Abortion access has taken center stage this election season since the Supreme Court overturned Roe v. Wade in June, and Americans are preparing to head to the polls to vote for the candidates they believe best represent their views on reproductive rights. But voters in five states will directly decide the future of abortion access in their communities.
California, Kentucky, Michigan, Montana and Vermont have ballot initiatives to protect or restrict access to abortion care. Four initiatives are amendments to the state constitution; the fifth, Montana, is a legislative referendum, a ballot issue proposed by a minimum number of citizens in the state. Three proposals – in California, Michigan and Vermont – seek to protect abortion care, while the remaining two aim to restrict it.
In August, Kansas became the first state to ask voters whether it should further restrict or protect abortion access. In a landmark election, Kansans rejected the anti-choice constitutional amendment — a massive win for pro-choice advocates that set the tone for what’s to come on abortion rights nationally.
Read more below about the five states where abortion rights are on the ballot this midterm.
California’s ballot initiative, Proposition 1, is a pro-choice constitutional amendment that would codify abortion and contraceptive protections in the state constitution. It would change the California Constitution “to say that the state cannot deny or interfere with a person’s reproductive freedom and that people have the fundamental right to choose” whether to have an abortion or use contraceptives, the proposition reads.
If voters approve the amendment, a new section will be added to the state’s constitution: “The state shall not deny or interfere with an individual’s reproductive freedom in their most intimate decisions, which includes their fundamental right to choose to have an abortion and their fundamental right to choose or refuse contraceptives.”
A “yes” vote favors abortion protections, while a “no” vote is against abortion protections. If the amendment fails, however, abortion will remain legal in California until the point of viability, usually around 24 to 26 weeks of pregnancy.
The California proposal is likely to pass in the progressive state, and the campaign supporting the ballot initiative has raised over $9 million. Govt. Gavin Newsom (D), along with Democratic California Sens. Dianne Feinstein and Alex Padilla, have voiced support for Proposition 1.
Constitutional Amendment 2 is an anti-abortion amendment titled the No Right to Abortion in the Constitution Amendment. As the title states, the amendment would codify that Kentucky does not protect the right to abortion or require funding for abortion care. The ballot question will ask voters whether they favor adding a new section to the state constitution that reads: “To protect human life, nothing in this Constitution shall be construed to secure or protect a right to abortion or require the funding of abortion.”
A “yes” vote for the amendment is against abortion protections, while a “no” vote favors abortion rights. The amendment is nearly identical to the one Kansas voters rejected in their state this summer.
The amendment is redundant because a trigger abortion ban went into effect weeks after the Supreme Court repealed Roe. The trigger law is a near-total abortion ban with narrow exceptions, including if the pregnant person’s health is at serious risk. There were only two abortion clinics in Kentucky before Roe fell. Both offer other reproductive and sexual health care services, but neither offers abortion care.
Pro-choice advocates have challenged the trigger ban and a state law banning abortion after six weeks of pregnancy in court. Although litigation is ongoing, both bans have been allowed to stand. If the amendment fails, it could help the ACLU and other complainants in a Nov. 15 hearing on litigation against the trigger ban.
The group leading the charge against the amendment includes advocates who helped pro-choice Kansans defeat an anti-abortion constitutional amendment in August. The pro-choice win in Kansas was a huge accomplishment in the typically red state. Still, Kentucky will likely be an even tougher battle with a large evangelical population likely to vote against abortion protections.
Michigan’s Proposal 3, or the Right to Reproductive Freedom Initiative, is likely the most consequential ballot initiative this election. The pro-abortion rights proposal aims to codify reproductive freedom into the Michigan Constitution. The proposal defines reproductive freedom as “the right to make and effectuate decisions about all matters relating to pregnancy, including but not limited to prenatal care, childbirth, postpartum care, contraception, sterilization, abortion care, miscarriage management, and infertility care.”
A “yes” vote for the amendment favors abortion rights, while a “no” vote is against abortion rights.
All eyes are on Michigan because Gov. Gretchen Whitmer (D) is the only thing standing in the way of state lawmakers seeking to severely restrict or ban abortion care. A 1931 abortion ban went into effect in Michigan after the Supreme Court overturned Roe, but a state court put the ban on hold. Whitmer, a staunch advocate for reproductive rights, filed a lawsuit against the pre-Roe ban before Roe had fallen in an attempt to block the near-total abortion ban from going into effect.
“The only reason Michigan continues to be a pro-choice state is because of my veto and my lawsuit,” Whitmer said in September.
Polls show that the proposal is likely to pass. But if Republicans win the two open state Supreme Court seats and flip control of the high court, they could limit or overturn the initiative.
Voters in Montana will cast their vote on the Medical Care Requirements for Born-Alive Infants Measure on Nov. 8. If passed, the anti-choice referendum would require infants born alive – including after induced labor, C-section and attempted abortion – to be defined as legal persons who are “entitled to medically appropriate care and treatment,” according to the referendum language.
The measure defines a “born-alive infant” as one “who breathes, has a beating heart, or has definite movement of voluntary muscles, after the complete expulsion or extraction from the mother.” If a health care provider does not take “medically appropriate and reasonable actions” to preserve the life of a “born-alive infant,” they are vulnerable to criminal penalties, including a $50,000 fine or up to a 20-year prison sentence.
Montana law allows abortion up to viability or somewhere between 24 to 26 weeks.
The referendum is a poorly worded measure that is redundant because murder is already illegal. Supporters of the measure argue that the Born Alive Infant Protection Act is supposed to prevent the killing of infants after failed abortions, but that is currently illegal in all 50 states. Pro-choice advocates who oppose the measure fear it would have a chilling effect on patients and physicians and create more healthcare barriers.
Proposal 5, or the Right to Personal Reproductive Autonomy Amendment, is a pro-choice ballot measure that would codify the right to abortion and other reproductive health care into the Vermont Constitution. The measure states that “an individual’s right to personal reproductive autonomy is central to the liberty and dignity to determine one’s own life course and shall not be denied or infringed unless justified by a compelling State interest achieved by the least restrictive means.”
A “yes” vote for the amendment favors abortion rights, while a “no” vote is against abortion rights. There are currently no abortion restrictions in Vermont. If the amendment fails, Vermonters will continue to be able to access abortion care at any point in their pregnancy.
The amendment is likely to pass and has garnered support from Vermont Gov. Phil Scott (R), US Rep. Peter Welch (D) and Vermont Secretary of State Jim Condos (D).