Since the Supreme Court eliminated the national right to abortion in June, abortion policy has been sent back to the states. Now some of those states are letting voters decide directly how abortion should be regulated within their borders.
Six states have amendments or measures affecting abortion on the ballot in 2022. It’s the highest number of abortion-related ballot measures on record in a single year, according to Ballotpedia.
Before this year, there had been 47 abortion-related ballot measures since 1970. Most of those sought to restrict abortion rights in some way, and they often came from state legislators or other officials placing them on the ballot. With Michigan, this year marks the first time in decades that any state has a voter-initiated ballot measure that would enshrine abortion rights in a state constitution.
One of the six states has already put its measure to a vote. In August, Kansas became the first state to let voters weigh in on abortion since the Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization. Legislators had worked for years to put a constitutional amendment on the ballot that would have opened the door to more abortion restrictions by saying that nothing in Kansas’ constitution guarantees the right to an abortion. This tactic had already been used successfully in four states—Alabama, Louisiana, Tennessee, and West Virginia—even before the fall of Roe v. Wade. But voters in Kansas overwhelmingly rejected the measure, maintaining abortion access in the state and indicating a growing backlash among voters to the Supreme Court’s decision that may affect other state-by-state abortion battles to come.
Five other states—California, Michigan, Vermont, Kentucky, and Montana—have abortion ballot measures in November. Here’s what you need to know about their proposals.
In California, voters will weigh in on Proposition 1, which would enshrine abortion rights in the state’s constitution.
A “yes” vote supports changing the state constitution to say the “state shall not deny or interfere with an individual’s reproductive freedom in their most intimate decisions, which includes their fundamental right to choose to have an abortion and their fundamental right to choose or refuse contraceptives.”
A “no” vote would reject this change. While that would mean the explicit new protections wouldn’t be included, abortion would still be allowed in California under state law and the state supreme court’s interpretation of the state constitution’s current language.
State Democratic leaders introduced the new language after a draft of the Supreme Court’s decision in Dobbs leaked in May, and in June after the final decision, the Democrat-controlled state legislature approved putting the measure on the November ballot.
The measure is expected to pass in deep blue California, but groups on both sides are still gearing up to fight ahead of November. The California Catholic Conference, which opposes Proposition 1, has called it “an expensive and misleading ballot measure that allows unlimited late-term abortions—for any reason, at any time, even moments before birth, paid for by tax dollars.” The Yes on Proposition 1 campaign says the measure will not change current state laws, “which provide for the right to choose an abortion prior to viability or to protect the pregnant person’s life or health,” and “would safeguard these rights from future attacks.”
Voters in Vermont will have a similar choice to those in California. Article 22 would amend Vermont’s constitution to protect the right to “personal reproductive autonomy.”
A “yes” vote supports amending the state constitution, while a “no” vote opposes the change. Abortion is currently legal at all stages of pregnancy in Vermont.
The effort behind this amendment started in the Vermont legislature in 2019. But the Vermont for Reproductive Liberty Ballot Committee, the group backing the proposal, says the Supreme Court’s decision raises the stakes. “Now that SCOTUS has struck down Roe v. Wade, state-level protections are vital to safeguarding access to reproductive health care,” the group said.
Michigan is the third place where voters will decide whether to add protections for abortion rights to the state’s constitution. The vote holds high stakes for the battleground state, as Michigan has an abortion ban from 1931 still on its books. The law is currently blocked by the courts while two cases challenge it, but abortion rights advocates see this proposed constitutional amendment as the best hope for permanently blocking the law or other bans from taking effect.
A “yes” vote would establish a “new individual right to reproductive freedom, including right to make and carry out all decisions about pregnancy, such as prenatal care, childbirth, postpartum care, contraception, sterilization, abortion, miscarriage management, and infertility,” according to the amendment’s summary. It would also prohibit prosecuting people for exercising their right to abortion and allow the state to regulate abortion after fetal viability except to protect the pregnant patient’s life and physical or mental health. A “no” vote would keep the status quo, meaning the legality of abortion in Michigan would likely hinge on the outcome of the current court cases.
The Michigan initiative represents the first time in decades that a voter-driven measure supporting abortion rights is on a state’s ballot. A coalition including Planned Parenthood Advocates of Michigan, ACLU of Michigan, and Michigan Voices launched a campaign in January to put the proposal on the ballot, and the effort picked up steam once the draft of the Dobbs decision leaked in May. Advocates ultimately collected 750,000 signatures, far more than the roughly 425,000 required by the state to put the question on the ballot. But the measure still had a rocky time getting approved. Anti-abortion advocates in the state argued the text of the measure shown to voters contained spacing and formatting errors, and Republicans on the Michigan Board of Canvassers agreed with them, blocking certification of the initiative. The coalition supporting the measure then asked the state Supreme Court to weigh in, and the court ordered the Board of Canvassers to certify the measure in early September, ensuring it will appear on the ballot in November.
Kentucky’s Amendment 2 is similar to what Kansas considered over the summer. The proposal would change the state constitution to say that it does not “secure or protect the right to abortion” or require government funding for abortion.
Like Kansas, Kentucky is a conservative state with a Democratic governor. But it is also one of 13 states that enacted a “trigger law” anticipating the fall of Roe, so it now has two abortion bans in effect: the trigger law banning nearly all abortions and a law that bans abortion after about six weeks.
The state’s only abortion clinic has challenged those laws, arguing they violate the right to privacy and personal autonomy in the Kentucky constitution, but the state supreme court allowed the laws to remain in effect while the case continues.
This means that a “yes” vote supporting the constitutional amendment could make it difficult for abortion rights supporters to keep fighting the state’s laws, while a “no” vote rejecting the amendment would keep the door open for the arguments the clinic is making.
In Montana, voters will decide on a different kind of ballot measure. The state’s LR-131 is a legislative referendum on the Montana Born-Alive Infant Protection Act and would establish that infants “born alive” at any stage of development are legal persons and would require providers to give them medical care after induced labor, C-sections, and attempted abortions. Medical providers who violate the law would face penalties up to $50,000 and 20 years in prison.
Montana’s ballot measure comes after the state’s former Democratic Gov. Steve Bullock vetoed a similar bill in 2019. Now, a “yes” vote in Montana would enact the proposed legislation and the “no” vote would reject it. Montana currently prohibits abortion after fetal viability except to protect the life or health of the pregnant woman.
Supporters of the proposal say it is needed to make it “abundantly clear” that Montana protects “all life.” Opponents argue that it is unnecessary, as babies are protected under existing state and federal law regardless of how they are born. Health care providers that oppose the referendum say the legislation could interfere in already difficult situations such as a pregnancy complication where there is no chance the newborn infant will survive. Right now, a newborn baby with a fatal prognosis could be offered palliative care so the family can spend time with their dying infant, whereas providers fear the proposal would push them to pursue aggressive interventions even if the family does not agree.
Health care providers who oppose the measure also note that the situations the referendum references do not happen regularly. Third trimester abortions make up a very small percentage of abortions in the U.S.—about 1% take place after 21 weeks of gestation, according to the Centers for Disease Control and Prevention—and instances of babies being born alive after an abortion procedure are even more rare.
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