Abortion Is (Literally) on the Ballot Tuesday in 5 States

As we head into Election Day on Tuesday, abortion is on the ballot—quite literally—in five states: California, Kentucky, Michigan, Montana, and Vermont. These ballot measures come just months after Kansas voters became the first in the nation to vote directly on the issue post-Roe v. Wade, overwhelmingly voting to keep abortion legal.

The result in Kansas was especially powerful given the difficult odds it beat: Anti-abortion activists wrote the measure with deliberately confusing wording and engaged in a disinformation campaign in the weeks leading up to the vote.

The states voting Tuesday are, of course, also seeing rampant disinformation campaigns. And as abortion bans spread, and the barriers to care—including the threat of criminalization—rise, the stakes have never been higher. So here are the facts on what each of these ballot measures does and does not do:

California

Pro-abortion rights position: Yes on Prop 1

In California, Prop 1 presents voters with the choice of enshrining the right to abortion in the state’s Constitution by voting “yes,” and rejecting this by voting “no.” California has become a post-Roe abortion rights haven, and establishing a constitutional right to abortion is essential no matter how “blue” the state appears to be. Believe it or not, there’s also a pretty substantial threat to abortion access across the West Coast right now, as Idaho’s abortion ban has prompted more patients to travel to Oregon for abortion, and polling shows the Democratic gubernatorial nominee in Oregon deadlocked with an anti-abortion Republican.

Anti-abortion organizers in the state have been challenging Prop 1 by pushing the false narrative that enshrining the right to abortion means “the right to abortion until birth,” which is… not a thing. “We already currently have abortion up to 24 weeks. Why do we need to push it beyond that?” Jonathan Keller, president and CEO of the anti-abortion California Family Council, told NPR of the group’s opposition to Prop 1. “Aren’t we able to say that that is a step too far, even for California?”

Abortion later in pregnancy, while rare, happens, often when emergencies arise or barriers prevent someone from getting an abortion earlier. Diagnoses of dangerous and extreme fetal conditions often aren’t possible until around 20 weeks in most cases. No pregnancy is exactly like another, and arbitrary cut-offs for abortion rights can create dangerous outcomes for pregnant people. Still, despite anti-abortion activists’ deceptive language, an August poll found 71% of California voters support Prop 1.

Vermont

Pro-abortion rights position: Yes on Prop 5

Like California’s Prop 1, Vermont’s Prop 5 would also amend the state Constitution to provide a constitutional right to abortion and reproductive autonomy. Prop 5 is widely popular, polling at 75% support as of last month. That hasn’t stopped anti-abortion organizers in the state from attacking the measure for creating the right to “abortion anytime for any reason”—which sounds great, actually. Thankfully, widespread support for Prop 5 makes it pretty clear Vermont voters are above the lie that abortion “up until birth” is a thing (it’s really not!).

Michigan

Pro-abortion rights position: Yes on Prop 3

Michigan’s Prop 3—like California and Vermont’s measures—would also create a constitutional right to abortion in the state. The measure faces a slightly more uphill battle in a state like Michigan than in California, though the latest poll still shows it trending to pass, with 52.2% of voters in favor, 42.7% against, and 5.1% undecided.

At a debate last month, MAGA-Republican gubernatorial nominee Tudor Dixon accused Prop 3 of “[allowing] abortion up to the moment of birth for any reason, including sex selection.” Abortion “up to the moment of birth”—I cannot stress this enough—does not happen, and so-called, sex-selective abortion bans are rooted in racist stereotypes, solely invoked to ban abortion.

Abortion remains legal in Michigan, but its Democratic governor, Gretchen Whitmer, faces a tight reelection race, and all of the state’s neighbors—Ohio, Indiana, and Wisconsin—are fighting abortion bans in court. In August, Whitmer and state Attorney General Dana Nessel successfully prevented a 1931 state abortion ban from being enforced.

Kentucky

Pro-abortion rights position: No on Amendment 2

Kentucky voters are voting on Amendment 2, which would amend the Kentucky Constitution to say that nothing in the document can be construed to protect abortion rights—a “yes” vote supports this, a “no” vote, backed by abortion rights organizers, rejects this. The amendment is similar to Kansas’ ballot measure, which sought to remove the right to an abortion that already existed in the state Constitution. Similarly, anti-abortion politicians in Kentucky—like those in Kansas—have claimed Amendment 2 won’t amount to another abortion ban (Kentucky has already been living under a total abortion ban for months), and simply defeats pro-abortion “extremism.” Sure, Jan!

“It will keep state judges in their lane of interpreting the law and not inventing new laws and new rights that the constitution does not speak of,” Kentucky state Rep. Nancy Tate, the Republican leader of the General Assembly’s Pro-Life Caucus, said at a press conference last month.

For months now, legal challenges to Kentucky’s abortion ban have cited Sections 1 and 2 of the state Constitution and their invocations of “inherent and inalienable rights” as including abortion rights. Amendment 2 would effectively shut this down.

There’s been no public polling about Amendment 2. But Tamarra Wieder, Kentucky director of Planned Parenthood Alliance Advocates, told The Intercept last week that “abortion is popular in Kentucky, people do not want it to be banned or inaccessible,” and Republicans are “starting to realize they went too far.”

Montana

Pro-abortion rights position: No on LR-131

Voters in Montana are deciding on LR-131, a purposefully deceitful measure called the “Born Alive Infant Protection Act” that would target and criminalize doctors for failing to provide “life-saving care” to newborns—even when no amount of action from doctors could keep the baby alive, and families just want to be with their dying infant in its final moments. Jezebel has previously spoken with organizers on the ground in Montana about just how devastating LR-131 would be, threatening doctors with up to 20 years in prison and $50,000 in fines, and denying families experiencing extreme pregnancy complications or tragic loss the full range of medical options.

“Montanans are being told they’re voting on a measure that’s just going to ‘protect infants born as a result of an abortion,’ but what they’re actually voting on is forcing care on nonviable infants…when families otherwise would have received spiritual comfort and palliative care,” Hillary-Anne Crosby, an organizer working on the campaign to oppose the measure, told me in an interview.

No external polling indicates how Montanans might vote on LR-131, but medical groups and experts have expressed concern that its deceptive language and framing could sway the election. Contrary to the claims of LR-131’s anti-abortion proponents, one study found that out of 5,000 infants born before 27 weeks, none of the infants born before 22 weeks survived. Existing Montana law already prohibits infanticide, and a 2002 federal law grants infants that are born alive the same rights as all people—rendering LR-131 strictly about further stigmatizing abortion and creating confusion. “We get calls from clients sometimes asking if they would retroactively be punished. That level of fear and anxiety is part of the dangerous nature of this measure, which [backers are framing] as being about abortion and scaring people about having abortions,” Aileen Gleizer, a board member of Montana’s abortion fund, told Jezebel.