Abortion Ballot Initiatives More Radical Than Roe

The Supreme Court’s 2022 decision in Dobbs v. Jackson Women’s Health, which overturned Roe v. Wade and rejected the existence of a constitutional right to obtain an abortion, marked a watershed moment in American constitutional law. In his majority opinion, Justice Alito deemed Roe an “abuse of judicial authority” and observed that it was “egregiously wrong from the start.” Instead of the federal judiciary setting national abortion policy, the majority concluded that it was time to “return the issue of abortion to the people’s elected representatives.”

This November, the issue of abortion is set to be decided in ten states directly by the people themselves. And in each case, voters are being asked to approve a measure that would enshrine in state law an abortion regime far more radical than the one created by Roe.

In Arizona, Colorado, Florida, Maryland, Missouri, Montana, Nebraska, Nevada, New York, and South Dakota, initiatives are on the ballot that, if approved, would create substantial constitutional impediments for lawmakers seeking to limit abortion in those states. While the initiatives differ at the margins, they would impose a largely uniform pro-abortion legal regime with several common features that could displace even the most anodyne limitations on the practice. 

First, the initiatives seek to impose nearly unsurmountable bars on any state regulation of abortion before the point of fetal “viability,” which occurs toward the end of the second trimester of pregnancy. They would do so largely by naming abortion a “fundamental right” that can only be restricted to serve a “compelling state interest.” In other words, any attempt to regulate abortion will come under “strict scrutiny,” a legal standard reserved for laws that potentially infringe core liberties like freedom of speech or overtly discriminate based on racial classifications. The upshot is that the state ballot initiatives would place pro-life laws into this constitutional rogue’s gallery.

Second, those initiatives that allow for post-viability regulation of abortion carve loopholes that would create de facto abortion-on-demand regimes. For the most part, the initiatives accomplish this by establishing post-viability shields for abortions to protect the “life or health” of the pregnant woman (although some initiatives insist on the formulation “pregnant person” to avoid the scandalous suggestion that only women can become pregnant). The word “health” is significant because the Supreme Court has given it an expansive interpretation in the context of abortion to include factors “relevant to the wellbeing” of a patient, including “physical, emotional, psychological, familial, and the woman’s age.” Under this construction, one could easily envision Planned Parenthood advocating for the necessity of nearly any abortion up to the point of delivery.

Third, the ballot initiatives are written so broadly as to create the possibility of surprising and highly troubling knock-on effects. For instance, several of the initiatives protect a category of “reproductive freedom,” of which abortion is but one iteration. That formulation could be extended to additional “reproductive” matters, including pharmaceutical and surgical interventions designed to “transition” patients wishing to align their bodies with their perceived “gender identities.” Indeed, New York’s proposed initiative explicitly makes this move, listing “pregnancy and pregnancy outcomes” alongside other protected characteristics such as “gender identity” and “gender expression.” In addition, the initiatives’ broad language could trample laws requiring parental notification and consent for minors to receive abortions, prohibitions on taxpayer funding of abortion, and even the most minimal reporting and safety regulations on abortion clinics and chemical abortion providers.

Despite these draconian possibilities, the pro-abortion initiatives are expected to be highly competitive at the polls this election season. In 2023, a pro-abortion ballot initiative in the State of Ohio was approved by the voters by a margin of 57 percent to 43 percent, despite President Trump having won Ohio in 2020 by a margin of 53 percent to 45 percent. That initiative, which enshrines a broadly worded right to “make and carry out one’s own reproductive decisions,” was recently held up by an Ohio trial court as the basis for prohibiting the state’s twenty-four-hour waiting period requirement for obtaining an abortion. Polling on this year’s ballot initiatives shows similar divides—a recent poll of Florida voters, for instance, shows 55 percent in favor of the pro-abortion initiative (which must net 60 percent to pass), 26 percent opposed, and the remainder “unsure.”

These raw numbers inform the Democrats’ political decision to run hard on abortion this cycle, while many Republicans run far away from the issue. While this momentary political calculus is dispiriting to those committed to the truth that all life, born and unborn, is created by God and entitled to legal protection, it reflects broader cultural trends. Justice Alito observed in his majority opinion in Dobbs that abortion “presents a profound moral issue on which Americans hold sharply conflicting views.” Polling shows that those conflicting views are tilted in a sharply pro-abortion direction, with 63 percent of Americans saying abortion should be legal in all or most cases. 

In a post-Roe world where abortion policy is decided by the demos, this data point seems to suggest that a pro-abortion victory at the ballot box is all but certain. The truth, however, is far more nuanced. In polling taken immediately before Dobbs was decided, similar numbers of respondents—61 percent—agreed that abortion should be legal in all or most cases. However, 56 percent of those respondents said that the length of time a woman has been pregnant should matter in determining whether abortion should be legal. Perhaps even more notably, 56 percent of respondents said that the statement “human life begins at conception, so a fetus is a person with rights” reflects their beliefs extremely, very, or somewhat well. And 70 percent said that abortion is “morally wrong in at least some cases.” Perhaps for this reason, 55 percent of poll respondents said they are open to limiting abortion at fourteen weeks gestation under certain circumstances.

The message this data carries for our present moment is two-fold. On the one hand, we should not be surprised when majorities of voters reflexively pull the lever for vaguely “pro-abortion” policies. After all, they were primed even before Dobbs to do so, having sat for nearly half a century under Roe’s perverse tutelage. 

At the same time, however, most voters instinctually know that unborn human life is fired by the spark of the divine. And this understanding, in turn, can influence practical action. Opponents of Florida’s pro-abortion Amendment 4 have carefully explained to voters the extreme nature of the proposed law. While support for the Amendment currently stands at 55 percent, it has fallen from 61 percent only two months ago as the “vote no” campaign has ramped up its education efforts.

Therein lies great hope for the pro-life movement: the truth can be ignored, but ultimately it is undeniable. The story of life—of families formed, love and pain shared, sacrifices made, and dreams of the future—far exceeds anything the cult of death that is the abortion industry has to offer. With the future of abortion policy in the hands of the “people’s elected representatives” for the time being, the pro-life community must persuasively tell that better story. The public is open to hearing that message if only we communicate it well.

Ryan Bangert serves as senior vice president for strategic initiatives and special counsel to the president at Alliance Defending Freedom. 

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Image by Marco Verch, provided by CCNull, via Creative Commons. Image cropped.