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Abortion Access Hinges on State Elections

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Abortion Access Hinges on State Elections
Dr. Elizabeth Brett Daily talks with patient Haley Ruark about the medical abortion process at a Planned Parenthood clinic Wednesday, Oct. 12, 2022, in Kansas City, Kan. (AP Photo/Charlie Riedel)
A doctor talks with a patient about the medical abortion process at a Planned Parenthood clinic in Kansas City, Kan. The outcome of the midterm election will determine the future of abortion access in Kansas and more than a dozen other states.
Charlie Riedel The Associated Press

Read more Stateline coverage on how states are either protecting or curbing access to abortions.

In the first national election since the U.S. Supreme Court overturned Roe v. Wade, voters in many states Tuesday will decide the future of abortion access, whether through ballot initiatives, gubernatorial and legislative races or choices for state courts.

Five states — California, Kentucky, Michigan, Montana and Vermont — will have abortion-related questions on the ballot, the most ever.

And the outcome of gubernatorial and legislative races in six states — Arizona, Georgia, Michigan, North Carolina, Pennsylvania and Wisconsin — will determine whether abortion is legal in those states.

In Illinois, Kansas, Michigan, North Carolina and Ohio, state supreme court races, an afterthought in previous elections, could shift the political balance of power on the courts, threatening the durability of abortion rights in those states.

“Abortion has become a major issue in state elections in a way that we haven’t seen in decades,” said Elizabeth Nash, principal policy associate at Guttmacher Institute, which supports abortion rights. “Our efforts to protect abortion rights in as many states as possible are very closely tied to what happens in November.”

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Five states will see abortion questions on the ballot in November; experts expect surprises.

Clarke Forsythe, senior counsel at Americans United for Life, said his organization intends to work over the long haul in all 50 states to outlaw most abortions, no matter what happens in this election. But he is most worried, he said, by ballot measures in California, Michigan and Vermont that would enshrine abortion rights in state constitutions.

He said he’s also hoping for passage of the Kentucky ballot measure that would ensure the state constitution cannot be construed to include a right to abortion.

“A loss would pave the way for the Kentucky Supreme Court to take over the issue,” he said. “If Kentuckians want self-government, they should approve the amendment.”

State Scoreboard

Polls consistently show that the majority of Americans support abortion in at least some cases, with an AP-NORC poll in July showing 60% want Congress to pass a federal law guaranteeing the right.

Yet in the nearly five months since the Supreme Court gave states authority to set abortion policy, 12 states have banned nearly all abortions, two states have no providers due to uncertainty about the law, one state banned abortion at six weeks, two states banned abortion at 15 weeks, and eight states have enacted bans that are temporarily blocked by courts.

Twenty-six states and the District of Columbia allow abortion until viability.

The outcome of the 2022 elections could change those tallies.

In at least six states where abortion is currently legal and available — Illinois, Kansas, Montana, Michigan, North Carolina and Pennsylvania — abortion rights could be restricted. In Wisconsin, where abortion clinics have closed due to legal uncertainty, the future of abortion access is at stake. 

And in at least two other states that guarantee abortion rights, Nevada and Oregon, Democratic losses in gubernatorial and legislative races could lay the groundwork for future restrictions.

The opposite could be true in Maryland and Massachusetts. If Republican governors in those abortion-friendly states are replaced with Democrats, access to the procedure could expand for in-state and out-of-state patients if current restrictions such as parental notification are lifted, and state funding is increased for people who can’t afford the procedure.

And if voters approve ballot measures in California, Michigan and Vermont, the right to abortion would be secure for the foreseeable future.

A ballot question victory for anti-abortion advocates in Kentucky would mean the state’s current abortion bans would be nearly impossible to roll back in state courts.

Rights in Arizona could expand or contract depending on the outcome of state elections. Outgoing GOP Gov. Doug Ducey favors a 15-week ban, and the legislature is pushing for a complete ban. The outcome of the competitive race to replace Ducey could affect abortion access.

Overall, abortion rights advocates are at risk of losing ground in more states than abortion foes.

“Elections are more vital than ever in trying to protect abortion rights in states where they still exist,” said David Cohen, professor of law at Drexel University in Philadelphia. “People should be just as invested and just as outraged as they were over the summer when they voted down the Kansas ballot initiative that would have denied abortion rights in the state constitution.”

If Democratic candidates prevail in gubernatorial and state legislative races in Republican-led Arizona and Georgia, the number of states supporting abortion rights could increase by two.

But if Republicans make legislative gains or seize the governor’s office in Michigan, North Carolina, Pennsylvania and Wisconsin, the number of states where abortion is currently legal or its status is unclear could decline by four. In Wisconsin, an 1849 ban that has not been blocked by a court has resulted in abortion clinics shuttering, despite a 1985 law allowing abortion until 20 weeks of pregnancy.

In many states where abortion rights are at risk, candidates on both sides of the issue have avoided the topic, putting the economy and crime ahead of abortion rights. And fewer voters appear motivated by the issue than by those other concerns.

In North Carolina, for example, a November poll by Elon University showed that a majority of voters said any change the state might make in abortion laws would have little effect on them or their families.

“Polls consistently find that inflation and the economy are weighted as more important issues by the average North Carolinian,” said Christopher Cooper, political science professor at Western Carolina University.

But in other states, abortion has been a top campaign issue.

In Kentucky, for example, where abortion has been banned since Roe was overturned, candidates have been outspoken in their support or opposition to a ballot measure calling for a constitutional amendment asserting that it includes no right to abortion. A similar measure in Kansas was overwhelmingly rejected by voters in August, but political experts caution that Kentucky may be different.

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Elections in November will determine whether abortion remains legal in those states.

Likewise in Michigan, where abortion is legal for now, campaign rhetoric over the issue has been pitched. Rejection of a constitutional amendment supporting abortion rights could result in a 1931 abortion ban taking effect.

As a result, Democratic incumbents Gov. Gretchen Whitmer and Attorney General Dana Nessel, who have been fighting court battles to permanently block the pre-Roe ban, have made abortion rights central to their campaigns. Candidates for governor and attorney general in Arizona, Georgia and Pennsylvania also have been outspoken on the issue.

Here’s what’s at stake for abortion rights in 12 key states:

Arizona: After a judge in September reinstated a 19th century ban on all abortions except when a pregnant woman’s life is at risk, Arizona’s Democratic candidate for governor, Katie Hobbs, held a news conference vowing to repeal the ban. Her opponent, Republican Kari Lake, has said she supports the pre-Roe ban. An appeals court blocked the ban in October, leaving in place a law signed by incumbent Republican Gov. Doug Ducey in March that prohibits abortion after 15 weeks of pregnancy.

California: In one of three states with a ballot measure supporting abortion, California’s Proposition 1 would amend the state constitution to “prohibit the state from interfering with or denying an individual’s reproductive freedom, which is defined to include a right to an abortion and a right to contraceptives,” according to Ballotpedia. Current California law permits abortion until fetal viability, 24 to 26 weeks into a pregnancy.

Georgia: In a state that already has an abortion ban after six weeks of pregnancy, before most women know they’re pregnant, Republican Gov. Brian Kemp, who is seeking reelection, has demurred on the question of whether he would sign any new laws that are stricter than the six-week ban he approved in 2019. Democratic challenger Stacey Abrams, who opposed abortion early in her career, says she now supports legal abortion until the fetus is viable outside of the womb.   

Illinois: A solidly Democratic state, Illinois has become an abortion haven for people in the Midwest, and Democratic Gov. J. B. Pritzker is favored to win his re-election bid. But abortion rights advocates fear that heavily funded state Supreme Court races for two Democratic-held seats could result in Republicans gaining a majority on the panel for the first time in more than half a century. If Democrats lose their 4-3 majority on the court, political experts predict that one of the nation’s most liberal abortion rights laws could become more restrictive.

Kansas: In a surprising victory for abortion rights in a conservative state, Kansas voters in August rejected a Republican-backed state constitutional amendment on the primary ballot. If the amendment had passed, it would have eliminated a 2019 state Supreme Court precedent that prevented the GOP-led legislature from restricting abortion. Now, anti-abortion group Kansans for Life is urging voters to oust five of the seven justices on the panel who approved the 2019 decision. Abortion is currently legal in Kansas until 22 weeks of pregnancy.

Kentucky: Abortion is illegal in Kentucky, and a measure on the ballot aims to keep it that way. Kentucky Constitutional Amendment 2, the No Right to Abortion in Constitution Amendment, would create a constitutional amendment that eliminates a right to abortion. If the measure passes, it would cut off legal recourse to the state’s abortion laws. A challenge to Kentucky’s two abortion bans is currently pending before the state Supreme Court, with a hearing set for Nov. 15.

Michigan: Proposal 3, the Right to Reproductive Freedom Initiative, would create an amendment to the Michigan Constitution conferring a right to reproductive freedom, defined as "the right to make and effectuate decisions about all matters relating to pregnancy, including but not limited to prenatal care, childbirth, postpartum care, contraception, sterilization, abortion care, miscarriage management and infertility care." If it fails, Michigan’s GOP-led legislature has indicated it supports reinstatement of a 1931 law criminalizing abortion that has been temporarily blocked by a court. Current law permits abortion until fetal viability.  

Montana: In a state where abortion is legal until fetal viability, the Montana Medical Care Requirements for Born-Alive Infants Measure, a legislatively proposed referendum, would make infants born alive at any stage of development a legal person and would require medical professionals to provide care for infants born alive after an induced labor, cesarean section or attempted abortion. Physicians in the state and the American College of Obstetricians and Gynecologists have opposed the measure, saying it would prevent compassionate care for babies born with fetal abnormalities, such as allowing a parent to hold their newborn, and “would require an aggressive course of treatment in extremely complex and often tragic medical situations.”

North Carolina: In one of only a few states in the South where abortion is legal, North Carolina Democratic Gov. Roy Cooper has said he will veto any legislative proposal to further restrict abortion, which is currently legal in the state until 20 weeks of pregnancy. If Republicans, who have held a majority in the legislature since 2010, gain a supermajority this year, they could override Cooper’s veto of any abortion restrictions. Cooper has two more years in office, and legislative leaders have assiduously avoided saying how much they would restrict abortion if they were to gain a two-thirds majority. In addition, Republicans could gain a majority in the state Supreme Court for the first time since 2016, by winning just one of two Democratic seats up for grabs in this election.  

Pennsylvania: Democratic Gov. Tom Wolf has been Pennsylvania’s backstop against legislative attempts to restrict abortion, which is legal in the state until 24 weeks of pregnancy. He is term limited, and his Democratic replacement, current Attorney General Josh Shapiro, has similarly promised to veto any legislation restricting abortion. The Trump-backed Republican candidate for governor, state Sen. Doug Mastriano, has said that banning abortion is a top priority, and that he does not support exceptions for rape, incest or to save the life of the pregnant person.

Wisconsin: Uncertainty over the status of a pre-Roe ban that’s still in effect has caused abortion clinics in Wisconsin to shutter. Democratic Gov. Tony Evers, who supports abortion rights and has fought to overturn the state’s pre-Roe ban, is in a tight race for reelection against Trump-backed Republican candidate Tim Michels. Initially supporting the 1849 law banning abortion except to save the life of the pregnant person, Michels in September said he would sign legislation to add exceptions for rape and incest. In addition, Republicans might seize a supermajority in the state legislature that would give them the power to override a gubernatorial veto.

Vermont: Abortion is unrestricted in Vermont. On this year’s ballot, voters will be asked to approve Proposal 5, Right to Personal Reproductive Autonomy Amendment, which aims to lock in those rights regardless of any future shifts in the state’s political makeup. The constitutional amendment would state that "an individual’s right to personal reproductive autonomy is central to the liberty and dignity to determine one’s own life course and shall not be denied or infringed unless justified by a compelling State interest achieved by the least restrictive means.”

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