On August 2, the Kansas primary election will feature the first ballot test on abortion policy since the U.S. Supreme Court abolished the federal right to choose in the Dobbs decision. Kansans will vote on a so-called “Value Them Both” state constitutional amendment, which would overrule state court precedents establishing a right to abortion and pave the way for new restrictions. Several other states put abortion on the November ballot in reaction to Dobbs, but there is a robust history of votes on state constitutional provisions going back years. Obviously, the stakes were lower in these earlier votes, as Roe v. Wade limited state control over abortion policy. But they show that Kansas-style initiatives sweeping away or preempting state constitutional abortion rights tend to do much better among voters than efforts to ban abortion directly.
The first jurisdiction to put the issue of state constitutional protection for abortion to voters was Tennessee. In 2000, that state’s Supreme Court interpreted a right to privacy in Tennessee’s constitution as prohibiting abortion restrictions enacted by the legislature (such as a long waiting period aimed at reducing the number of women entering the state to secure abortion services). In 2014, a very good midterm election year for Republicans, voters approved a state constitutional amendment overruling the notion that the right to privacy “secures or protects a right to abortion or requires the funding of an abortion” by a 53-47 margin.
An even closer ballot test occurred in West Virginia in 2018 over a constitutional amendment worded almost identically to Tennessee’s, also motivated by an adverse state court decision in 1993 protecting abortion funding for indigent women. In a relatively pro-Democratic midterm election, voters ratified the amendment by a 52-48 margin; deep urban-rural splits characterized the vote.
Most recently in Louisiana, arguably the state with the nation’s strongest anti-abortion movement (as illustrated by its Democratic governor John Bel Edwards, whose unconditional opposition to legal abortion makes him an anachronism in his party), legislators didn’t even need a hostile judicial development to put a “no constitutional right to abortion” constitutional amendment before voters in 2020. It passed by a 62-38 margin.
The last time a similar state constitutional amendment failed was way back in 1986 when voters in deep-blue (but heavily Catholic) Massachusetts defeated a “no right to abortion” initiative 58-42.
The record of more direct ballot measures restricting abortion even in very conservative states is spotty at best. “Personhood” initiatives aiming to establish constitutional rights for a fetus from the moment of conception failed three times in Colorado (in 2008, 2010, and 2014) by huge margins. More notably, a 2011 personhood initiative in deep-red Mississippi that was backed by the state’s Republican governor and other elected officials lost by a 58-42 margin. North Dakota voters in 2014 soundly defeated a total constitutional abortion ban that didn’t use the “personhood” language by a 64-36 margin (it would have established an “inalienable right to life of every human being at any stage of development”). A similar amendment was defeated in Rhode Island in 1986 by a 66-34 margin. Back in 1992, a slightly less draconian measure in Arizona banning abortion in all cases other than those involving rape, incest, or a threat to the life of the mother was defeated by a 69-31 margin; a very similar Wyoming amendment lost 60-40 in 1994. Narrower ballot initiatives to ban state abortion funding have passed in Arkansas and Michigan and failed in Alaska, Florida, and Oregon. State constitutional bans on late-term abortions were defeated in Colorado, Maine, and Washington.
The closest thing to a voter-approved direct abortion ban was passed by Alabama voters in 2018; they approved (59-41) a constitutional amendment to “recognize and support the sanctity of unborn life and the rights of unborn children, including the right to life,” though it required legislative follow-up to make it effective.
So the record shows that Kansas legislators taking a stealthier path toward an abortion ban by first eliminating the courts and the constitution from the equation makes good political sense. And Kansas Republicans stacked the deck a bit by choosing to hold the vote on their amendment during a primary rather than a general election. Turnout will be significantly lower than in November, and the hottest statewide races are in the GOP primary (independent voters, who outnumber Democrats in the state, can cast ballots on the anti-abortion amendment but not the other offices on the primary ballot).
If, despite all these advantages, the anti-abortion movement loses its “Value Them Both” measure in Kansas (a state carried by Donald Trump in 2020 by 14 points), it will be a clear sign that even making it possible to ban abortion is unpopular. Right now, Kentucky is set to have a similar ballot test in November; efforts are under way to provide for a similar vote this fall in Montana, with Pennsylvania and Iowa possibly following in the coming years. Abortion-rights proponents are sponsoring ballot tests on constitutional provisions guaranteeing a right to choose in November in California and Vermont that are certain to pass; they are also seeking to place a similar amendment on the ballot in Michigan.
For many years, abortion policy has influenced elections in profound ways, particularly after the two major parties became almost completely polarized on the subject. But more and more, we are likely to see voters themselves getting an opportunity to weigh in on state abortion policy.
More on Life After Roe
- Oklahoma Court Narrowly Preserves Right to Lifesaving Abortion
- Republicans Give Arkansas State Capitol a ‘Monument to the Unborn’
- ‘They Really Wanted to See My Baby Get Taken Away’