The Abortion-Rights Winning Streak Continues

Photo-Illustration: Intelligencer; Photo: Getty Images

In Tuesday’s election, voters in Kentucky defeated a ballot measure that aimed to eliminate abortion rights from the state constitution. And voters in Michigan, Vermont, and California have amended their state constitutions to explicitly acknowledge abortion rights. The door to state abortion bans opened by the U.S. Supreme Court earlier this year when it reversed Roe v. Wade is being closed by voters whenever they have the opportunity to weigh in on the matter.

In the days after the Supreme Court’s Dobbs decision turning abortion policy over to the states, Republican politicians and other opponents of legalized abortion looked with bad intent at places where courts had identified a state constitutional right to choose independent of Roe. They immediately found two red states, Kansas and Kentucky, where it was relatively easy to get a compliant, GOP-controlled legislature to put a constitutional amendment on the 2022 ballot (the primary ballot in Kansas and the general-election ballot in Kentucky). The thinking was that in states where the electorate would lean even more conservative than usual due to a midterm Republican wave, it would be a snap to get “liberal” courts out of the way and give legislators the power to enact draconian anti-abortion laws.

This assumption was upended on August 2 when Kansas voters defeated the “Value Them Both” constitutional amendment, which would have ended state constitutional abortion rights, by a 59-41 margin. It was a stunning result in a state that Donald Trump had carried by a 56-42 margin in 2020, and it soon became apparent that a sizable minority of pro-choice Republican voters bucked their party leaders and elected officials by voting “no.”

By then, Democratic legislators in California and Vermont had already arranged for their own states to vote on constitutional amendments enshrining abortion rights. And after the Kansas vote, pro-choice advocates in Michigan secured enough petitions on a citizen-led abortion-rights initiative to get it on that state’s November ballot.

Kentucky’s “no right to abortion” initiative was losing by six points with 88 percent of the votes in, showing once again that some Republican voters remain pro-choice even if their politicians (e.g., Kentucky’s Rand Paul, who was easily reelected this year) are soldiers in the war on legalized abortion. Abortions are still largely illegal in the state by legislative statute, but at least the ban will not be made permanent via a proposed constitutional amendment. Michigan’s reproductive-rights constitutional amendment (Proposal 3) was approved by a double-digit margin. California’s very extensive abortion-rights constitutional amendment, Proposition 1, is being approved by nearly a two-to-one margin. And Vermont’s parallel Proposition 5 (guaranteeing a right to “reproductive freedom”) is winning by more than a three-to-one margin.

There was a much, much narrower ballot initiative at play in Montana, passed by the legislature long before Dobbs came down, requiring medical interventions to treat “born alive” survivors of botched abortions. It too is currently losing by a six-point margin. So there could be a pro-choice clean sweep at the polls. Reproductive-rights advocates and their Democratic allies are already planning additional ballot initiatives for 2024.