Editor's note: Mary Ziegler (@maryrziegler) is the Martin Luther King Jr. Professor of Law at the University of California, Davis. She is the author of Dollars for Life: The Antiabortion Movement and the Fall of the Republican Elements and Roe: The History of a National Obsession. Her views expressed in this comment are her own. Read more opinions on CNN.
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In the wake of the 2024 election, there has been an avalanche of talk about where abortion is on the ballot. Typically, these articles focus on states where reproductive rights proposals are likely to be on the November ballot (such ballot initiatives already exist in two states, Florida and Maryland). is moving forward, and additional measures could be on the ballot in 10 other states by the fall).
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Mary Zeigler
Voting efforts are certainly important. In states with tighter legislatures and limited partisan competition, such measures would allow voters to directly set abortion policy.
But conventional wisdom underestimates the extent to which abortion is on the ballot in all states, even in the absence of ballot initiatives that ask voters directly.
In some states that already have, or may soon have, state constitutional protections, the 2024 elections will require state legislatures and many Supreme Court justices facing some type of election to rely on state court rulings. It will be decided whether or not to interpret it in accordance with the will of the voters. And there's also the simple reality that a potential federal backdoor ban could override any state protections that voters put in place.
These tensions are exacerbated by two abortion cases pending before the U.S. Supreme Court. One challenge to nationwide access to mifepristone, a drug used in more than half of abortions, appears likely to be dismissed because the plaintiffs lack standing to sue. . While it is difficult to predict the outcome of the second lawsuit regarding access to abortion in medical emergencies, it is likely that states will provide access to abortion for more pregnant patients facing medical emergencies. It is very likely that it will be possible to limit.
Ultimately, 2024 will be seen by both Democrats and Republicans as key proof of how important the abortion issue is. If voters allow former President Donald Trump to return to the White House and give Republicans a majority in the House, Senate, or both, experts believe that, rightly or wrongly, However, many people would interpret this as a sign that voters don't really care about reproductive rights. All of this means that abortion is on the ballot in far more numbers and to a greater degree than in recent decades.
Let's start with the complexities of state elections. If the reproductive rights ballot initiative passes, there will be unanswered questions about how the measure will be implemented and interpreted. In Florida, for example, voters approved the Fourth Amendment, which restores voting rights to ex-felons after serving time in prison. However, in implementing the Fourth Amendment, the Florida Legislature enacted a law that requires ex-prisoners to pay off certain legal and financial obligations before their rights can be restored. This hurdle prevented many Floridians from voting.
If states pass reproductive rights ballot initiatives, hostile legislatures could similarly pass bills that test the limits of new constitutional protections, such as imposing restrictions that they say will help women. . That means even if the ballot initiative passes, the state's legislative majority and the governor will have a lot of say over the state's abortion policy.
The same goes for elections for state Supreme Court justices. State courts are tasked with interpreting the terms of seemingly free ballot initiatives and deciding whether to allow certain restrictions. Most state supreme courts require judges to undergo some type of election.
Key partisan battles in states such as Ohio, Wisconsin and Michigan will determine the balance of power in state supreme courts. Retention elections, which tend to favor incumbents, can also lead to surprises, especially if state courts issue unpopular and high-profile decisions. State courts will decide whether to interpret the ballot initiative to allow more regulations, or whether the state constitution protects individuals and fetuses and embryos, thus potentially banning abortion and in vitro fertilization. It turns out.
If state legislatures and judges are able to water down voting efforts, the Republican president could pave the way for a federal ban that preempts states' constitutional protections. Conservative activists who were active in the first Trump administration (and those close to the former president) have argued that the Trump administration's Justice Department interpreted the Comstock Act, an obscenity law of 1873, as a de facto ban on all abortions. and promised to prosecute drugs. It applies to businesses nationwide, even in states where reproductive rights are protected.
If Trump were elected president, accepted this argument, and convinced the Supreme Court to agree with his interpretation, the Comstock Act as a federal law could override voter-established state protections. . President Trump has been repeatedly asked about the Comstock Act, but he has so far refused to answer the question. This is a clear omission given his public position that abortion issues should be decided by each state, not the federal government.
And, importantly, the 2024 election will be taken as an indicator of whether voters actually care about issues related to reproductive rights. For years, the conventional wisdom has been that most voters oppose criminalizing abortion, especially abortions in the first trimester, but that reproductive health issues are a top priority for a relatively small minority of voters. It was thought that only. As a result, Republicans felt comfortable aligning themselves with the anti-abortion movement, even if the laws the movement supported were unpopular. While most voters may be against it, few seem to have prioritized the issue.
After Dobbs' decision, that assumption no longer appears to hold true. The Democratic Party's position on abortion appears to have thwarted a widely expected midterm red wave in 2022. Voters who support reproductive rights have begun to rank the issue as one of the most important to their decisions. That's why President Joe Biden and others have made reproductive rights a central part of their campaign.
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If Trump wins, experts, and the Republican Party, will conclude that voters don't really care about reproductive issues after all. Republicans, caught between the demands of their anti-abortion base and a majority dissatisfied with the status quo, will be tempted to read Trump's victory as a breakthrough. Many Republicans would like to give the anti-abortion movement more of what it wants without consequences. That means a Trump victory could spur more aggressive action on abortion by Republicans across the country.
So it's completely correct to think that abortion is on the ballot. But if anything, the stakes are much higher than the fight over the ballot measure suggests.
