Abortion Ballot Measures Aren’t Safe From the Courts

There could be nearly a dozen constitutional amendments codifying the right to abortion on the ballot this fall—and some could even overturn active abortion bans, like in Florida, Missouri, and South Dakota. But abortion ballot measures are not a magic fix: They don’t immediately undo bad laws, as evidenced by Ohio advocates having to file multiple lawsuits to challenge past restrictions, and they can’t bring back clinics that closed. And there’s one more vulnerability we’re not talking about: Pro-choice ballot measures aren’t safe from a future Trump administration, or the conservatives on the Supreme Court.

Statewide abortion votes have been a bright spot in politics since the Dobbs decision, as the pro-choice position has won in every state where it’s already been on the ballot. In the past two years, voters in Ohio, Michigan, California, and Vermont have voted to protect abortion rights in their constitutions, while people in Kansas, Kentucky, and Montana rejected anti-abortion measures.

But every single amendment codifying the right to abortion could be undone either via a Supreme Court ruling establishing fetal personhood nationwide or Trump enforcing the Comstock Act of 1873. (No, Donald Trump doesn’t actually believe abortion should be left to the states, he’s just saying that to win.) Alternatively, state Supreme Courts could use personhood to overturn ballot measures one by one.

Rachel Rebouché, a professor at Temple University Beasley School of Law, said we should expect conservatives to file lawsuits challenging successful ballot measures—after all, anti-abortion activists have wanted to declare fetuses as people from practically the moment Roe v. Wade was decided in 1973. “On the back of a wave of successful initiatives, there will be a wave of litigation to test the boundaries of them,” Rebouché told Jezebel, adding. “I don’t think there’s an anti-abortion movement in our country that throws up its hands and says, ‘Oh well.’” 

Overruling Roe was quite unpopular. But the public outcry hasn’t fazed some members of the court. Samuel Alito doesn’t care.

Specifically, we should expect challenges arguing that fertilized eggs, embryos, and fetuses are people in the eyes of the law, said Melissa Murray, a professor at New York University School of Law and co-host of the Strict Scrutiny podcast. “These ballot initiatives ensuring reproductive freedom could be viewed as obviating the rights of the fetus,” Murray said. Personhood lawsuits are “one tactic that could be used to blunt the force of the people.”

If for some reason you don’t believe these law professors, listen to people in states that have already protected abortion rights. Michigan Gov. Gretchen Whitmer (D) recently said a second Trump term could void past ballot measures, including her state’s from 2022. And in Ohio, “abortion is still very much on the ballot” in November, according to Kellie Copeland, executive director of Abortion Forward, formerly Pro-Choice Ohio. That’s because a federal ban “would supersede the work that has been done in Ohio and other states,” she said. 

How the Supreme Court Could Grant Rights to Embryos

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In 2022, Tim Busch, a conservative lawyer and pal of Federalist Society goon Leonard Leo, said his “good friend Charles Koch” always talks about the right to life being granted in the Declaration of Independence, it just hasn’t been enforced. Busch himself said the 14th Amendment “gives that Declaration of Independence right to the unborn. At the time it was passed, [in] almost all of the states, it was murder to abort the unborn. So I think that we’re going to see a case in the next five to 10 years that could undermine these constitutional state amendments.” This was a month after the Supreme Court overturned Roe and as multiple ballot measures were in the works. Advocates are really not hiding their plan to establish fetal personhood and ban abortion. 

This “our founding fathers said blastocysts have rights” theory is nonsense for several reasons. First, the 14th Amendment was adopted after the Civil War to grant citizenship and other rights to formerly enslaved people, and it confers due process rights to “persons,” and fertilized eggs are not people. Plus, in the 19th century, pregnancy was really only thought to begin at “quickening,” or when the pregnant person could feel movement, sometime in the second trimester. When the 14th Amendment was ratified, many states did ban abortion after quickening, but before that marker, women who missed their periods used herbal remedies and pills to “restore the menses” legally.

😳Leonard Leo ally Tim Busch opines that state constitutional amendments protecting abortion rights conflict w/ the 14th Amendment to the US Constitution, which he says gives that “right [to life] to the unborn.” Implies they will ask SCOTUS to overturn such state amendments. 1/ pic.twitter.com/Zckz6rG1QN

— [email protected] ✍🏻 📢 (@jennycohn1) April 27, 2024

But Alito’s legal reasoning when overturning Roe was also ahistorical, lawless garbage. And if Trump wins, it’s game over—the Supreme Court will be emboldened to act with even more impunity and could grant rights to embryos. It’s also likely that both Justices Samuel Alito (74) and Clarence Thomas (nearly 76) would retire under Trump and be replaced with much younger appointees, cementing the 6-3 supermajority for a generation. Yes, the court could take up a personhood case even if President Biden is re-elected, though it would be riskier politically, both in terms of potential court reform and Republican prospects in 2028. Plus, a 5-4 court would be much less likely to swing for the fences.

Rebouché said the Supreme Court “absolutely could” undo all ballot measures via some targeted lawsuits. “If the 14th Amendment protects life from conception, then that is the law of the land, and then that’s a whole new generation of litigation” over state abortion protections, she said.

A prime candidate for filing a 14th Amendment lawsuit is Alliance Defending Freedom, the far-right Christian legal advocacy organization which wrote the state law that overturned Roe and later sued the FDA to try to yank approval of the abortion drug mifepristone. Kristen Waggoner, ADF’s president and CEO, told Politico in March that her group thinks there is legal grounds for a federal abortion ban in the 19th-century law. “We believe that the 14th Amendment protects persons and that includes unborn persons, and that the right to life is protected in the Constitution,” she said. (We’re still waiting on a ruling in that case. The other abortion-related, ADF-linked case this term could be a stepping stone toward a federal ban if the court rules that a fetus is a second patient whose rights supersede a pregnant woman’s in emergency rooms.) 

Another group, Americans United for Life, has gone so far as to suggest that the next Republican president can simply proclaim via Executive Order that the 14th Amendment protects life from fertilization for so-called “preborn persons.”

Murray said the court upholding fetal personhood would represent “the tyranny of the minority,” but it’s a fool’s errand to hope the justices act with popular opinion in mind. “Overruling Roe was quite unpopular. But the public outcry hasn’t fazed some members of the court,” she said. “Samuel Alito doesn’t care.” (This interview, we must note, took place before news broke about not one, but two, far-right flags outside Alito’s homes.)

And this brazen theft of rights could happen despite Alito writing in Dobbs that it was fine to overrule Roe because “women are not without electoral or political power”—that is, they can help pass the laws they want. That’s clearly not the whole story. “Yeah, ‘Go, vote or run for office, but when you do go and vote or organize, we’re going to come and move the goalposts,’” Murray said. “It’s gaslighting, and it’s gross.”

Florida’s Already Drafting the Blueprint for State Courts to Declare Fetal Personhood

Photo: flcourts.gov

Fetal personhood is also a question for state constitutions, Murray said. And Florida’s state Supreme Court, in particular, seems ready to declare that embryos and fetuses have a right to life under its own constitution. (The justices are technically nonpartisan, but all seven were appointed by Republican governors, and five by Ron DeSantis.) When the court ruled 4-3 in April that the abortion amendment could go to voters, the three dissenting justices said they believe the constitution grants fetal personhood and the ballot measure doesn’t tell Floridians that it would undermine fetuses’ right to life. Three justices in the majority said they agreed on fetal rights, but wouldn’t stop voters from weighing in. The subtext is that if Amendment 4 doesn’t clear the 60 percent threshold, the Florida Supreme Court could rule that abortion is banned from the moment of fertilization. That kind of decision would go further than even Alabama’s high court saying IVF embryos are people under wrongful death statutes.

But anti-abortion activists think they have a shot at this outcome even if the measure passes, based on what six justices wrote about rights for fetuses. Mat Staver, chairman of Florida-based anti-abortion group Liberty Counsel, told Bloomberg Law in April: “We have an open door to go back and establish personhood.” He added, “The Florida Supreme Court isn’t out of the picture yet.” 

Staver told Bloomberg that if the tactic works in Florida, it could be used as a strategy across the country as nearly all state constitutions have language about a right to life, which conservatives could weaponize to erase the rights of women and pregnant people.

Overturning a successful amendment would not only destroy abortion access for Floridians and people all across the South, but it could make voters feel even more apathetic, Murray said. “What’s going to happen if this goes to the Florida Supreme Court, and the ballot initiative goes nowhere?” she asked. “[Some] voters are going to be like, ‘What was the point?’” 

Murray compared the possibility of Florida’s court rendering an abortion vote moot to Biden’s initial attempts to cancel student debt. When courts claw things back, people may not blame them. “They will connect it to the person who promised [the change]—like Joe Biden or the pro-choice movement in Florida,” she said. “[But] there was student loan relief. It was the conservative supermajority on the Supreme Court who, literally, in one fell swoop, took it away. 

State Lawmakers Can Also Gum Up the Works

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Despite overwhelming support for Ohio’s abortion amendment, Attorney General Dave Yost (R) is fighting advocates trying to implement it. Yost is arguing in court that the passage of Issue 1 shouldn’t overturn older restrictions like a 24-hour forced waiting period, a ban on telemedicine abortion, and a ban on nurse practitioners prescribing medication abortion.

Without sustained action, Issue 1 will “be just a piece of paper,” she added. These fights are necessary, Copeland said, because otherwise, Issue 1 won’t do what Ohioans actually need, which is to ensure access to abortion locally. “They shouldn’t have to travel, they shouldn’t have to go through political restrictions or financial barriers. It’s basic health care,” she said. When Copeland says Issue 1 can’t just be a piece of paper, she’s invoking criticisms of Roe, and a related 1992 decision, Planned Parenthood v. Casey, which reaffirmed but also weakened Roe by letting states pass restrictions before fetal viability as long as they didn’t amount to an “undue burden” on abortion seekers. “[Roe] wasn’t enough for many people, because of the Hyde Amendment [which banned federal funds being used for abortion], and because of all of the restrictions that made it difficult for people to access care.”

The real power of ballot measures is contradicting the narrative that Americans do not support abortion rights, or that we are a deeply, entirely fractured country.

But the vast majority of abortion ballot measures only codify protections through fetal viability, thereby recreating the Roe and Casey standard that left behind later abortion patients and subjects people to criminalization for pregnancy outcomes. Rebouché said the passage of amendments, and battles over how to interpret them, are “a replay of Casey” at the state level. “There could be a court saying, ‘Sure there’s protection for abortion rights at this broader level, but that doesn’t mean abortion is an absolute right,” she said. “States can still require parental involvement, waiting periods, informed consent.”

That’s why Copeland said there are three ways abortion is on the Ohio ballot this year: Federal races, state Supreme Court seats, and redistricting. There are several elections for state Supreme Court, the body that will interpret the amendment. “I don’t trust the [current] majority of this court to not try to wiggle their way out of it and ignore the will of the voters,” she said. There could also be a ballot measure this fall that would improve Ohio’s redistricting process for both Congressional and General Assembly districts. Copeland said that measure could hopefully address the “manufactured supermajorities of anti-abortion legislators” that pass restrictions in the first place, or try to meddle with successful amendments after the fact.

While there are a lot of worrisome scenarios, passing abortion ballot measures is a good thing—as Copeland said, without Issue 1, it’s “entirely possible” Ohioans would be living under a 6-week ban right now. 

Ballot Measures Alone Won’t Save Us

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Abortion ballot measures are not perfect solutions. But they are useful in terms of understanding that people oppose abortion bans, even in Republican-controlled states. “The real power of ballot measures is contradicting the narrative that Americans do not support abortion rights, or that we are a deeply, entirely fractured country,” Rebouché said.

It’s important to remember why people even resort to ballot measures in the first place: Their legislatures aren’t responsive to their needs, thanks to voter suppression, gerrymandering, and pathetic campaign finance laws, Murray said. We know Trump would do nothing about those issues, while Biden could at least try—same as he could try to do something about the Supreme Court, and, at the very least, get more federal judges confirmed.

Biden has said he will campaign on “Dobbs and democracy,” and those two issues are more related than he lets on. Trump could become president again while losing the popular vote and enacting a national abortion ban against the will of the people—both in terms of opinion polls, and the results of statewide votes. If a federal ban happens, Murray said, it will be due to “a group of well-funded people with fringe views who couldn’t get this through ordinary majoritarian politics—as the direct democracy initiatives made clear, they don’t have a majority of support.”

You should be voting for and following these measures, but know that abortion access won’t be magically fixed if they pass—far from it. Conservatives will keep fighting until there’s a nationwide ban, no matter how undemocratic their strategies are. Perhaps that knowledge will inform your vote for president, too.