Pro-life states battle abortion ballot efforts

For four years running, a prominent pro-life organization has given Arkansas the title of the most pro-life state in America. Now, pro-abortion groups there are working to gather enough signatures to put a measure on November ballots that would add a right to abortion to the state constitution.

Last year’s launch of the pro-abortion ballot campaign didn’t come as a surprise to Rose Mimms, executive director of Arkansas Right to Life. After the successes pro-abortion groups had in adding a right to abortion to the state constitutions in Michigan and Ohio, Mimms knew it was a matter of time before activists would bring those efforts to Arkansas.

“Why wouldn’t they come after Arkansas?” Mimms said. “I mean, if they could get Arkansas, the others would just fall like dominoes. So, yeah, we knew we were gonna be a target.”

Beyond Arkansas, pro-abortion groups are targeting half a dozen other pro-life states with abortion amendments. The Florida Supreme Court approved last week an abortion amendment for ballots in that state, and coalitions in at least six other states with either strong pro-life laws or pro-life governments are in various stages in the process of putting similar measures on ballots.

Republican elected officials and pro-life groups in many of these states have waged legal battles in efforts to keep what they call broad and misleading language off of the ballots. So far, none of the attempts have successfully squelched the pro-abortion measures, with state supreme courts rejecting arguments from pro-life attorneys general in Florida and Montana last week. But pro-life groups say the increased scrutiny of pro-abortion ballot language has had its benefits.

“The fundamental job of [state officials]… is to ensure that the voters have a fair and impartial understanding of what is being proposed to amend the constitution,” said Sam Lee, director of the pro-life lobbying organization Campaign Life Missouri. He noted that in his state alone, groups have submitted more than 170 proposals for possible addition to the 2024 ballot. “Just because something is proposed doesn’t mean it’s a good thing for people to vote on,” he said.

Pro-abortion groups in Lee’s state submitted their proposed ballot language in March 2023, beginning a monthslong struggle with the state’s pro-life officials. State Attorney General Andrew Bailey that spring rejected the state auditor’s summaries of how much the proposals would cost the state, saying that aborting Missouri’s citizens would mean financial losses for the state down the road. Missouri Secretary of State Jay Ashcroft also wrote a required description of the initiative, saying among other things that the amendment would allow for “dangerous, unregulated, and unrestricted abortions.” Both moves launched legal battles.

Officials in each of the pro-life states facing proposed amendments have expressed concern about unrestricted abortion. The initiatives, if passed, would all prohibit government interference with abortion until a certain point in pregnancy—in most, the point of fetal viability, although proposed amendments in a few states establish points earlier in pregnancy. But all of the proposed amendments allow for abortions after those limits for broad health reasons. In its 1973 Doe v. Bolton decision, the U.S. Supreme Court found such health exceptions to include social and financial concerns, effectively allowing abortions throughout pregnancy for any reason.

Pro-life groups also point to the aftereffects of similar amendments that have already passed in other states to show how they gut other basic pro-life laws. At the end of March, pro-abortion groups in Ohio sued to throw out the state’s 24-hour waiting period and informed consent law, citing that state’s new right to abortion.

Because of similar concerns, Arkansas Attorney General Tim Griffin rejected the ballot language pro-abortion groups submitted in November. In Florida, Attorney General Ashley Moody argued in a state Supreme Court case that the ballot measure there was unclear and ambiguous, citing the health exception among other concerns.

In Montana, Attorney General Austin Knudsen rewrote the pro-abortion group’s ballot statement to communicate that the proposed amendment would allow late-term abortions and wipe out existing laws regulating abortion, including parental notification laws.

Pro-abortion groups have condemned these attempts as anti-democratic, but pro-lifers disagree. “There’s nothing wrong with making sure that every T is crossed and every I is dotted in the process,” said Derek Oestreicher, chief legal counsel for the Montana Family Foundation. “It happens when pro-life groups bring ballot measures like this. And it should happen when pro-abortion groups bring ballot measures like this.”

In each of these cases, the pro-abortion initiatives have all moved forward despite the pushback. In Missouri, state courts last year rejected Secretary of State Ashcroft's ballot description and required Attorney General Bailey to approve the fiscal summaries. In Arkansas, the measure’s pro-abortion sponsors submitted a new version in December that addressed Attorney General Griffin’s concerns. He approved it in January. The Montana Supreme Court rejected Attorney General Knudsen’s rewrite of the ballot statement and put forward its own on April 1. And the same day, the Florida Supreme Court rejected Attorney General Moody’s arguments.

Signature gathering for these amendments in Missouri and Arkansas has been underway since January, and the process could start soon in Montana as well. In Florida, where supporters have already gathered the required signatures, the amendment is officially set for the November ballot.

Despite the mixed outcomes, pro-life groups see silver linings to the efforts of their state officials. In Arkansas, Mimms is still concerned that the amendment would allow for abortion throughout pregnancy. But the latest version of the amendment more clearly communicates how it would affect state law by defining crucial terms, including the health exception, and taking other suggestions from the attorney general. “I think they gave up some ground doing it,” Mimms said.

In Montana, Oestreicher noted that the Montana Supreme Court’s new ballot summary also addresses concerns about the pro-abortion group’s original language. Other issues remain, but he said the new summary at least clarifies two things that the pro-abortion group’s version did not: that the amendment doesn’t affirm existing rights but creates new ones and that individual medical providers will be able to use their subjective judgment to determine when an unborn baby has reached the point of viability.

Oestreicher also recognizes that the attorney general’s pushback has forced the amendment’s supporters to delay the start of signature gathering. “If they started gathering signatures today … they have about two months to gather 60,000 plus signatures in the state of Montana,” Oestreicher said in an interview Thursday. “This is a heavy lift for even the well-funded and well-organized pro-abortion lobby.”

Mimms in Arkansas and Lee in Missouri have observed similar effects. Lee noted that the pro-abortion coalition filed the initiative in March 2023, but the legal issues facing the Missouri amendment didn’t resolve until November, and the pro-abortion coalition did not begin gathering signatures until January. “From our point of view, a delay is a good thing,” Lee said. “I mean, the longer it takes before they get started, the better it is for us.”

Lee added that the pushback from state officials also has an educational effect as the public follows developments in the news, perhaps giving voters a better idea of what is or is not in the petition and what its effects will be.

“You’re going to have your… pro-life advocates and your pro-abortion supporters who are pretty much locked in to whether they’re going to vote yes or no,” Lee said. “…But there are a lot of people in between.” He said he hopes the questions officials have raised about the true effects of the amendment might cause these voters to be wary about supporting it and potentially vote against it or not vote on it at all.

To Lee, the battle against these ballot measures is also key to the pro-life movement’s morale. “We’re just not going to let them run over us,” he said. “We’re going to fight it every step of the way.”

Even though the pro-life movement lost key ballot campaigns in states including Michigan and Ohio, Lee said the movement can’t let those losses demoralize them. “Your team lost the last 12 games, why do you keep on playing?” he said. “Well, because we might win the next one. And that’s our job, too.”