The shocking decision by the Arizona Supreme Court to resuscitate an 1864 law banning virtually all abortions and criminalizing abortion providers set off a sort of political explosion in the state, with many Republicans denouncing the decision and trying to figure out how much they’d have to restore abortion rights legislatively to avoid an electoral calamity in November. The timing is also terrible for Arizona’s forced-birth lobby, since there will almost certainly be state constitutional amendment on the general-election ballot to restore reproductive rights as they existed before the U.S. Supreme Court reversed Roe v. Wade.
These developments all feed into the Democratic strategy to make abortion a big 2024 general-election issue, obscuring or neutralizing other issues like inflation or border security where Joe Biden and his allies might be vulnerable. But beyond the impact on partisan warfare, the backlash to the state-level assaults on abortion rights could reverse them in a wide array of states sooner rather than later — and more definitively than some win in a state legislative chamber. That’s because, at present, the default pro-choice tactic is the enactment of state constitutional amendments reestablishing abortion rights and taking the subject out of the hands of hostile lawmakers altogether. And the solid pro-choice majority in most states (even quite red states) means that this restoration won’t depend on Democrats winning or retaining power.
State constitutional provisions explicitly protecting abortion rights were a bit unusual during the 49-year reign of Roe v. Wade for the obvious reason that they weren’t necessary. But according to the Center for Reproductive Rights, courts in Alaska, Illinois, Kansas, Massachusetts, Minnesota, Mississippi, and New Jersey had recognized some state constitutional provisions (usually involving a right to privacy) protecting the right to choose. And after SCOTUS reversed Roe, courts in California, Montana, North Dakota, and Oklahoma did so as well. Elsewhere the 2022 elections sparked state constitutional amendments initiated or ratified by ballot measure, which were duly passed in California, Michigan, and Vermont. And now the rush is on, with 2024 state constitutional amendments protecting abortion rights already on the ballot for November in Florida, Maryland, and New York, and very likely to be in Arkansas, Colorado, Missouri, Montana, Nebraska, Nevada, and South Dakota.
On the other side of the barricades, voters in three states (Louisiana, Tennessee, and West Virginia) approved state constitutional amendments denying abortion rights, but all those votes were largely symbolic at the time because they preceded the reversal of Roe. Similar efforts in 2022 failed in Kansas and Kentucky.
So as you can see, there is a powerful trend toward either unraveling abortion restrictions or preventing them via state constitutional amendments that require (and command) voter support (usually a majority, although Florida requires a 60 percent supermajority for constitutional amendments). In effect, the states are recreating Roe by patchwork, and so far the pro-choice winning record since SCOTUS did its deed is spotless. There’s not much Republican legislators can do when abortion-rights supporters go over their heads to voters and enshrine protections constitutionally. And in some cases — as in Arizona — they may be privately pleased the decision has been taken out of their hands.
