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Abortion Ballot Measures Multiply in States Ahead of Ruling (1)

May 11, 2022, 9:06 AMUpdated: May 11, 2022, 4:03 PM

Efforts to cement abortion laws in state constitutions got a jolt from the leaked U.S. Supreme Court draft decision, raising the possibility that more voters could get a say this year on whether to protect or reject the right to end pregnancies.

Before the leak, Kansas, Kentucky, Montana, and Vermont already had placed abortion measures on statewide ballots.

Of those, only Vermont’s referendum proposes a constitutional right to abortion.

Montana’s ballot initiative would change state law to mandate medical care for children “born alive after an abortion”.

The Kansas and Kentucky initiatives, along with possible ballot questions circulating in Colorado, Oklahoma, and Missouri, would prevent courts from determining abortion rights exist in their respective state constitutions.

In Michigan, the end of the Roe v. Wade standard could revive a 1931 state law criminalizing abortion. Activists there are trying to meet a July 11 deadline to collect 425,000 valid signatures to place a proposed constitutional amendment recognizing abortion rights on the November ballot.

“We have been screaming from the rooftops that abortion access was in danger for a few years now; for some people, with the recent Supreme Court leak, it’s becoming clear how imminent it is,” said Ashlea Phenicie, spokeswoman for Planned Parenthood Advocates of Michigan.

Phenicie said the group added 10,000 volunteer signature gatherers within 72 hours of the news of Justice Samuel Alito’s draft of a decision that would overturn the landmark 1973 abortion ruling.

(Subscribe to Ballots & Boundaries, your check-in on ballot issues, redistricting, and state voting laws.)

The leaked draft also motivated lawmakers in Oklahoma and Missouri to pass resolutions that would ask voters to decide whether to bar state courts from recognizing a right to abortion in those states’ constitutions.

Oklahoma state Sen. Greg Treat (R) said he’s focused on getting Oklahoma to “the best position possible in a post-Roe world” with his resolution (S.J.R. 37) that would ensure nothing in the state constitution secures or protects abortion rights.

The Senate-passed measure would have to be approved by the state House to make the November ballot.

With reports of the draft opinion, Treat said in an email, “it is even more imperative that we pass SJR37 to ensure that the Oklahoma Supreme Court does not create a phantom right to an abortion like the US Supreme Court did in 1973. Courts in Iowa, Tennessee and Kansas have read into their state constitutions a ‘right to an abortion.’ We must act swiftly to protect life.”

Oklahoma Governor Signs Texas-style Abortion Ban Into Law

A separate Senate-adopted resolution (S.J.R. 17) seeks voter approval of a constitutional amendment recognizing rights for unborn children in Oklahoma. The Oklahoma Legislature ends its session on May 27.

Kansas Goes First

This year’s first ballot test — and a laboratory for advertisements and political arguments that will play out later in other states — is in Kansas.

Voters in the Aug. 2 primary election will be asked to reverse a 2019 state Supreme Court decision that recognized the fundamental right to an abortion as part of a guarantee of “life, liberty and the pursuit of happiness.”

That court found that the drafters of the state constitution intended to protect the right to decisions on pregnancy.

See also: Wichita Clinic Prepares for Out-of-State Clients (Kansas City Public Radio)

In the near term, states that don’t amend their constitutions to explicitly bar abortion rights can expect more litigation, said Paul Benjamin Linton, a veteran constitutional rights litigator and former general counsel for the Americans United For Life, an organization that opposes abortion rights.

“Although the pro-choice side has already picked off the low-hanging fruit in state constitutional challenges there will still be more activity,” Linton said. “I’ll be as busy as I want to be.”

(Adds Oklahoma deadline in the 13th paragraph.)

To contact the reporter on this story: Alex Ebert in Madison, Wisconsin at aebert@bloomberglaw.com

To contact the editors responsible for this story: Tina May at tmay@bloomberglaw.com; Katherine Rizzo at krizzo@bgov.com