Ballot measures saved abortion rights in the wake of Roe — now they’re in danger

The 2022 midterms were a resounding win for abortion rights. Candidates vowing to protect reproductive rights won at the state and federal level, and voters took matters into their own hands to defend reproductive freedom through ballot measures in five states.

In Michigan, a political battleground, voters codified reproductive freedom into their state constitution. Liberal voters in Vermont and California did the same by massive margins. Even in deep-red Kentucky, voters soundly defeated an effort to restrict abortion rights — just as Kansans did earlier this year. Montanans voted down an anti-abortion proposal, too.

Given the opportunity, voters have been clear: they want to protect reproductive freedom and get politicians out of their health care decisions. The midterm results are the clearest indication yet that ballot measures are critical to a state-by-state strategy that ensures abortion remains safe and legal, even without the protections of Roe v. Wade.

But the opportunity window to use ballot measures to codify abortion rights is already closing, unless we take urgent action. Anti-abortion conservatives are not only trying to limit abortion by passing cruel and extreme bans through gerrymandered legislatures, they are working to eliminate the use of citizen-led ballot measures entirely — denying voters the ability to decide this issue themselves.

This year’s victories for abortion rights will undoubtedly fuel their fire.

Dozens of proposals from state legislatures have cropped up in recent years to limit ballot measures, ranging from absurd font size requirements for petitions, to geographic thresholds for signature collections, and limitations on what kind of questions can appear on someone’s ballot. 

The most dangerous tactic: abolishing majority rule by raising the threshold for passing initiatives at the ballot box to 60 percent. An attempt to end majority rule in South Dakota in this manner was defeated by voters in June, and last week, voters in Arkansas also rejected a transparent attempt from their legislature to allow a minority of voters to determine policy outcomes. 

But unfortunately, a near identical proposal in Arizona passed — making future progressive ballot measures much harder to win. The Ohio secretary of State recently announced enacting a supermajority for ballot measures will be a top priority in 2023. The Fairness Project has also been closely tracking and pushing back against threats in Missouri, Oklahoma, North Dakota, Mississippi, and other states where direct democracy remains vulnerable. When state legislatures convene in January, we will likely see dozens of proposed attacks on direct democracy and voters’ ability to proactively defend abortion rights.

We shouldn’t be surprised that some extreme politicians would want to shut down direct democracy. Voters have used it to circumvent gridlock and pass progressive policies even in red and purple states, weakening these legislators’ grip on state policy. In addition to defending abortion, citizen-led ballot measures in recent years have expanded Medicaid in several states, raised wages for millions of workers, ensured paid leave benefits and police accountability, decriminalized cannabis, and much more — all without the help of state legislatures. 

Ballot measures are at their most powerful where there is a large disconnect between the views of voters and the actions of politicians, and few issues expose that chasm more clearly than abortion.

While the Supreme Court has overturned Roe v. Wade, and politicians at the state and federal level are proposing (and passing) near or total bans on abortion, with few or no exceptions for rape, incest, or life of the mother, 85 percent of Americans think abortion should be legal in some or all circumstances. Nearly 6 in 10 disapproved of the Supreme Court’s decision to overturn Roe.

Voters demand reproductive freedom, yet we are in critical danger of losing a key tool to defend it. Without Roe, we cannot take reproductive freedom for granted anywhere. We also cannot assume our ability to protect those rights through ballot measures will survive without a concerted, defensive effort. The fight to protect voters’ power to make change via direct democracy and the fight for reproductive freedom are inextricably intertwined.

We need a legal, legislative and advocacy-based movement to protect direct democracy in the states where it is most vulnerable. The Fairness Project has invested in a $5 million effort — the Ballot Measure Rescue Campaign — to fight attacks like the ones in South Dakota, Arizona and Arkansas, and is working with dozens of organizations and partners on the ground. But we need as much help as we can get, because our opponents are playing for keeps.

Kelly Hall is the executive director of the Fairness Project.