The Opportunities and Realities of Citizen-Initiated State Ballot Abortion Measures

In its Dobbs decision, the Supreme Court wrote that it was returning the decision to restrict or protect abortion “to the people and their elected representatives.” Presidential candidate Trump claims credit for this decision and says that as a result, the “states are voting.” States are making decisions on abortion policy, but it’s mostly been state legislatures and state courts, not the voters, who have weighed in. Few states with abortion bans have a process for citizen-initiated constitutional amendments, including those that would protect the right to abortion. In this current election cycle, in those states, anti-abortion lawmakers and activists have utilized many different strategies in their efforts to block abortion measures from qualifying for the ballot or put roadblocks in their place.

The Challenging Path to the Ballot

Overall, a total of 10 states will vote on abortion measures this November; eight initiated by citizens and two referred by the legislature (Figure 1). Citizen-initiated ballot measures to amend a state’s constitution provide a direct pathway for the electorate to decide whether or not abortion should be legal in their state, regardless of how their elected representatives have approached abortion policy. This pathway is open only in 17 states. While there are a total of 10 states with abortion measures on the November ballot, (Figure 1), voters in five of these states will be voting on whether to invalidate their state’s abortion ban or early gestational restriction.

The stakes of having an abortion measure on the ballot are high for abortion rights supporters and opponents because every time abortion has been placed on the ballot since the Dobbs decision, the side favoring abortion has won. In states with abortion bans or restrictions and a process for citizens to propose constitutional amendments, lawmakers and anti-abortion activists have tried to hamper attempts to place measures on the ballot in a number of ways.

Legal Challenges

• In Arizona, an anti-abortion group asked the court to remove the measure from the ballot, arguing that the language available to petition signers did not correctly convey the measure’s impact.
• In challenges to the proposed abortion amendments in Nebraska and Missouri, opponents argued that the proposals violate the states’ rules that measures pertain to only one subject matter. In Missouri they also argued the petition did not specify which laws and constitutional provisions would be repealed if the amendment were approved by voters. The supreme courts of these states rejected these arguments and allowed the measures to remain on the ballot.
• In South Dakota, a challenge seeking to disqualify the abortion ballot measure will not reach its conclusion before voters cast their ballots leaving open the possibility that the measure could be invalidated while votes are being cast. A trial at a county court will begin after early voting has commenced to determine the validity of the signatures collected. While voters will cast their votes for this constitutional amendment, if the state supreme court invalidates it, the constitution will not be amended even if the measure receives enough votes to pass.

Moving Goal Posts

• In 2023, the Arkansas legislature passed a law requiring that constitutional amendment petitions obtain signatures from 50 of 75 counties in the state (up from the previous requirement of 15 counties).
• Lawmakers in Florida, Missouri, and Oklahoma have introduced legislation to increase the percentage of the vote needed for constitutional amendment measures to pass, but none of these bills passed.
• In 2023, ahead of an election where voters would weigh in on a constitutional amendment to protect the right to abortion, Ohio lawmakers placed a measure on the August ballot that would have increased the percentage of the vote needed for a Constitutional amendment ballot measure to pass from a simple majority to 60% and that would have increased the required number of counties from which campaigns need to gather signatures from 44 counties to all 88 in the state. Voters rejected the measure to raise the threshold and, in the November 2023 election, 57% of voters approved the abortion rights measure.
• In 2022, the Arkansas legislature placed a constitutional amendment on the ballot that would have increased the percentage of the vote needed for ballot measures to pass to 60% (up from a simple majority), but as in Ohio, voters in Arkansas rejected the measure.
• Similar approaches have been adopted in North Dakota and Arizona where this November, voters will cast their ballots on measures that would make it more difficult to get a citizen-initiated constitutional amendment on the ballot.

Using Biased Language in Ballot Materials

• The Missouri Secretary of State drafted an incorrect summary of the measure for display at polling centers that would have stated the measure “will prohibit any regulation of abortion, including regulations designed to protect women undergoing abortions and prohibit any civil or criminal recourse against anyone who performs an abortion and hurts or kills the pregnant women.” Proponents of the measure filed a challenge against this summary and a judge struck it down and replaced it with an unbiased description.
• In Arizona, the Republican-majority legislative council wrote an official ballot measure summary describing fetuses as “unborn human being[s],” which was initially blocked by a lower court, but ultimately upheld by the Arizona Supreme Court.
• The Florida official financial impact statement for the ballot contains information unrelated to the financial impact of the amendment and speculates about future litigation on reproductive care, falsely implying that the amendment will block the state’s parental consent requirement.

Proposing Competing Initiatives

• Months after Nebraska’s Protect the Right to Abortion constitutional initiative – which would protect the right to abortion up to viability – had been filed with the Nebraska Secretary of State, anti-abortion advocates introduced competing initiatives. The first, which did not receive enough signatures to appear on the ballot, would have amended the state constitution to define fetuses as persons. The second measure, which will appear on the November ballot, would amend the constitution to ban abortion after the first trimester. If the measure banning abortion after the first trimester and the measure protecting a right to abortion up to viability both pass, the one with most votes would be adopted.

Invalidating Signatures

• After signatures for the proposed abortion measure were submitted, the Montana Secretary of State changed the rules for determination of acceptable signatures, reclassifying some registered voters as “inactive” and making these signatures unacceptable to be counted toward the total. Proponents of the measure sued to block these changes and won the case, allowing the signatures of newly deemed “inactive” voters to be counted.
• The Arkansas Secretary of State refused to qualify a proposed measure that would have protected the right to abortion up to 20 weeks LMP, citing lack of compliance regarding paid signature gatherers. This decision was appealed by ballot measured proponents, but the Arkansas Supreme Court upheld this decision, and the initiative failed to make it to the voters.

Citizen-initiated campaigns to amend a state’s constitution can be very costly, especially when litigation is involved. When proponents of these amendments are blocked from placing them on the ballot after months of gathering signatures and campaigning, starting over again may not be financially feasible. It could be difficult to find anew the kind of financial support these petitions need to succeed and in the intervening time, the state legislature could change the rules for citizen initiatives to make amending the constitution even more difficult.

The Wording of the Constitutional Amendment Matters

Even when abortion rights measures pass, some abortion restrictions may remain, making the language of the constitutional amendment and how the state supreme court interprets it an additional important factor in shaping abortion access in the state. For instance, although the 2023 Ohio Reproductive Freedom Amendment prohibits any state laws that “burden, penalize, prohibit, interfere with or discriminate” against abortion care and abortion providers, Ohio laws limiting state Medicaid coverage of abortion, requiring parental consent, and a 22-week LMP gestational limit are still in effect. A state trial court recently blocked Ohio laws that had required a 24-hour waiting period, two in-person visits, and the state-mandated information before providing an abortion, ruling that these laws violate the Reproductive Freedom Amendment. However, this case has been appealed and the ultimate decision rests with the state’s supreme court, which currently has a 4-3 Republican majority. The court could change after the November election in which 3 seats are being contested. However, many voters are not knowledgeable about their state supreme court judges or their positions on abortion. There are 18 states holding elections for their supreme court this year. Two states (Ohio and Michigan) could see a partisan majority flip as a result of this election and other states that have nonpartisan races could also see an ideological shift in their supreme court as a result of the election.

Citizen-Proposed Constitutional Amendments Not an Option in Many States Where Abortion is Banned

Thirteen states with abortion bans or earlier gestational limits do not have a citizen initiative process to amend their constitutions. In these states, citizens cannot directly vote on their state abortion laws beyond electing legislators that support abortion rights or relying on changes in the ideological orientation of their state Supreme Courts. In some of these states, citizens may file legal challenges against abortion laws in hopes that the state supreme court will invalidate them and interpret the state constitution as protective of the right to abortion. However, the South Carolina, Idaho, and Iowa state supreme courts have recently ruled that there is no right to abortion and three states – Louisiana, Tennessee, and West Virginia – amended their state constitution to explicitly state it does not protect a right to abortion.

The 2024 election could be unique in its impact on state abortion laws. If all the measures protecting abortion pass this November, the only remaining states that allow citizen initiatives and ban abortion will be Oklahoma, and Arkansas. Citizen initiatives are also permitted in North Dakota, where a lower court recently struck down the state’s abortion ban. If the Supreme Court of North Dakota reverses the lower court’s ruling, proponents of abortion rights could try to place a constitutional amendment on a ballot at a future date.