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Referendums on Life
Ana Brennan, J.D.
Society of St. Sebastian | 21 November 2022
Since Roe v. Wade was overturned in June, numerous states have attempted to curtail or protect the legality of abortion through the referendum process. Unfortunately, the cause of life has not faired well with this process.
Kansas was the first state to hold a referendum post-Roe in August. Kansas was in a unique position because its state supreme court had found a right to abortion under its state constitution, nullifying recently passed pro-life legislation. If Kansas wanted to protect unborn children, it had to amend the state constitution, which necessitated the referendum.
The Kansas referendum was not necessarily pro-life in that it did not explicitly call for the legal protection of unborn children, rather it was abortion neutral. Its purpose was to clarify that abortion was not a constitutional right under the state constitution, thereby allowing the legislature to pass abortion policy. For those of us who have been involved in the pro-life movement for any amount of time, we understand we just emerged from almost 50 years of abortion as a constitutional right tyranny on the federal level, so of course, we want to avoid the same scenario on the state level. Even if the referendum had passed, the Kansas legislature could have just as easily ushered in pro-abortion policies.
This was a very nuanced and confusing referendum, which is the kiss of death for a referendum. Sadly, on November 8th, Kentucky followed in Kansas’ footsteps. Kansas was faced with a state court decision preventing the state from passing protective legislation. Kentucky was not faced with the same dilemma at this time.
In addition to these abortion-neutral referendums, a few states had overt, pro-abortion referendums on the ballot, recognizing abortion as a protected constitutional right under their state constitutions. Regrettably, all of these passed. California and Vermont were to be expected, but there was some hope in Michigan, but a pro-abortion referendum passed there as well.
If you read the Michigan referendum, abortion is hidden amongst other, innocuous issues. Abortion advocates know most voters are, at a minimum, uncomfortable with abortion and it cannot stand on its own. Abortion must hide behind other issues that are not controversial. They must coach it in terms of “reproductive rights.”
The potentate parts of the Michigan referendum read as follows:
Article 1, Section 28 Right to Reproductive Freedom
(1) Every individual has a fundamental right to reproductive freedom, which entails 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.
An individual's right to reproductive freedom shall not be denied, burdened, nor infringed upon unless justified by a compelling state interest achieved by the least restrictive means.
Notwithstanding the above, the state may regulate the provision of abortion care after fetal viability, provided that in no circumstance shall the state prohibit an abortion that, in the professional judgment of an attending health care professional, is medically indicated to protect the life or physical or mental health of the pregnant individual. ***
In general, referendums have a low success rate. Messaging, money, and how something is worded are determinative of its success. This puts the pro-life movement at a huge disadvantage. It is no secret that the media and millionaires are not on our side. In addition to these general concerns, pro-life referendums also must overcome the status quo, and for the past 50 years, legalized abortion has been the status quo. This past election, whether people voted for or against protecting abortion under their state’s constitution, they voted for what they perceived as preserving the norm.
I say perceived because for the past 50 years most Americans have been completely oblivious to the carnage that legalized abortion wrought on our country. People refused to believe that Roe legalized abortion through all nine months of pregnancy for any reason or the sheer magnitude of how many abortions were performed. Just like most people did not understand what Roe unleashed, they do not understand the extreme nature of these pro-abortion referendums. They are voting to maintain the status quo without understanding what the status quo is.
Nowhere was the issue of maintaining the status quo more evident than in Montana. This past November they had a referendum on their ballot to protect children born alive after an abortion. Again, this referendum was not about protecting unborn children from abortion, but rather providing the same standard of care to babies, regardless of how they were born. The medical associations in Montana viciously opposed this referendum. It was a threat to their norm. Just like doctors who claim we cannot outlaw abortion because they do not know the difference between a spontaneous and induced abortion, now on the other end of pregnancy doctors in Montana claim they do not know how to apply medical standards unless they can deviate from standards of care and leave children to die.
We can try and explain the defeat and success of abortion referendums by looking at the referendum process itself and the misunderstandings surrounding legalized abortion, and these are huge factors. But we can not overlook the fact that abortion has been poisoning our medical and legal professions, and culture for 50 years. For the past 50 years, abortion has been the go-to “cure” for high-risk pregnancies. Doctors do not know how to practice medicine without abortion. In Planned Parenthood v. Casey, Justice O’Conner said we needed to keep abortion legal because as a society, we have ordered our lives around it. As a society, we do not know how to function without abortion. We can argue all we want that people just do not understand the abortion issue, which is true. It may also be true people do understand and want to preserve the status quo that abortion has created, even to the point of justifying infanticide as they did in Montana.
The culture of death is ingrained and pervasive and cannot be discounted. The midterms illuminated the battle we are fighting. Going forward, it is important for the pro-life movement to learn from these referendums and pursue effective policies that address the post-Roe realities we are facing.
Kansas Supreme Court Rules State Constitution Protects Right To Abortion, NPR, Dan Margolies,
 § 22. Regulation of abortion. Because Kansans value both women and children, the constitution of the state of Kansas does not require government funding of abortion and does not create or secure a right to abortion. To the extent permitted by the constitution of the United States, the people, through their elected state representatives and state senators, may pass laws regarding abortion, including, but not limited to, laws that account for circumstances of pregnancy resulting from rape or incest, or circumstances of necessity to save the life of the mother.” https://valuethemboth.com/the-amendment/.
 2022 State Ballot Initiatives on Abortion Rights, Michelle LongSep, 20, 2022, Updated November 14, 2022. https://www.kff.org/policy-watch/2022-state-ballot-initiatives-abortion-rights/.
 Retrieved November 29, 2022: https://ballotpedia.org/Michigan_Proposal_3,_Right_to_Reproductive_Freedom_Initiative_(2022).
 Retrieved November 30, 2022: https://leg.mt.gov/bills/2021/billpdf/HB0167.pdf.
 As election nears, doctors, nurses speak out against Born-Alive Infant referendum, Montana Free Press, Mara Silvers, Oct. 28, 2022. https://montanafreepress.org/2022/10/28/montana-medical-providers-speak-out-against-lr-131/.