Topline
The Nebraska Supreme Court ruled Friday that the state’s planned questions on abortion rights can stay on the ballot, as 10 states are set to have abortion on their November ballot—including some where the procedure is now banned.
People hold up signs during a pro-abortion rights rally in West Palm Beach, Florida, on June 24.
Key Facts
Arizona: Proposition 139, if approved, would create a “fundamental right to abortion” in the state Constitution, which prohibits the state from banning abortion before a fetus is viable—around 24 weeks into a pregnancy—and allows abortions after that point if deemed necessary “to protect the life or health of the pregnant individual.”
Colorado: The state’s Right to Abortion proposal would amend the state Constitution to add the right to an abortion, and would specify the state cannot deny health insurance coverage for abortion.
Florida: Amendment 4, if approved, would amend the state’s Constitution to make clear no law “shall prohibit, penalize, delay, or restrict abortion before viability or when necessary to protect the patient's health,” though it would not affect existing state laws requiring parents or guardians to be notified in the case of minors having abortions.
Maryland: The state’s Right to Reproductive Freedom amendment would add language to the state Constitution stating people “have the right to reproductive freedom,” which includes but isn’t limited to “decisions to prevent, continue or end one’s own pregnancy.”
Missouri: Also titled the Right to Reproductive Freedom amendment, Missouri’s measure would specify in the state Constitution that the state cannot interfere with a person’s “fundamental right to reproductive freedom” or prosecute anyone for having an abortion or aiding in one, though it does allow the state to ban abortion after the point of fetal viability, except for medical emergencies.
Montana: Constitutional Initiative No. 128 would amend the state Constitution to “expressly provide a right to make and carry out decisions about one’s own pregnancy, including the right to abortion,” allowing abortion until the point of fetal viability and after that point when medically necessary, and would bar the government from punishing anyone who obtains an abortion or helps someone obtain one.
Nebraska: The state will have two competing measures to amend the state constitution to include language about abortion, with the Protect the Right to Abortion measure seeking to make the procedure legal until the fetus is viable or when medically necessary, while the other measure would outlaw abortion after the first trimester except in cases of rape, incest or medical emergencies.
Nevada: The Right to Abortion Initiative would add language to the state Constitution guaranteeing the “fundamental right to abortion performed or administered by a qualified health care practitioner until fetal viability, or when needed to protect the life or health of the pregnant patient,” without state interference.
New York: The Equal Protection of Law amendment would more broadly amend the anti-discrimination language in New York’s Constitution to add protections from discrimination based on “ethnicity, national origin, age, disability, and sex, sexual orientation, gender identity, gender expression, pregnancy, pregnancy outcomes, and reproductive healthcare and autonomy.”
South Dakota: Amendment G would expand when abortion is lawful in South Dakota, allowing abortion without any restrictions within the first trimester of a pregnancy, abortion in the second trimester only when the reason for the abortion “is reasonably related to the physical health” of the pregnant person, and abortion in the third trimester only when determined by a physician to be necessary to the pregnant person’s life or health.
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How Would The Ballot Measures Affect State Abortion Bans?
Abortion is totally banned in Missouri and South Dakota, meaning the ballot measures in those states would overturn the bans if they’re passed by voters and restore abortion access. They would also have an impact in Florida, which bans abortion after six weeks, and Arizona, where abortion is banned after 15 weeks. Nebraska has a 12-week ban in place now, so voting in favor of the pro-abortion rights amendment would undo that ban, while the anti-abortion rights measure would make the 12-week ban permanent. Abortion is still legal in Colorado, Maryland, Nevada and New York, but enshrining the protections in state law would ensure legislators can’t impose bans in the future. Montana has also preserved the right to an abortion, as the state constitution already specifies a right to privacy that has led to abortion bans getting struck down, but the proposed ballot measure language would be even more explicit that the procedure is allowed. Approximately 20 states now have some form of abortion ban in place.
News Peg
The Nebraska Supreme Court upheld both of the state’s abortion measures remaining on the ballot Friday, ruling the pro-abortion rights referendum did not violate a law on ballot measures only dealing with a single subject, as opponents claimed. While the challenge focused on alleged issues with the pro-abortion rights measure, pro-abortion rights advocates challenged the anti-abortion measure remaining in place if the pro-abortion one was struck down, saying either both measures should appear on the ballot or neither of them. The ruling came days after the Missouri Supreme Court ruled Tuesday that state’s abortion measure can stay on the ballot after a lower state judge said it was invalid, siding with opponents of the measure who alleged it was “insufficient” because it didn’t properly say how it would affect existing state laws. Missouri Attorney General Jay Ashcroft decertified the ballot measure after the lower court’s ruling—prompting an effort by Democrats to hold him in contempt—but the state’s highest court then ruled the measure was valid after all and Ashcroft must put it back on the ballot. The tussles were part of a broader effort by Republicans to challenge abortion ballot measures even just weeks before the election, with court battles also ongoing in South Dakota, while Republican Florida Gov. Ron DeSantis’ administration is investigating signatures in favor of that state’s measure.
Contra
While many states have accepted ballot measures on abortion this election cycle, Arkansas’ potential ballot measure was rejected in court. The state initially rejected the ballot measure application for paperwork issues and organizers then sued the state, but the Arkansas Supreme Court ruled in August in the state’. Organizers submitted enough signatures for the measure to make the ballot but the state claimed they didn’t correctly submit a sworn statement regarding instructing canvassers who collected the signatures, which the state Supreme Court upheld.
Chief Critics
Abortion ballot measures have been met with significant resistance by GOP politicians and anti-abortion rights advocates in the states where they’ve been considered and approved. Beyond the court battles playing out in Nebraska and South Dakota, anti-abortion groups in a number of states have gone to court to challenge technical issues with applications, signatures received in support of the measures, the wording of various proposals and other alleged issues. Opponents told Politico in July their aim was to block the measures from making the ballot, though many legal challenges have continued even after that point. “We are working to make sure it doesn’t get on the ballot in the first place,” Jill Norgaard, a board member of Arizona Right to Life and former member of the Arizona House of Representatives, told the outlet about the state’s ballot measure before it was approved.
Big Number
85%. That’s the share of U.S. adults who think abortion should be legal in at least some circumstances, according to Gallup polling released in May. A Public Religion Research Institute poll released in May found residents in all but five states believe abortion should be at least mostly legal—though those five states include South Dakota, where only 47% reported supporting abortion rights ahead of the ballot measure this fall.
Tangent
Among the people who will vote on Florida’s abortion ballot measure is former President Donald Trump, who has said he believes abortion should be left up to the states. The ex-president has said he will vote against the Florida measure even as he’s criticized the state’s six-week ban. When asked at the presidential debate on Tuesday about his vote, Trump claimed he was opposing the measure because it would allow abortion in the “ninth month,” though in actuality the measure would only allow abortions until the fetus is viable unless medically necessary. Abortions in the final months of a pregnancy are exceedingly rare.
Key Background
Abortion ballot measures have emerged as a successful way to protect abortion rights in the past two years since the Supreme Court overturned Roe v. Wade, setting off a wave of state-level bans. While Republican legislators have been eager to ban the procedure, abortion rights supporters have used ballot measures to harness public support in favor of abortion, hamstringing lawmakers from imposing restrictions in even some Republican-leaning states. Kansas was the first state to put abortion on the ballot in August 2022, with 59% of voters opposing a measure that would have paved the way for abortions to be restricted. Five states then had abortion-related measures on the ballot in the 2022 midterms— California, Kentucky, Michigan, Montana and Vermont—with Ohio following suit last year. All votes have broken in favor of abortion rights.
