State Courts Determine Whether Abortion Rights Amendments Will Go Before Voters

With 10 states set to vote this fall on ballot measures that would protect abortion access, opponents of abortion rights have asked state courts to block proposals from going to the voters — with mixed results.

Some of these cases raise technical challenges to paperwork, signature collection, and more. Others argue that proposed amendments could confuse voters. The decisions could telegraph future struggles over reproductive rights and serve as guidance for direct democracy litigation across a range of issues. 

Most notably, opponents of abortion rights have invoked a variety of election laws to stop voters from considering abortion-related constitutional amendments at all, finding some success. In Arkansas, for example, the secretary of state refused to certify a ballot measure on abortion rights because its sponsors failed to submit a required document confirming that they had properly trained paid canvassers. The initiative’s proponents sued, pointing out that they had included the training confirmation document with earlier submissions but didn’t reattach the document when they filed the final initiative. They further argued that if they made a technical error, the court should give them a chance to cure it. By a vote of 4–3, the Arkansas Supreme Court rejected these arguments. 

The court’s ruling ensured that Arkansans will not have the opportunity weigh in on the ballot measure this fall, despite the proposed amendment having garnered more than 101,000 signatures in support of ballot inclusion, well above the 90,704 signatures required.

An attempt to throw out a New York ballot initiative on an election law technicality was less successful. A state lawmaker sued to stop voters from considering a proposed Equal Rights Amendment, which would expand state antidiscrimination law to encompass sexual orientation, gender identity, gender expression, pregnancy, and pregnancy outcomes and which proponents say would create strong protection for reproductive rights. The lawmaker argued that state law required the attorney general to render an opinion on how a proposal would change state law before the legislature voted on whether to greenlight it for the ballot. The New York attorney general had issued the required opinion, but five days after the legislature voted. For this reason, a trial judge in May declared the ERA “null and void” and ordered it struck from the ballot. An intermediate appellate court reversed because those challenging the ERA had not filed suit in time to meet a four-month statute of limitations. The state’s highest court affirmed that decision, allowing the initiative to stay on the ballot.

More uncertainty surrounds the fate of South Dakota’s abortion-rights ballot measure, Amendment G, which proponents say would codify Roe v. Wade by prohibiting restrictions in the first trimester of pregnancy, permitting restrictions in the second trimester that are “reasonably related” to maternal health, and permitting prohibitions in the third trimester with exceptions for patient life and health. An anti-abortion-rights group filed suit, raising several questions about how signatures supporting the ballot were gathered. A trial judge dismissed the suit, but the state supreme court reversed, allowing the suit to go forward. A trial on the fate of the proposal is set for late September, but the ballot measure will go before voters regardless of the outcome. The case may reach the South Dakota Supreme Court well after the election, and the court’s decision could negate votes cast for or against the ballot measure. 

Abortion foes have also attacked abortion-rights ballot initiatives as violating the single-subject requirement, a rule that mandates that each initiative only include provisions related enough to be reasonably grouped together under a single subject. It is meant to prevent voter confusion and discourage ballot sponsors from smuggling unpopular ideas into measures with broad support. 

In Florida, for example, the state attorney general requested an advisory opinion on the validity of a proposed ballot measure, arguing that it would confuse voters because it referred both to a broad right to abortion and the narrower issue of abortion access in cases of threats to health. The attorney general also complained that the amendment added a third subject: the definition of viability.

By a vote of 4–3, the Florida Supreme Court rejected these claims. The majority reasoned that it would not confuse voters for a ballot measure to address multiple dimensions of a single issue. The justices in the majority saw abortion rights, health exceptions to abortion bans, and viability limits on abortion rights as closely related topics.

In a separate concurrence, three of the justices openly criticized the ballot measure on anti-abortion grounds, insisting that it “would constitutionalize restrictions on the people’s authority to use law to protect an entire class of human beings from private harm.” Nevertheless, even these justices agreed that voters could understand Amendment 4 and its effects on the law.

Similar claims also fell short in Missouri and Nebraska. In Missouri, an anti-abortion-rights group challenged the validity of Amendment 3, a ballot measure that would protect abortion access until viability. The plaintiff contended that Amendment 3 violated state election law by failing to list all the statutes or constitutional amendments that would be repealed if voters approved it. The plaintiff further argued that Amendment 3 violated the single-subject rule because of the breadth of the term “reproductive healthcare,” a concept that it claimed would radically change state law on abortion and potentially legalize cloning and gender-affirming care. The Missouri Supreme Court last week rejected these claims, ensuring that Amendment 3 would remain on the ballot. (At the time of this writing, the court has yet to release an opinion detailing its reasoning).

A few days later, the Nebraska Supreme Court unanimously ruled that a proposed abortion-rights amendment could go before voters this fall. Two Nebraska voters opposed to abortion sued to block the initiative, arguing that it tackled a wide range of unrelated subjects, including the right to abortion until viability and for health reasons after viability, the definition of viability, and the availability of abortion care for minors. One of the plaintiffs also argued that the ballot measure was so vaguely written that it would mislead voters about what was at stake.

The high court disagreed. Rather than addressing more than one subject, the court reasoned, the various parts of the initiative defined “the limits and set the parameters” for a constitutional right to abortion. “The fact that the drafters of the initiative have made certain choices regarding the specific limits, parameters, and definitions does not mean that each such provision is a separate subject,” the court explained. The court noted that its decision aligned with the Florida Supreme Court’s earlier rejection of similar arguments regarding that state’s abortion-rights initiative.

The ruling means that Nebraskans will consider dueling measures this fall. A second measure that would constitutionalize Nebraska’s current restrictions on abortion — by permitting abortion only through week 12 of pregnancy, with exceptions for rape, incest, and the life of the mother later in pregnancy — will also be on the ballot.

State courts have also weighed in on whether official summaries of ballot measures will mislead the electorate. In Arizona, Arizonans for Reproductive Freedom challenged language in an informational pamphlet on a ballot proposal drafted by Republican lawmakers that refers to a fetus or embryo as an “unborn human being.” The plaintiffs argued that this language was both biased and emotionally charged. The justices of the Arizona Supreme Court disagreed, allowing the pamphlet to remain unchanged. 

The flurry of state court challenges to abortion-rights ballot measures is a potent reminder of how important state courts will remain regardless of what happens in November. State judges will not only interpret any new protections, they also have the power to keep voters from having a say on abortion rights in the first place.

Mary Ziegler is the Martin Luther King Jr. Professor of Law at the University of California Davis School of Law.

Suggested Citation: Mary Ziegler, State Courts Determine Whether Abortion Rights Amendments Will Go Before Voters, Sᴛᴀᴛᴇ Cᴏᴜʀᴛ Rᴇᴘᴏʀᴛ (Sept. 19, 2024), https://statecourtreport.org/our-work/analysis-opinion/state-courts-determine-whether-abortion-rights-amendments-will-go-voters.