There were six state referenda on abortion this year (CA, KS, KY, MI, MT, VT) and abortion rights won all of them. Proactive ballot measures not only enshrine good laws, they drive turnout and shape the debate. We need to understand what happened in 2022 and what ought to happen in 2024.
Believing that their citizens opposed abortion, conservative legislatures in three states put the issue on the 2022 ballot.
Kansas: Because the Kansas Supreme Court has upheld the right to abortion, the legislature placed on the ballot a constitutional amendment to overturn that right. On August 2, voters rejected the anti-abortion amendment by a margin of 59-to-41 percent.
Kentucky: Although abortion is completely prohibited by statute in Kentucky, the legislature nonetheless placed on the ballot a constitutional amendment asserting there is no constitutional right to abortion. Voters rejected the anti-abortion amendment by a margin of 52-to-48 percent.
Montana: Because Montana courts have upheld the right to abortion, the legislature placed on the ballot a “born-alive” statute trying to make it impractical for doctors to perform many abortions. Voters rejected the anti-abortion statute by a margin of 53-to-47 percent.
Believing that their citizens favor the right to abortion, progressive legislatures in two states put the issue on the ballot:
California: The legislature placed on the ballot a constitutional amendment guaranteeing the right to abortion and contraception, which was approved by a margin of 66-to-34 percent.
Vermont: The legislature placed on the ballot a constitutional amendment guaranteeing the right to abortion, which was approved by a margin of 77-to-23 percent.
Only one state had an abortion referendum placed on the ballot by petition:
Michigan: A coalition, including the state ACLU and Planned Parenthood groups, gathered 735,000 signatures to place on the ballot a constitutional amendment creating a new individual right to reproductive freedom, including the right to abortion. It was approved by a margin of 57-to-43 percent.
This not only protected abortion rights in Michigan, it created a “blue wave” for pro-abortion rights candidates. The Democratic governor was reelected and both the state House and Senate, long controlled by Republicans, turned majority Democratic for the first time in nearly 40 years. (Conventional wisdom held that Democrats might win the Senate but certainly not the House.)
Exit polls showed that nearly half of all voters identified abortion as their top issue—more than inflation or any other matter. There was almost no drop-off from top-of-the-ticket votes for governor to votes on the abortion rights constitutional amendment which was at the bottom of the ballot. Fully 98 percent of votes cast for governor were cast on the abortion question, suggesting that citizens turned out to vote on the abortion issue. As State Representative Darrin Camilleri said after knocking on 130,000 doors, “It drove turnout in ways that we did not expect.” In fact, it was the highest turnout ever for a midterm election in Michigan.
Finally, while it is anecdotal at this point, it appears that the abortion referendum drove turnout from college campuses to historic levels. College students waited in line for hours. Although polls closed at 8 pm, the last voter at Michigan State University cast his vote at 12:09 am; the last University of Michigan voter cast her vote around 2 am.
It seems obvious, for both policy and political reasons, that every state possible should hold a referendum on abortion rights in November 2024. (New Jersey, which has off-year state elections, reportedly plans to put an abortion rights constitutional amendment on the November 2023 ballot.) Any legislature controlled by Democrats can do this without much trouble. In other states, it would be necessary to petition abortion rights onto the ballot, as Michigan did. This should be considered in Colorado, Florida, Missouri, Nebraska, Nevada and Ohio. Unfortunately, there is no direct initiative procedure in Texas!