurtling towards.
The problem is that to really do this, the movement has to detach itself from Democratic party politics. This could look like finding and supporting non-Democratic politicians. But, even more important is building bridges with conservative institutions. That the pro-access almost entirely Blue world had a nice week is great. That the anti-access almost entirely Red world had a bad week is better than great, it’s an opportunity. It means that there are a lot of people in power both in politics and in institutions that are feeling a bit unsure about themselves and are reevaluating their positions.
Building a movement within conservative institutions is no small task thanks to biases on both sides. It also might mean embracing groups who don’t get all the way to viability but do get to a place where most abortion circumstances would be covered.
As I said, not easy. But it’s an opportunity that would be terrible to waste.
3. Federal Legislation. Sure, why not try
This week the Washington Post’s editorial board called for Biden to pass “bipartisan legislation that protects abortion rights as far as the politics allow.” I’m super duper skeptical that there is a compromise available in Congress.
But, what the hell. Go ahead and shoot for the moon, Mr. President. If all we end up with is a law that nationally guarantees abortion in cases of rape and medical necessity, that’s still something more than we have today.
Election Details
Access won everywhere it was on the ballot: MI, CA, VT, KY, MT
Every state that put abortion on the ballot voted in favor of making sure the procedure is protected in some way.
Michigan, California, and Vermont amended their respective state constitutions to include reproductive rights. Meanwhile, Kentucky and Montana rejected proposals that would have prevented access.
In most states where existing access was threatened, elections secured - but did not expand - those rights.
It was a good week in the states that were playing defense. Abortions up to 20 weeks will almost certainly remain legal in Wisconsin and Noth Carolina, and legal up to 24 weeks in Pennsylvania. Balance of power was maintained or secured in these states enough to preserve existing law. But in these states - especially WI and NC - Nov 8th results mostly mean the fight moves on to 2023 and 2024.
Kansas retained its supreme court justices, which essentially cemented voters’ rejection of the anti-access referendum last August. Illinois and Kentucky also fared well. But state supreme court races were overall a mixed bag with results looking bad for access in some states like NC and Ohio.
Only in Michigan and Maryland have elections potentially opened the door to increased access. Since both states already allow abortions up to viability, increased access will likely be focused on the repeal of regulatory burdens.
It’s not all great news, especially in states where tighter restrictions are already in place.
In states where abortion is already tightly restricted or nearly banned, anti-access politicians comfortably held onto or expanded power. For example, Republican-controlled governments in Georgia, Nebraska, South Carolina, and Florida will face increased pressure to move towards total bans. In Indiana, the political dynamics remain favorable to anti-access groups as a legal stalemate continues. In Arizona, elections remain too close to call but it seems unlikely at this point that the results will enable an expansion of access.
