Voter Trends on Ballot Measures Show Support for Reproductive Rights
January 25, 2024
Overview
As a result of the Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization, states now have more legislative power to restrict or expand access to abortion services. One strategy that states are using to pass laws regarding abortion access is to place the issue of abortion on a ballot for voters to decide. These reproductive care access ballot measures are an important litmus test for the inclination of American voters.
As a result of the Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization, states now have more legislative power to restrict or expand access to abortion services. One strategy that states are using to legislate abortion access is to place the issue on a ballot for voters to decide. Citizens are also using this strategy by placing initiatives on the ballot themselves. In general, abortion-related ballot measures have sought to alter the state’s constitution by either restricting or expanding access to abortion care services. Examining the use of ballot measures so far indicates that voters often use this strategy to seek to protect, rather than restrict, access to abortion services – even where the legislature has sought to restrict access.
In 2022 and 2023, seven states placed abortion related measures on their ballots for voters to decide: California, Kansas, Kentucky, Michigan, Montana, Ohio, and Vermont. Ballot initiatives in California, Michigan, Ohio, and Vermont sought to protect reproductive rights and were approved by voters. In contrast, ballot measures in Kentucky, Kansas, and Montana that attempted to severely limit access to abortion failed. These results reflect voters’ resistance to restrictions on abortion access.
More abortion access ballot measures loom on the horizon. These measures come both in the form of citizen initiated constitutional amendments and legislatively referred amendments. Seven states have approved or proposed ballot measures that seek to protect reproductive rights, while only two states have approved or proposed measures that seek to restrict reproductive rights. These measures are summarized below:
Measures Seeking to Protect Reproductive Rights
Arizona: The Arizona Abortion Access Act Amendment is a citizen initiated constitutional amendment thatwould establish the fundamental right to abortion. It specifies that the state of Arizona may not interfere in abortion decisions made prior to the point of “fetal viability” unless justified by a compelling state interest. For the purposes of this measure, fetal viability is generally defined as the point in pregnancy when there is a “significant likelihood of the fetus’s sustained survival outside the uterus.” A compelling state interest includes any law or policy that is enacted or adopted for the purpose of improving the health of a person seeking abortion care, while not infringing on their autonomous decision making, and conforms with clinical standards of practice and evidence-based medicine using the least restrictive means. This measure is still garnering enough signatures to be placed on the ballot.
Florida: If proponents are successful in garnering the required number of signatures, the Prohibit Laws Restricting Abortion Initiative will appear on the Florida ballot in 2024 as a citizen initiated constitutional amendment. If approved this measure would amend the Florida constitution to state that “[n]o law shall prohibit, penalize, delay, or restrict abortion before viability or when necessary to protect the patient’s health, as determined by the patient’s healthcare provider.”
Nevada: Another initiative garnering signatures is the Right to Reproductive Freedom Amendment, which will appear on the Nevada ballot in 2024 as a citizen initiated constitutional amendment if proponents are successful. This amendment would amend the Nevada Constitution to provide that all individuals have a fundamental right to abortion until fetal viability, or when needed to protect the life or health of the pregnant person unless there is a compelling state interest.
South Dakota: The Right to Abortion Amendment will appear on the South Dakota ballot in 2024 as a citizen initiated constitutional amendment if current efforts to garner enough votes are successful. South Dakota currently bans abortion with limited exceptions. If approved, this measure would make abortion legal in South Dakota during the first trimester of pregnancy. During the second trimester of pregnancy, the legislature can regulate abortion “only in ways that are reasonably related to the physical health of the pregnant women.” Beyond the second trimester, the legislature can regulate or prohibit abortion except when abortion is medically necessary to preserve the life or health of the pregnant woman.
Maryland: The Right to Reproductive Freedom Initiative will appear on the Maryland ballot in 2024 as a legislatively referred constitutional amendment. The amendment supports adding a new article to the Maryland Constitution’s Declaration of Rights establishing a right to reproductive freedom, which has been defined to include “the ability to make and effectuate decisions to prevent, continue, or end one’s own pregnancy.”
New York: The New York Equal Protection of Law Amendment will appear on the New York ballot in 2024 as a legislatively referred constitutional amendment. If successful, the amendment would add language to the New York Constitution to prohibit the denial of rights to an individual based on their “ethnicity, national origin, age, and disability,” as well as their “sex, including sexual orientation, gender identity, gender expression, pregnancy, pregnancy outcomes, and reproductive healthcare and autonomy.”
Measures Seeking to Restrict Reproductive Rights
Iowa: The No State Constitutional Right to Abortion Amendment is a legislatively referred constitutional amendment that would add a section to the Iowa state constitution which states: “To defend the dignity of all human life and protect unborn children from efforts to expand abortion even to the point of birth, we the people of the State of Iowa declare that this Constitution does not recognize, grant, or secure a right to abortion or require the public funding of abortion.” In Iowa, this requires a ballot measure to be approved by a simple majority vote in two successive legislative sessions to have an initiative placed on the ballot; the measure passed in the 2021-2022 session and now must be passed in the 2023-2024 session to appear on the 2024 ballot.
Pennsylvania: The No State Constitutional Right to Abortion Amendment is a legislatively referred constitutional amendment that would amend the Pennsylvania Constitution to state that the constitution grants no right to a taxpayer-funded abortion or any other right relating to abortion. In Pennsylvania, this requires approval by two-thirds of the state legislature in two consecutive legislative sessions. The measure was approved by the 2021-2022 legislature and must now be approved by the 2023-2024 legislature to appear on the ballot.
Reflections on Voter Trends
These trends offer insights into the distinction between measures that are legislatively referred, and those which are citizen initiated. Of the seven states with approved or proposed protective measures, five of those measures are citizen initiated, whereas both the approved or proposed restrictive measures are legislatively referred amendments. This mirrors the trend from 2022 and 2023, signaling that voters are generally supportive of protective measures and are not likely to approve ballot measures which would amend their state constitution to restrict access to abortion or other reproductive health services. As access to abortion care services continues to be an important consideration in our current political climate, these reproductive care access ballot measures remain an important litmus test for the inclination of American voters.
This post was written by Haley Campbell Garcia, Law Clerk, Health Equity, Network for Public Health Law and J.D. Candidate, University of Kentucky J. David Rosenberg College of Law Class of 2024, and reviewed by Phyllis Jeden, Senior Staff Attorney, Health Equity and April Shaw, Senior Staff Attorney, Health Equity at the Network for Public Health Law.
The Network for Public Health Law provides information and technical assistance on issues related to public health. The legal information and assistance provided in this document do not constitute legal advice or legal representation. For legal advice, readers should consult a lawyer in their state. Support for the Network is provided by the Robert Wood Johnson Foundation (RWJF). The views expressed in this post do not represent the views of (and should not be attributed to) RWJF.