On November 7, 2023, Ohio voters approved an amendment to their state constitution enshrining the right to an abortion, a massive success in the national fight for abortion rights. The amendment was a civilian-led initiative submitted by the group Ohioans United for Reproductive Rights, which required the collection of over 400,000 valid signatures and approval from the ballot board. Although the majority of the “yes” votes were unsurprisingly cast by Democrats in metropolitan areas, there were also several Republican-dominated counties that voted “yes” on the issue, exemplifying the power of abortion legislature to stray from party lines. The new Amendment to the State Constitution protects the right to abortion up to about 23 weeks, when the fetus is considered viable outside of the uterus. Additionally, abortion is protected beyond that time limit if the mother’s health or life is in danger. This election is the 7th time abortion rights have been put as a direct question to U.S. voters, and in all 7 cases the voters have decided to protect the right to abortion. The success of this and other measures is a promising sign that the abortion issue could translate to success for future abortion rights referendums and pro-choice candidates in upcoming elections.
The renewed fight for abortion access in the United States began two summers ago. On June 24, 2022, the Supreme Court of the United States issued the Dobbs v. Jackson Women’s Health Organization decision, which effectively reversed the decision of Roe v. Wade (1973) and removed federal protection of the right to abortion for the first time in almost 50 years. Because there is no longer any overriding federal legislature, the laws for abortion access are determined state by state, presided over by state governments and court systems. When this happened, a range of severe restrictions and even total bans came into effect in different states. While abortion access has always been a highly politicized and contested issue in the U.S., the fight to gain and protect abortion access has not been as central of an issue on the state and national stage since before the initial passing of Roe v. Wade.
Abortion rights resultantly became a critical component of the November 2022 midterms, held only a few months after Roe fell. Midterms always take place halfway through a presidential term, and because the House of Representatives, Senate, and Presidency were held by Democrats at the time, analysts predicted a reactionary ‘red wave’: a big turnout from Republicans. However, when the votes came in, while Republicans did gain control of the House of Representatives, they lost in many places where they were expected to win, in both state and federal elections. While it was not the top issue of the midterms, exit polls show that the reversal of Roe inspired voter turnout—against abortion bans. In the lead up to the elections, many candidates either did not budge their extreme stances or avoided stating their official abortion policy. Both options alienated voters, while the Democrats’ strong pro-abortion messaging worked in their favour in the midst of the anger from the reversal of Roe. The Republican Party privately blamed the candidate’s stances on abortion as a cause of their poor showing in their analysis of the elections.
In addition to the lack of a ‘red wave,’ abortion measures themselves appeared on election ballots in 5 states during the midterms, and in every instance the public voted to protect the right to abortion. Vermont, California, and Michigan went so far as to vote to enshrine the right to abortion in each of their respective state constitutions. Kentucky rejected a proposed amendment to its constitution that included language positioning abortion as an un-protected right. Lastly, Montana rejected a measure that would have criminalized doctors for providing medical care in certain abortion-related instances. Since the midterms, abortion measures have appeared in off-season elections in Kansas, where a proposed amendment similar to Kentucky’s was defeated, and, most recently, in Ohio. These advances occurred in a variety of states, not exclusively in liberal areas. The success of the measures is not so surprising in California or Vermont, for example, as they are both considered ‘blue’ or historically liberal states. However, Kansas, Kentucky, and Ohio are all considered ‘red states,’ states that tend to lean conservative, while Michigan is considered a ‘swing state,’ alternating between the two. These results suggest that abortion access is an issue that does not necessarily fall within party lines, and crucially that abortion legislation is possible across a broad range of states, including in more conservative areas.
Abortion will continue to be a divisive and politicized issue in U.S. politics, especially as the country looks towards the November 2024 elections, during which many seats in all levels of government, including the presidency, will be decided. Polling has consistently shown that about two thirds of the U.S. population believe that abortion should be legal, and the 2022 midterms have shown that this can translate to voter turnout for pro-choice candidates and ballot measures. Additionally, abortion-rights groups are currently mobilizing to put civilian-led referendums similar to the one in Ohio on ballots in at least 9 states next November, as this measure has so far proven to be most successful. The issue with this referendum strategy however, is that there are only about 10 states where civilian-initiated ballots are even an option and where abortion access is currently limited. Meanwhile, most of the states with the harshest abortion bans are also states without any kind of civilian-initiated referendums. Abortion bans are also actively being fought against in the courts, including several states (Montana, Wyoming, and Iowa) where abortion bans are being temporarily blocked by judges. In every state, anti-abortion activists are also fighting to block these efforts, mostly through channels that have proven sympathetic to them, such as state courts and legislatures.
Federal abortion legislation that goes one way or the other is the only way to impose uniformity on the states, and it would almost certainly require the same party to have the majority in the House of Representatives, Senate, and Presidency. Furthermore, any such legislation will likely be challenged in the courts, which could eventually bring the issue back to the Supreme Court. Every one of these steps would take a long time in the midst of a rapidly shifting political landscape. In an even longer term outlook, the Dobbs decision came out of a conservative majority on the court, due to the fact that former president Donald Trump appointed 3 Supreme Court justices in his 4 years in office, the most of any president since Ronald Reagan in the 1980s. Supreme Court Justice positions do not open regularly, pursuant to their lifetime sentence, but having a left-leaning president in office when a seat becomes available would be a crucial help for future efforts towards increasing abortion access in the Constitution or U.S. legal precedent. In every direction, federal abortion legislature is a difficult and improbable road. While it is paramount to the fight for abortion rights that anti-abortion candidates do not gain ground in the November 2024 elections, state and community-level movements remain equally important.
While these developments are hopeful for the abortion rights movement, and must act as a galvanizing force forward, the landscape of abortion access in the U.S. remains bleak. As of November 2023, total abortion bans, with no exceptions for rape or incest, remain in 10 states: Texas, Louisiana, Mississippi, Alabama, Arkansas, Oklahoma, Tennessee, Missouri, Kentucky, and South Dakota. Near-total abortion bans with some exceptions exist in 4 states: West Virginia, Indiana, North Dakota, and Idaho. Other severe restrictions that are not total bans exist in 7 states: Florida, Georgia, South Carolina, North Carolina, Arizona, Nebraska, and Utah. Each of these bans and restrictions will be challenged in the courts, challenged in the state legislature, and challenged on the ballots.
Edited by Justine Delangle
