The Surprising Places Where Abortion Rights Are on the Ballot, and Winning

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The Surprising Places Where Abortion Rights Are on the Ballot, and Winning

After Dobbs, the political ground seems to be shifting in some unpredictable ways.

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By Emily Bazelon

Sept. 12, 2023

When the Supreme Court overturned Roe v. Wade in June 2022, abortion opponents celebrated. In the wake of the decision, 15 largely conservative states imposed near-total bans (through trigger laws or new legislation), and two more set limits at six weeks of pregnancy.

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But something else also happened. In his majority opinion in Dobbs v. Jackson Women’s Health Organization, Justice Samuel Alito invited Americans to decide directly how much abortion access to allow. “In some states, voters may believe that the abortion right should be even more extensive,” Alito wrote. “Voters in other states may wish to impose tight restrictions.” Unexpectedly, in red and purple states that have put the question directly to the public — asking people to reject or support abortion rights in a ballot measure — they have voted against new restrictions or in favor of more access every time.

Less than six weeks after the Supreme Court’s June ruling, the traditionally conservative electorate of Kansas had the opportunity to amend the state Constitution to allow the Legislature to ban or restrict abortion. The ballot measure aimed to override a 2019 Kansas Supreme Court decision that had the effect of continuing to allow abortion until 22 weeks of pregnancy. To defeat the measure, advocates for abortion rights needed the votes of conservatives and libertarians. Their ads warned against “more mandates” (subtext: mask mandates) and of pregnant women dying because their doctors were afraid to intervene in an emergency.

Kansas voters rejected the measure 59 percent to 41 percent. In November 2022, anti-abortion ballot measures failed in two other Republican-dominated states, Kentucky and Montana, while voters in California and Vermont, where abortion access was not threatened, passed measures to ensure it remained widely available.

The results suggest a new political dynamic. For decades, most Americans preferred making abortion illegal in all or most circumstances, an ongoing Gallup poll suggests. But in the last two years, the numbers shifted. With a clear anti-abortion majority on the Supreme Court, polls began showing that more than half of Americans believed abortion was “morally acceptable” and that the laws governing it were too strict in some states. When Roe was the law of the land, abortion largely motivated social conservatives at the polls. Now voters who favor abortion access are mobilizing in a way they haven’t before. And citizen-sponsored ballot initiatives, which can enshrine abortion rights into state constitutions (and supersede old trigger laws or new restrictions), have become their main tool.

The biggest test for abortion rights took place last year in Michigan, a perennial battleground with a trigger ban poised to go into effect (it was blocked in court, but only temporarily). Abortion-access advocates crafted a bold measure, Proposal 3, that would amend the state Constitution to safeguard access until the point of viability, when a fetus could survive outside the womb, and after that, if a patient’s life or health was at risk.

Support for abortion rights was polling at 55 percent, and the campaign for Proposal 3 had a simple slogan, “Restore Roe.” It framed the initiative as preventing the loss of a right people had for decades, a message that generally appeals to voters without strong partisan leanings. “They were better at message discipline than we were,” says Amber Roseboom, vice president of operations for Right to Life of Michigan, which helped lead the fight against the ballot measure. “Nationally, I think our side was caught flat-footed.”

Proposal 3 passed with nearly 57 percent of the vote and appeared to have an impact on other races. Turnout benefited Democrats, who took control of both statehouses for the first time since 1984. Gov. Gretchen Whitmer, a Democrat, strongly aligned herself with abortion rights and easily won a second term. “Proposal 3 drove the entire election,” says Steven Mitchell, a veteran Republican pollster in Michigan.

The next fight will take place in November in Ohio, the only state with an abortion initiative on the ballot this year. This measure would take the notable step of expanding access in what has become a deeply red state. Advocates on both sides are doing everything they can to improve their messaging for an electorate that’s more conservative than Michigan’s. The lessons learned in Ohio will shape a wave of ballot initiatives for 2024, with campaigns either underway or being explored in Florida, Arizona, Missouri, South Dakota, Colorado, Idaho and Nebraska. Abortion could also affect who turns out, and which candidates win, in other pivotal states like Wisconsin, where a ban is currently in place despite strong support for legalizing abortion, and Virginia, where Gov. Glenn Youngkin has made a 15-week ban a priority for his Republican administration.

As the political ground continues to shift after Dobbs, the Ohio campaign is exposing cracks among Republican voters, raising the possibility that the party’s stance on abortion could make it vulnerable in 2024 and beyond, when everything about the country’s political future — from state leaders to Congress to the presidency — will be at stake. “The pro-life side had it easy when abortion was legal,” says Mitchell, who says he is pro-life himself. “But things went crazy when people saw that was taken away.”

Protesters at the Ohio Statehouse after the overturning of Roe v. Wade in June 2022.Credit…Barbara J. Perenic/The Columbus Dispatch, via Associated Press

When citizen-sponsored ballot initiatives began more than a century ago, they were a small “d” democracy reform of the Progressive Era, intended to make government more responsive when elected officials failed to reflect the will of the people. Starting in the 1970s, conservatives used ballot initiatives — often in states where Democrats were in power — to block property taxes from rising and to ban affirmative action and same-sex marriage. Today Republicans control many of the 23 states that allow citizen-sponsored initiatives — which means they are most useful for progressive causes that voters support but their conservative elected officials do not. In the last decade or so, voters in red states have legalized marijuana, expanded Medicaid and raised the minimum wage.

In 2019, Republican lawmakers in Ohio passed a ban on abortion after six weeks of pregnancy in almost all circumstances. The law went into effect hours after the Supreme Court announced its ruling in Dobbs. In response, doctors in the state formed a new group, Ohio Physicians for Reproductive Rights. (“We’ve grieved,” they posted on social media. “We are ready.”) They started talking about a ballot measure on video calls with representatives from more established organizations, including the Ohio affiliates of Planned Parenthood and the A.C.L.U. The doctors wanted to speed up all the necessary steps — fund-raising, organizing, signature collection — to qualify a ballot initiative for November 2023. They said their patients couldn’t wait.

More experienced advocates, however, argued that rushing was risky. It’s a rule of thumb that a ballot initiative has to poll well at the outset to make it worth all the work it takes to cross the finish line. In Ohio, support for abortion rights publicly polled at 52 percent before Dobbs. Advocates thought they could improve on that number, especially after the result in Kansas. But they wanted more time to test campaign messages and ballot language with focus groups to figure out what mattered most to voters, especially the Republicans and independents they needed to swing their way. Women in these groups were a key audience, but others, too, might respond to messages about the impact of severe restrictions on their loved ones. And some abortion rights advocates hoped that if they waited for 2024, a boost in turnout would aid Senator Sherrod Brown, a linchpin of Democratic control of the Senate, who would be up for re-election.

In the fall, a judge blocked Ohio’s six-week abortion ban, allowing doctors to return to performing the procedure up to 22 weeks, as state law otherwise permitted. But the final decision was in the hands of the Ohio Supreme Court, where Republicans had a majority. A ballot initiative could preserve a right that the court seemed poised to end.

When the doctors said they would push ahead with an initiative for 2023, the other advocates eventually agreed to help. The Ohio coalition settled on language about personal freedom, similar to Michigan’s initiative. The text provides for a broad right for “every individual” to “make and carry out one’s own reproductive decisions” before a fetus is viable outside the womb (usually around 23 or 24 weeks).

Only about one in five Americans think abortion should be allowed after that stage of pregnancy. The Ohio advocates tried to strike a balance in the initiative, writing that “abortion may be prohibited after fetal viability” unless, in the judgment of a treating physician, the procedure is “necessary to protect the pregnant patient’s life or health.” The exception, they said, would shield women facing emergencies or other dire predicaments, like carrying a fetus that would be stillborn or die immediately after birth.

To convey the severity of these circumstances and the need for physicians to respond to them, supporters of the initiative put doctors out in front. Marcela Azevedo, an ICU doctor in Cleveland who helped start Ohio Physicians for Reproductive Rights, appeared in a video posted on social media, wearing green scrubs. “I am so proud to be the first person to sign the petition for the rights to reproductive freedom in Ohio,” she said in the video. She told me about a scenario that plays in her head when thinking about the emergencies that can occur during pregnancy — “that one of my colleagues thinks his hands are tied” because of an abortion law “and doesn’t treat the patient as he would if he could practice to the best of his capabilities.”

The Ohio advocates knew from focus-group testing that they would have to address the misgivings that many voters have about “abortion on demand,” as groups that oppose abortion put it. “There are some concerns even among pro-choice voters about abortion being used as birth control,” says Angela Kuefler, a partner at Global Strategy Group, which has run message testing for campaigns in several states. “That’s the nuance a lot of people bring to this issue, and you have to acknowledge that it’s OK to have mixed feelings.”

Abortion-access advocates have sometimes highlighted an unapologetic and feminist argument — “Bans off our bodies” or the classic “My body, my choice.” But these slogans don’t necessarily preach beyond the choir. “I am not looking for a messenger that resonates with me,” says Ashley All, who helped run the campaign that defeated the measure in Kansas and advises others, including in Ohio, for the national group Families United for Freedom. “I’m looking for messengers that resonate with the people I’m trying to persuade.”

In Ohio, people in focus groups felt strongly about being able to take care of their families without judgment or interference. “One exercise we do is to walk people through a situation in which a friend or family member comes to you and says, ‘I’m going to have an abortion,’” Kuefler says. “At the end of the day, some people who are pro-life will say, ‘I’ll drive you to the clinic.’ But you have to give them a path to get there.” She mentioned ads like one in Kansas featuring a Catholic grandmother saying, “If it were my granddaughter, I wouldn’t want the government making that decision for her.” In Michigan, a father in a gray hoodie said to the camera with indignation, “No politician tells my daughter what to do when medical emergencies come up.”

Volunteers on the ground in Ohio are intent on appealing to voters in Republican strongholds. Mason, an affluent suburb north of Cincinnati, is in Warren County, which Donald Trump won with nearly two-thirds of the vote in 2020. On a weekend in June, Jeni Keeler, who is 46 and owns a small communications business, met up with volunteers from Mason outside a small clubhouse. Before knocking on doors to gather signatures to get the measure on the ballot, they read a script from Ohioans for Reproductive Freedom, the group formed to lead the petitioning. The first line was: “Hi, I’m collecting signatures for a ballot issue to keep government out of our personal reproductive health care decisions.”

Keeler had a paid fellowship a few years ago with Patients to Advocates, an Ohio program that trains people who have had abortions to speak publicly about their experiences. She was the only person to talk about having an abortion at a hearing in August 2021 where the Mason City Council debated an ordinance that made it a crime to help someone get abortion pills or undergo a surgical procedure. The law later passed, 4 to 3, but Keeler, who has two children and two stepchildren, worked with several women she knew through a group chat, Pissed Off Mason Moms, to unseat two council members who voted for the ordinance. The candidates she and her friends backed succeeded that November, creating a new majority to repeal the ordinance.

While political campaigns rarely persuade voters to change their minds on social issues, ballot measures may be an exception, researchers say. And Keeler thought she had a head start. The City Council shake-up proved that many residents in Mason fell into the camp of, “OK, I’m pro-life, but they’re going too far,” she says. In July, a poll backed her up, showing that a third of Republicans in Ohio supported the initiative. Those voters just needed to decide they felt strongly enough to turn out in November.

When she knocked on doors or talked to people around town, Keeler thought about the type of messaging that would be most persuasive. She leaned on the phrasing “reproductive freedom” to characterize the value at stake. Sometimes voters weren’t sure exactly what that meant, but that was an opportunity for a conversation. “You have to catch people up,” she says.

When Roe was in place, voters often supported restrictions, like waiting periods or mandatory ultrasounds, that made abortions more difficult to obtain. But the post-Roe world looks different. The choice for Ohio voters is now stark — pass the November initiative, or face the probability of a near-total ban on abortion after six weeks of pregnancy. “When you ask voters to choose between everything or almost nothing on abortion, at the end of the day, most people say, ‘I want this right, and if that means a few partial-birth abortions, oh well,’” says Mitchell, the Republican pollster, using an anti-abortion term for the procedure later in pregnancy.

Confronted with this dilemma, abortion opponents in Ohio are focusing on an issue that still polls well across political parties — parental rights. A March ad by Protect Women Ohio, the group leading the anti-abortion campaign, suggested that the initiative would allow minors to have abortions — and, in a bit of anti-trans baiting, “sex changes” — without the consent of a parent or guardian. “Your daughter is young, online, vulnerable. You fear the worst,” the voice-over intoned. “Pushed to change her sex or to get an abortion,” the narrator continued as an image flashed of someone lying on an operating table, “you have some right to help her through this, but activists want to take all that away.”

The text of the Ohio initiative does not reference or challenge the state’s parental-consent laws or gender-related medical treatments. Nonetheless, Protect Women Ohio claimed that by giving “every individual” the right to make “one’s own reproductive decision,” the initiative would sweep away a parent’s ability to withhold consent. “The word ‘woman’ doesn’t appear” in the text, Amy Natoce, the press secretary for the group, told me. “The word ‘adult’ doesn’t appear. If this anti-parent amendment is truly about protecting a woman’s right to an abortion, why not say that?”

With the abortion measure polling at 57 or 58 percent, Republicans rolled out another tactic: changing the rules of the game. In May, the Legislature approved its own ballot initiative, called Issue One, asking to raise the threshold for passing future constitutional amendments to 60 percent, instead of a simple majority. Voters would decide Issue One in a special election in August, and the results would apply to the abortion initiative in November.

Secretary of State Frank LaRose speaking at a “rosary rally” in Ohio in August.Credit…Darron Cummings/Associated Press

For a time, Republicans said Issue One was designed to block the influence of out-of-state “special interests,” disconnected from abortion. In June, however, video leaked of Secretary of State Frank LaRose, an Ohio Republican running for the U.S. Senate, saying at a fund-raiser that the 60 percent measure was “100 percent about keeping a radical pro-abortion amendment out of our Constitution.” And the biggest spender for the 60 percent measure wasn’t Protect Our Constitution, the group leading the campaign. It was Protect Women Ohio, which paid about $7 million in TV and radio ads in favor of Issue One, according to Medium Buying, which tracks political advertising. The group continued appealing to voters with the broadsides of the culture war. “Out-of-state special interests” were putting “trans ideology in classrooms,” a July ad said. “Protect your rights as a parent by voting yes on Aug. 8.”

The 60 percent measure ultimately failed, receiving only 43 percent of the vote. “The complaint that I heard a lot was the hypocrisy of it — ‘They’re taking power away from the people,’” says Mark Haake, a Republican who was one of the Mason City Council members elected in 2021. After the defeat, abortion opponents claimed, as they did after losing in Michigan, that they were “dramatically” outspent, as LaRose said. In all, however, spending on TV and radio ads against Issue One totaled about $12.4 million, Medium Buying found, compared with about $9.7 million in favor of it — not a huge discrepancy.

While progressive groups including the Sixteen Thirty Fund, which doesn’t disclose its donors, gave large amounts to oppose the 60 percent measure, major donors in the anti-abortion movement backed the proposal. The Illinois billionaire Richard Uihlein, a top donor to Republican causes, gave $4 million. Susan B. Anthony Pro-Life America and the Concord Fund (also known as Judicial Crisis Network) gave more than $11 million combined to Protect Women Ohio and Protect Women Ohio Action, an allied political action committee. (The Concord Fund has in turn received about $29 million from the Marble Freedom Trust, created in 2021 with $1.6 billion and controlled by Leonard Leo, the co-chair of the board of the Federalist Society who helped bring about conservative dominance on the Supreme Court.)

The August defeat is one data point among several that suggest a deepening divide among Republicans. Even within the party’s conservative base, abortion is a much lower priority than the economy, taxes and immigration, according to a new report by the Manhattan Institute. Abortion restrictions are especially unpopular with younger voters, who are important to the political future of both parties. In 2022, voters ages 18 to 29 said abortion was their top issue. With Proposal 3 at stake, turnout for that age group in Michigan was 13.5 points higher than the national average, according to a report from a research center at Tufts University. “Think about who gets abortions,” says Mitchell, the Republican pollster. He is also concerned about his party’s hold on 30-to-44-year-olds. “They voted for Trump in Michigan by a couple of points, but in 2022, they moved heavily to the Democrats.”

A crowd celebrating the defeat of Issue One in Columbus after the vote in August.Credit…Adam Cairns/USA Today Network, via Reuters

And though voters in Ohio will decide the abortion initiative a year before the 2024 election, it could have a lasting political impact. In Kansas, 77 percent of the people who registered to vote on abortion before the election last August were Democrats and Independents, according to the Democratic data firm TargetSmart. Their turnout in November may have helped Gov. Laura Kelly, a Democrat, win by about 22,000 votes.

At the end of August, Republicans took another run at derailing the November initiative. Ohio law gave the state ballot board, chaired by Secretary of State LaRose, the authority to write and approve the summary that voters would see on the ballot. In a party-line vote, the board approved language that differed significantly from the text of the initiative that would appear in the Constitution if the measure passed.

The new language substituted the phrase “unborn child” for “fetus” throughout and altered the construction of the provision about abortions later in pregnancy. Instead of saying the state could prohibit the procedure unless a doctor decided it was medically necessary, the new language claimed the amendment would “always allow an unborn child to be aborted at any stage of pregnancy, regardless of viability, if, in the treating physician’s determination, the abortion is necessary to protect the pregnant woman’s life or health.” LaRose’s office labeled the November initiative Issue One, despite the possibility that voters would confuse it with the 60 percent measure they’d just rejected. (A representative from LaRose’s office said it used the standard system for numbering initiatives.)

The campaign for the initiative is suing, accusing LaRose and the ballot board of deception. But abortion opponents argue that the board is telling voters the truth about the impact of the amendment. “If people understand the extremes that are in this, it won’t have 57 percent support anymore,” says Jamie Scherdin, the regional coordinator for the national group Students for Life of America, which opposes abortion and several forms of birth control. That was her emphasis — the amendment went much too far — for training Ohio college students on how to appeal to voters. Scherdin also often tells a story about why she joined the anti-abortion movement. The mother of one her friends, she says, gave birth to him after she was raped at the age of 19. “He’s a prime example of every excuse people give for saying women need abortions,” she says. “That’s what turned me from seeing this as a personal issue to 100 percent a human rights issue.”

Jamie Scherdin, Ohio regional coordinator for Students for Life of America, leading a chant during the Ohio March for Life last October.Credit…Barbara J. Perenic/The Columbus Dispatch, via Associated Press

Historically, many pro-access advocates have viewed abortion bans after fetal viability — with exceptions for a patient’s life or health — as politically pragmatic. It’s a way to navigate between patients’ needs and voters’ declining support for abortion as fetal development progresses. But now some of these advocates think the compromise may be pointless. No matter what an initiative states, they argue, opponents will make it sound as though it gives license to rip babies from the womb, as Donald Trump has repeatedly said. In July, the polling firm PerryUndem released survey results with similar levels of support for two significantly different versions of a ballot proposal: one that drew a line at viability and one that omitted it. “The viability limit did not inoculate respondents against strong anti-abortion messages,” the firm’s report said.

In Missouri, where a near-total ban on abortion is in effect, groups wanting to restore abortion access have submitted multiple versions of a ballot initiative for 2024. Most, but not all, include a viability limit. Nonetheless, in summarizing the proposals, the Republican secretary of state, Jay Ashcroft, said they would amend the state Constitution to “allow for dangerous, unregulated and unrestricted abortions, from conception to live birth.”

The A.C.L.U. of Missouri is challenging Ashcroft in court. But the viability limit is dividing physicians who support abortion access. Including language like Michigan’s or Ohio’s, with exceptions for a patient’s life or health, is politically realistic in Missouri and “would leave just a small minority of cases not covered,” says Jennifer Smith, an obstetrician-gynecologist in St. Louis. But the Planned Parenthood affiliate in St. Louis and Southwest Missouri is critical of viability limits, saying they will exclude patients in need. Despite the exceptions for a patient’s life or health, the affiliate fears doctors could still feel uncertain about what treatments are allowed later in pregnancy. “My response to those folks who are holding on to the notion that it’s acceptable to leave a few behind in the quest to pass something,” said Dr. Colleen McNicholas, the chief medical officer for Planned Parenthood in the region, “would be to remember that compromise” was how “we started in 1973. And ultimately, we ended up with access for nobody.” At the moment, with the suit against Ashcroft unresolved, the initiative is on hold in a state that would otherwise seem ripe for it; 59 percent of Missouri residents support making abortion legal all or most of the time, according to poll results released this year.

In Arizona and Florida, the initiatives proposed for 2024 include viability limits, with exceptions for a patient’s life or health. The advocates for these measures are also testing new provisions, which would either further expand access or head off the opposition. The Arizona measure would prevent the state from regulating abortion before a fetus is viable except to improve or maintain a patient’s health. That standard could lead a court to strike down restrictions, like the state’s 24-hour waiting period, which impose barriers on women that aren’t related to health.

In Florida, where ballot initiatives must pass by 60 percent, the 2024 measure partly addresses concerns about parental rights, saying the state could still require notification of a parent or guardian before a minor has an abortion. (Though it doesn’t mention parental consent, which is a higher bar than notification and which Florida also requires.)

In the best-case scenario for Democrats, the tens of millions that the Florida and Arizona campaigns are raising could translate into turnout that helps Democratic candidates. And in the best-case scenario for abortion-access advocates, other states join the ballot initiative lineup for 2024 and beyond. Protecting abortion rights would become one of the popular liberal causes, like expanding Medicaid, that bypasses Republican legislatures. The Fairness Project, a national progressive group that specializes in ballot initiatives, has succeeded in 27 of 29 of its statewide campaigns since 2016. It has no equivalent on the right, and its budget has vastly grown since Dobbs.

The progressive heyday of direct democracy could, however, be short-lived precisely because of its success. Republicans can see the losses mounting, and they’re trying to make it harder to pass ballot initiatives in many states. In Missouri, where an effort to raise the threshold for passing an initiative failed in June, the Republican Senate president promised to try again next year.

It’s possible, though, that the fall of Roe has touched off a costly political war that Republicans can’t avoid. They’re caught between part of their base, which is devoted to ending abortion, and voters who are revolting now that this goal is actually in sight. Twenty years ago, Jack Balkin, a Yale law professor, described Roe as a “lightning rod, drawing political heat away from the democratic process.” Without it, he predicted what has happened in Kansas and Michigan — that Democrats would pick up voters who were “turned off by the demands of the Republican Party’s religious base.” That’s one way a party can lose its grip on a winning coalition well into the future.

In hopes of containing the damage, Steve Mitchell, the Republican pollster, says the best thing Ohio Republicans have going for them is that abortion is on the ballot in 2023 rather than 2024, when so many other races will be at stake. His wish for his party is to speed through the post-Roe minefield and hope voters put it behind them. Once a flurry of abortion initiatives goes by, he says, “we can all go back to saying this is settled again.”

Map sources: Center for Reproductive Rights, The New York Times

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