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Reproductive-Rights Supporters See Path to Victory: Letting Voters Decide

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Wednesday, May 3, 2023   

By Belle Taylor-McGhee for Ms. Magazine.
Broadcast version by Nadia Ramlagan for Kentucky News Connection reporting for the Ms. Magazine-Public News Service Collaboration

When Kansas forcibly rejected an amendment this past August that would have removed the right to abortion from the state's constitution, the country was stunned-and abortion-rights advocates were ecstatic, seeing in this victory a way forward to secure new and greater protections for abortion access and bodily autonomy by enshrining the right to abortion into state constitutions.

In the November midterm elections three months later, voters again sent a strong signal, not only that they disapprove of the Supreme Court ruling to overturn Roe v. Wade, but also that they are willing to cast their ballots to protect the right to abortion and reject attempts to take it away. It was the collective moment post-Roe that gave abortion-rights advocates a real pathway to success, and it changed the trajectory, some would argue, of the reproductive health and lives of millions of women across the country.

J.J. Straight, deputy director of the LibertyDivision at the American Civil Liberties Union, said voters sent a clear message that abortion is a personal, not a partisan, issue: "The common thread is that folks expect there to be legal access in their state to abortion, and we have seen that they are willing to show up and vote ... to protect that right. And they also expect government not to be involved in that decision."

This is how Americans voted in November:

  • More than three-quarters (76.7 percent) of Vermont voters approved the Reproductive Liberty Amendment to the state constitution, which guarantees "personal reproductive autonomy unless justified by a compelling State interest."

  • A decisive 66.9 percent of California voters amended the state constitution to protect the right to abortion and contraception.

  • A solid majority (56.7 percent) of Michigan voters approved a state constitutional right to reproductive freedom, including all matters relating to pregnancy, such as abortion and contraception.

  • Some 52.6 percent of Montana voters rejected a referendum that would have made an infant "born alive" at any gestational age a legal person, thereby criminalizing healthcare providers who do not make every attempt to save a fetus "born during an attempted abortion" (an unlikely occurrence).

  • A 52.3 percent majority of Kentucky voters rejected an amendment declaring that there is no right to abortion in the state constitution or any requirement for government funding of abortion.

With a 6-0 record of success (counting Kansas), abortion-rights advocates are now even more motivated to pursue a state-by-state strategy and take their fight directly to voters.

"Kansas and Michigan were the biggest influencers, especially because Kansas is such a red state," said Dr. Lauren Beene, executive director of Ohio Physicians for Reproductive Rights (OPRR), a nonpartisan coalition formed after Roe was overturned, representing more than a thousand doctors across the state. "If it can happen in Kansas, then it can happen in Ohio too."

An onslaught of restrictive and punitive policies have threatened to ban abortion in Ohio, including the so-called heartbeat bill. Now a law, but under a temporary court injunction, it requires the determination of whether there is a "detectable fetal heartbeat" before an abortion can be performed and criminalizes anyone performing or inducing an abortion after this point. (Note: Although what's known as "cardiac activity" can be detected in a 6-week-old embryo, the term "heartbeat" at this stage is misleading. According to the American College of Obstetricians and Gynecologists, it's not until around 17 to 20 weeks, when the four chambers of the heart have developed and can be detected on an ultrasound, that the term "heartbeat" is accurate.)

In response, OPRR and its coalition partners, under the umbrella of Protect Choice Ohio, are pursuing a citizen-initiated ballot amendment to the state constitution to protect the right to abortion.

The group has reason to be optimistic: Polling conducted after Roe was overturned and before the 2022 midterms found that 59.1 percent of Ohioans would vote yes on an abortion-rights amendment.

But getting there will not be easy. Republican state lawmakers are already working to push through what appears to be an attempt to thwart the coalition's efforts by passing a bill (HJR 6) to modify the requirements for the referendum and initiative process by raising the threshold to pass from a simple majority vote of more than 50 percent to a 60 percent supermajority. The measure-which, in theory, could be the last ballot measure to require support from only 50 percent of voters to pass-would go before voters in a special election this August, and Republicans in Ohio have openly admitted that efforts to make ballot measures harder to pass are explicitly aimed at restricting abortion access.

Meanwhile, abortion opponent Dave Yost, the Ohio state attorney general, is fighting the legal challenges to the heartbeat law, arguing that the lower court erred when it issued a preliminary injunction.

"If our reproductive freedom amendment is on the ballot in 2023, we will need to meet the existing standard for passage: 50 percent plus 1," Beene said. "If the amendment is not on in '23 and the 60 percent [requirement passes], the repro-rights issue is dead because few ballot measures garner 60 percent of the vote. Ensuring that we are working under the current rules is just one of the many reasons we believe the amendment must be on in '23. We just want our patients to be able to access necessary medical care."

Across the U.S., a patchwork of laws govern abortion, and access depends on where you live. As of this week, 19 states have banned or restricted abortion: Alabama, Arizona, Arkansas, Florida, Georgia, Idaho, Kentucky, Louisiana, Mississippi, Missouri, North Carolina, North Dakota, Oklahoma, South Dakota, Tennessee, Texas, Utah, West Virginia and Wyoming. And in Wisconsin, abortion is unavailable because there are no providers offering care due to an uncertain legal environment.

It's because of this landscape that the Fairness Project, a national organization that supports progressive ballot measures, is looking ahead at where it can realize the most impact on abortion rights.

"Where we are really focusing our attention is on ballot measure efforts that can create a protection beyond the reach of political change-beyond the reach of who gets elected into office and what their motivations are around reproductive rights-which is especially important in red and purple states where abortion rights are so under attack," said Kelly Hall, executive director of the Fairness Project. Her group and others are already working to put abortion initiatives on the 2024 ballot in Arizona, Arkansas, Florida, Missouri, Montana, Nebraska, North Dakota, Oklahoma and South Dakota.

However, fewer than half of U.S. states (24) allow some form of citizen-initiated ballot measures, and only 18 states allow citizens to amend the state constitution by collecting signatures on a petition. According to Hall, deciding which strategy to employ in each state depends on several factors, including asking the right questions.

"We ask what is necessary in order to achieve our common goal, which is restoring meaningful access to abortion," Hall said, pointing to South Carolina, which does not have a ballot measure process but where abortion advocates did achieve enormous success through litigation.

There, the state Supreme Court recognized the constitutional right to privacy to include the right to abortion, and on Jan. 5 permanently struck down the legislature's law banning abortion after approximately six weeks of pregnancy. The 3-2 decision represented a major victory for abortion-rights advocates, who are hoping to find more success as they prepare to take this issue through the other state courts.

According to Amy Myrick, senior staff attorney for judicial strategy with the Center for Reproductive Rights, a global human rights organization of lawyers and advocates that seeks to advance reproductive rights as fundamental human rights, all state constitutions provide extremely strong protections for the right to abortion-if the courts interpret them correctly.

"State constitutions broadly protect crucial rights, including liberty, equality and privacy, which we know encompass reproductive autonomy and our freedom to make deeply personal decisions about our own bodies, lives and futures," Myrick said. "They will continue to be an important tool to restore or establish people's fundamental rights."

Upcoming court decisions will determine the fate of abortion rights in Kentucky; in Indiana and Utah, where near-total bans have been blocked from enforcement while legal challenges are pending (though Utah still has an 18-week ban in place); and in Georgia, where the state Supreme Court has reinstated an abortion ban despite a pending legal challenge.

Clearly not all state Supreme Courts will recognize abortion rights as constitutionally protected. Just hours after the South Carolina case was decided, the Idaho Supreme Court dismissed a lawsuit brought by Planned Parenthood, upholding the state's three bans, including one that outlaws abortion from conception. In a 3-2 decision, the court ruled that the state constitution does not implicitly grant a right to abortion.

While abortion advocates pursue legal, political and policy strategies to protect and secure the right to abortion, opponents persist in their efforts to make abortion illegal on all fronts, including ramping up attacks on medication abortions, which account for 54 percent of all abortions.

Abortion opponents recently sued the Food and Drug Administration to take mifepristone, one of the drugs used in medication abortion, off the market. The Supreme Court has intervened-for now: On Friday, April 21, the Supreme Court decided to block a previous ruling from the Fifth Circuit, allowing the abortion pill mifepristone to remain on the market under current rules. If the Fifth Circuit ruling had gone into effect, access to mifepristone would have decreased significantly across the country. Such a ruling would end telemedicine abortion, which has expanded significantly since the FDA approved it in 2021. If anti-abortion advocates eventually succeed, abortion pills will no longer be available in any state in the U.S., including where abortion is legal. According to Myrick, it would effectively be a nationwide ban.

"Eliminating access to mifepristone endangers people's health and lives, but we will surely continue to see efforts to target medication abortion across the country," Myrick said.

Despite the certainty of further anti-abortion lawsuits and legislation, the Fairness Project's Hall said abortion-rights advocates remain motivated and energized to meet the challenge with strategies that have already seen success. "My vision is that abortion-rights advocates feel empowered by the fact that there is a direct democracy process in so many places where they can take matters into their own hands and make policy change for themselves," Hall said. "So many people have felt despair in reaction to the fall of Roe and feel like there are so few things we can do to protect our own rights and the rights of the people we love around the country. Ballot measures offer a really important work-around when our elected leaders are acting so far outside of our strong policy opinions as citizens.... I hope that that empowerment then leads to real policy change through the ballot box."

Andrea Miller, president of the National Institute for Reproductive Health, said there is great reason to look at direct democracy as an opportunity to address the disconnect where the elected leadership does not reflect the needs and the will of the voters-and there is a reason conservative lawmakers want to close that window, as they are attempting to do in Ohio.

"They know that reproductive freedom and voting rights, all the issues that they have been attacking, are widely popular," Miller said. Yet she admits that she worries about the direct harm that continues at the individual level-for women in need of abortion care, and for those seeking reproductive healthcare across the board.

Belle Taylor-McGhee wrote this article for Ms. Magazine.

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