Abortion battles won't end with ballot measures
Voters in nine states are deciding next month whether to add the right to abortion to their constitutions, but the measures are unlikely to dramatically change access — at least not immediately.
Instead, voter approval would launch more lawsuits on a subject that's been in the courts constantly — and more than ever since the U.S. Supreme Court in 2022 overturned Roe v. Wade and opened the door to state abortion laws. In some states where the issue is on the ballot, it's already widely available.
If Missouri's amendment passes and takes effect in December, the measure would not repeal a state ban at all stages of pregnancy or the layers of other regulations — including a 72-hour waiting period and 44-inch (112-centimeter) doorway rule for clinics — that forced Planned Parenthood to stop abortions in two offices years before Roe was overturned.
"A yes vote for this is not a vote to overturn anything. It is a vote to ensure that the courts will have to fight this out for a long time," said Republican state Sen. Mary Elizabeth Coleman.
Coleman, who is also a conservative constitutional lawyer, said the Republican-dominated Legislature could also go back to voters to ask them to undo the amendment if it passes.
Still, the measure would mean that "the wind will be at our back" in court fights to overturn restrictions, said Emily Wales, the president and CEO of Planned Parenthood Great Plains, which operates in four states and is the only group in recent years to provide abortions in Missouri. The last clinic in Missouri, run by another Planned Parenthood affiliate, stopped offering abortions just before Roe was overturned.
"It will feel tremendously different to us to say, 'Missourians have a constitutional right. If you're going to interfere with it, you've got to have a pretty good cause,'" she said.
There's some precedent for an amendment not settling everything right away. An Ohio measure passed last year all but undid a law that banned abortion after cardiac activity can be detected, at about six weeks and before women often realize they're pregnant. Enforcement had already been blocked by a court. Ohio advocates have been prevailing in preliminary litigation against other regulations but those battles aren't finished yet, and they worry lawmakers will block the use of taxpayer funds to support access.
"Having fewer legal restrictions is not necessarily meaningful to someone if they can't afford the financial cost," said Lexis Dotson-Dufault, executive director of the Abortion Fund of Ohio.
The most populous state with an abortion ballot measure this year is Florida. It would take approval of 60% of voters to win. And Republican Gov. Ron DeSantis's administration has alleged fraud in the signature-gathering process that got it on the ballot. That could be the basis for a court challenge on whether the amendment would take effect on Jan. 7. Meanwhile, the measure's supporters are suing current and former state health department officials over their efforts to get TV stations to stop running one pro-amendment ad.
The office of state Attorney General Ashley Moody, a Republican who sought to keep the measure off the ballot , did not respond to an interview request.
A Nevada measure wouldn't make an immediate splash because it would be required by law to not only pass in November, but in 2026 as well.
In Colorado, Maryland and New York — where the measure doesn't say "abortion" specifically but bans discrimination based on "pregnancy outcomes" — abortion is already allowed at least until viability — generally considered to be after 20 weeks, with some exceptions.
Colorado's measure would also repeal a ban on using taxpayer funds for abortion. A new law would be needed for abortion to be added to health insurance for government employees and people with Medicaid coverage.
Arizona's amendment would go into effect with a governor's proclamation if voters approve it. The state bars abortion after 15 weeks — and most occur before then. Earlier this year, some Republican lawmakers in the political battleground state joined with Democrats to repeal a much more restrictive 1864 ban before it could be enforced.
In Nebraska, the ballot includes competing measures : One would bar abortion after 12 weeks of pregnancy, with some exceptions, echoing the current ban but leaving open the possibility of tighter restrictions. The other would allow abortion until viability.
To take effect, an amendment would need not only majority support, but more votes than the other measure.
In South Dakota, where abortion is banned throughout pregnancy, opponents and advocates have been fighting over a measure that would prohibit the state from regulating abortion in the first trimester and allow regulations for the second and third trimesters only under certain health circumstances.
If the measure is adopted and survives the challenge, it would take effect July 1, 2025.
Life Defense Fund is focused on its campaign to defeat the measure at the ballot box rather than what might come next, said group spokesperson Caroline Woods.
Dakotans for Health sponsored the amendment and expects the Republican-dominated Legislature to try to "thread that needle" and impose restrictions during the second trimester if the amendment passes, said group cofounder Rick Weiland.
And that would probably mean more lawsuits.
"This is an issue that's never going to go away," Weiland said.
Originally Published: October 17, 2024 at 12:47 p.m.
