When the U.S. Supreme Court in June 2022 struck down 50 years of abortion access by overturning Roe v. Wade in its Dobbs decision, guaranteeing those rights fell back to individual states. Access battles will continue for years in state legislatures, courts, and elections. In 2022, the activity included the use of “direct democracy” in six states, through which voters took action on citizen-initiated and legislatively referred constitutional amendments, statutes, and referenda.
In each of the six states, the majority of voters affirmed support for some level of individual freedom and privacy related to reproductive health care decisions. Despite those wins, Ford School professor Paula Lantz writes, “there are limitations and caveats to unpack regarding direct democracy initiatives as a policy strategy for reproductive rights.”
Even when the voters in states like California, Michigan, and Vermont enshrined the right of making personal health care decisions into their constitutions, implementing those laws can take years of political negotiation, legislation, and litigation. “The need to clarify legal fuzziness is quite common after the passage of a state constitutional amendment,” she writes in The Milbank Quarterly.
In the cases of Kentucky and Kansas, where citizens voted against legislatively-initiated amendments to their constitutions that would explicitly deny rights or protections related to reproductive decision-making, those states “are still vulnerable to restrictive abortion legislation, and neither state allows citizen-initiated constitutional amendments.”
Finally, “citizen-initiated amendments or statutes are somewhat limited, as only 24 states allow any type of citizen-initiated ballot initiative, and the processes and procedures in all states are extremely burdensome and expensive,” she notes.
Lantz explains that the stakes are high. “Restrictive abortion policies at the state level remain a clear and present danger to the health and social welfare of women and families in the United States. These policies pose serious risks to maternal and infant health by denying or delaying evidenced-based medical care and are predicted to increase maternal deaths, especially among African Americans.”
“The path to reproductive freedom, health protection, and social welfare equity will not be forged by direct democracy initiatives one state constitution at a time. Rather, federal protections that reinstate nationwide the rights codified by Roe v Wade and other SCOTUS decisions before the 2022 Dobbs ruling are essential to protect reproductive health care and decision-making for all Americans and to thwart the looming population health and social welfare crises,” she concludes.
Direct Democracy and Abortion Policy in the 2022 Midterm Elections: Wins and Caveats, The Milbank Quarterly, November 21, 2022