2022 State Poll Initiatives on Abortion Rights


On June 24, 2022, the Supreme Court overturned Roe v. Wade, eliminating the federal Constitutional standard that had protected the right to abortion. Absent any federal standard addressing a right to abortion, states may set their own policies banning or protecting abortion. Explicit protections or restrictions in state Constitutions will limit the authority of state legislators to pass new abortion laws. Presently, five states have Constitutional amendments restricting state courts from interpreting a right to abortion or requiring state funding of abortion. Ten states have state supreme court rulings interpreting a right to abortion in their state Constitutions, but these rulings can be overturned. Most recently, in June 2022, the Iowa Supreme Court overturned its previous decision interpreting the right to abortion in its state Constitution. However, explicit state Constitutional amendments recognizing or restricting abortion remove the role of the state courts in interpreting the state Constitution to evaluate whether a right to abortion is recognized in that state.

In addition to casting ballots for elected officials in this November’s midterms, voters in four states will vote on ballot initiatives related to state constitutional rights to abortion. Three states (California, Michigan, and Vermont) will vote on ballot initiatives that, if approved, would amend those states’ Constitutions to establish an explicit right to abortion. One state (Kentucky) will vote on a ballot initiative that, if approved, would amend its state Constitution to declare that there is no right to abortion. Here we summarize each of these ballot measures and their implications. In Montana, voters will weigh in on an abortion-related law, but it does not address state Constitutional rights regarding abortion.

No State Constitutional Right to Abortion Initiative

 

Name: Constitutional Amendment 2 (HB 91/No Right to Abortion in Constitution Amendment)

Description:
Would amend the Kentucky Constitution to declare that nothing in it protects a right to abortion or requires government funding for abortion.Context:

  • Abortion is currently illegal in KY except in cases of health or life endangerment. Its future legality depends on the outcome of active litigation challenging the ban.
  • If approved, this amendment would pre-empt any KY court from securing a right to abortion (in the absence of any federal laws), thereby making it more difficult for abortion rights advocates to continue challenging the state’s abortion bans. The proposed amendment does not include any explicit exceptions for abortion in cases of rape, incest, or health or life endangerment.
  • In August 2022, Kansas voters rejected a similar ballot initiative; it was the first state to vote on an abortion-related constitutional amendment since Roe v. Wade was overturned.

State Constitutional Right to Abortion Initiatives

 

Name: Proposition 1 (Senate Constitutional Amendment 10/Right to Reproductive Freedom Amendment)

Description: Would amend the California Constitution to prohibit the state from denying or interfering with an individual’s “reproductive freedom,” including abortion.

Context:

  • Abortion is currently legal until fetal viability in CA and the CA Supreme Court has interpreted a right to abortion in the state’s Constitution. The state does not yet have an explicit constitutional right to abortion.
  • If approved, this amendment would establish broad state constitutional reproductive rights and would make it more challenging for lawmakers to implement any further restrictions or bans on abortion. The amendment would not change the state’s existing laws and protections.
  • Vermont and Michigan voters will also vote on measures similar to California’s proposition. If approved, these states would be the first to establish an explicit right to abortion in their state Constitutions.

 

Name: Proposition 3 (Right to Reproductive Freedom Initiative)

Description: Would amend the Michigan Constitution to establish a broad individual right to “reproductive freedom,” including abortion.

Context:

  • Abortion is currently legal until fetal viability in MI, but an explicit state constitutional protection does not yet exist.
  • If approved, the state Constitution would guarantee the right to abortion as well as other reproductive decisions. It would also allow the state to regulate abortion after fetal viability, with exceptions for physical, mental, and life endangerment.
  • Approval would also stop the state’s 1931 abortion ban from taking effect should the recent court decision to block it be appealed.

 

Name: Article 22 (Proposal 5/Reproductive Liberty Amendment)

Description:
Would amend the Vermont Constitution to establish a broad individual right to “personal reproductive autonomy.”

Context:

  • Abortion is currently legal in all stages of pregnancy in VT, but an explicit state constitutional protection does not yet exist.
  • If approved, this amendment would provide a broad state constitutional right to reproductive autonomy, which is interpreted to include abortion. Restrictions on abortion would only be permissible if justified by a compelling state interest and achieved in the least restrictive means.
  • Approval would make it more challenging for lawmakers to implement any future restrictions or bans on abortion.



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