Ballot Initiatives that Protect Abortion Rights Depend on Fair State Courts 

Voter initiatives have been an inspiring success story for reproductive freedom, written by the people themselves to reject minority-rule attempts to limit rights. But it would be a mistake for advocates to think that direct democracy alone can restore abortion rights. A strategy that empowers voters must also protect the independence of state courts that will safeguard the democratic process as well as reproductive autonomy.

In the two years since the Supreme Court revoked the federal constitutional right to abortion in Dobbs v. Jackson Women’s Health Organization, public support for abortion has propelled state constitutional ballot wins for reproductive autonomy in every state where voters had a direct say. Predictably, anti-abortion state legislatures and officials have doubled down on efforts to interfere with state constitutional amendment processes. This dynamic is generating new lawsuits asking state courts to decide questions about both democratic representation and abortion rights, often in the very same cases.

Nearly every state gives voters a say in amending their state constitutions: in 17 states, voters can put amendments directly on the ballot through a citizen initiative process, and in every state but Delaware, voters must approve amendments proposed by state legislatures. In a remarkable streak reaching across red and blue states, abortion protections have won in all six abortion-related ballot questions that were put to a statewide vote since Dobbs (abortion rights amendments won in California, Michigan, Ohio, Vermont, and amendments to restrict abortion rights lost in Kansas and Kentucky). This year, as many as 11 other states may vote on similar amendments, including in Arizona, Florida, Missouri, and other states where abortion is currently severely restricted or banned.

In a remarkable power shift away from federal courts, state courts will ultimately decide whether voters can have their say. State courts are already evaluating the language of pro-reproductive rights ballot questions and their official summaries to determine if they can move forward. Courts in Nevada, Montana, and Florida have determined that ballot measures seeking to protect reproductive rights should advance toward fall elections, rejecting assertions by anti-abortion groups and state officials that the measures are too sweeping or too confusing for voters. In Missouri, where abortion is currently banned, all levels of the state courts have weighed in and ultimately rejected officials’ repeated attempts to block and mischaracterize a pro-reproductive rights amendment, and supporters have gathered signatures vastly exceeding the number required for the measure to be included on the ballot. To date, reproductive rights amendments are confirmed to appear on the November ballot in Arizona, Colorado, Florida, and Maryland. With more measures advancing in a dozen other states, state courts are certain to hear many challenges in the coming months that will determine whether and how voters can have their say.

The role of state courts extends well beyond this gatekeeper function when it comes to constitutional amendments. After voters approve initiatives, state courts will be called on to interpret and apply the rights that become part of state constitutions. In Michigan and Ohio, where voters amended their constitutions to protect reproductive rights in 2022 and 2023, pending challenges to abortion restrictions including mandatory waiting periods and biased counseling requirements will likely require state courts to rule on the scope of the amendments’ protections.

The process of building robust constitutional case law also requires sustained development of reproductive autonomy principles in and beyond the recent amendments. The Pennsylvania Supreme Court this year analyzed the state Equal Rights Amendment that voters approved in 1971 to hold that laws classifying based on pregnancy, abortion, or other physical sex-based distinctions are presumptively unconstitutional, overturning a decision that held the opposite in 1985. Judicial interpretation and analysis over time will either give ballot initiatives teeth or limit their power and impact.

But opponents of abortion rights and straight-to-the-voter democracy are trying to make it harder for voters to participate in constitutional change by quietly attacking the process. Consider Ohio, where in a special August 2023 election, the state legislature referred an amendment to voters that would have increased the votes needed to pass a constitutional amendment from a simple majority to 60 percent. The measure, which was timed to take effect prior to a reproductive rights initiative slated for the November general ballot, failed, and the abortion rights measure went on to pass by 57 percent. State courts play a role in resolving lawsuits arising from this type of procedural change, too. For example, in response to an advocacy group’s claim that the Ohio measure could not be legally placed on the ballot in August, the Ohio Supreme Court split 4–3 along partisan lines to decide that it could.

All of this comes at a moment when anti-abortion advocacy groups have set their sights on reshaping the courts themselves. Judicial elections this fall could flip control of the supreme courts in Kentucky, Michigan, Montana, and Ohio. Spending on judicial elections has increased astronomically, in direct response to state court abortion rights ligation. Legislatures hostile to abortion have also mounted attacks on judicial selection and removal processes in states where courts have found and reinforced constitutional protections, like in Kansas.

We need state courts that will enforce new amendments against ongoing assaults on reproductive freedom and use those amendments to build constitutional case law that protects abortion, pregnancy, procreation, and more. Voters across the country will have the chance to speak on abortion rights — and also on who sits on their state courts. While history tells us courts may not be solely in charge of our rights, we the people can’t win without them.

Amy Myrick is a senior attorney for Judicial Strategy at the Center for Reproductive Rights. 

Alex Wilson is a staff attorney for Judicial Strategy at the Center for Reproductive Rights.