Examining Abortion-Related Ballot Measures in Nebraska and Missouri

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The Nebraska Supreme Court just ordered that two abortion related measures be placed on the November ballot, rejecting last-minute legal challenges. Nebraska currently has a 12- week ban and one of the measures would amend the state constitution to recognize a right to abortion up to viability. The other measure would amend the constitution to ban abortion starting in the second  trimester (14 weeks). If both measures pass, the measure that receives more votes will be enacted.  Earlier this week the Supreme Court of Missouri shut down a challenge to the state’s abortion ballot measure and ordered it to be placed on the November ballot just hours before the deadline to print ballots in the state.

While former President Trump has stated that overturning Roe v. Wade turned the decision of abortion back to states and “the people are now deciding,” it is a complicated political and legal road to get citizen-initiated abortion measures on the ballot. Although abortion ballot measures have been certified for this election in 10 states, anti-abortion advocates have challenged some of these measures right up to the time of the ballots being printed. The stakes of allowing an abortion measure on the ballot are high as a KFF poll of women voters revealed these measures are boosting Democratic Women’s eagerness to vote. The Arizona Supreme Court recently upheld language for voter materials drafted by the majority-Republican legislative council that refer to an embryo or fetus as “an unborn human being.” Other unsuccessful efforts to block abortion measures from appearing or succeeding on the ballot have included:  

• Legal challenges to disqualify abortion measures (Arizona, South Dakota, and Nevada)    
• Establishment of stricter geographical distribution of signatures (Arkansas)
• Proposals to increase the percentage of the vote needed to pass the measure (Ohio and Florida)
• Efforts to insert biased language in voter pamphlets that did not match the text of the constitutional amendment (Missouri)

Citizens are allowed to propose a constitutional amendment for the ballot in only 17 states. After this November, only 3 states (North Dakota, Oklahoma, and Arkansas) that allow citizen initiatives and that currently ban abortion will not have had an abortion measure on their ballot. The process to get citizen initiates to protect abortion rights is particularly difficult in states where the legislature, governor and courts are solidly anti-abortion. For example, after a long, expensive process to collect signatures for an abortion measure in Arkansas, the Secretary of State disqualified the measure citing lack of compliance regarding paid signature gatherers, a ruling that was upheld by the State’s Supreme Court.