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November 21, 2022
Quarterly Opinion
Paula M. Lantz
Apr 1, 2024
Mar 20, 2024
Dec 11, 2023
Back to The Milbank Quarterly Opinion
The June 2022 Supreme Court of the United States (SCOTUS) decision in Dobbs v Jackson Women’s Health Organization reverted abortion law and regulation to individual states and territories, erasing nearly 50 years of legal access to abortion care nationwide.[1] In the aftermath of this historic ruling, public policy battles regarding abortion will play out in state legislatures, courts, and elections for years to come. This includes the use of “direct democracy” policymaking through which citizen-initiated and legislatively referred constitutional amendments, statutes, and referenda are presented to voters at the ballot box.
The 2022 primary and general midterm elections revealed both the power and limitations of direct democracy strategies for securing abortion and other reproductive rights at the state level. Through different types of ballot initiatives in six states, the majority of voters in each case affirmed support for some level of individual freedom and privacy related to reproductive health care decisions (see Table). Citizens in California, Michigan, and Vermont voted to enshrine in their state constitutions the individual right to make health care decisions related to pregnancy and reproduction without undue interference from the government. The language of these constitutional amendments not only protects abortion rights but also—in anticipation of future potential extreme legislative moves—individual decisions related to contraception and other forms of reproductive health care.
In addition, citizens in Kansas and Kentucky voted against legislatively initiated amendments to their constitutions that would explicitly deny rights or protections related to reproductive decision-making. In Montana, where courts have already determined that the state constitution protects “procreative autonomy,” citizens voted against a confusing referendum attempting to legislate that infants “born alive” at any stage of development after an abortion procedure are legal persons and must be provided medical care.
While reproductive freedom advocates should certainly celebrate these victories, there are limitations and caveats to unpack regarding direct democracy initiatives as a policy strategy for reproductive rights. First, how the amendments that just passed in California, Michigan, and Vermont relate to and potentially override current state laws and regulations needs to be sorted out, which is likely to be a political and litigious process. For example, Michigan’s new constitutional amendment clearly negates a 1931 trigger law that prohibits all abortions except to preserve the life of the pregnant person. Nonetheless, how existing state abortion laws (e.g., parental consent or judicial review for minors and a 24-hour waiting period) sync with the amendment needs to be made explicit and clear. Similarly, there is disagreement about whether California’s new amendment allows the state to regulate late-term abortion. The need to clarify legal fuzziness is quite common after the passage of a state constitutional amendment.
Second, Kansas and Kentucky are still vulnerable to restrictive abortion legislation, and neither state allows citizen-initiated constitutional amendments. The failure of their 2022 ballot initiatives does not mean that their state constitutions affirm and protect reproductive rights. In addition, the Montana legislature passed several restrictive abortion laws in 2021, which are currently enjoined but are likely to face ongoing court challenges.
Third, additional opportunities for citizen-initiated (versus legislatively referred) amendments or statutes are somewhat limited, as only 24 states allow any type of citizen-initiated ballot initiative, and the processes and procedures in all states are extremely burdensome and expensive. Furthermore, while the explicit protection of reproductive autonomy and freedom in a state constitution is the primary way to prevent a legislature from passing extreme anti-abortion laws, only 18 states allow citizen-initiated constitutional amendments. Michigan is the only state thus far to use this approach regarding reproductive rights. Among these 18 states, 7 are predicted to have extremely restrictive abortion policies (Arkansas, Mississippi, Missouri, North Dakota, Ohio, Oklahoma, and South Dakota). As such, a citizen-driven amendment to codify reproductive rights in the state constitution remains a potential strategy in an important, yet small, subset of states.
In a significant number of other states where restrictive abortion policies are in place or proposed by legislatures—including Alabama, Idaho, Indiana, Louisiana, South Carolina, Tennessee, and Texas—citizens do not have the power to bring a proposed amendment to the state constitution to the ballot. In the meantime, legislatively referred constitutional amendments that attempt to explicitly deny reproductive rights could be put before voters in 49 states (all but Delaware), as happened in Kansas and Kentucky in 2022 and was attempted in Pennsylvania but failed to receive enough votes in the legislature.
As the policy dust debris settles from the explosive 2022 SCOTUS decision, it is predicated that 25 states will likely have policy environments that severely restrict access to abortion care, including some states with near bans. Despite opinion polling that shows widespread and strong public support for some level of legal abortion care, legislators in many states are acting upon this new freedom to restrict abortion and other types of reproductive health care.
Restrictive abortion policies at the state level remain a clear and present danger to the health and social welfare of women and families in the United States. These policies pose serious risks to maternal and infant health by denying or delaying evidenced-based medical care and are predicted to increase maternal deaths, especially among African Americans. Restrictive abortion policies also are predicted to increase the number of children born into poverty, increase the number of families facing serious and ongoing socioeconomic hardship, decrease educational and economic advances among women, and place additional demands on under-resourced social welfare systems.[2]
Although an important and viable political strategy in a small subset of states, the path to reproductive freedom, health protection, and social welfare equity will not be forged by direct democracy initiatives one state constitution at a time. Rather, federal protections that reinstate nationwide the rights codified by Roe v Wade and other SCOTUS decisions before the 2022 Dobbs ruling are essential to protect reproductive health care and decision-making for all Americans and to thwart the looming population health and social welfare crises.
[1] Dobbs v Jackson Women’s Health Organization, 597 U.S. (2022).
[2] Lantz PM, Michelmore K, Moniz MH, Mmeje O, et al. Abortion policy in the United States: the new legal landscape and its threat to health and socioeconomic well-being. Forthcoming in Milbank Quarterly, 2023.
Paula Lantz, PhD, MS, MA, is the James B. Hudak professor of health policy and a professor of public policy at the Ford School of Public Policy at the University of Michigan. She also holds an appointment as professor of health management and policy in the School of Public Health. Lantz teaches and conducts research regarding the role of social policy in improving population health and reducing health inequities. She currently is conducting research regarding housing policy and health, including opportunities within the Medicaid program for assisting with housing security. An elected member of the National Academy of Social Insurance and the National Academy of Medicine, Lantz received an MA in sociology from Washington University, St. Louis, and an MS in epidemiology and PhD in social demography from the University of Wisconsin.
