The fight over abortion — who can get one, when they can get one — largely shifted from a focus on the U.S. Supreme Court back to state legislators and judges in June 2022. Supreme Court ruled that there was no federal constitutional guarantee of the right to abortion. States, they said, should make the rules.
That decision, Dobbs v. Jackson Women’s Health Organization, has sparked a lot of activity in both the legislature and the courts over the past year. Two contradictory statements in early April 2023 on whether women should have access to mifepristone, one of two types of prescription abortion pills typically used together for abortion, make it clear that federal courts still have a role to play in making abortion policy. But states remain an important battlefield.
Many people who follow the abortion fight focus on the part that is state courts and state elections to the Supreme Court play. The intense focus on the outcome of the April 4, 2023, Wisconsin Supreme Court Electionshifting the ideological control of that court is an example.
I am a political scientist whose research focuses on state constitutions. I follow state constitutional amendments, which have been passed on regular basis and revising the language of state constitutions. Sometimes they add new provisions. At other times they amend existing provisions. These amendments shape abortion policy just as much as state court rulings – and will play a major role in future abortion rights.
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Mine research shows that in recent decades state constitutions have been amended to increase the level of protection for voting rights, rights of crime victims And electronic data and communications privacy rightsamid others .
Meanwhile, constitutional amendments have also protected — and in some cases denied — abortion rights.
Before the Dobbs ruling, abortion-related amendments invariably sought to limit the protection of abortion rights by clarifying that there is no constitutional right to abortion. In fact, between 2014 and 2020, voters in Alabama, Louisiana, Tennessee and West Virginia passed amendments stating that there is no constitutional right to abortion.
These amendments, in some cases, were designed to overturn state Supreme Court rulings that previously recognized abortion rights. In other cases, they were passed to prevent the state’s highest courts from ruling in favor of abortion rights in the future.
But voters don’t always approve these amendments. In August 2022, Kansas voters rejected a proposed state constitutional amendment to deny the right to abortion. And in November 2022, voters in Kentucky did the same.
Draft amendments to protect abortion rights
After the Dobbs decision, most proposed abortion-related amendments aimed to expand protections for abortion rights.
Voters will roll in November 2022 Vermont, California and Michigan passed amendments that explicitly protect reproductive rights. For example, the California amendment explains“The state will not deny or interfere with an individual’s reproductive freedom in their most intimate decisions, including their fundamental right to choose an abortion.”
Eleven state constitutions already include protections for a right to “privacy”. Many others guarantee ‘freedom’, ‘due process’ or ‘equality’.
State courts occasionally rely on these provisions enact decisions guaranteeing access to abortion. But the amendments passed in Vermont, California and Michigan marked the first time language was used in state constitutions to provide explicit protections for reproductive freedom. Similar amendments to abortion rights will appear on the ballot in other states.
In early April 2023, lawmakers stepped in Maryland voted to place an abortion rights amendment on the November 2024 ballot.
Meanwhile, in some states where citizens can put amendments directly on the ballot, bypassing the need for regulatory approval, abortion rights groups are organizing in support of putting abortion rights amendments on the ballot. These groups in Ohioare collecting signatures to introduce an abortion amendment to voters in 2023. And into groups Missouri trying to put an abortion rights amendment on the 2024 ballot.
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Bypassing the state legislature
In all 50 states, legislatures have the power to draft constitutional amendments. In some states, amendments need the support of only a majority of legislators to be placed on the ballot for voters’ approval. Other states raise the bar, requiring amendments to earn the support of a legislative majority or to gain legislative approval in two separate sessions.
But what many people don’t know is that 18 states allow it citizen-initiated constitutional amendments. This also applies to Mississippi, where the process was recently suspended but is expected to be revived. These are particularly powerful tools that voters can use to get the results they want, especially if measures to achieve those goals have been rejected in state legislatures or rejected by courts.
In most of these states, when groups collect enough signatures in support of a proposed amendment, that amendment automatically qualifies for the vote. Last year in Michigan, for example, lawmakers showed no sign of a reproductive rights amendment. But abortion rights groups collected more than 500,000 signatures, much more than necessary, and were able to put a reproductive rights amendment on the November 2022 ballot.
Once on the ballot, citizen-led amendments generally require the approval of a simple majority of voters before they can be approved, similar to what is required to pass amendments drafted by the legislature.
But Florida, Colorado and Illinois set a higher threshold, and Nevada requires voters to approve citizen-led amendments in two consecutive elections.
Citizens can take the lead
In states that allow citizen-initiated changes, citizens and groups can bypass legislators who may not support their issues. In addition, these amendments supersede previous state Supreme Court rulings to the contrary. So even if Supreme Court justices don’t recognize a right, voters can use the amendment process to get it.
Citizen-led amendments do not begin and end with reproductive rights. In recent years, citizens have initiated and approved changes set up redistribution commissions, raising the minimum wage, expand Medicaid And legalize marijuana.
And abortion rights groups that had success with Michigan’s citizen-initiated amendment process in November 2022 are looking at additional opportunities in Ohio, Missouri and other states.
At the same time, opponents of the right to abortion are considering making it changes to change rules to make it more difficult to pass amendments.
Both developments are evidence that both advocates and opponents of abortion rights see citizen-drafted amendments as an increasingly important battleground for abortion in the future.
