By Tyler Arnold
Washington, D.C. Newsroom, Jul 26, 2023 / 14:00 pm
Since the U.S. Supreme Court overturned Roe v. Wade on June 24, 2022, and returned most of the power to regulate abortion back to states, legislative fights have ensued among state lawmakers throughout the country.
Many of these battles have led to efforts from pro-abortion activists to enshrine their abortion policies within state constitutions. This would put a stranglehold on efforts to protect preborn children in the womb by increasing the difficulty of putting any limitations or restrictions on abortions within a state.
In states that already impose pro-abortion policies, such as New York and Maryland, activists have worked with lawmakers to get constitutional amendments with broad language onto the ballots.
For states with voters who have elected pro-life lawmakers, activists have used citizen-led initiatives to put constitutional amendment referendums on the ballot that could enact a wide range of pro-abortion policies using language that some pro-life advocates have called misleading.
Referendum votes in New York and Maryland are already slated for Nov. 5, 2024. A referendum in Ohio is set for Nov. 7, 2023. Efforts are currently underway to get similar constitutional amendment referendums on the ballot in Florida, Missouri and South Dakota on Nov. 5, 2024.
In 2022, voters in California, Michigan, and Vermont approved pro-abortion constitutional amendment referendums that contained similar language. Pro-life referendums in Kansas and Kentucky were unsuccessful.
New York amendment proposal
The proposed constitutional amendment in New York avoids using the word “abortion” but would establish broad protections for “reproductive health care.” The amendment changes the state’s anti-discrimination protections in Article 1, Section 11 of the state constitution to add new language in the Equal Protection Clause.
Under the current language, the clause prohibits discrimination based on a person’s race, color, creed, or religion. The proposed amendment would keep those protections but add another set of protected classes.
The amendment adds a prohibition on sex discrimination, which includes “pregnancy, pregnancy outcomes, and reproductive health care and autonomy.”
The clause promises equal protection under the law for these classes and prohibits any other person, corporation, institution, or government agency from discriminating against a person covered by these protections.
Current abortion laws in New York allow women to abort their preborn children through the 24th week of pregnancy. Because of the broad language, it’s unclear whether the amendment would extend abortions further into pregnancy.
In addition to the language on pregnancy, the prohibition on sex discrimination will also include a prohibition on discriminating against one’s “sexual orientation, gender identity [and] gender expression.” The proposed amendment would also include language to prohibit discrimination based on one’s ethnicity, national origin, age, and disability.
Voters will either adopt or reject the new language based on a majority vote on Nov. 5, 2024.
Maryland amendment proposal
The proposed constitutional amendment in Maryland would establish a new right to abortion in the state constitution’s Declaration of Rights.
(Story continues below)
Under the proposed language, titled the Reproductive Freedom Amendment, the state constitution would recognize a “fundamental right to reproductive freedom,” which it says is “a central component of an individual’s rights to liberty and equality.”
The proposed amendment would recognize the new right as including, but not being limited to, “the ability to make and effectuate decisions to prevent, continue, or end one’s own pregnancy,” which would effectively establish a constitutional right to both contraception and abortion.
Per the proposal, the state would be prohibited from directly or indirectly denying, burdening, or abridging that right unless justified by a compelling state interest, which is achieved by the least restrictive means possible.
Current Maryland law allows abortions up to the point of fetal viability, which is when the child could live outside of the womb. This generally occurs around the 24th week of pregnancy. It is unclear whether the amendment would extend abortions further into pregnancy based on the broad language used.
This proposal will also be adopted or rejected by a majority vote on Nov. 5, 2024.
Efforts to expand abortion in pro-life states
A proposed constitutional amendment in Ohio would also establish a constitutional right to abortion. This will appear on the ballot on Nov. 7, 2023.
A proposed constitutional amendment in Ohio would also establish a constitutional right to abortion. Supporters of the amendment have announced that they acquired the necessary number of signatures to get the proposal on the ballot for Nov. 7, 2023, but those signatures still need to be verified by the secretary of state and the county board of elections officials.
In Ohio, voters only need a majority vote to adopt an amendment. However, a ballot initiative scheduled for Aug. 8 would set the threshold for adopting a constitutional amendment to 60%. This would apply to all subsequent constitutional amendments, including the abortion proposal.
The proposed amendment in Ohio would prohibit lawmakers from restricting abortion before viability, which usually occurs around the 24th week of pregnancy. It would extend the protection past viability if the medical provider determines the mother’s life or health is at risk.
Current Ohio law permits abortions up to 22 weeks of pregnancy, but litigation is currently pending on a law that would ban abortions at the point that a fetal heartbeat can be detected, which is around six weeks.
A proposed constitutional amendment in Florida would also establish a constitutional right to abortion up to the point of viability “or when necessary to protect the patient’s health, as determined by the patient’s health care provider.”
This proposal, which is still in the signature gathering stage, would appear on the Nov. 5, 2024, ballot and would need to be approved by 60% of the electorate.
Current Florida law prohibits abortion after 15 weeks, which is enforced but being challenged in court. If the court finds that the law is constitutional, a trigger law would go into effect that would ban abortions after the detection of a fetal heartbeat, which occurs around six weeks of pregnancy.
There are several efforts to draft a constitutional amendment proposal in Missouri, but supporters have not yet settled on the language. If any of these proposals obtain the necessary number of signatures, voters could see the issue on the Nov. 5, 2024, ballot, which would need to be approved by a majority of the electorate.
In Missouri, abortion is banned except for medical emergencies. The law is currently enforced but is being challenged in court.
A proposed constitutional amendment to establish a right to abortion in the first and second trimesters in South Dakota is also currently in the signature-gathering stage. If enough signatures are collected, it would appear on the Nov. 5, 2024, ballot, which would need a majority vote.
In South Dakota, abortion is illegal except when necessary to preserve the life of the mother.
Why are they pursuing these policies through constitutional amendments?
In states like Maryland and New York, which already have legal abortion access, an amendment to the state constitution would make those policies permanent. Such rules would preempt future state legislatures from repealing pro-abortion policies and make it more difficult for people to enact pro-life policies in the future.
The reason for referendums in states with pro-life legislatures and governors is similar but also slightly different. Proponents of abortion are trying to override the legislature by putting all of their resources into one campaign that would make these policies permanent and very difficult to repeal.
Stephen Billy, the vice president of state affairs at Susan B. Anthony Pro-Life America, told CNA he believes these efforts are meant to legalize abortion through nine months of pregnancy by using broad language that deceives voters.
“They have very little public support for their extreme policies [so they] ... use millions of dollars to lie and put up slick TV ads,” Billy argued.
Billy said these efforts are “backed by millions of dollars of special interest … to deceive the voters … through a campaign of deception” because their policies would not get through elected officials. He said the amendments are broadly and deceptively written to support what they call reproductive freedom and that the language often lists specific constitutional rights but adds that the rights are “not limited to those things.”
For example, Billy noted that the ballot summary for the proposed amendment in Florida states that it would not remove the parent’s authority to be notified before a minor has an abortion. Yet, the amendment itself is silent on the matter.
Billy said pro-abortion groups have consistently argued in court that “parental consent laws are undue burdens” and that “waiting periods are undue burdens,” which he expects they would argue in the event that the amendment is passed. Despite what the pro-abortion groups claim in their campaign, he said “any parental involvement is going to be erased” if it passes.
Effectively, Billy said these amendments would result in legalized late-term abortion for “all nine months [with] ... virtually no restrictions.”
Noting the lack of success for the pro-life movement in recent ballot initiatives, Billy said they have changed their approach by pointing out the “extreme nature” of the amendments and anti-parent policies that would follow. With the Ohio ballot initiatives approaching this year, he said the pro-life movement is “engaged in making sure it’s a united effort.”
“The pro-life movement is responding differently,” Billy said.
This article has been updated.
