The Best Way to Protect Abortion Access Is to Put It on the Ballot

The new Republican majority will soon wield power in the House of Representatives, and despite the divisions over their choice of a speaker, make no mistake: They are bent on stymying not only President Biden’s agenda, but also efforts to protect the constitutional rights of Americans that have been whittled away by the Supreme Court and Republican-led states. Among those rights is the freedom of reproductive choice and bodily autonomy for women, which fell with the court’s overturning of Roe v. Wade last June.

There is a newly proven, promising path to restore and safeguard these rights in many states, including some politically conservative ones controlled by Republicans.

​In the 2022 midterm elections, many Americans went to the polls and sent a powerful signal about their unhappiness with the court’s decision on Roe. In every state where people had the opportunity to vote on abortion rights through ballot measures, they chose to protect and preserve access — even in red states such as Kansas and Kentucky. Rarely has reproductive rights been such a driving force in electoral politics — and not just in these referendums, but also in key races in Pennsylvania, Arizona and other battleground states, where abortion was a factor in the Republican Party’s spectacular underperformance.

The fight over abortion has ​​taken on new resonance in post-Roe America. It is no longer just a front in the culture wars, but rather a fundamental matter of health and well-being for millions of women — and the difference between life and death for many. While views on​ ​​abortion remain nuanced and complex, a majority of the American public stands firmly on the side of preserving a woman’s right to control her own body. ​ ​The most rational, equitable way forward would be for Congress to enshrine abortion rights in federal law. That is not going to happen any time soon; leading Republicans in the House will thwart any legislative moves to ensure these rights. That’s why the most promising avenues for action will be at the state level through ballot initiatives.

​The perfect record of success for these initiatives in the midterm elections provides a clear political road map toward ​rescuing reproductive rights in ​states. Buoyed by the results, abortion rights supporters are working toward replicating these victories elsewhere. This is where attention and support should be focused. ​

Taking the issue of reproductive rights directly to the people is not new, but traditionally it has been a strategy of abortion opponents. Between 1970 and 2022, just over 80 percent of statewide ballot measures dealing with abortion were supported by organizations that described themselves as pro-life.

A large majority of those restrictive measures failed — as happened in several states in 2022. In August, Kansas voters rejected a proposed amendment, put forward by Republican lawmakers, that would have declared that the state’s Constitution does not protect the right to abortion. (This would have upended the State Supreme Court’s 2019 ruling that it does.) Despite the state’s conservative electorate, the initiative was struck down by 59 percent of voters.

In November, voters rejected a similar amendment in Kentucky, where a court battle is still underway over existing restrictions, including a trigger law banning most abortions, imposed by the state legislature. And in Montana, voters rejected a “born alive” measure that would have declared a fetus or embryo to have a legal right to medical care if born alive at any stage of development, even in the course of an abortion procedure, and imposed criminal penalties on doctors who failed to work to save such infants. (Live births occurring as a result of abortions are exceedingly rare and often involve fetal abnormalities or serious pregnancy complications.)

Supporters of reproductive rights also went on the offensive in 2022, advancing measures to proactively secure access. In November, voters in California and Vermont embraced amendments enshrining abortion rights in their state constitutions. Voters in Michigan did the same, moving to block a 1931 ban from taking effect.

The Michigan measure was the one that had reproductive rights supporters on high alert. The state is politically mixed, and failure not only would have had awful repercussions for Michigan residents but also would have had a chilling effect on similar efforts being considered elsewhere.

In states where anti-abortion lawmakers control some of the levers of power, ballot initiatives may offer the best, most immediate hope of salvaging basic reproductive rights. Not all states allow for voters to directly initiate ballot proposals; state legislatures often put them forward. But of the 17 that do, “abortion rights supporters in at least 10 states with abortion bans or tight restrictions — Arizona, Arkansas, Florida, Missouri, Montana, Nebraska, North Dakota, Ohio, Oklahoma and South Dakota — are already discussing strategies and tactics for putting abortion initiatives on the 2024 presidential election ballot,” according to reporting from the Pew Charitable Trusts.

This is a daunting mission. Those who work on these campaigns say that they tend to be complicated, labor intensive and expensive. Petition drives for ballot initiatives have been growing more expensive since at least 2016, with the average cost doubling to just over $4 million in 2022 from just over $2 million in 2020, according to Ballotpedia. And the electoral skirmish over a measure can cost millions. (The two main campaigns in the Kansas contest raised a total of more than $11 million.) This is why funding from groups and individuals from outside the state is so vital.

Each campaign needs to be handled differently, based upon the views of the state’s electorate. There is no one-size-fits-all guide to victory. That said, there are basic lessons to come out of this year’s contests — especially in the not-so-blue areas — that can help guide future efforts.

To defeat the anti-choice measures in conservative states, reproductive rights proponents had to reach across the red-blue divide. They aimed to persuade rather than polarize, keeping the focus on women’s health, safety and fundamental rights rather than on voters’ tribal loyalties.

Kansas was the first to have citizens vote on abortion post-Roe, and the campaign there faced the most intense national scrutiny. The coalition leading the charge against the proposed amendment, Kansans for Constitutional Freedom, loudly touted its bipartisan nature. And even as local Democratic officials worked to defeat the measure — canvassing voters and distributing yard signs from their offices — they downplayed the usual partisan framing. (It is worth noting that Kansas’ Democratic governor, Laura Kelly, did not make abortion a focus of her re-election campaign.) By divorcing the issue from a particular party or candidates, reproductive rights supporters smoothed the way for crossover voting.

With an issue as delicate as abortion, success required running campaigns that were aggressive yet attuned to local sensibilities. What appeals to national activists or to voters in Sacramento does not necessarily play well in Omaha or Oklahoma City. Figuring out how best to approach the issue in a given state requires a lot of front-end foundational work — polling, focus groups and other research into what the local citizenry really thinks and feels.

Again, looking to Kansas: It provides abortion care for many women from nearby states where abortion has been banned, such as Oklahoma, Texas and Missouri. But plenty of Kansans didn’t like the idea of their state being labeled an abortion destination or magnet, so reproductive rights proponents tried to steer clear of such talk.

State campaigns also need to achieve a strategic balance between local and national support. Outside funding and organizational support are desperately needed. At the same time, it is vital for the ground game and voter outreach to be driven as much as possible by local workers and volunteers — people who know the communities and know how to talk to their neighbors. Voters want to hear from people they know and trust. And they don’t want to feel as though their state is being invaded by outsiders looking to impose their own values. (This was a popular accusation by the anti-choice side in Kansas.) As with so much in politics, the messenger matters as much as the message.

Allowing individual states to regulate women’s reproductive rights does have practical and philosophical flaws. It establishes a patchwork system that risks sowing confusion and uncertainty, potentially undermining the care women receive — or fail to receive. It also makes a mockery of the concept of inalienable rights. The right to control one’s body should not depend on whether one lives in Alaska or Maine as opposed to Tennessee or Texas. As the dissenting justices in the Supreme Court’s Dobbs decision pointed out, “the court does not act ‘neutrally’ when it leaves everything up to the states. Rather, the court acts neutrally when it protects the right against all comers.”

So the push on the federal level for reproductive rights should continue. There are steps that the Biden administration can take on its own, and voters should keep the pressure on Congress. But whatever happens in Washington, enshrining abortion access in state constitutions through ballot measures is a vital pursuit, and one that will help insulate a growing number of Americans from shifting political whims.

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