This November, abortion will be on the ballot both literally and figuratively. Americans will not only be voting for politicians who could impact abortion policy at the federal level, but people in 10 states will cast ballots on abortion-related amendments. In the two years since the Supreme Court overturned Roe v. Wade, abortion ballot measures have, so far, been undefeated: There were six in 2022 and one in 2023, and the pro-choice position has won each time. The majority of the amendments going to voters this fall seek to enshrine abortion rights in state constitutions.
But while statewide votes on abortion are one tool to help shore up access, they won't solve the healthcare crisis unfolding across the country. Seven of the amendments on the ballot would enshrine the right to abortion only until fetal viability, which is different for every pregnancy but thought to be around 24 weeks. In doing so, these amendments essentially replicate the Roe v. Wade framework that left behind people who need later abortions and opened the door to the criminalization of pregnancy loss. Even if every ballot measure passes—which is far from guaranteed—some residents of those states will still have to cross state lines for care, and people will still face financial barriers to make it to their appointments, a gap that abortion funds work tirelessly to fill.
Here are the states where voters will weigh in on abortion, and what the ballot measures will do:
One more proposed amendment didn't make the ballot: Last week, the Arkansas state Supreme Court ruled 4-3 that campaigners didn't submit the correct paperwork in order for signatures collected by paid canvassers to count. (The Arkansas ballot measure language called for protecting abortion up to 18 weeks post-fertilization, or 20 weeks since a woman's last menstrual period.)
Working to pass these ballot initiatives is the Fairness Project, a group that was involved with 2022 and 2023 abortion victories in Michigan, Ohio, and Vermont. This cycle, the group is working with the ballot campaigns in Arizona, Florida, Missouri, and Montana by providing technical and strategic support and at least $15 million in funding. In Chicago last week, Jezebel asked Fairness Project executive director Kelly Hall about the thinking behind codifying abortion rights until viability, versus pursuing expansive measures that would definitively prohibit government interference in pregnancy decisions.
Hall said reproductive rights groups and their allies have to do short-, medium-, and long-term work at the same time. "If we wait to allow the better to be the enemy of the good," she told Jezebel, "we leave millions of women in Florida and across the entire southeastern United States without access for years while we create a better electoral future where we can win with 60 percent of the vote on a much more expansive vision."
She added that, in the wake of Dobbs, "we are responding with the most urgent response we can, which is passing what can win, passing incredible restorations of rights on red turf—on turf that is not voting for progressives—and where this is our only pathway."
It's true that, if the amendments in Arizona, Missouri, and Florida are successful, they could overturn abortion bans currently in effect that would have been unconstitutional under Roe. But anti-abortion activists are likely to sue over the results, and they may find friendly judges receptive to arguments about fetal personhood—the far-right theory that every fertilized egg has a right to life in either state constitutions, or the U.S. Constitution, via the 14th Amendment.
This threat is particularly acute in Florida, where as many as six justices on the state Supreme Court have signaled a belief that the constitution grants fetal personhood. One anti-abortion group already suggested that it will sue if Amendment 4 passes. Mat Staver, chairman of Florida-based group Liberty Counsel, told Bloomberg Law in April: “We have an open door to go back and establish personhood.” He added, “The Florida Supreme Court isn’t out of the picture yet.”
I asked Hall about these comments and she acknowledged that the threat is real. "The notion that our opponents are just going to take a loss on Election Day and fade into the good night is a fantasy. We are fighting on the ground that we can fight on right now, which is having over 60% of Florida voters turn out and ensconce a constitutional right to abortion in their state constitution," she said. "There will be fights after that. And the reason to fight for the abortion amendment is so that we are standing on firmer, more solid legal ground with a firm, clear, concise right to reproductive freedom in that state constitution, and then we will fight the next fight from that stronger position."
But it remains to be seen whether a Florida court stacked with seven Republican appointees, including five by Gov. Ron DeSantis, will give fair consideration to a successful Amendment 4. There's also a world in which someone challenges a state ballot measure in federal court on 14th Amendment grounds and gets the case in the laps of the 6-3 supermajority on the U.S. Supreme Court.
So, yes, people are excited to vote on abortion initiatives, but the battles will be far from over on November 5.
