At a closed-door meeting last week, Sen. Mitch McConnell and other Republican senators were briefed on a new study encouraging them to move away from “pro-life” language as potentially alienating voters in the wake of Dobbs. This report was a direct response to a string of defeats the pro-life movement has experienced at the ballot box over the past year, mainly on proposals to amend state constitutions.
Proposals to neutralize the state constitution as a source of abortion rights were rejected by voters in Kansas and Kentucky, while, in California, Michigan, and Vermont, voters approved proposals to add so-called abortion rights to their state constitutions. The outcomes in California and Vermont were not surprising and, in any event, neither state was likely to regulate, much less prohibit, abortion. But the outcomes in Kansas, Kentucky, and, particularly, Michigan were very disappointing. The vote in Michigan effectively overturned 50 years of successful pro-life advocacy in the state, wiping out not only the pre-Roe law prohibiting abortion but a broad spectrum of post-Roe laws regulating abortion.
All of these results call for reflection by the pro-life movement. Reflection, not despondency, for all great social movements take time and often experience defeats on the way to ultimate victory. After all, it took almost 60 years for the Supreme Court, in Brown v. Board of Education (1954) to overrule Plessy v. Ferguson (1896) and ban segregation in public schools, and almost 50 years to persuade the Supreme Court, in Dobbs v. Jackson Women’s Health Organization (2022) to overrule Roe v. Wade (1973). Overruling Roe was the indispensable step — but only the first — toward restoring legal protection for unborn children. And, with respect to the issue of state ballot proposals, something else is called for in addition to reflection, and that is perspective.
What must be recognized at the outset is that it is not possible for advocates of legal abortion to “run the table,” so to speak, with citizen initiatives seeking to constitutionalize abortion “rights,” thereby bypassing conservative legislatures and nullifying pro-life legislation. More than two-thirds of the states allow their state constitutions to be amended only by a measure proposed by the state legislature, while less than one-third also allow amendments to be proposed by a citizen initiative.
Of the 25 states that have laws on the books prohibiting abortion through part or all of pregnancy, only nine allow citizen initiatives to be used to amend their state constitutions. And of those nine states, citizen initiatives to constitutionalize abortion rights have been proposed in six states — Arizona, Florida (which requires approval of 60 percent of the votes cast for an amendment), Missouri, Nebraska, Ohio, and South Dakota (to date, only the Missouri and Ohio measures have qualified for the ballot). No such initiative has (yet) been undertaken in Arkansas, North Dakota, or Oklahoma. There is, in sum, a very limited number of states in which a citizen initiative constitutionalizing a right to abortion could be pursued, and even fewer in which such a measure would likely be proposed, qualify for the ballot, and be approved by the voters.
Some political perspective is also in order. It must be acknowledged that on the same day Michigan voters approved a citizen initiative to constitutionalize abortion rights, they also (barely) turned over control of the state legislature to Democrats. But the outcome of ballot measures is not necessarily a reliable proxy for predicting elections to public office….
From the Federalist