July 5 (UPI) -- When the U.S. Supreme Court last summer struck down the federal right to abortion established in Roe vs. Wade, the justices effectively sent the issue back to the states.
A year later, many are moving to enshrine either protections or bans into state law via the ballot box -- a move that will surely drive voter turnout this fall and in next year's presidential election.
Gregory Koger, a professor of political science at the University of Miami, said Democrats had more success than expected in the 2022 midterms, largely because they emphasized their pro-choice stance. He expects them to do the same in 2024, while Republicans will face pressure to campaign on a national abortion ban.
"I would then expect to see a reprise of abortion being a central issue, and having it on the ballot will motivate more voters on the Democratic side," he told UPI in an interview.
A study by the Kaiser Family Foundation published in November found that the Supreme Court's decision to overturn Roe vs. Wade motivated Democratic voters, young voters, first-time voters and women under 50 most. Nearly 40% of all voters said the Supreme Court decision had a "major impact" on their decision to vote.
About 62% of respondents to a recent survey from the Pew Research Center said abortion should be legal in all or most cases. Democrats responded more strongly in favor of abortion being legal, affirming at 84% compared to 40% by Republicans.
On 2024 ballot
Voters in Maryland and New York will determine whether to enshrine a constitutional right to reproductive freedom on Nov. 5, 2024, on the ballot along with the presidential race.
The Maryland state legislature passed Senate Bill 0798, the Right to Reproductive Freedom, signed by Gov. Wes Moore on May 5. The state had codified the right to an abortion with a vote in 1992. That vote revised the state's abortion law to prohibit state interference with a woman's decision to end a pregnancy before the fetus is viable, or with certain exceptions.
The new amendment goes further, stating, "Every person -- has the fundamental right to reproductive freedom; and prohibiting the state from, directly or indirectly, denying, burdening or abridging the right unless justified by a compelling state interest achieved by the least restrictive means."
"This moment of Roe falling really galvanized legislators and people alike to learn more about this issue," Priya Hay-Chattopadhyay, vice chair of Pro Choice Maryland Action, told UPI.
Maryland has long been at the forefront of codifying and expanding access to abortion and has continually had strong support from lawmakers to do so.
In 2022, the legislature passed the Abortion Care Access Act to establish a training program for healthcare professionals. Its Reproductive Health Protection Act shields providers, patients and logistical supporters from legal repercussions from other states if someone comes to Maryland for abortion services.
The requirements for states to place a constitutional amendment on the ballot vary by state, but in general a referendum must pass the state legislature. In some cases, this must be done in two consecutive sessions. It then must be approved by a majority of voters. Some states, like Florida, require 60% approval from voters.
In New York, the path to placing a constitutional amendment on the ballot began last July, within weeks of the Supreme Court's historic decision. The legislature passed the Equal Rights Amendment, which bans discrimination based on race, ethnicity, nationality, disability, sex, sexual orientation, gender identity and pregnancy.
It also affirms the right to access an abortion and contraception in the state Constitution.
New York is one of the states that requires such an amendment to pass through a two-year legislative session, then pass again through a newly elected legislature before being placed on the ballot.
"With the federal constitutional right to abortion granted by Roe vs. Wade 50 years ago stolen from us last June, New York has taken critical steps to create a state Constitution worthy of the 21st century that protects us all," Georgana Hanson, interim president and CEO of the New York ACLU, said in a statement.
Ohio deadline
Ohio may be voting Nov. 7 to amend its state constitution to secure abortion access, but there are a pair of crucial prerequisites.
Up first, proponents must turn in more than 400,000 signatures from at least 50% of the state's 88 counties by Wednesday. Elaina Ramsey, executive director of Faith Choice Ohio, said they are on track to do so.
"We've had overwhelming support and we look forward to getting it on the ballot in November," she told UPI. "Now we are contending with an August special election -- seeking to undermine that effort."
That Aug. 8 special election would toughen the requirement to pass a constitutional amendment through an election. As it stands, the amendment needs a simple majority to pass. Issue 1, the lone issue on the August ballot, would require that any proposed amendment receive approval from at least 60% of voters.
"Ohio's Constitution has been easily influenced by well-funded, out-of-state special interests seeking to alter our Constitution for their own benefit," Republican Sen. Rob McColley, a supporter of Issue 1, said in a statement.
"Time after time, we've seen special interests buy their way onto the statewide ballot and spend millions of dollars in ads while seeking to make permanent policy changes to our state Constitution that would be better suited as laws."
Ramsey called the move by Republicans in Columbus a power grab.
"Honestly, they're scared. This gerrymandered legislature made sure they had this August special election so they can do this by the cover of night," she said.
There was an attempt by Republican lawmakers to split the ballot measure into two separate issues -- abortion access and reproductive healthcare -- but the Ohio Supreme Court ruled in favor of a comprehensive ballot measure.
A petition is circulating in South Dakota to put abortion rights on the ballot in 2024. It requires signatures equal to 10% of the number of votes cast for governor in the last gubernatorial election and it must be filed at least a year before the next general election.
The state of Washington's Referendum 106 would exempt certain shelters, organizations and programs from requirements to notify parents if a minor is seeking gender-affirming care or reproductive health services. It must gather 162,258 signatures within 90 days of the legislative session adjourning.
Florida amendment
Florida requires 60% approval to amend its constitution. Abortion access proponents are collecting signatures to put abortion rights on the ballot in 2024.
The Florida Prohibit Laws Restricting Abortion Initiative requires nearly 900,000 signatures, equal to 8% of votes cast in the 2020 presidential election. At least 25% of the signatures must be collected by Dec. 15 for the ballot measure to be reviewed by the state Supreme Court. All signatures must be verified by Feb. 1.
The amendment states, "No law shall prohibit, penalize, delay, or restrict abortion before viability or when necessary to protect the patient's health, as determined by the patient's healthcare provider."
Debbie Deland, president of Florida NOW, told UPI the 25% mark has been surpassed with nearly 300,000 signatures collected. She is confident abortion access will be on the ballot in 2024.
Florida has one of the strictest abortion bans in the country. The state passed a 15-week ban in 2022, then a six-week ban this year. This is viewed as a near total ban on the procedure, as it is difficult to detect pregnancy before three weeks, and even harder to schedule doctors appointments within another three weeks.
The 15-week ban is still in effect and does not have exceptions for rape victims. The six-week ban will not take effect until the state Supreme Court rules on a lawsuit by Planned Parenthood and other advocacy organizations challenging the 15-week ban. The challenge argues that the state constitution's privacy clause makes the abortion ban unconstitutional.
The privacy clause, passed in 1980, states, "Every natural person has the right to be let alone and free from governmental intrusion into the person's private life, except as otherwise provided herein." It was interpreted by Florida Supreme Court Justice Leander Shaw in 1989 to "clearly implicate" a woman's right to decide whether to continue a pregnancy.
A Supreme Court ruling to uphold the 15-week ban would challenge that interpretation and set the six-week ban to be enacted 30 days later.
"With the very conservative, Ron DeSantis-supported Supreme Court, the likelihood is they will change the understanding of that privacy clause and vote to support the 15-week ban," Deland said of the Florida governor, who is also seeking the GOP nomination for president in 2024.
The amendment to the constitution would supersede the legislative bans.
"The ban does not reflect at all what the people in Florida want," Deland said.
Moves to ban abortion
While most states are weighing amendments to enshrine abortion in their constitutions, Iowa and Pennsylvania have proposed measures to declare abortion is not a constitutional right.
The measure died in the Pennsylvania legislature this year with a Democratic majority putting the brakes on it. It passed through the House and Senate last summer, but needed to be passed through the legislature in consecutive sessions with identical language to reach the ballot.
"Unless the [Democrats] lost their one-seat majority during this session (which is possible through vacancies) that amendment will be dead," Andy Hoover, communications director for the Pennsylvania ACLU, told UPI in an email.
The group remains tuned to the race to fill a state Supreme Court seat during the Nov. 7 election. The seat is vacant after the death of Democrat Max Bear in September. Voters will choose between Democrat Daniel D. McCaffery and Republican Carolyn Tornetta Carluccio.
Carluccio is a noted opponent of abortion access and has been endorsed by the Pennsylvania Pro-Life Federation.
"After Dobbs and the end of Roe, state constitutions will play an important role in guaranteeing the right to an abortion," Hoover said. "We don't really know where the current court stands on reproductive rights because they have rarely, if ever, ruled on it."
Iowa's Supreme Court has stood in the way of the Fetal Heartbeat Bill that would ban abortions after six weeks of pregnancy. Meanwhile, a constitutional amendment that would declare that there is no constitutional right to an abortion remains on the table. It passed in the 2021-22 legislative session and must pass again in the next session to appear on the ballot in 2024.
The Iowa Coalition of Pro-Life Leaders is focused on passing the Fetal Heartbeat Bill again, and a "life at conception" bill that bans all abortions.
"We have gathered many signatures and taken petitions to different locations. We have the support from Iowans," Kristi Judkins, executive director for Iowa Right to Life, told UPI. "We have wonderful pro-life legislators. Also a governor who is steadfast in her beliefs."
The state Supreme Court split 3-3 on Gov. Kim Reynolds' attempt to reinstate the six-week abortion ban, with one judge unable to reach a decision. With that, abortion remains legal up to 20 weeks.
"We are reviewing our options in preparation for continuing the fight," Reynolds said in a statement.
Presidential race
Among the issues that mobilize and divide voters, abortion is among the strongest.
In the 2022 midterm election, voters in Michigan, California and Vermont enshrined the right to an abortion in their constitutions. Montana and Kentucky denied greater restrictions on abortion access. Kansans voted in favor of keeping the procedure legal in the state's first popular vote on abortion rights in nearly 50 years.
President Joe Biden has backed a several policies to protect access to abortion, including the approval of medication abortion drugs like mifepristone. Biden supported Attorney General Merrick Garland's statements that women who live in states with bans must be allowed to access care in other states where it is legal.
On the Republican side, former South Carolina Gov. Nikki Haley, the only woman seeking the GOP nomination, broke from the party line to call for a "consensus" on abortion. During a campaign speech in Virginia in April, Haley spoke in favor of a more moderate approach.
"Abortion is a deeply personal topic for both women and men. I understand why," Haley said. "Someone's body and someone else's life are not things to be taken lightly, and they should not be politicized. The issue should be addressed with sensitivity and respect, not judgment and hate."
Former Vice President Mike Pence has taken former President Donald Trump to task over abortion while on the campaign trail. Pence said Trump has abandoned his anti-abortion position because he does not believe it is a winning stance.
"When Donald Trump ran for president in 2016, he promised to govern as a conservative, and together we did just that," Pence said at a campaign event in Iowa in June. "Today, he makes no such promise. Even blaming election losses in 2022 on overturning Roe vs. Wade"
Trump had previously endorsed an abortion ban after 20 weeks while he was in office.
DeSantis has signed one of the nation's most restrictive abortion policies. However he has not stated a clear position on whether he supports a federal ban as Pence and Sen. Tim Scott of South Carolina have.
"Republicans don't have the luxury of asking and answering what position is going to sell in a general election," Koger said. "Their individual incentive is to take the position that gets the nomination first."
