Throughout the long but ultimately fragile constitutional regime of Roe v. Wade, anti-abortion advocates and their Republican political partners endlessly inveighed against “activist judges” who were preventing the people and their elected legislators from setting policy in this area by making laws in the states. But now that they’ve won the battle to eliminate any federal right to choose, conservatives are in danger of losing the war in the very court of public opinion they’ve long cited as legitimately supreme. Since the end of Roe last summer, voters in six states have either entrenched abortion rights by constitutional amendment (California, Michigan, and Vermont) or defeated anti-abortion ballot initiatives intended to strip previously established rights (Kansas, Kentucky, and Montana).
With the backlash continuing to build against Dobbs and abortion-rights activists looking to block or overturn state-legislative bans in additional states in 2024, the forced-birth lobby has almost entirely lost its zest for popular control of policy in this area and is now battling to roll back ballot access for citizens wherever possible, as Politico reports:
Legislatures in Arkansas, Florida, Idaho, Missouri, North Dakota, Ohio and Oklahoma are debating bills this session that would hike the filing fees, raise the number of signatures required to get on the ballot, restrict who can collect signatures, mandate broader geographic distribution of signatures, and raise the vote threshold to pass an amendment from a majority to a supermajority. While the bills vary in wording, they would have the same impact: limiting voters’ power to override abortion restrictions that Republicans imposed, which took effect after the Supreme Court overturned Roe v. Wade last year.
The most blatantly restrictive effort is underway in Mississippi, the state whose abortion ban challenged and then brought down Roe:
In Mississippi, where a court order froze all ballot efforts in 2021, GOP lawmakers are advancing legislation that would restore the mechanism but prohibit voters from putting abortion-related measures on the ballot.
“I think it just continues the policy of Mississippi and our state leaders that we’re going to be a pro-life state,” said Mississippi state Rep. Nick Bain, who presented the bill on the House floor.
So much for popular sovereignty. In Ohio and Missouri, Republican lawmakers are working to impose supermajority requirements for passage of ballot initiatives. One Missouri proposal would super-weight rural opinion by requiring that ballot initiatives win in over half of the state’s House districts.
In some states, anti-abortion advocates are divided between those who want to entrench state-legislative control over the law of reproductive rights and those who want to preserve ballot initiatives to keep pressure on Republican legislators to stay pure and extreme. One reason Florida Republicans are now moving toward replacing a recently enacted ban on abortions after 15 weeks of pregnancy with a much more radical six-week ban was to unite the anti-abortion camp against the risk of entertaining a ballot test.
The whole trend not only contradicts the pre-Dobbs rhetoric of the anti-abortion movement, it also reverses a quite recent legacy of Republicans using state ballot initiatives to impose culturally conservative policies and stimulate base turnout. Most notably, after Massachusetts became the first state to legalize same-sex marriage in 2003, no fewer than 13 Republican-governed states enacted ballot-approved constitutional amendments banning same-sex marriage in the next election cycle.
The worm hasn’t just turned in the politics of sexuality and reproductive rights. Since 2017, ballot initiatives have forced six states to take advantage of the Affordable Care Act’s optional Medicaid expansion. And the steady march toward legalized cannabis for medical and recreational uses has followed the path of ballot measures as well (though, more recently, voters in a few states have resisted full legalization efforts).
What the abortion-ballot battles have made clear is that there remains a pro-choice majority in the country and in many red states. Many anti-abortion advocates make no bones about the fact that their ultimate goal is a recognition by federal and state courts of fetal personhood as a matter of constitutional law, turning Roe on its head and forever outlawing abortion (and perhaps some contraceptive methods) everywhere regardless of public opinion. With each lost ballot initiative, that drastic strategy may look more tempting over time.