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December 17, 2024
Quarterly Opinion
Paula M. Lantz
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Since the 2022 Supreme Court decision in Dobbs v Jackson Women’s Health Organization, abortion law in the United States has been a complex maze of new state legislation, court battles, and political fault lines. Going into the 2024 general election, 19 states had restrictive abortion laws in effect, including 13 states with near complete bans and 6 states with gestational limits between 6 and 12 weeks.
In the post-Dobbs landscape, state ballot measures in which citizens vote on propositions regarding state laws and constitutional amendments have emerged as a critically-important form of abortion policymaking. Currently, 19 states allow citizen initiated constitutional amendments and 21 states allow citizen-initiated statute or new law propositions to be put in front of voters. In addition, any changes to the state constitution that a legislature wants to make must be approved by citizens at the ballot box in 49 states. All these forms of “direct democracy” have played a role in state abortion policymaking since Roe v Wade was overturned in 2022.
To date, voters in 16 states have considered 18 different ballot initiatives related to abortion care (Table). However, given the actual impact of these initiatives and the recent November, 2024 elections resulting in a second Trump administration and a unified Republican Congress, the unfortunate reality is that abortion policymaking through state ballot initiatives has peaked in terms of its impact as a pro-choice and reproductive freedom strategy.
Voters considered ballot initiatives in 6 states in the 2022 mid-term elections and in 1 state (Ohio) in 2023. Of these 7 ballot initiatives, 5 were decided in the direction of protecting or expanding the right to abortion and other types of reproductive health services (Table) while the other 2 thwarted efforts by state legislatures to amend the state constitution with language that the state has no duty to protect or fund abortion services. In the recent November 2024 election cycle, voters considered 11 abortion-related ballot measures in 10 states representing a mix of protective and restrictive public policies (Table). Of these ballot initiatives, 8 that maintained or extended some level of legal protection for abortion care were passed by voters.
In a broader context, ballot initiatives are an important form of population health policymaking. Recent research I conducted with Emma Carter revealed that of the 534 ballot initiatives that voters considered in the decade of 2014 – 2023, 63.5% were related to health care, public health, or major social determinants of health. In the specific case of abortion and reproductive health care, the use of ballot initiatives has emerged as a key policy strategy since 2022. This includes 9 citizen-initiated and 4 legislatively-initiated constitutional amendment ballot measures that codified abortion rights and protections in 13 states – rights that the state government, in turn, has the duty to protect and cannot legislate beyond.
Even so, the impact of ballot initiatives in pro-choice abortion policy gains has likely peaked for several reasons. First, of the pro-choice ballot initiatives passed to date, only 2 have substantively changed existing state law regarding abortion. Without their ballot initiatives, Michigan and Ohio would have near bans on abortion. The Missouri case remains to be seen as the recently-passed constitutional amendment is likely to undergo lengthy litigation. While extremely important for people living in these states, the reality is that ballot initiatives to date have significantly extended the legal parameters of abortion provision in no more than 3 states. In the other cases, citizen and legislatively-initiated ballot initiatives codifying abortion rights in state constitutions occurred in states where abortion laws were not considered to be severely restrictive.
Second, not all states confer citizens with the power to initiate ballot measures. Of the remaining states with restrictive abortion policies, only 4 give citizens the power to place constitutional amendment proposals on the ballot (Arkansas, Florida, Mississippi, Oklahoma); and efforts in 3 of these states have already failed. Florida voters just rejected a citizen-initiated constitutional amendment proposal, and similar proposals in Arkansas and Oklahoma failed to be certified because of procedural issues and partisan politics.
Third, although the November 2024 elections placed a record 159 ballot measures in front of voters in 41 states, there is a growing movement to make it more difficult for citizens to get initiatives on the ballot and for them to pass. This includes rule changes to increase the threshold for passage beyond a simple majority and to make it harder to acquire the requisite number of valid signatures to certify a proposed measure. Reasons behind this movement include that ballot initiatives are often poorly written with policy design flaws and that too many initiatives are crowding the ballot. However, it also appears that proposals to restrict ballot initiatives are motivated in part by partisan politics as Republican legislators are significantly more likely to be behind such efforts.
Finally, the 119th Congress and new Trump administration have several avenues for restrictive abortion policymaking. Beyond potential national legislation that places limits and restrictions upon states, Project 2025 and other sources reveal a long-game playbook for anti-abortion policy that circumvents state constitutions and public opinion, focusing on action in the executive and judicial branches of government. This includes policy strategies such as strengthening FDA regulations for or revoking approval of the drug mifepristone for medication abortion. It also may involve using the Department of Justice and the judiciary for applying the outdated Comstock Act of 1837 to define the medical and surgical “instruments of abortion” as “obscene” and thus prevent their distribution across state lines. In addition, with judicial approval, “fetal personhood” movements within states that seek to establish legal protections and rights for fetuses could strengthen, potentially overriding the abortion rights of pregnant people. This is a possibility in Missouri.
In summary, although citizen-initiated state ballot measures have influenced abortion policymaking, such measures have likely reached their apex of impact as we enter 2025. While more research is needed, restrictive abortion policies appear to be creating significant threats to women’s health by delaying or denying essential evidence-based medical care and changing the landscape of medical education. In addition, research already shows that restrictive abortion policy will likely increase the number of children born into and living in poverty, increase the number of families experiencing serious financial instability and hardship, and put significant additional pressure on under-resourced social welfare systems. Without a new Supreme Court decision that restores some level of federal constitutional protection across states, abortion policy battles will continue to rage across levels and branches of government. Amid these public policy battles, the consequences for women, children and families are dire.
Paula Lantz, PhD, MS, MA, is the James B. Hudak professor of health policy and a professor of public policy at the Ford School of Public Policy at the University of Michigan. She also holds an appointment as professor of health management and policy in the School of Public Health. Lantz teaches and conducts research regarding the role of social policy in improving population health and reducing health inequities. She currently is conducting research regarding housing policy and health, including opportunities within the Medicaid program for assisting with housing security. An elected member of the National Academy of Social Insurance and the National Academy of Medicine, Lantz received an MA in sociology from Washington University, St. Louis, and an MS in epidemiology and PhD in social demography from the University of Wisconsin.
