The Activists Going State by State to Make Abortion Rights Constitutional Law

With Roe v. Wade in the balance, reproductive rights activists in Vermont and Michigan are campaigning to pass state ballot measures to protect abortion rights. As one activist put it, “Legislatures are not representing the people.”
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Abortion rights activists gath​er for a rally outside the Sup​reme Court in Washington on May 21, 2019. Similar r​allies were planned for severa​l cities across the country.By Hilary Swift/The New York Time​s/Redux.

Lucy Leriche was seated in a Chicago conference room, attending a national policy conference for Planned Parenthood in June 2018, when news of former Supreme Court justice Anthony Kennedy’s retirement broke. The announcement sent a chilling effect through the room. With Donald Trump in the Oval Office, an inevitability came into focus: “At that moment, we all knew, I knew, that the end of Roe v. Wade was near,” Leriche, a former Vermont state representative who is now the vice president of Vermont public affairs for the Northern New England chapter of Planned Parenthood and the Planned Parenthood Vermont Action Fund, recalled in an interview. As this reality sunk in, she vowed to do everything she could to protect women’s reproductive rights in her home state of Vermont.

This November, after surviving Vermont’s onerous constitutional amendment process, a measure to affirm sexual and reproductive freedoms in Vermont’s constitution will be on the ballot. The proposed amendment is one sentence long and reads, “That an individual’s right to personal reproductive autonomy is central to the liberty and dignity to determine one’s own life course and shall not be denied or infringed unless justified by a compelling State interest achieved by the least restrictive means.” Vermont already has a law guaranteeing the right to abortions on the books, the Freedom of Choice Act, which was passed by Democratic majorities in the state House and Senate and signed into law by a Republican governor in June 2019.

As the country braces for the conservative-leaning Supreme Court to overturn Roe v. Wade after the leak of a draft opinion penned by Justice Samuel Alito, and conservative state legislatures rush to pass more and more extreme restrictions on reproductive rights, the ballot measure in Vermont—and a similar effort in Michigan, where there’s a Democratic governor but Republicans control the state legislature —could serve as a model for other states. “Ballot measures can play a role in protecting reproductive rights around the country, because in too many places in this country, our elected officials don’t actually reflect the people they’re sent there to represent through gerrymandering voter suppression,” Falko Schilling, the advocacy director of the ACLU Vermont chapter, said. “These are rights that people support around the country and want to protect, but too often politics and the political makeup of these legislative bodies don’t actually reflect the will of the people. So it’s a tool that could be used in places beyond Vermont.”

If the Supreme Court does nullify or weaken the landmark abortion ruling, as many as 28 states could restrict abortion rights. And yet, the majority of Americans—61%, according to recent polling—say abortion should be legal in most or all cases. Reproductive rights advocates argue that these statistics indicate that state legislatures are out of step with the public when it comes to abortion. “This is a case where legislatures are not representing the people,” Leriche said. “The majority think that this right should stand, and we don’t have to let the politicians stand in our way…. We can take our power back.” The expected overturning of Roe v. Wade is the denouement of a decades-long, orchestrated effort by conservatives and the right. For years, anti-choice activists like Janet Porter, with her nonprofit (and noted hate group, per the Southern Poverty Law Center) Faith2Action, have lobbied state legislatures to introduce draconian anti-abortion legislation seemingly in the hopes that it would eventually result in the Supreme Court revisiting federal abortion rights. With the appointments of Amy Coney Barrett, Neil Gorsuch, and Brett Kavanaugh to the Supreme Court, conservatives are now reaping the rewards of their efforts.

“I think what we’re seeing right now is the Supreme Court is not reflecting the will of the majority of Americans. It is anti-majoritarian and it’s imposing its will on the entire country,” Schilling said. “If this decision is being kicked back to the states, we need to use every tool we can to stand up as a majority of Americans and say, ‘We are in favor of protecting reproductive rights.’”

One group behind the fight to build a state-by-state legal framework in support of reproductive rights is the Fairness Project, which has been working with pro-choice activists and local organizations to get measures on the ballots this fall. Kelly Hall, the executive director, explained that the organization works “almost exclusively in red and purple states” with “ideologically extreme legislatures” to introduce ballot measures with broad public support—such as Medicaid expansion and increasing the minimum wage, among others. “Our theory of change around ballot measures helps people break through those broken politics and still make change on issues that are broadly popular,” Hall said. “We’re trying to marry where there are deep policy opportunities with where we think there’s an appetite from coalition partners on the ground to prioritize those issues.”

One of those states is Michigan, where there is a petition to get a measure on the ballot in November that would add a section to the Michigan constitution. The proposed text reads, in part, “Every individual has a fundamental right to reproductive freedom, which entails the right to make and effectuate decisions about all matters relating to pregnancy, including but not limited to prenatal care, childbirth, postpartum care, contraception, sterilization, abortion care, miscarriage management, and infertility care…. An individual’s right to reproductive freedom shall not be denied, burdened, nor infringed upon unless justified by a compelling state interest achieved by the least restrictive means.” Major reproductive rights groups, like Planned Parenthood’s advocacy arm and the American Civil Liberties Union have poured money into the state, with $1.9 million spent in support of the initiative. More than $108,000 has also been spent in opposition to the proposal appearing on the ballot this fall.

Whether abortion will be on the ballot in Michigan in November will be determined within weeks; the campaign needs 425,059 valid signatures by July 11. Loren Khogali, the executive director of ACLU Michigan, said that there was a massive spike in volunteers following the leak of the Supreme Court draft opinion and more than 1,500 volunteers are in the field collecting signatures. “What we do know is that when Dobbs comes down on abortion, the right to reproductive freedom is going to become a state-by-state fight. And we also know it’s not going to stop with abortion,” Khogali said, adding that she hopes the ballot measure in Michigan, if successful, could also serve as a blueprint for other purple states across the country. “The really important value of the ballot initiative is that it puts the question of reproductive rights to the people of Michigan and allows the most enduring protection.”

Still, there will be major obstacles ahead, even if states pass these measures. Look no further than the efforts to expand Medicaid via ballot initiatives in Idaho, Maine, Missouri, Nebraska, Oklahoma, and Utah. Those measures passed, but in some of these states foot-dragging governors and state legislators have stalled or watered down true implementation despite the measures’ passages. In Missouri, the Republican-controlled legislature excluded Medicaid expansion from its budget, despite the ballot measure, only to be stopped by the state’s supreme court. Even now, Republicans are pushing to limit access to the program.

The process isn’t as simple as any well-meaning citizen drafting up a ballot measure on their own, Hall stressed. The Fairness Project works closely with policy experts and local organizations in tailoring ballot measures to the political dynamics of individual states and in drafting the ballot measures themselves so as to not only make sure that the measures have the intended consequences, but to also protect against future attacks. “It really requires a lot of work from lawyers, from policy nerds, from the collective wisdom to say, ‘All right, if we’re taking this to the ballot, it means there are a lot of people against it. It means the legislature might want to tamper with it after the fact. It may get challenged in court. This thing needs to be as airtight as possible.’”