States see record abortion questions on midterm ballots

Voters in five states will weigh in on state ballot initiatives on abortion this November

In the aftermath of a June 24 Supreme Court decision overturning Roe v. Wade, five states will see ballot initiatives on abortion. (Bill Clark/CQ Roll Call file photo)
In the aftermath of a June 24 Supreme Court decision overturning Roe v. Wade, five states will see ballot initiatives on abortion. (Bill Clark/CQ Roll Call file photo)
Posted September 27, 2022 at 4:23pm

Voters in five states will have the chance to weigh in on abortion policy changes this November following the rejection of a Kansas ballot measure that sought to end a state right to abortion.

The national debate in the aftermath of the Supreme Court's decision to overturn Roe v. Wade in June is playing out in elections across the country, marking a record number of abortion-related ballot measures and in some cases becoming a key political issue even before the mad dash to include additional initiatives that followed the high court's ruling. 

Special interest groups on both sides of the abortion debate have poured millions into turning out core supporters and elevating the issues for the first major post-Roe election. But abortion rights supporters have been energized after defeating a Kansas initiative in early August. In Kansas, 59 percent of primary voters opted against an amendment that would have explicitly added language to the state constitution clarifying that abortion is not a protected right.

“Many of us had a delightful wake-up call on this issue and the power of ballot measures in early August with the vote in Kansas," said Kelly Hall, executive director of the ballot measure advocacy group called the Fairness Project, speaking at the National Press Club on Tuesday. But the measure, while alerting voters to "how popular this issue really is," has also "sparked a backlash and a lot of opposition spending," she said.

California, Michigan and Vermont voters will decide in November whether to include abortion protections in their state constitutions, while Kentucky will decide whether there should explicitly not be a right to abortion or related state funding in its state constitution.

Montana voters, meanwhile, will decide if the state should include broader language for infants who survive an attempted abortion. 

Spending ahead of the ballot votes this year varies by state and largely depends on how tight the campaign is expected to be. 

Michigan, which is likely to be the most competitive measure in November, also leads in spending expenditures so far. Data from the Michigan Department of State shows $7.7 million in expenditures related to the amendment.

In comparison, Vermont Office of the Secretary of State data shows that state's amendment has more than $607,000 in reported expenditures, and California Secretary of State data shows more than $243,000 in expenditures.

Constitutional changes

Voters in California, Michigan and Vermont will be able to choose whether or not to support adding language to their state constitutions that would protect access to abortion and other reproductive services. 

Abortion rights advocates in Michigan pushed to include a vote that would protect the right to reproductive freedom on the November ballot, following the decision in Dobbs v. Jackson Women’s Health Organization.

If it passes, the amendment would also prevent a 1931 state abortion ban or others from ever taking effect. The law is blocked by a state court decision issued Sept. 8, but abortion rights supporters say the amendment change would be more difficult to undo by state officials. Michigan has competitive gubernatorial and attorney general races this year.

Proponents gathered more than 730,000 signatures but initially faced a setback when a state board blocked certifying the measure to appear on the ballot. The Michigan Supreme Court decided Sept. 8 that the board must approve the measure.

Kelley Robinson, executive director of Planned Parenthood Action Fund, said the strategy used in Kansas can't be replicated and that each state will need a tailored approach.

"The powerful thing is that, you know, what we saw in Kansas, what could happen in Kansas isn't necessarily what is needed to happen in Michigan or other different states,” she said.

The efforts in California and Vermont were initiated by their state legislatures and are expected to pass.

California state Democratic leaders introduced language protecting the right to abortion and contraception shortly after the draft Dobbs decision leaked in May. Both houses of the California State Legislature passed the legislation with at least a two-thirds majority in late June, qualifying the amendment for the ballot in November.

Vermont’s process has been in the works since 2019. The amendment language passed both chambers in two consecutive legislative sessions, giving Vermont voters the ability to pass or reject adding protections for abortion and contraception to their state constitution.

Kary Moss, acting national political director of the American Civil Liberties Union, said abortion rights advocates are primarily focusing on proactive measures that seek to enshrine rights in state constitutions for the first time.

“As we look out at the challenge ahead of us, anti-abortion activists had a 50-year plan that has largely worked. We have to have a 50-year plan,” Moss said. She said that by focusing on ballot measures in Democratic states, "we can make sure that there is at the very least a safety net, as we can work to try to get back to where we need to be.”

But anti-abortion advocates in two states hope to do what Kansas couldn’t.

Kentucky

Unlike the other proposed constitutional changes, Kentucky voters face a different question: whether to approve a constitutional amendment that would ensure that the state constitution does not protect the right to nor require any funding for abortion.

The Kentucky Registry of Election Finance showed more than $507,000 in expenditures, largely in opposition to the amendment. Records for the two largest spenders include Protect Kentucky Access, with more than $476,000 in expenditures, and Yes for Life, with more than $30,000 in expenditures.

Montana 

In Montana, voters will weigh in on an initiative that Republicans have pushed for in multiple states and on the federal level, which proponents say would guarantee protections for an infant born alive after an attempted abortion.

Congress unanimously supported the passage of a 2002 federal law (PL 107-207) that protects an infant born during a failed abortion and guarantees the infant medically appropriate care. 

But some Republicans have called for passing additional legislation, which major medical groups have argued is not necessary given current federal law. 

Montana’s measure will ask voters if the state should require medical care for infants born alive after induced labor, a cesarean section or attempted abortion. It comes after former Democratic Gov. Steve Bullock vetoed a bill with similar language in 2019.

The language has split advocacy groups, with supporters of the amendment echoing that more protections are needed.

If the measure passes, Montana would declare an infant born under these circumstances a legal person, and providers would be required to resuscitate an infant regardless of its medical conditions or gestational age. Providers who did not comply  could be subject to a $50,000 fine and/or up to 20 years in prison.

Opponents worry the measure, if passed, could unintentionally limit the time a family has to spend with an infant with complex medical conditions that is not expected to survive.