With the Supreme Court poised to overturn Roe v. Wade this summer, state legislatures have already introduced hundreds of bills to establish new abortion laws. But several states are going further, asking voters in coming months to amend their state constitutions in hopes of permanently changing abortion rights.
State constitutions loom as the next front in abortion battle
Upcoming constitutional ballot measures in Kansas and Kentucky seek to eliminate state court challenges to laws restricting or banning abortion. Another in Vermont — the first of its kind — would protect the right to an abortion.
At least 12 state legislatures this year introduced bills to place constitutional amendments about reproductive rights on upcoming ballots. Those efforts are expected to grow in both red and blue states in the months ahead, abortion experts and advocates said.
Soon after a leaked Supreme Court draft opinion last week suggested an end to federally protected abortion rights, California Gov. Gavin Newsom (D) said he will join Democratic lawmakers to seek a constitutional amendment in his state, pledging that “California will not stand idly by as women across America are stripped of their rights.”
“It’s going to pick up on both sides,” said Eric Scheidler, executive director of the Pro-Life Action League. “Court battles over abortion are going to grow in state courts, so efforts to shore up state constitutions is also going to grow.”
Unlike a Supreme Court ruling or the dozens of abortion bills passed in statehouses this year, the constitutional amendments will directly test voters’ views on abortion rights.
That prospect has mobilized sizable campaigns, as more than $1 million has been disclosed by political action committees dedicated to the August ballot measure in Kansas, with antiabortion groups outpacing opponents by a 2-to-1 margin. Thousands more have been reported in Kentucky and Vermont, which vote in November. In all three states, antiabortion groups, including Catholic and Evangelical Christian organizations, are lining up against Planned Parenthood, the American Civil Liberties Unionand other organizations.
Enshrining abortion restrictions or rights within state constitutions makes the measures nearly intractable, experts say, unless Congress passes a national ban or protection law. Whereas state laws can be upended after a change in party control, constitutional amendments generally take years to get on the ballot.
“The reason you turn to state constitutions is you want it to be more durable and harder to change,” said David A. Bateman, an associate professor of government at Cornell University who studies state legislatures.
In Michigan, where signatures are being gathered in an effort to get a Vermont-style constitutional measure on the state’s November ballot, organizers said the leaked Supreme Court draft has galvanized supporters. Organizers have until July 11 to secure 425,059 valid signatures.
“Overnight, hundreds of new volunteers have asked to become part of this campaign,” said Nicole Wells Stallworth, executive director of Planned Parenthood Advocates of Michigan. “We’ve been energized.”
Abortion opponents said they also believe the Supreme Court leak will similarly mobilize their base.
“With the SCOTUS decision leak there will be a lot more attention on Vermont and a lot more eyeballs on Prop 5, which is taking the most aggressive approach in the country on abortion,” said Matthew Strong, executive director of Vermonters For Good Government, referring to the state’s proposed amendment, which his group was created to fight. “I think this will finally put this on the radar for Vermonters and others in the nation.”
The constitutional battles are expected to be fierce and polarizing. In Vermont, for instance, opponents are invoking eugenics to claim the protections would be so open-ended they would allow abortions aimed at selecting specific biological traits.
“This is completely false,” said Lucy Leriche, vice president of Vermont Public Policy at Planned Parenthood. “They are trying to create fear and doubt. It feels desperate to me, and I think in Vermont people will consider the messenger and see through their underlying motives.”
Following Tennessee’s lead
Kentucky state Rep. Joseph Fischer (R) was attending the Holy Cross College in Indiana when the Supreme Court issued its decision in Roe v. Wade in 1973. Fischer, who is Catholic, jumped into classroom arguments about whether the decision “was rational or not.”
“Those debates convinced me it was an immoral decision,” he said of Roe v. Wade in an interview. “I became involved in right-to-life organizations after I graduated. I dedicated myself to the issue.”
Until 2014, there was little movement to address abortion in state constitutions. However, that year Tennessee voters passed an amendment giving the legislature the exclusive power to set abortion policies — a move prompted by a state supreme court ruling in 2000 that found the Tennessee constitution’s privacy provisions afforded women similar state-level protections as those in Roe v. Wade.
Alabama, West Virginia and Louisiana soon followed suit.
Fischer began proposing similar amendments in Kentucky, which also has constitutional privacy provisions, without success. But “as we have moved closer and closer to a repeal of Roe v. Wade, it has got onto the radar screen,” Fischer said.
In 2021,, his measure passed the Kentucky House and Senate, putting it on the ballot this fall. The measure does not explicitly ban abortion, but rather notes that “to protect human life, nothing in this Constitution shall be construed to secure or protect a right to abortion.”
The amendment would effectively block the state court from making future decisions on the issue, giving the Kentucky legislature the ultimate power on abortion rights.
Kansas legislators have passed a bill that calls for a similar amendment, which says that nothing in the state constitution creates a right to abortion nor requires state funding for the procedure. It also clarifies that the power to set abortion policy resides with the state legislature.
Steering clear of an outright ban in state constitutions is both a campaign and legal strategy. “This is likely to receive much broader support than a much more narrow prohibition,” Fischer said. “And it keeps the debate in the public forum, and I think that people will respect that and vote for that.”
Abortion rights advocates in Kentucky say this strategy is deceptive, noting that the laws already on the books show that giving Kentucky state lawmakers the power to set abortion policy — without any checks and balances from state courts — would probably end abortion access in the state.
“It is effectively a ban,” said Kentucky state Rep. Lisa Willner (D), who opposes the ballot measure. “If you look at the kind of laws that have been proposed and passed in the state of Kentucky with the Republican super majorities, it’s clear that these laws are going to make it impossible for providers to offer abortion care in the state of Kentucky.”
Since 2017, the Kentucky legislature has passed 15 bills that have restricted access to abortion in the state. Among them is a 2019 law, currently being challenged in state court, that would ban abortions after the sixth week of pregnancy, before most women know they are pregnant. That same year, Kentucky passed a “trigger law,” that calls for banning all abortions should Roe v. Wade be overturned.
And last year, the Kentucky legislature passed a bill that had 60 pages of new restrictions and requirements for abortion clinics. The only two clinics in Kentucky immediately shut down after it became law last month but have reopened under a court order that delayed implementation of the law while it is being challenged.
Enshrining protections
For the past four years, Melinda Moulton has repeatedly told the Vermont state legislature about her personal experience with the dangers of restricted reproductive rights. Moulton was 12, she says, when her mother died following a botched hysterectomy performed in a makeshift medical facility catering to women like her: unwed and secretly pregnant.
“My mother was a product of the pre-Roe era,” said Moulton, 73, who is vice chair of ACLU Vermont’s board of directors, in an interview. “A lack of reproductive freedom cost her her life. I have three granddaughters now and my job is to make sure they don’t end up in some backroom, mutilated.”
Motivated by President Donald Trump’s promises to add abortion opponents to the Supreme Court, Moulton joined with state lawmakers to build support first for a law that passed in 2019 explicitly protecting abortion rights.
At the same time, they began work on a constitutional amendment to broadly protect “reproductive autonomy.” It took four years to get it on the ballot, as the state’s laws require two consecutive legislatures to approve constitutional amendments, and sessions run for two years.
Vermont state Rep. Ann Pugh, the Democrat who sponsored the bills, said a state law protecting abortion could be too easily swept away if the political climate changed in Vermont.
“People smarter than me said the state law will protect us for now, but what if the political winds shift?” Pugh said, adding that in the House Committee on Human Services that she chairs, “There are four or five bills that would limit or take away abortion rights. That right is only as secure as who is in the legislature.”
Political experts said that in left-leaning states like Vermont and California, amendments to protect abortion rights are also aimed at reassuring liberals worried about a world in which Roe v. Wade is overturned.
“It is more of a signal to progressives and the base of progressive voters in states like California that they are safe,” said Jonathan Parent, an associate political science professor at Le Moyne College who studies state constitutions and reproductive rights. “They are not realistically in danger.”
The campaigns
In Vermont, opponents of the proposed constitutional amendment have been waging a public campaign since it was first introduced in 2018. Some have made extreme claims about the measure.
One flier distributed across Vermont in March, for instance, alleged the amendment would mean that “Doctors and nurses will be forced to perform abortions … or be forbidden from practicing medicine in Vermont.”
Nothing in the constitutional amendment requires such a mandate, the group behind the flier acknowledged in an interview. But organizers argued the proposed law is murky, and there could be repercussions that would be difficult to correct in the future.
“We cannot say this is the obvious blueprint or plan. I will admit we used clunky wording but we believe the intention is there or that this could lead to these unintended consequences,” said Strong, of Vermonters For Good Government, whose group has made similar unfounded claims about the law being used to allow Vermonters to abort fetuses based on gender or biological traits.
Proponents of the ballot measure, meanwhile, said their focus in the lead-up to November will be on educating voters about the law’s intent to protect — not expand — abortion rights.
“Our work is going to be to try to make sure that voters have accurate and correct and factual information about what the amendment is and about what it does, because we know that our opponents are already feeding misinformation to the public,” said Leriche, with Vermont Planned Parenthood.
With the public vote still six months away, fundraising is still ramping up in Vermont and Kentucky, advocates said.
But with an August vote looming in Kansas, disclosure statements show at least $1.2 million has been raised to fund a campaign to back the measure, with a majority of donations coming from Catholic organizations, including $500,000 from the Archdiocese of Kansas City. More than $460,000 has been raised to fight the measure, with $235,000 coming from the national and state chapters of the ACLU.
Polling suggests that Kansans are nearly evenly divided over abortion rights, according to a 2018 Public Religion Research Institute poll, while in Kentucky 51 percent opposed them. In Vermont, meanwhile, 72 percent said they supported abortion rights.
Robinson Woodward-Burns, an assistant political science professor at Howard University, predicted that states with laws and constitutional amendments banning or restricting abortion will find it difficult to truly end the practice. He pointed to how states failed to uniformly enforce Prohibition.
“It’s very, very hard for states to enforce laws when neighboring states refuse,” he said. “What they are really doing is challenging people to go elsewhere. These laws will create a lot of movement across state lines. … This is what happens when there is a patchwork of laws across the nation.”
Alice Crites and Scott Clement contributed to this report.
Source: WP
