Democrats across the country have repeatedly—and rightly—argued that abortion is on the ballot in November, but in five states, that statement is true in the most literal way possible.
Voters in California, Michigan, and Vermont will have the chance to amend their state constitutions to affirmatively include the right to an abortion, while Kentucky voters are being asked to amend their constitution to exclude that very same right. And in Montana, Republicans have placed a measure on the ballot designed to curtail the rights of families who experience the heartbreak of the birth of a non-viable baby. In fact, says Ballotpedia, this is the largest number of ballot measures addressing abortion in a single year, ever.
That election season began this summer in Kansas, when progressives celebrated the rejection of a GOP-backed amendment similar to the one in Kentucky by a giant 18-point margin despite the state’s deep-red hue. Activists across the country hope to see similar support for the pro-reproductive rights side in each of these states, whose measures we’ll preview below.
California, Michigan, and Vermont
Proposed constitutional amendments in California (Proposition 1), Michigan (Proposal 3), and Vermont (Proposal 5) each feature different language but would all accomplish the same thing: They would guarantee the right to an abortion.
Vermont’s amendment, for instance, would protect “an individual’s right to personal reproductive autonomy,” while California’s safeguards “an individual’s reproductive freedom in their most intimate decisions” and Michigan’s assures “a fundamental right to reproductive freedom.” The California measure further includes “a fundamental right to choose or refuse contraceptives,” while Michigan identifies an extensive list of associated rights, including “prenatal care, childbirth, postpartum care, contraception, sterilization, abortion care, miscarriage management, and infertility care.”
Though their impact would all be similar, the paths these amendments took to the ballot were very different. In California, Democrats began the process of passing their measure following the leak of the Supreme Court’s decision to overturn Roe v. Wade in May. Vermont, by contrast, requires that amendments pass two successive legislatures with an election in between before they can go before voters, so there, Democrats first passed their amendment in 2019 and again this year.
Michigan’s legislature, however, has long been dominated by Republicans (thanks to decades of gerrymandering), so there, activists gathered signatures to place Prop 3 on the ballot and collected more than 750,000—a record number. Republicans on the Board of State Canvassers refused to certify the measure for the ballot, claiming the whole effort was invalid due to formatting errors on organizers’ petitions, but the state Supreme Court rejected that view and ruled in favor of the campaign.
To date, supporters have far outraised opponents in both Vermont, which hasn’t seen any polling, and California, where polls have shown Prop 1 ahead by very wide margins. The battle is much harder-fought in Michigan, where both sides have spent tens of millions of dollars, with mid-October data from AdImpact showing that anti-Prop 3 forces had outspent backers $23 million to $16 million on the airwaves. Surveys have all had the amendment passing, though befitting the fact that ballot measures are typically difficult to poll, the numbers have been all over the place: one October poll had the measure up just 3 points while another had it winning by 27.
Kentucky
Kentucky’s Amendment 2 is the mirror-image of the above: The measure is called the “No Right to Abortion in Constitution Amendment,” and its text specifies, “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.”
That’s very similar wording to Kansas’ unsuccessful amendment, including the reference to funding. The Kansas measure, though, was wordier, including a preamble that began, “Because Kansans value both women and children,” and adding a second sentence explicitly granting lawmakers the power to regulate abortion. Conservatives later tried to blame their defeat on supposedly confusing wording, but there was no evidence that any voters were, in fact, confused—and, most importantly, the amendment was written by legislative Republicans themselves.
That’s the same situation in Kentucky, where GOP lawmakers approved Amendment 2 last year. There’s one critical difference, though. In Kansas, the state Supreme Court had found that the state constitution did indeed protect abortion rights in a 2019 ruling, one that had prevented Republicans from enacting abortion restrictions and spurring them to attempt to overturn it at the ballot box.
In Kentucky, there’s no such case law on the books. Rather, Republicans want to ensure that state courts can never find a right to an abortion in a future case—and the state Supreme Court will hear oral arguments in exactly such a case challenging Kentucky’s new abortion bans just after Election Day.
Opponents of Amendment 2—that is to say, supporters of reproductive rights—have outspent backers by a sizable sum, but Kentucky’s deeply conservative lean will be difficult to overcome. In fact, it’s considerably redder than Kansas, having voted for Donald Trump by 26 points in the last election compared to his 15-point win in the Sunflower State. However, the Kansas measure’s 18-point defeat demonstrated sharp hostility from Republican voters that may be replicated in Kentucky, though there hasn’t been any public polling on the amendment whatsoever.
Montana
As in Kansas, the Montana Supreme Court held in 1999 that its state constitution also recognized a right to an abortion, so Republicans—who saw a trio of anti-abortion bills blocked by the court earlier this year—have sought other ways to chip away at that right. That’s why they placed LR-131 on the ballot, a measure that would require doctors “to take necessary actions to preserve the life of a born-alive infant,” “including infants born alive after an abortion.” Violations would be punished with criminal penalties.
Should it pass, however, the chief impact of this law would be to punish parents who have the terrible misfortune of giving birth to a baby with no chance of survival—and the doctors who might treat them. As one OB-GYN explained, “LR-131 will force physicians to attempt to place a breathing tube in a baby whose lungs have not yet developed or is so small that the tube cannot fit.”
At a recent rally, a Montana woman whose daughter was born with a fatal illness at just 25 weeks described her decision to take her baby “outside for her final moments.” Had LR-131 been in place, she would have been denied that choice, since hospital staff would have justly feared a prison sentence. Instead, she said, “Legally forced repeated chest compressions and epi shots would have done nothing but overdosed, bruised, and broken her already dying body.”
While many states already have comparable laws, none have passed by referendum. In fact, it’s not at all clear why Republicans chose to put LR-131 on the ballot instead of simply passing it themselves: The measure would not amend the state constitution, and the state previously adopted a similar law all the way back in 1974, not long after Roe was decided.
The head of the state chapter of Planned Parenthood suggested the unusual move is designed to boost the political profile of one of the measure’s chief sponsors, state Rep. Matt Regier, whose father and sister are also members of the legislature. It might also be a way to inflame conservative ire over the state’s moderate Supreme Court, which could very well strike down the law if voters approve it—and which is already the target of right-wing efforts to reshape it.
There hasn’t been any polling on LR-131, though opponents have raised more money than supporters. Indeed, Ballotpedia says it “has not located a campaign in support of the ballot measure.” Given the unprecedented nature of a proposal like this going directly before voters, however, it’s very difficult to forecast its chances.
We’ll be covering all of these ballot measures—and every other key race in the 2022 midterms—during our Nov. 8 election night liveblog at Daily Kos Elections, so please join us then.