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The Need to Prepare for Pro-Abortion State Constitutional Referendums
Jacqulyn Dudasko, Ed.D.
Society of St. Sebastian | 12 January 2023
Candidates and ballot measures that focused on abortion access and which prevailed during the 2022 midterm elections have encouraged a block of voters, shining a light on the energy these demands have in the minds of voters. Voters more energized by abortion access than by equally pressing concerns like inflation or crime.
California, Michigan, and Vermont voters approved measures ensuring the right to abortion in their state constitutions, with Kentucky and Montana's voters rejecting measures that would have curtailed that right. Equally, the legislatively referred 2022 Kansas abortion referendum which declared that the Kansas constitution does not guarantee a right to abortion, the Value Them Both Amendment, was defeated by an 18-point margin.
Meanwhile, candidates who emphasized abortion rights in battleground states, such as Michigan, Pennsylvania, and Wisconsin, ran away with races that were expected to be much closer.
It is exactly these trends, something advocates tout as a perfect record for abortion-rights legislation, that have energized these voters and will propel their demands, and the demands of organizations that support unfettered abortion access, into the 2024 election cycle.
Encouraged by this outcome, activists are planning on developing and supporting citizen-led ballot initiatives that would enshrine abortion rights in the constitutions of ten states: Arizona, Arkansas, Florida, Missouri, Montana, Nebraska, North Dakota, Ohio, Oklahoma, and South Dakota.
While only 17 states allow citizens, not just lawmakers, to initiate ballot proposals to amend the state constitution, the states targeted by abortion rights activists present a dual opportunity for legislating abortion access. They all ban or restrict abortion, and citizens can legally initiate ballot proposals that amend the states' constitutions. It's this combination that makes each of these states the best targets, according to abortion-rights advocates emboldened by the victories won in all six states that featured ballot initiatives about abortion access.
Sarah Standiford, the national campaigns director for the Planned Parenthood Action Fund, the political arm of the abortion-on-demand group, notes that the recent victories show, “There’s clearly a lot of energy and enthusiasm about taking this directly to the people.”
Abortion advocates and the ballot initiative groups they’re working with note that the citizen-led process offers the ability to reconcile what they feel is the gap between voter attitudes about abortion displayed in the 2022 elections and restrictions advanced by state legislatures. Supporters call it a shining example of “direct democracy” that more accurately reflects voters’ attitudes on certain issues.
While activists trumpet their potential for success with this process in particular states, there is much more to consider. Although groups in South Dakota, Oklahoma, and Ohio, have already begun writing ballot language and are evaluating deadlines to collect signatures, their efforts have not all been successful. Proponents of the citizen-led initiative petition in Oklahoma, led by Tulsa hairdresser Roger Coody, notified the Secretary of State’s office in early December 2022 of their plans to withdraw the petition.
Despite their current energized focus, abortion activists and their citizen-led allies now realize that the process for getting any type of measure on the ballot takes a very long time (Vestal 2022). Even with the support of Oklahoma Democratic State Representative Mickey Dollens, citizen activist Roger Coody notes that their group “… decided to pause, re-calibrate the timing of signature collection and build our coalition to increase our chance of getting the signatures required.”
If approved by Oklahoma voters, the initiative would have enshrined the right to an abortion in the Oklahoma Constitution until fetal viability, which occurs at approximately 24 weeks gestation, and would have invalidated any state laws that conflicted.
In other states, however, work is much more preliminary. Abortion advocates in states like Montana, Nebraska, and North Dakota are working to test messaging and language, consider and elucidate the political environments that could determine outcomes, and research deadlines and other criteria before they decide whether to move ahead.
State Constitutions and Ballot Initiatives
Although the focus is on citizen-led initiatives, what must be remembered is those powerful and well-funded organizations that have always trumpeted unrestricted abortion access stand behind these citizens. Planned Parenthood and its political arm, the Planned Parenthood Action Fund, the Liberty Division of the American Civil Liberties Union, Ohio Physicians for Reproductive Rights, and the Fairness Project, which provides technical assistance on state ballot initiatives, are just a few of the many who will trumpet the desires of the voter and hide behind the work of their citizen allies.
Their work will be on abortion rights ballot measures that focus on state constitutions. Although once considered risky, the 2022 success of ballot measures has upped the ante because, as legal advocates acknowledge, state constitutional amendments are a far more durable way to ensure abortion rights. The language of their initiatives, while promoting what they tout as the political will of state residents, will leave very little wiggle room for state Supreme Court justices to decide future cases based on their amendments.
Even as the rhetoric shifts and their message moves to the will of the people and to citizen-led initiatives, the stakes remain high. The lives of children are at stake and the focus must squarely remain on the sanctity of their lives.
 Edelman, Adam. 2022. nbcnews.com. 12 23. https://www.nbcnews.com/politics/politics-news/abortion-rights-groups-look-new-ballot-measures-2023-2024-rcna61317.
 Vestal, Christine. 2022. Pew. Nov 23. https://www.pewtrusts.org/en/research-and-analysis/blogs/stateline/2022/11/23/buoyed-by-midterm-successes-abortion-rights-advocates-prepare-2024-ballot-measures.
 2022. OKC Fox News. December. https://okcfox.com/news/local/oklahoma-petition-to-enshrine-abortion-rights-withdrawn-roger-coody-tulsa-california-vermont-kansas-kentucky-roe-wade-state-question-828-oklahoma-city-kevin-stitt-reproductive-rights.
 Id. at fn. 4