Politics

The states where the midterms will directly decide the future of abortion access

Earlier this year, five people altered the landscape of reproductive rights in more than a dozen states across the country when the Supreme Court overturned Roe v. Wade. In November, millions of voters will weigh in, casting votes in dozens of races and ballot measures that will determine how restrictive their state can be.

Ballot initiatives in three states could determine abortion access for millions of women and what kind of reproductive health care is available to them. Abortion has also become a key issue in races for governor and state attorneys general, who have direct control over their states’ abortion laws and how they are enforced.

Democratic candidates for governor want to gain or retain veto power over Republican-controlled state legislatures that want to curb abortion rights. Elsewhere, Republicans want to use governorships to chart a path to further curb access to the procedure. And Democratic attorney general candidates have vowed not to enforce their states’ anti-abortion laws and protect access, while their Republican opponents want to see maximum enforcement.

Here, we take a look at the eight states where abortion rights are most imminently at risk. This includes both deep red states and states with split political control where Republican candidates have articulated a desire to further restrict abortion, in several cases without any exceptions.

Depending on the outcome of November’s elections, the outlook for abortion access in these states could be grim, limiting residents’ options and further stressing the resources of neighboring states where abortion remains legal.

States with ballot initiatives

Alaska

Anti-abortion activists in Alaska want to amend their state’s constitution in a way that would allow future restrictions on abortion. There currently aren’t any gestational limits on abortion, though patients are required to visit a provider’s clinic to obtain an abortion, including medication abortion. The path to changing that in the state is convoluted, but it starts with a ballot initiative before its voters this year.

Every 10 years, Alaska asks voters whether they want to hold a constitutional convention. Voters have declined to do so, with little fanfare, since 1955. But this time, the opportunity is getting unusual traction thanks to campaigning by anti-abortion advocates, who want the option to overturn the Alaska Supreme Court’s 1997 ruling that “reproductive choice” is protected under a privacy clause in the state constitution.

The anti-abortion side argues the 1997 ruling was wrong and the privacy clause of the constitution needs to be clarified, which can only happen if Alaskans vote “yes” to hold a constitutional convention. The potential change wouldn’t be “a pro-life or pro-choice amendment. It’s just saying, ‘Our Constitution has nothing to say about abortion,’” Jim Minnery, president of the anti-abortion group Alaska Family Council, said in an interview with Alaska Public Media.

But that kind of amendment removes the current barrier preventing Republicans in the state legislature from restricting access to abortion. If the constitution were to be altered, abortion access wouldn’t necessarily be restricted: Alaska voters would have the opportunity to vote to accept or reject a new constitution following a convention.

Kentucky

Kentucky is considering amending the state constitution to say, “To protect human life, nothing in this Constitution shall be construed to secure or protect a right to abortion or require the funding of abortion.” It’s modeled after an amendment that failed spectacularly earlier this year in Kansas, but it has a better chance of passing in Kentucky given that a majority of voters in the state say that abortion should be illegal in all or most cases.

Kentucky is one of 13 states that enacted a “trigger law” in anticipation of the end of Roe. Kentucky’s allows abortions only to save the life of the pregnant person or to prevent disabling injury, with no exceptions for cases of rape, incest, or disabling fetal anomalies. The law went into effect following the Supreme Court’s ruling, and for now, the state Supreme Court has refused to block it as part of an ongoing court case. If the amendment passes, the law’s chances of surviving that litigation will be much improved, given that it was challenged on grounds that it violated the state constitution.

Montana

Montana is set to consider the “Medical Care Requirements for Born-Alive Infants Measure.” It would declare that infants born alive at any stage of development are “legal persons” and would require that medical care be provided to them following induced labor, cesarean section, and attempted abortion. It would also set a $50,000 fine and a maximum 20-year prison sentence for violators.

Montana law, however, already protects living infants in the exceedingly rare cases where this happens, providing criminal penalties for “purposely, knowingly, or negligently” causing the death of a “premature infant born alive, if the infant is viable.” And abortion is significantly restricted in Montana and may only be performed after fetal viability ​in cases of life endangerment or severely compromised health.

The practical impact of the measure would be to criminalize doctors for failing to perform life-sustaining measures on infants who have conditions that they cannot survive, such as severe prematurity, serious infection, or a lack of developed organs. The Montana Medical Association has come out against the measure, arguing that it infringes on physicians’ medical judgment.

A majority of voters in the state say abortion should be legal in all or most cases, but since this isn’t a direct attack on the right to have an abortion, it’s not clear whether it will pass.

Where abortion is at stake up and down the ballot

Michigan

Democratic Gov. Gretchen Whitmer is up for reelection and has served as a veto against further abortion restrictions from the GOP-controlled legislature.

Earlier this year, she also challenged a 1931 pre-Roe abortion ban, which has no exceptions for rape or incest and has since been permanently blocked from going into effect by a Michigan state court. She’s nearly 12 points ahead in the polls over her anti-abortion Republican opponent Tudor Dixon as of September 30, according to FiveThirtyEight’s average, but the Cook Political Report rates the race among the most competitive governor’s races nationally.

Abortion has also been a key issue in the race for state attorney general. The GOP nominee for state attorney general, Matt DePerno, opposes abortion even in cases of rape, incest, or medical emergency. If elected to the position of the state’s top prosecutor, he said he would have enforced the pre-Roe abortion ban before it was overturned and that Plan B, a type of emergency contraception, should be banned if it’s taken “after conception has occurred.” (He later clarified that he has no problem with Plan B if it’s used to prevent pregnancy, but not if it’s used to end a pregnancy — something doctors say isn’t even possible.)

Should he be elected and Whitmer remain governor, conflict could erupt. For instance, DePerno could seek to challenge Whitmer’s executive orders protecting abortion access or limiting state agencies’ authority to enforce abortion restrictions in court.

Incumbent Democratic Attorney General Dana Nessel has said that, so long as she remains in office, she will not prosecute people who perform or obtain an abortion. But she has said that she would let county prosecutors enforce the law. “I don’t believe that I have or that I should have the authority to tell the 83 county prosecutors what they can and cannot charge,” she told MLive.

Michigan voters are also considering a ballot measure that would amend the state constitution to provide for a right to reproductive freedom. Dixon has said that she would respect the results of the vote on the measure, even though she personally opposes abortion with exceptions for when the life of the pregnant person is in danger, but not in cases of rape.

Arizona

Incumbent Republican Gov. Doug Ducey signed a ban on abortions after 15 weeks of pregnancy into law earlier this year. But Arizona also has a 121-year-old total abortion ban on the books, which only has an exception for when the life of the pregnant person is in jeopardy.

The current, term-limited GOP State Attorney General Mark Brnovich is pushing to enforce that ban, making it a key issue in the race to replace him. A state court allowed the ban to go into effect earlier this month, though an appeal of that ruling is likely.

The Republican attorney general nominee Abraham Hamadeh, a far-right former Maricopa County prosecutor, has promised to enforce Arizona’s existing anti-abortion laws, including Ducey’s 15-week ban and the pre-Roe ban. His Democratic opponent Kris Mayes, a former member of the Arizona Corporation Commission, has vowed not to enforce the state’s anti-abortion laws and that no patient or medical professional will be prosecuted for receiving or providing an abortion on her watch.

The race will decide whether current laws restricting abortion are enforced, while the governor’s race will decide whether those laws can be changed.

Abortion is also a key issue in the race to replace Ducey, who is similarly term-limited. Democratic nominee Katie Hobbs has vowed to repeal the pre-Roe ban if elected, though that would require the unlikely cooperation of the GOP-controlled state legislature, while Republican nominee Kari Lake has largely dodged questions about her position. She said in May that she would advance anti-abortion legislation without specifics, though her campaign has claimed that she supports exceptions from banning abortion for rape and incest. At the same time, however, she has said that she supports Arizona’s existing abortion laws, which do not provide any such exceptions.

Wisconsin

Democratic Gov. Tony Evers, who is up for reelection, has twice called a special legislative session to repeal the state’s 173-year-old abortion ban, which makes no exceptions for cases involving rape or incest but does allow the procedure when the pregnant person’s life is in danger. Under that ban, doctors who perform an abortion could face up to six years in prison and $10,000 in fines, though Evers has recently offered clemency to those doctors.

The GOP-controlled state legislature, which has repeatedly sent anti-abortion bills to Evers’s desk, rejected his first attempt to call a special session to amend the abortion ban following the leak of the draft Supreme Court decision overturning Roe, blocking any debate on the matter. They are scheduled to convene again on October 4 to consider doing so, though Wisconsin Republicans have already criticized Evers’s second call for a special session as a “political stunt.”

Evers’s Republican opponent Tim Michels initially said that he didn’t support any exceptions to the pre-Roe ban, saying it was an “exact mirror” of his position, though he has since changed his position, saying earlier this month that he would support exceptions for cases involving rape or incest.

Evers is currently leading Michels by under 3 points on average, according to FiveThirtyEight, and the race could go either way, continuing the current stalemate on abortion or introducing a new regime in which the procedure is almost entirely banned.

The state’s Democratic Attorney General Josh Kaul, who is also running for reelection, has said he will not enforce the ban, though he can’t stop local law enforcement officials from doing so. He’s also directly challenged the ban in court.

Where Democratic governors have stood in the way of further abortion restrictions — so far

Kansas

Kansas already voted down its own abortion ballot measure, which failed 59 percent to 41 percent, with turnout well exceeding expectations. But that doesn’t mean the fight over abortion rights in the state is done: Democratic Gov. Laura Kelly is up for reelection in a tight race. She has served as a veto on further abortion restrictions floated by the state’s Republican-controlled legislature, including one in 2019 that would have forced doctors to post a notice of the possibility of a medication abortion “reversal,” though she has said she would not try to repeal existing 22-week restrictions.

Her opponent, Kansas Attorney General Derek Schmidt, has said that he respects the results of the vote on the ballot measure, but that it “does not mean the discussion has ended.” He opposes abortion except to save a pregnant person’s life, in cases of rape and incest, and when a fetus has a medical condition that is incompatible with life after birth. He has also said he supports replacing some justices on the state Supreme Court, which found in 2019 that access to abortion is a “fundamental” right under the state constitution.

Voters will decide this fall whether to retain six of the seven existing justices on the state supreme court, where liberals currently hold a majority. If they vote to oust those justices, the governor would have the power to select their successors from a slate of candidates recommended by a panel.

Voters are also considering another constitutional amendment originally devised by Schmidt that would allow the state legislature to veto rules and regulations issued by Kelly’s administration, including those related to abortion, even if she’s reelected. That could limit Kelly’s power over the enforcement of abortion restrictions and to what degree she can protect access to the procedure.

Pennsylvania

Pennsylvania’s Democratic Gov. Tom Wolf, who is term-limited, has for years been a last line of defense against the GOP-controlled state legislature’s efforts to enact abortion bans. Most recently, the legislature advanced a constitutional amendment that states there is no right to an abortion or state funding for abortions. Democrats are hoping they can replace Wolf with their nominee Josh Shapiro, the current state attorney general. Otherwise, the future of abortion rights in the state looks grim.

State Sen. Doug Mastriano — the far-right Republican nominee who is trailing Shapiro by just over 10 points as of September 30, according to FiveThirtyEight’s polling averagesponsored a bill to ban abortion at about six weeks, has called the pro-abortion rights slogan “my body, my choice” “ridiculous nonsense,” and shared a cartoon that characterized the original Roe v. Wade decision as “so much” worse than the Holocaust. He also said during a primary debate that banning abortion, even in cases of rape or incest, was his “number one issue” and that he supports criminal penalties for doctors who provide abortions. He might find allies in the state legislature, which is unlikely to flip, according to Louis Jacobson of Sabato’s Crystal Ball.

All that means that anti-abortion legislation that was previously passed but that Wolf vetoed — including one measure that would ban abortions after fetal cardiac activity is detected and was co-sponsored by Mastriano himself — could become law if he wins.


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