Anti-abortion initiatives on the ballot in West Virginia and Alabama this November could lay the foundation for the states to ban or sharply limit legal abortion as change comes to the Supreme Court.
Both ballot measures were in the works before President Donald Trump nominated conservative Judge Brett Kavanaugh to replace the more moderate Justice Anthony Kennedy on the high court. But they take on greater import — and will likely draw far more national attention — given the shifting ideological balance on the court.
“They’re setting the stage for if and when Roe falls,” West Virginia abortion rights activist Margaret Chapman Pomponio said. “The criminal code will immediately be triggered.”
No ballot initiative can outright ban abortion as long as Roe v. Waderemains the law of the land. But the West Virginia and Alabama measures would amend their respective state constitutions to declare that abortion rights are not protected. That would pave the way for conservative state legislatures to ban or restrict abortion if the Supreme Court acts.
It’s too late to get similar measures on the ballot in other states this November, but another burst of activity could happen by 2020, according to Elizabeth Nash, senior state issues manager at the Guttmacher Institute, a research organization that supports abortion rights.
The White House hopes Kavanaugh will be confirmed shortly before the November election, a move that will unify and energize Republican voters — as well as Democratic voters, in opposition — as control of the House and Senate are on the line. In West Virginia, in particular, the Democratic incumbent, Sen. Joe Manchin, is vulnerable in a state where Trump is popular.
Ballot measures like these typically get little attention from anyone except people most ardently engaged in the abortion rights debate. But anti-abortion groups have pushed them to bring like-minded voters to the polls.
West Virginia’s measure would amend the state constitution to expressly state that it doesn’t protect the right to abortion or state funding for the procedure. The ballot initiative, pushed by West Virginians for Life, has largely flown under the radar; neither of the state’s U.S. senators knew about it when asked recently.
“We’ll see what happens,” Manchin added.
“I don’t know where that is going to land,” said Republican Sen. Shelley Moore Capito. “I’m not going to openly support or oppose.”
West Virginians for Life is pushing the effort because of a 1993 court ruling that found a constitutional right to abortion, and for state funding. Dr. Wanda Franz, president of West Virginians for Life, says it’s trying to undo that decision and “cleanse our constitution of the abortion issue” — not respond to a potential decision against Roe.
West Virginia state Sen. Patricia Rucker said: “We already in West Virginia believe and feel that abortion should be regulated by the states and the states do have the authority to regulate it.” Rucker argued that getting an abortion will still be legal in West Virginia, contrary to claims by the measure’s opponents.
Alabama’s measure is more stringent. It would add language to the state constitution to give rights to a fetus, a move that would prohibit abortion and which could also have implications for in vitro fertilization. It could also mean that a murder of a pregnant woman would be prosecuted as a double homicide.
Alabama Rep. Robert Aderholt, a Republican, said he didn’t know about the measure, either, and suggested other Alabamians didn’t yet. But he surmised the measure has a strong chance at passage.
“There’s a lot of things [on the ballot] that the average person learns about just right before the election unless the news media covers it, unless there is a campaign about it,” he said. Still, “Alabama is very strongly pro-life.”
Alabama Sen. Doug Jones, a Democrat, chalked it up to nothing more than a messaging effort. “That was put on the ballot just to try to drive people to the poll,” he said. He declined to say whether he will support it.
“I’m not going to get into ballot measures in my state right now because there are too many other things that I have to deal with at this point,” he said.
Many states have turned to both ballot measures and legislation to enact abortion policy in the event of a dramatic Supreme Court decision.
Abortion rights supporters such as the Center for Reproductive Rights say upward of 22 states are poised to eliminate access to abortion immediately after a possible Supreme Court ruling against Roe, creating a patchwork of access across the country. That includes four states that have “trigger“ laws on the books that would automatically ban abortion immediately or soon after an anti-Roe decision.
Other states have pre-Roe prohibitions — from before 1973 — that could come back into effect. And still others have legislatures that tilt heavily against abortion rights and would be likely to try to pass abortion restrictions quickly if the Supreme Court gave them the opening.
Only nine states have laws that would preserve legal abortion before viability or when the woman’s health is at stake, according to the Guttmacher Institute. Laws were enacted in California, Connecticut, Delaware, Hawaii, Maine and Oregon. Maryland, Nevada and Washington state’s policies were enacted by ballot measure in the early 1990s, when Roe faced its last and most serious threat, according to Nash. Abortion rights supporters could again be motivated to pursue ballot measures in additional states in the near future, if a Roe decision puts abortion law back in state hands.
To mixed success, the anti-abortion movement has leaned heavily on ballot measures to enact its policy initiatives.
For instance, several states — including Alaska, Florida and Montana — have used ballot measures to enact parental notification requirements for minors to get an abortion. Efforts in the past few years to give “personhood” rights to a fetus starting at conception have been unsuccessful in Colorado, North Dakota and Mississippi.
Oregon also has a voter initiative that may go on the November ballot that would bar public funds from being spent on abortions.
“We must recognize that the stakes are very, very high,” Oregon Gov. Kate Brown, a Democrat who is up for reelection this year, said Monday. “We need to keep fighting this fall to defeat attacks on abortion rights.”
Experts predict that a Supreme Court ruling to overturn or undercut Roe would spark a sea of new abortion restrictions in states where Republicans dominate state legislatures or where Democrats tend to take more moderate positions on abortion rights, such as Louisiana, which has a Democratic governor but a Republican-controlled Legislature. The state recently approved a ban on abortion at 15 weeks — far earlier than Roe allows — but it is not in effect.
Many states have already started doing as much as they can to limit abortion access or prepare for life post-Roe. Tennessee voters four years ago amended their state constitution to eliminate existing abortion protections, and the state has enacted several other restrictions, including requiring that women receive state-directed counseling and wait 48 hours before terminating the pregnancy.
“If Roe v. Wade is struck down, I’m sure there would be representatives who would file legislation to ban or heavily restrict abortion,” said Tennessee state Rep. Cameron Sexton, a Republican.
Abortion access would likely be hard to come by in the South and the Midwest, Nash predicted. A woman in the South would likely have to travel to Washington, D.C., or Illinois to obtain a legal abortion.
“Assuming that we have the same legislative and gubernatorial [political] composition, then I would expect over half the states to be voting on abortion restrictions,” Nash said.