Energized by a perfect record on ballot measures in last month’s midterm elections, abortion-rights groups are setting their sights on more victories over the next two years.
Activists are already planning citizen-led ballot initiatives that would enshrine abortion rights in the constitutions of 10 states: Arizona, Arkansas, Florida, Missouri, Montana, Nebraska, North Dakota, Ohio, Oklahoma and South Dakota.
Those states all ban or restrict abortion, and it is also legal for citizens to initiate ballot proposals that amend the states' constitutions. It's a crucial combination that make them the best targets, according to abortion-rights advocates, who were victorious this year in all six states that featured ballot initiatives about abortion access.
“Coming out of the six-for-six victories, there’s clearly a lot of energy and enthusiasm about taking this directly to the people,” said Sarah Standiford, the national campaigns director for the Planned Parenthood Action Fund, the political arm of the reproductive rights group.
Advocates caution that the intensity of efforts to place such measures on ballots varies drastically from state to state. In some states, like South Dakota, Oklahoma and Ohio, groups have already written ballot language and are evaluating deadlines to collect signatures.
In others, however, work is much more preliminary. Advocates in states like Montana, Nebraska and North Dakota warn that they must test messaging and language, suss out the political environments that could determine success and research deadlines and other criteria before they decide whether to move ahead.
But with public polling across the country showing indisputable support for abortion rights, advocates and the ballot initiative groups they’re working with say the citizen-led process is a crucial vehicle that offers the ability to reconcile the gap between supportive voter attitudes about abortion and restrictions advanced by GOP-controlled state legislatures.
“This enables voters who feel their elected representatives are not prioritizing the issues that are important to them,” said Kelly Hall, the executive director of the Fairness Project, a nonprofit organization that helps progressive groups advance citizen-led ballot initiatives. “It means you can put something on the ballot, like enshrining abortion rights in a state, that otherwise wouldn’t be able to get passed through your state political representation.”
States with bans emerge as priorities
Unlike the process to enact legislation, the citizen-led ballot initiative process relies almost entirely on the will of voters and their ability to gather specific numbers of signatures in support of proposed constitutional amendments (often, the required number is a percentage of the total votes in a state’s latest race for governor). Supporters call it a shining example of “direct democracy” that more accurately reflects voters’ attitudes on certain issues.
“There’s a lot of promise in appealing directly to voters,” said J.J. Straight, the deputy director of the American Civil Liberties Union’s Liberty Division, which, along with other units at the nonpartisan civil rights group, is working with local organizations to research such ballot measures. “What we saw [this year] demonstrates that the public is often in a different space than their lawmakers.”
In Ohio, for example, a group of 1,400 doctors called Ohio Physicians for Reproductive Rights launched an effort last week — Protect Choice Ohio — to place a citizen-initiated constitutional amendment on the ballot next November.
“Our goal is to submit the amendment to the Ohio Attorney General for review and approval as soon as possible so that in early February we can begin collecting the signatures we need to place the issue on the ballot in 2023,” the group’s president, Dr. Marcela Azevedo, said in a statement.
Ohio’s “heartbeat bill” — which effectively bans most abortions, although it includes exceptions for the health of the pregnant woman and in cases of ectopic pregnancies — snapped back into place immediately after the Supreme Court overturned Roe v. Wade in June; the law remains temporarily blocked by a state judge.
The eventual language of the measure will seek to “ensure that Ohioans have access to safe, legal, equitable, and comprehensive reproductive medical care including abortion,” according to the group. Under Ohio law, the group would have to collect about 412,000 signatures by July 5.
In South Dakota, local groups are working on a “Right to Abortion” initiative that would amend the state constitution to include language that would allow abortion care during the first trimester of pregnancy, permit the state to “regulate” abortion care during the second trimester “only in ways that are reasonably related to the health of the pregnant woman” and allow the state to “regulate or prohibit abortion" during the third trimester “except when it is necessary” to save the pregnant woman's life.
After the Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization, all abortions in South Dakota are illegal, except when the life of a pregnant woman is in danger. There are no exceptions for rape or incest.
Under South Dakota law, to place a ballot measure, groups must collect about 35,000 signatures one year before an election. Groups are allowed to circulate signature petitions for up to one year, meaning an initiative can be filed as early as two years ahead of the targeted election day.
In Oklahoma, abortion-rights groups had been working as recently as last week to place a proposed amendment — called Question 828 — that sought to add a “right to reproductive freedom” to the state constitution, but organizers said they had paused their efforts, saying they'd prefer to begin the signature collection process later.
Oklahoma has several different abortion bans on its books. One makes an exception to save a pregnant woman’s life, while another makes an exception for rape and incest if it was reported to law enforcement.
Meanwhile, abortion-rights advocates and the ballot initiative groups they’re working with said preliminary efforts are also underway in Florida, Missouri and other states.
Those kinds of early efforts include legal wrangling over what the language would say — a process that seeks to limit any kind of future efforts by state legislators and state jurists to curtail the right.
“It’s going to be a unique calculus in each state,” said Andrea Miller, the president of the National Institute for Reproductive Health, which is working to advance citizen-led ballot initiatives.
Straight of the ACLU said: “What we’re looking for is durability, passability, impact” in each state’s measure. “That it can sustain challenges that might come to it legally or legislatively.”
(Separately, several Democratic legislatures in blue states, including New York and New Jersey, have moved toward placing ballot measures next year that would enshrine abortion rights in their states’ constitutions.)
Many of the groups, both locally and nationally, interviewed for this article declined to provide specific details about their early-stage efforts, citing concerns that groups opposed to abortion rights in those states might seize on any new information to aid their own efforts, legally and organizationally, to thwart the placement of ballot initiatives.
Several anti-abortion-rights groups said they would actively fight efforts for pro-abortion ballot initiatives while also signaling they would focus their own efforts to restrict abortion access efforts to the state legislative process.
“You aren’t likely to see as many pro-life ballot initiatives as pro-abortion initiatives,” Sue Liebel, the director for state affairs at Susan B. Anthony Pro-Life America, said in a written statement. “Pro-life laws have support to move through the legislative process, exactly where these policies should be debated.”
Building off success in 2022
The efforts follow an enormously successful year for abortion-rights ballot initiatives in states across the political spectrum.
In Kentucky, a Republican stronghold that has a near-total ban on abortion, voters rejected an initiative to amend the state constitution to explicitly state that there is no right to abortion.
In Michigan, voters supported a measure guaranteeing a state constitutional right to reproductive freedom, including abortion and contraception. The measure effectively invalidated a 1931 state law that prohibits abortion with no exception for rape or incest.
In Montana, voters rejected a ballot initiative that would have criminalized health care providers if they didn’t take “reasonable actions” to save infants born alive, including after attempted abortions.
Meanwhile, voters in two Democratic states, California and Vermont, chose to officially protect abortion rights in their constitutions.
Earlier, in August, voters in ruby red Kansas overwhelmingly rejected a proposed amendment that would have removed protections for reproductive rights in the state constitution.
Across the country, the NBC News Exit Poll showed that Americans cited abortion, right after inflation, as the most important issue driving their votes.
Abortion-rights advocates said that with the Dobbs decision permanent, they’ll continue to bet that voters who care about such rights will keep prioritizing the issue in the voting booth in the next several election cycles.
“Reproductive rights is a winning issue. It made headlines this year. The Dobbs decision had a huge impact,” said Chris Melody Fields Figueredo, the executive director of the Ballot Initiative Strategy Center, which works with progressive organizations to help advance citizen-led ballot measures. “One of the unique things we saw [in 2022] is the transforming and unifying effects ballot measures have and how they can often transcend party lines.
“And what we know — that about a majority of Americans actually support reproductive rights and abortion access — means we have an incredible opportunity.”