The Supreme Court overturning Roe v. Wade leaves abortion policy to states — and to voters through ballot initiatives and amendments.
AP Photo/Bruce Schreiner, File
The US Supreme Court overturning the federal abortion protections in the landmark 1973 Roe v. Wade decision means abortion policy will be left entirely up to individual states – and in some cases, put directly to voters.
Amendments and measures affecting abortion rights are on the ballot in six states in 2022. This marks the highest number of abortion-related ballot measures to appear in a single year since 1986, according to Ballotpedia.
Voters in Kansas, the first state to directly vote on abortion rights since Roe was overturned, resoundingly rejected an amendment on the August primary ballot that would have eliminated the right to abortion under the Kansas state Constitution by a margin of 18 points.
Kentucky, another red state with a Democratic governor that now has a total abortion ban in effect, will vote on a similar constitutional amendment that would establish no right to abortions under its state constitution in November.
Those amendments hold major significance for policy in a post-Roe world when pro-abortion rights litigators will be relying entirely on state courts to interpret the right to abortion under state constitutions.
Voters in Alabama, Louisiana, Tennessee, and West Virginia have passed similar amendments establishing no constitutional right to abortions in their states over the past decade, making the resounding defeat of such an amendment in Kansas especially notable.
In Montana, voters will weigh in on a "born-alive" amendment that would extend personhood to infants "born alive" at any stage, and require infants born from a C-section or a failed abortion to receive medical care, with the absence of such treatment carrying penalties of up to $50,000 fines and 20 years in prison.
At least three initiatives — all unsuccessful — referencing "partial birth" abortions or "born-alive" infants have appeared on ballots since Roe was passed, as third-trimester abortion, in particular, became a hot-button issue for conservatives. Third-trimester abortions make up a very small percentage of abortions to begin with, however, and instances of infants being born alive following an abortion procedure are even more uncommon.
On the opposite end of the spectrum, voters in the solidly blue states of Vermont and California will be voting on amendments that would enshrine the right to abortions in the state constitution in November.
And in Michigan, a critical battleground state, the state Supreme Court greenlit a measure that would also establish a "new individual right to reproductive freedom" in the state encompassing abortion, contraception, and infertility treatment, to appear on the November 2022 ballot.
The Roe v. Wade decision barred states from banning abortions before the point of fetal viability, which usually occurs at 24-28 weeks of pregnancy, but still left states leeway to restrict abortions within those bounds.
And ballot initiatives quickly emerged as a potent mechanism for anti-abortion advocates, especially to put those restrictions right to the voters.
Since the Roe ruling in 1973, 49 ballot initiatives, measures, and constitutional amendments related to abortions have been put directly to the voters. That number includes the six amendments on the ballot in 2022.
The vast majority of those measures, 42 in total, have been supported by opponents of abortion rights seeking to restrict the procedure, according to Ballotpedia.
Those measures have included right-to-life or fetal personhood amendments, parental notification requirements for minors, limits on public funding for abortions, amendments establishing no right to abortion in state constitutions, and efforts to ban abortions altogether or restrict the procedure after a certain number of weeks.
But the shoe is now on the other foot with the high court overturning Roe, leaving abortion rights advocates on the defense and scrambling to establish affirmative rights to abortions under each state's constitution and laws.
