Voters to weigh abortion initiatives in five states

Less than five months after the overturn of Roe v. Wade, five states will take up abortion-related ballot measures. As Election Day approaches, pro-life and pro-abortion groups are comparing the ballot language in their states to a failed pro-life amendment in Kansas, looking at those results for indicators of how November could turn out.

The Kansas amendment lost with 59 percent of voters in opposition. The amendment would have clarified that the state constitution does not guarantee a right to abortion, overturning a 2019 state Supreme Court ruling. But the second sentence in the almost 90-word paragraph galvanized pro-abortion groups. The authors intended the language to clarify that the amendment would return to the legislature the power to pass abortion-related legislation, but the opposition denounced the amendment as an effective ban on abortion, fueling post-Roe concerns about difficult pregnancy-related conditions that threaten the physical health of the mother.

The campaigns around the other upcoming abortion-related ballot measures have taken a similar tone. Whether pro-life or pro-abortion, the opposition to each of these state proposals plays on the extremism of the proposed language. While pro-abortion groups point to Kansas as an indicator of coming pro-abortion victories, some pro-life groups emphasize other elements of the Kansas loss as favorable for a pro-life outcome in other states.

Kentucky

Of all the abortion-related measures coming to state ballots in November, Kentucky’s is the most similar to the one that failed in Kansas. The goal of Kentucky’s Amendment 2 is to clarify that the state constitution does not guarantee a right to abortion. The Yes For Life coalition, a committee registered in support of the amendment, says a “Yes” vote for the amendment will “protect the sanctity of life.”

Lawmakers approved the amendment for the ballot in spring 2021. Unlike Kansas, Kentucky already has a law in effect that protects babies from abortion except to save the mother’s life or to prevent serious impairment to her physical health. Rather than undoing a past court precedent, passing the amendment would preclude the possibility of future state courts declaring that the Kentucky Constitution guarantees a right to abortion.

Similar to Kansas, however, pro-abortion groups in the state are painting the amendment as extreme overreach. The primary committee opposing the amendment, Protect Kentucky Access, has urged voters to consider complicated cases. “Who knows how far this could go?” the group wrote on a PowerPoint slide about the amendment. “A total ban on abortion could even threaten the life of a woman having a miscarriage.” Addia Wuchner, president of Kentucky Right to Life, said, “That’s an emotional campaign that they’re running,” adding that pro-life groups have had to adjust their messaging to respond to what she called “fear-mongering” that targets women.

Following the pro-abortion victory in Kansas, Protect Kentucky Access released a statement celebrating: “The landslide victory in Kansas shows what we already know here in Kentucky: People know how to take care of our families better than the government does.” But Wuchner pointed to the advantages of the Kentucky amendment: It’s much shorter than Kansas’—less than 30 words—and harder to misconstrue. She also pointed to the state’s already strong pro-life record. In the end, she said, “It’s going to be about [voter] turnout.”

Michigan

Proposal 3 in Michigan, if passed, would add to the state constitution a right to “reproductive freedom,” which would include a right to abortion. The group Reproductive Freedom for All (RFFA) began the process of getting the amendment on the ballot in January, a month after the U.S. Supreme Court heard oral arguments in Dobbs v. Jackson Women’s Health Organization. The group presented the amendment as preparation for the possible overturn of Roe. Since the court’s June decision, RFFA has pitched the amendment as a way to restore to Michiganders “the rights we had under Roe v. Wade” and to prevent enforcement of a 1931 law protecting babies from abortions except to save the mother’s life. (A court order currently prevents elected prosecutors in counties that have abortion facilities from enforcing the law.) The group celebrated the Kansas results as “setting the stage for more success” for pro-abortion ballot measures in November.

But Citizens to Support MI Women and Children, the pro-life coalition opposing the amendment, has dismissed it as “too extreme” and “too confusing.” According to the language that will appear on the November ballot, the amendment would invalidate existing state pro-life laws. It doesn’t say which laws, but opponents say it would scrap widely accepted restrictions, including the state’s ban on partial-birth abortion and existing health requirements for abortion facilities. Under the amendment, the state could technically restrict abortion after fetal viability, but the broad health exception the amendment requires would mean a woman could get a late-term abortion simply for mental health reasons. Current Michigan law only allows abortion after viability to save the mother’s life.

The actual amendment is lengthy, and only a summary of it appears on the ballot. Christen Pollo, a spokesperson for the pro-life coalition, said its wordiness works in pro-lifers’ favor. “We’re finding that, when voters read the amendment text, they’re very uncertain and uncomfortable with what's hidden in there, feeling like they’re being misled or tricked,” she said. “That had an impact on Kansas. I think it’s going to have an impact here, too.”

California

California’s Proposition 1 would also add a right to abortion to the state constitution. Pro-abortion lawmakers rushed the measure through the state legislature after the leak of the Dobbs opinion draft on May 2. They succeeded in getting the language on the November ballot before the June 30 deadline. California already allows for abortion until viability and even after for cases including broad mental health concerns, but the group Yes on Proposition 1 promotes the amendment as a way “to ensure that this right will always be protected in California.”

Even though the overturn of Roe didn’t affect abortion policy in the state because of its already permissive laws, Jonathan Keller, president of the pro-life California Family Council, said the Supreme Court decision has “supercharged enthusiasm” among pro-abortion groups. Meanwhile, he said, the Kansas results showed pro-lifers that they can’t assume pro-life sentiments guarantee pro-life votes.

“California pro-lifers have realized the need to make narrow and pragmatic arguments in opposition to Proposition 1,” he said. Rather than assuming people understand the sanctity of unborn life, Keller said pro-lifers in California are working to emphasize the pro-abortion extremism of the measure—how it would open the door even wider in California to late-term abortions and prevent future lawmakers from passing laws to protect the unborn.

But Keller pointed out that, unlike Michigan, California is already set up to be an abortion destination in the country. This added proposition, on top of a package of other pro-abortion bills working through the legislature, will only further solidify the state’s role, represented by new billboards from Gov. Gavin Newsom advertising California’s state-funded abortion website in seven pro-life states including Texas and South Carolina.

Vermont

Similar to the proposed amendments in Michigan and California, the Vermont proposal would also effectively add a right to abortion to the constitution, although it never mentions the word “abortion.” The amendment simply states that “an individual’s right to personal reproductive autonomy is central to the liberty and dignity to determine one’s own life course and shall not be denied or infringed unless justified by a compelling State interest achieved by the least restrictive means.” Lawmakers first introduced the proposal in the legislature in 2019 as abortion supporters began to sense the shifting Supreme Court could threaten Roe v. Wade. The proposal won the final votes needed to send it to the ballot in February 2022.

Supporting groups promote it as an amendment that would keep abortion safe, legal, and accessible in the absence of Roe. One tweet from the group Vermont for Reproductive Liberty says the amendment would ensure patients and their doctors could “use the full range of treatment options, including abortion” in pregnancy-related medical complications.

“They think this is a slam dunk here in Vermont,” said Matthew Strong, executive director of Vermonters for Good Government, the primary group opposing the amendment. But he said opponents have been running a “governor’s level campaign” against it. He said that many voters aren’t aware of the amendment at first, but once they hear it allows for late-term abortions, even self-identified “pro-choice” voters are against it. Current Vermont law allows abortion for any reason throughout pregnancy, and a 2019 statute declared a right to abortion, but the amendment would enshrine these policies in the state constitution.

Strong said the outcome of the Kansas vote revealed some factors that could work against the pro-abortion amendment in Vermont. He heard from Kansas pro-life groups that “people who went in and didn't understand what the language meant voted no.” He said voters also seemed to be leaning away from extreme positions on either side of the abortion issue. In light of that, opposing the Vermont amendment is a simple task: Instead of having to convince Vermonters that abortion is murder from the point of conception, Strong said he and other opponents just have to convince registered voters that Proposition 5 is too extreme for the state constitution.

Montana

Compared to the other states’ abortion-related ballot measures, Montana’s is notably moderate. It’s the only one that does not propose a constitutional amendment. The act, if adopted by voters, would ensure that infants born alive—including after a botched abortion—are treated as legal persons and receive life-saving care. The state legislature has already passed the act, which stipulated that it must go before voters before becoming law.

The group Compassion for Montana Families is leading the opposition to the act, calling it “extreme,” and saying it would deal out hefty charges to doctors and nurses “for offering compassionate care to families dealing with pregnancy complications, including lethal fetal abnormalities.” They claim the act would rob parents of “the right to comfort or baptize their child” since it would mean that doctors would have to provide medical treatment to a baby that has no chance of survival.

Meanwhile, while pro-life state and national groups support the legislation, no state coalition has formed to promote it. Rep. Matt Regier introduced the legislation in 2021, pointing to bills in other states that provided no protections for babies born during abortions as a reason why “we need to make it abundantly clear that here in Montana, the protection of all life is available.” Regier did not respond to WORLD’s request for an interview but has said in recent interviews that the law has nothing to do with requiring medically unreasonable interventions when the child has a fatal deformity but rather protects babies from being intentionally left to die.