This article was originally published at ProPublica, a Pulitzer Prize-winning investigative newsroom.
After the Supreme Court overturned Roe v. Wade, ending nearly 50 years of federal protection for abortion, some states began enforcing strict abortion bans while others became new havens for the procedure. ProPublica is investigating how sweeping changes to reproductive health care access in America are affecting people, institutions and governments.
In Ohio, a GOP-controlled agency rewrote language for a ballot measure that would guarantee access to abortion in the state constitution, swapping in new wording that opponents said was designed to confuse voters. In Missouri, a Republican official launched legal challenges that have stalled a citizen-led effort to pass a law guaranteeing reproductive health care. And in Michigan, a Republican lawmaker went one step further, introducing a bill that would undo a popular new access law.
In the year since Roe v. Wade was overturned, Gallup polling shows that a majority of Americans believe abortion should be legal, with two-thirds of those polled saying it should be permitted in the first trimester.
To protect access to reproductive care, coalitions across the country are organizing ballot initiatives — a democratic tool that enables proposed amendments to become state law with enough petition signatures.
But abortion-rights advocates say their opponents are increasingly matching their efforts with an assortment of legal and political challenges that have stalled or even blocked their ability to introduce initiatives.
To do so, anti-abortion lawmakers and others are using strategies from the playbook of conservatives who sought to restrict access to voting, even trying to change the rules for citizen-led initiatives. ProPublica found legislation or proposals introduced in at least four states in the last year that would undermine ballot initiatives adding abortion protections to state law.
Sarah Walker, policy and legal advocacy director at the Ballot Initiative Strategy Center, said that efforts to make ballot initiatives harder to pass are not new, but they’ve intensified after several wins for abortion advocates. Last year, voters in red states such as Kentucky and Kansas rejected amendments that were intended to restrict the procedure.
“Voters are smart, and they see through politicians who are trying to tilt the scales and the levers of power of democracy, and take away freedoms to make decisions about their lives,” Walker said.
Currently, efforts to bring the issue of abortion rights — both for and against — directly to voters are underway in at least 10 states, according to the Ballot Initiative Strategy Center, an organization that implements a national progressive strategy to support ballot measures across the country.
In at least one state, Missouri, voters in 2024 may face dueling ballot initiatives: one in favor of abortion access and another restricting the procedure.
In Ohio, abortion-rights advocates said their opponents, including the secretary of state, were willing to upend the entire ballot initiative process to keep a reproductive freedom amendment off the ballot. Voters didn’t back the proposed changes, and the amendment, which would make abortion legal in some cases, is on the November ballot.
Anti-abortion groups see such ballot measures as a threat — and an end-run — to their work with state legislatures to ban the procedure.
Carol Tobias, president of National Right to Life, said that countering direct-to-voters ballot initiatives has been an uphill battle for her group. She warned that the rise of such initiatives risks making state legislatures obsolete.
“Well, now if we’re going to start making our laws based on amending the constitution, I think constitutions become meaningless,” Tobias said.
Similar Strategies
Abortion-rights advocates say the fight to stop voters from protecting access to the procedure looks a lot like the fight to restrict voting rights in general. Many of the same Republican lawmakers who supported laws limiting access to the ballot box also seek to prevent citizen-led drives to enshrine reproductive health care into state constitutions, advocates say.
Walker said efforts to undermine ballot initiatives have played out in three ways: Officials have proposed laws changing the process, made legal challenges at each step of an initiative’s process or tried to make enacting the initiative more burdensome once it’s passed.
Officials in at least four states, Ohio, Michigan, Florida and Missouri, have used such tactics.
Last November, Michigan voters approved codifying abortion rights in the state with its reproductive freedom ballot initiative. Then roughly seven months later, state Republican lawmaker Neil Friske proposed bills that would amend the state constitution to remove the reproductive amendment as well as bring back a 1931 abortion ban.
“While unlikely to pass, this package should serve as a guideline for Republican pro-life legislators. This pro-life model should be the official Republican platform for life,” Friske said in a statement at the time.
In Ohio, abortion-rights advocates have faced a few hurdles to get their proposed amendment on the November ballot.
In May, Republican state lawmakers passed a controversial resolution to hold a special election to raise the threshold needed for a citizen-led amendment to pass. At a June event, Secretary of State Frank LaRose said he supported the proposal to make it harder to change the constitution in response to an effort to enact abortion protection.
“This is 100% about keeping a radical, pro-abortion amendment out of our constitution,” he said, according to audio obtained by a local Cleveland TV station. The proposal, known as Issue 1, which would have made ballot initiatives harder to pass, was defeated in an August special election.
Next, the Republican-led state ballot board in Ohio changed the language for the reproductive rights amendment. Instead of “fetus,” the board substituted “unborn child.” Ultimately, a ruling from the Ohio Supreme Court has allowed the language to stay for the upcoming ballot measure.
Catherine Turcer, executive director for Common Cause Ohio, an organization dedicated to pro-democracy efforts, said that the organization supports the reproductive freedom amendment and that the board’s summary is too partisan.
“It’s not fair to the voters of Ohio who go to the polls expecting accurate, neutral information,” Turcer said.
In Florida, the Republican attorney general, Ashley Moody, filed a legal challenge to the state Supreme Court in response to a ballot measure that would protect abortion access. In an op-ed, Moody said: “I am pro-life, unabashedly so. … But my decision to oppose the placement of Floridians Protecting Freedom, Inc.’s initiative on the ballot has nothing to do with my personal views on abortion.” Moody argued the amendment was “misleading.”
The Dobbs v. Jackson Women’s Health Organization decision, which overturned federal abortion protections in Roe v. Wade, was a victory for the National Right to Life, one of the oldest anti-abortion organizations in the U.S. Tobias, the group’s president, said the organization worked on a strategy to counter ballot initiatives seeking to add abortion rights into state law.
Tobias said the group’s members learned from their experience in Kansas, where voters decided to keep abortion legal in a state that voted for former President Donald Trump in 2020. “They were overwhelmed. It was hard for them to counter the message,” Tobias said. “They weren’t told that this was going to prevent the state from allowing any limits on abortion whatsoever.”
Abortion is legal in Kansas until the 22nd week of pregnancy.
Citizen Drives Followed Dobbs
The momentum with abortion-related ballot initiatives began before the Supreme Court overturned Roe last year.
In the 2022 midterm, abortion showed up on the ballot in at least six states, and in every state voters preserved access to abortion — including red states such as Montana, Kansas and Kentucky, where the ballot measures were intended to restrict the procedure.
Ryan Stitzlein, vice president of political and government relations for Reproductive Freedom for All, said that one change since the midterms is that there are fewer initiatives in the works for next year that would restrict abortion access.
“I think it’s an acknowledgment on that side that the momentum is not with them and it’s an uphill battle,” Stitzlein said.
Missouri, Florida, Colorado, Arizona, Maryland, Nebraska, Nevada and New York are all in various stages of the ballot initiative process, but they’re expected to get abortion protections on the ballot for 2024. College students in South Dakota have started gathering signatures to petition for a ballot measure in 2024, a local television station reported.
In Missouri, the secretary of state, Jay Ashcroft, oversees the citizen-led initiatives that end up on the ballot.
Ashcroft included ballot summary language that asks voters if they want to allow for “dangerous, unregulated” abortions from conception to live birth. Abortion rights proponents sued in response. A judge ruled against Ashscroft’s language.
“The court finds that certain phrases included in the Secretary’s summary are problematic in that they are either argumentative or do not fairly describe the purposes or probable effect of the initiative,” the judge’s order said. Ashcroft said he intends to appeal the decision.
If organizers can meet the signature threshold by May, the proposed amendment will be before Missouri voters in 2024.
