What Will the State Abortion Amendments Mean?

Seven states passed ballot initiatives protecting abortion rights on Election Day, adding to the success advocates have had with this strategy for mitigating damage from the Dobbs decision. Although three states failed to pass similar measures, “abortion is popular,” said Kate Kelly, senior director of the Women’s Initiative at the Center for American Progress. “Abortion is more popular than any person on the ballot. It’s popular in every state, in every demographic, in every party. Abortion is simply one of the most popular issues of our time that differs wildly from the way the politicians and policy-makers treat it. But on the ground and when put to a vote, it wins.”

However, even with these amendments, access to abortion care will still look different in each of the seven states. In New York, voters passed a comprehensive Equal Rights Amendment, known as Prop 1, expanding the protections in the state constitution to explicitly include sex, sexual orientation, gender identity, gender expression, pregnancy, pregnancy outcomes, and reproductive health care and autonomy. “If we’re going to all this expense and all this effort, we should be looking at comprehensive constitutional change like what happened in New York,” said Kelly.

Colorado’s Amendment 79 not only enshrines the right to an abortion in the state constitution, but also repeals the constitutional ban on state and local government funding for abortion. Prior to Election Day, Colorado did have the Reproductive Health Equity Act, which was signed into law in April 2022 in anticipation of Dobbs and declared that “every individual has a right to … have an abortion.” But a 1980s provision in the state constitution barred public funding for abortion, impacting 1.8 million Coloradans, according to Dusti Gurule, president and CEO of the Colorado Organization for Latina Opportunity and Reproductive Rights (COLOR) and COLOR Action Fund.

Voters approved an amendment to the state constitution in Maryland, creating a “right to reproductive freedom” even though abortion rights are protected under state law, as a potential bulwark against future anti-abortion state legislators and courts. The amendment also protects people traveling to Maryland for abortion care. Still there is a parental/guardian notification law on the books that will need to be litigated in order to be repealed.

Even though abortion is also legal in Montana up to viability, voters approved a ballot initiative that enshrines that right in the state constitution, for similar reasons.

And in Nevada, where abortion is legal until 24 weeks, voters approved a constitutional amendment establishing the right to an abortion until fetal viability, which will need to be approved again in 2026 before it can be ratified.

Nebraska, which has a 12-week abortion ban, had two competing amendments on the ballot. The anti-abortion measure passed, which will enshrine the 12-week ban in the state constitution.

Although a ballot initiative passed in Missouri, which became the first state to overturn a total abortion ban, it was immediately challenged by the state attorney general and anti-abortion legislators. On December 20, a judge struck down the abortion ban and several other restrictions, including a 72-hour waiting period. But abortion is still unavailable because licensing regulations and other restrictions remain in place, making it difficult for clinics to operate. “Before the total ban went into place, [Missouri was] already down to one provider,” said Candace Gibson, director of state policy at the Guttmacher Institute. “In Missouri, it’s important to note that abortion access isn’t a light switch, in terms of turning it on and off, because providers are going to have to scale to meet the moment. So you’re probably still going to see folks traveling out of state for care as this litigation continues and as providers are assessing the environment and whether they can come back to the state.”

The coalition building that happened in Kansas in 2022, when voters rejected a proposed constitutional amendment that would have banned abortion, also helped advocates in Missouri this year. “We were fortunate to have done this same fight in Kansas and we’ve seen the difference it makes,” said Emily Wales, president and CEO of Planned Parenthood Great Plains as well as Planned Parenthood Great Plains Votes. “We are still very strong partners with the other organizations. It helped us tremendously, as we have an overwhelming need from patients out of state to be in close partnership with independent providers and to have legislative partners. When you live through a ballot initiative as a coalition and you have really tough, honest conversations, you make fundraising and spending decisions as a group, it’s not easy work. But to get to the point where we can work through tough things, respond quickly, get through five lawsuits — that’s not an infrastructure that goes away overnight.”

In Arizona, where earlier this year the state Supreme Court upheld an 1864 total abortion ban, which was later repealed, voters approved an amendment to enshrine the right to abortion in the state constitution. On December 3, health care providers filed a lawsuit challenging a 15-week abortion ban that was still on the books on the grounds that it violated the new constitutional amendment. Attorney General Kris Mayes and the providers signed a stipulation stating the ban was unconstitutional, and currently they are able to provide abortion care beyond 15 weeks while the litigation is in process. But because of the back and forth about the 1864 abortion ban earlier this year and intentionally misleading information from abortion opponents, “there is always confusion in this state about whether abortion is legal,” said Dr. DeShawn Taylor, founder, president, and CEO of Desert Star Institute for Family Planning. Two years ago, Dr. Taylor formed the Arizona Proactive Reproductive Justice Alliance, a coalition of organizations and providers that drafted a bill to repeal the state’s 50 abortion restrictions and bans. “In many states that have passed constitutional amendments [before] this legislative session, the amendment was passed and then the work of figuring out legislation was done. In our case, we have a constitutional right to an abortion, we have a legislative session starting next month, and we already have a repeal bill, so we don’t have to work on that.”

Although abortion amendment campaigns are time-consuming and expensive, they also have positive ripple effects, including public education about abortion and coalition building, even in states like Florida, where a proposed amendment didn’t pass. The loss in Florida was a “devastating blow,” said Barbara Zdravecky, interim CEO of Planned Parenthood of Southwest and Central Florida, which was part of a coalition of organizations working to pass the amendment. However, advocates raised $110 million for the campaign. “No one thought this was possible in Florida — it was considered a lost cause state. But this goes to show there is never a lost cause. Except for our arcane 60% rule, we’d be among the victors.” (The measure garnered 57% of the vote, but Florida requires a 60% supermajority to amend its constitution.) Advocates are using the momentum from the amendment campaign to lobby state legislators and to keep reminding them that a majority of Floridians voted in favor of abortion access and are against the six-week abortion ban.

Ballot initiatives to amend state constitutions are “a long-term strategy and necessary and at this point one of the most important things we can do,” said Kelly. “But there has to be a two-track approach. One is solidifying the right to access abortion in the constitution, whether that’s state or federal, and the second is getting people access to the care they need right now, today. Because these ballot initiatives, while very important for the long game, do not alleviate the immediate, dire need for many people on the ground.”

This article was updated to note that a judge struck down the abortion ban in Missouri on December 20.