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By Linda C. McClain and Nicole Huberfeld, Boston University
The first major election since the Supreme Court was overturned Roe vs. Wade seen abortion rights on the ballot in a record number of states. The results of these initiatives suggest that when Kansas voters in August 2022 rejected a proposed constitutional amendment declaring there is no state right to abortion, it was no accident. .
Indeed, results after polls closed Nov. 8 showed Kentucky voters followed suit and rejected a similar constitutional amendment. And in three other states – California, Michigan and Vermont – voters approved constitutional amendments to guarantee access to abortion as part of broader protections of personal reproductive autonomy, including the contraception. In Vermont, the margin of victory was overwhelming: 77.2% to 22.8%, with 95% of the vote.
In Montana, where restrictive abortion laws already ban post-viability abortions — that is, those after 24 weeks of pregnancy — voters rejected a referendum that threatened doctors with criminal penalties of up to to 20 years in prison if they did not try to maintain the life of a “born alive” fetus after an abortion.
Altogether, the outcome of the initiatives underscores the crucial role of state law following the Supreme Court ruling. Dobbs v. Jackson Women’s Health Organization The decision returned the question of access to abortion to the “people” and to the States.
Abortion on the Ballot and the Election Campaign
But abortion was also “on the ballot” indirectly — in key federal and state elections in which abortion appeared to have been a campaign issue.
In Pennsylvania, Democrat Josh Shapiro, the state’s attorney general, won the gubernatorial race against Republican Doug Mastriano, and Democrat John Fetterman beat Dr. Mehmet Oz for the available U.S. Senate seat. Access to abortion care and the protection of abortion rights were key themes in Shapiro’s campaign, while Mastriano emphasized culture war issues. Commentary and exit polls suggest abortion was a motivating issue among Pennsylvania voters — especially younger voters.
In New York, where Governor Kathy Hochul defeated Republican challenger Lee Zeldin, the incumbent Democrat cast herself as “the reason abortion is protected in New York” and pointed to the “tremendous” power of a governor to affect abortion rights.
Exit polls indicate that 60% of voters nationwide – up 9% since 2020 – think abortion should be legal in all or most cases.
A majority – 60% – of voters expressed anger with the Supreme Court over the Dobbs decision and indicated that they trusted the Democratic Party more than the Republican Party on the issue by a margin of 52% to 42%. These sentiments manifested themselves in the election results. For example, in New Hampshire, Democrat Maggie Hassan retained her Senate seat against a Republican opponent, Don Bolduc, who called the Dobbs decision a reason to “rejoice”. And 35% of New Hampshire voters said abortion was their number one issue, behind inflation alone at 36%. Polls also show a gender gap, with more women than men saying abortion is their biggest problem.
More state battles over abortion?
Ballot initiatives are expected to continue until the 2024 presidential election given voter response on Tuesday.
The midterm elections tend towards protecting access to abortion, more than pre-election polls suggested.
As of this writing, the House and Senate are on the line, but federal bills that would protect or restrict access to abortion were already unlikely to become law given the Supreme Court has indicated that states should decide their own laws. This means state laws remain front and center and the midterm election was just a “line keeping” moment.
Most states have not yet had legislative sessions or elections, and most candidacies have been declared before Dobbs has been decided. The midterm elections did not worsen the landscape for access to care – indeed, the right to abortion care was expanded, or less protected in some places. But the wide variability of state laws will mean that disputes will continue both between states and between states and the federal government.
Confusion between patients and providers is likely to continue, given the high degree of variability in state laws, which will limit access to care and increase risk in some states.
Linda C. McClain is a professor of law at Boston University.
Nicole Huberfeld is the Edward R. Utley Professor of Health Law at Boston University.
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