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The states pushing abortion ballot measures in 2022 post-Roe

Abortion rights are literally on the ballot in both red and blue states this year following the US Supreme Court’s decision to overturn Roe v. Wade.

Voters in California and Vermont will consider ballot measures that would enshrine the right to abortion in their state constitutions. Meanwhile, Kansas and Kentucky are weighing their own measures to clarify that their state constitutions do not establish a right to an abortion, and Montana is considering whether to provide personhood protections to infants born alive after attempted abortions.

It’s the highest number of abortion-related ballot measures that have been considered in a single year to date. There have been 47 abortion-related ballot measures since 1970.

Here’s a rundown of what states are considering.

States voting to codify abortion rights

Vermont and California, both heavily Democratic states that have sought to become abortion safe havens, are voting this November on constitutional amendments to even further secure abortion access.

Vermont — which allows abortions at any stage of pregnancy and has already enacted a state law codifying abortion rights — has certified a ballot measure, Proposal 5, that recognizes that the “right to reproductive liberty is central to the exercise of personal autonomy and involves decisions people should be able to make free from compulsion of the State.” It says that codifying that right in the state constitution is “critical to ensuring equal protection and treatment under the law and upholding the right of all people to health, dignity, independence, and freedom.” It’s likely to pass, given that about 70 percent of voters in the state support legal abortion in all or most cases.

In California, where abortion is legal up to the point of fetal viability, the state legislature voted on June 27 with overwhelming support in both chambers to put a similar proposal, Senate Constitutional Amendment No. 10, on the ballot. It would “prohibit the state from denying or interfering with an individual’s reproductive freedom in their most intimate decisions, which includes their fundamental right to choose to have an abortion and their fundamental right to choose or refuse contraceptives.” It is designed to protect the state constitutional right to privacy and equal protection under the laws, it reads.

It’s also likely to pass, given that a poll last year by the Public Policy Institute of California found that roughly four out of five voters in the state oppose the overturning of Roe. Though Gov. Gavin Newsom’s approval isn’t needed for it to go into effect, he has vowed to “fight like hell” to protect abortion access.

States voting to curb abortion rights

Kansas will be the first state to consider a post-Roe ballot measure on abortion during its August 2 primaries. The measure, known as the “Value Them Both Amendment,” would “affirm there is no Kansas constitutional right to abortion or to require the government funding of abortion.” It would also codify the state legislature’s power to pass laws that regulate abortion, including in cases of rape or incest, or when necessary to save the life of the mother. It’s not clear why Kansas legislators are putting the measure on the primary ballot as opposed to the general election ballot in November. Turnout in primaries is typically lower than in general elections, though election officials are predicting double the turnout in the last primary election as a result of the abortion ballot measure.

Kentucky will consider a similar measure that would amend 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.”

Kentucky is one of 13 states that enacted a “trigger law” in anticipation of the end of Roe that allowed 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. That law briefly went into effect following the Supreme Court’s ruling but has been temporarily blocked by a state court for now, allowing abortions until 15 weeks of pregnancy to resume.

In a near-party-line vote last year, Montana legislators referred a measure known as the “Medical Care Requirements for Born-Alive Infants Measure” to go on the ballot in November. 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.

Of those measures, the one that is most likely to pass is Kentucky’s, given that a majority of voters in the state say that abortion should be illegal in all or most cases. It’s less clear whether the Kansas and Montana measures will pass. Kansas voters are evenly split on whether abortion should be legal or not, and a majority of Montana voters say it should be legal in all or most cases.

Other states could still certify additional abortion-related ballot measures

Other states have yet to certify abortion-related measures to go on the ballot this year, but some are still attempting to do so.

The New York Senate voted Friday in support of an “Equal Rights Amendment” to the state constitution. The state assembly is expected to also approve it, and then it would go to voters this November. It would affirm the right to an abortion and to access contraception in the state Constitution, as well as bar the government from discriminating against anyone based on race, ethnicity, national origin, disability, sex, sexual orientation, gender identity, gender expression, and pregnancy.

Abortion advocates in Arizona and Michigan are also racing to meet deadlines to gather enough signatures to put state constitutional amendments affirming abortion rights on the ballot this year. In Arizona, they need at least 356,467 signatures by July 7. And in Michigan, they need at least 425,059 signatures by July 11.

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