Voters Protect Abortion Rights in the 5 States Where It Was On the Ballot

The midterm elections on Tuesday were seen as the first referendum on voters’ positions on abortion since June, when the United States Supreme Court overturned Roe v. Wade, the landmark ruling which enshrined the right to an abortion.

Restrictions to abortion access took effect in more than a dozen states nationwide after that ruling. Since then, both abortion rights activists and anti-abortion activists have enthusiastically campaigned to elect officials who align with their position.  

Five states held direct referendums on abortion rights. In Michigan, Vermont, and California, voters approved an addition to their state constitutions cementing the right to abortion and other reproductive health care. In the red state of Kentucky, voters rejected a ballot measure saying its state constitution does not establish a right to abortion. And Montanans voted against granting infants born alive after an abortion attempt legal personhood.

Results from the midterm elections could also have a less immediate effect on the fate of reproductive healthcare access. The Supreme Court’s June opinion gave “elected officials” the power to regulate abortion. That means a change in the balance of power in state legislatures and governorships could impact abortion rights outcomes down the line. And if Republicans win back control of at least one chamber of Congress, they may vote on the issue at the federal level.

Results from the ballot measures largely reflect the national sentiment on abortion. Nationally, 6 in 10 people say abortion should be legal in most or all cases, according to Pew Research Center. Fewer than 1 in 10 say it should be illegal in all cases.

"Last night represents a historic victory for reproductive freedom," Anthony D. Romero, executive director of the American Civil Liberties Union, said in a statement on Wednesday. "We are especially proud of last night's citizen-initiated victory in Michigan where voters passed one of the most comprehensive constitutional amendments that will preserve the right to reproductive freedom for generations to come."

Here's how the five states with abortion directly on the ballot ultimately upheld abortion rights.

Michigan

In Michigan, voters approved a constitutional amendment to create a "fundamental right to reproductive freedom." The new law also protects the right to make pregnancy-related decisions about reproductive health services—including abortion, birth control, prenatal care, and infertility care—without interference from the government.

Per the amendment, Michigan can regulate abortion after a fetus becomes viable as determined by an attending health care professional. But it can’t stop an abortion that is, in the opinion of that professional, "medically indicated to protect the life, physical health, or mental health of the pregnant individual."

The amendment definitively ends a 1931 law that made it illegal to perform an abortion. After the Supreme Court decided Roe in 1973, the state could no longer use that law to restrict abortion before the point of fetal viability, per the limitations set by Roe. Still, the law stayed on the books, meaning it could have been revived and enforced after Roe was overturned.

The petition to put the measure on the ballot earned the most signatures of any ballot initiative in state history, reports Axios. The amendment will take effect 45 days after the election.

California

California law already protects access to abortion before a pregnancy is viable. The Reproductive Privacy Act states that every person has a fundamental right to privacy over their reproductive health decisions and bars the state from interfering when a person chooses to obtain an abortion before the fetus is viable, or when it is "necessary to protect the life or health of the person."

On Tuesday, voters approved an amendment to the California Constitution, which will preserve that right to privacy over reproductive health decisions. The state shall not interfere with an individual’s "most intimate decisions," including whether or not to use contraception or have an abortion.

Earlier California law follows restrictions set by the Roe decision by allowing abortions up to the point when the fetus is viable, generally at about 24 weeks into a pregnancy. But the new amendment does not include language about timing, raising questions over whether the status quo will stand, or if abortions will be allowed at all stages of pregnancy, NPR reports.

Additionally, California has set aside millions of dollars in taxpayer money to support abortion access, including out-of-state abortion travel.

Vermont

Vermont's new constitutional amendment states that "an individual’s right to personal reproductive autonomy is central to the liberty and dignity to determine one’s own life course." The government cannot deny this right unless it is deemed necessary by a "compelling State interest."

A 2019 state law guarantees reproductive rights, such as getting pregnant and having access to birth control. The new amendment does little to change the current situation for reproductive health care, which is already legally protected, but acts as insurance against future anti-abortion legislation.

The amendment passed with 77% of the votes, the New York Times reports.

Kentucky

Kentucky is a red stronghold with two abortion bans on the books. But on Tuesday, voters rejected a proposed amendment that would have bolstered the existing bans and kept future laws from protecting abortion access.

The amendment sought to add a sentence to the state constitution to read, "[t]o protect human life, nothing in this Constitution shall be construed to secure or protect a right to abortion or require the funding of abortion." With the rejection of the amendment, the state Supreme Court may now strike down Kentucky’s abortion bans, which are being challenged in the courts.

Kentucky is now the second state to reject an anti-abortion ballot measure this year after voters in Kansas rejected a similar measure in August.

Montana

Voters in Montana have rejected a proposed law that would have imposed criminal penalties for health providers who do not do everything "medically appropriate and reasonable" to save the life of a fetus "born alive" at any stage of pregnancy, even if survival is not viable. This includes the rare possibility of birth after an attempted abortion. 

A federal law passed 20 years ago gives infants born alive the same legal rights as other people, but it does not require clinicians to provide care or impose criminal penalties on those who fail to do so. Eighteen states have passed laws similar to the bill proposed in Montana, but this would have been the first to be passed directly by voters.