In the first few elections after the Supreme Court’s 2022 reversal of Roe v. Wade, the abortion rights movement created reason for hope among its supporters: It won a string of unexpected victories in ballot measures from conservative states like Kansas and Ohio to moderate ones like Michigan.
Then came Nov. 5.
On Election Day, the movement hit a ceiling. Voters said yes to measures to protect abortion access in seven states, including Arizona, Missouri and Nevada. But three other measures failed — including one in Florida, which had strong majority support but couldn’t clear the state’s unusual 60 percent threshold for passage.
And from the point of view of both supporters and opponents of abortion rights, the most important result of the night was the loss of Kamala Harris, who ran on defending abortion access, to Donald Trump, who said of Roe’s reversal, “I’m proud to have done it.” “Remember when the overturning of Roe was supposed to cause a landslide Democrat victory?” Kristan Hawkins, the president of Students for Life of America, shared on X. “Lol.”
The distinction voters made between abortion as a stand-alone issue and abortion as a factor in deciding who should lead the country was clear in states like Montana, Florida, Missouri and Nevada. Trump won these states even as abortion rights measures also commanded majorities.
In a sense, it’s not surprising that the democratic process would yield mixed and even contradictory results. Many of Harris’s supporters cared deeply about abortion rights. But for the electorate at large, the issue was one among many to consider in deciding whom to vote for, ranking below the economy, crime, immigration and other concerns. “It wasn’t a top issue for the country,” said Tresa Undem of the public opinion research firm PerryUndem. “It was a top issue for certain groups, like women of reproductive age.”
The election results demonstrate that since Dobbs v. Jackson Women’s Health Organization, the Supreme Court ruling in 2022 that overturned Roe, the abortion landscape has become a split screen. Confronting the issue of ending a pregnancy in all its complexity, voters have largely chosen to put the decision in the hands of women, not the government. Sometimes they’ve recognized abortion rights in their state constitutions as integral to gender equality and freedom. The next four years, however, could demonstrate the limits of the state-by-state democratic strategy.
A Gamble on Democracy
For almost 50 years, Roe gave abortion access the stability and scope of a constitutional foundation. The Supreme Court had almost never taken away a civil right once granted, so many Americans assumed the ruling was unassailable. But Roe always had an uneasy relationship with popular will. When the ruling went into effect in 1973, abortion was entirely legal in only four states; 13 more had fairly broad exceptions to bans, and others had such provisions in the works. Dobbs demonstrated the peril of relying on nine justices, rather than passing laws backed by voters, to guarantee what many people considered a basic liberty but others saw as a sin and a crime.
Soon, near-total bans went into effect in 15 states, and clinics shut down. As patients scrambled to find care somewhere, access seemed not only diminished across hundreds of miles but even doomed.
The ballot measures came next. Ballot initiatives, sponsored by citizens, began more than a century ago as a small “d” democracy reform of the Progressive Era. Today, 26 states allow some form of citizen-sponsored measures. They are a means of making government more responsive when elected officials fail to reflect the will of the people. In states where a majority of voters support access to abortion, but have elected Republican officials and lawmakers who do not, a ballot measure can eliminate a ban or severe restriction. In states under Democratic control, the initiatives can enshrine a right in the state constitution, a more durable protection than a regular statute.
For abortion-access activists, going straight to voters with citizen-sponsored initiatives — direct democracy — was a deliberate strategy but also a gamble. State measures require armies of canvassers to collect signatures to get onto the ballot, followed by piles of cash for ads. When a senior attorney at Planned Parenthood told me, shortly after the Dobbs decision, that her organization saw state initiatives as their best bet for helping patients maintain access, I was skeptical.
But the politics of abortion were shifting significantly for the first time in decades. The share of people who thought their state should broadly allow abortion rose to 61 percent from 49 percent before Dobbs, according to nationwide polls by AP-NORC.
Rooting abortion in the democratic process has given the issue renewed force. Another important civil right, same-sex marriage, followed this path, originating in state court decisions, laws and ballot measures before the Supreme Court guaranteed it as a national right in 2015.
Ruth Bader Ginsburg, the feminist Supreme Court justice who died in 2020, criticized Roe for forestalling a state-by-state legal shift. In a 2013 interview, she regretted that Roe “seemed to have stopped the momentum on the side of change.” It was a position she’d long held. In 1985, she wrote a law review article lamenting that before the ruling, “majoritarian institutions were listening and acting.”
States that had near-total abortion bans (dark) or six- to 18-week limits (light) before the Nov. 5 election.
States that have passed ballot measures to guarantee access to abortion (green). States that have rejected ballot measures to guarantee access to abortion (red). States that have rejected ballot measures to further restrict access to abortion (yellow).
The Post-Dobbs Reality
Though no one would wish for it, stories of tragedy have become an important means of persuading Americans to vote to protect abortion. A TV ad for Amendment 4 in Florida, which would have lifted the state’s six-week ban, featured a woman who was diagnosed with terminal cancer. Before Dobbs, she had an abortion at about 20 weeks so she could have chemotherapy. “Florida has now banned abortion even in cases like mine,” she said.
The Harris campaign ran an ad about Amber Thurman, a 28-year-old in Georgia who died after waiting 20 hours for treatment after a medication abortion because doctors feared violating the state’s six-week ban. “My daughter is gone because of what Donald Trump did,” Thurman’s mother says in the ad, which cuts to him taking credit for reversing Roe. “We will never get Amber back. But we can make sure this never happens again.”
The messaging was aimed at voters who have nuanced views on abortion that often aren’t captured by polls. Angela Kuefler, a partner at Global Strategy Group, which runs message testing for abortion rights campaigns, told me about a voter in a focus group who listened to women’s stories and moved from opposing abortion entirely to allowing that there could be valid reasons for it, like health problems or rape, and then landed on the view that the government shouldn’t interfere with people’s personal decision-making.
Seventy-three percent of independent voters who heard stories of near death from untreated pregnancy complications because of abortion bans “said abortion would impact their vote in the 2024 elections,” compared with 21 percent of those who hadn’t heard such stories, according to a report by PerryUndem in June. (These were independents who said that abortion should be legal in some cases.) But the stories broke through unevenly: Only 16 percent of Republican voters heard them, PerryUndem found.
Nationally, voters’ sense of urgency about restoring rights may have been dampened by a surprising post-Dobbs development: The number of abortions actually rose slightly between 2020 and the end of 2023, even in most states that have banned abortion, according to the most comprehensive account since Dobbs, which The New York Times covered last month. Women have replaced visits to in-state clinics with travel or abortion pills they order online. The pills have become more readily available since doctors in states like New York and California began writing mail-order prescriptions across state lines, protected by what are known as shield laws, which promise that a provider’s home state won’t cooperate if she is investigated by a state with a ban.
The campaigns for pro-access ballot measures have also contended with hardball tactics from Republican officials, who used their control of state offices to fight alongside abortion opponents. In Arkansas, election officials blocked an abortion measure from going to voters by rejecting signatures, saying that the campaign hadn’t submitted proper documentation (the State Supreme Court, dominated by conservatives, agreed). In Missouri, when the state auditor estimated that changing the State Constitution to protect abortion would cost the state $51,000 a year, Attorney General Andrew Bailey withheld his approval, saying that the cost could exceed $12 billion annually (the State Supreme Court rejected Bailey’s position ).
In Florida, where supporters of Amendment 4 raised more than $100 million, far more than opponents, Gov. Ron DeSantis joined the fight. DeSantis, a Republican, allocated millions in taxpayer funds to the Florida Agency for Health Care Administration to run ads claiming that Amendment 4 would harm women and children. At the same time, the Florida Health Department, which is run by a DeSantis-appointed surgeon general, sent letters to TV stations threatening criminal charges for running the ad featuring the woman with terminal cancer (claiming it would confuse patients and thus amounted to an “unsanitary nuisance”).
It’s hard to call such tactics successful given that Amendment 4 won 57 percent of the vote, but it’s possible they peeled off enough voters to make the initiative fall short of the required 60 percent supermajority.
‘Abortion Is a Historical Constant’
Trump’s election, alongside Republican control of the House and the Senate, could be even more consequential for abortion access than Dobbs has been so far. During the campaign, Trump backed away from his previous support for a national 15-week ban, which helps explain why many voters who want abortion to be “mostly legal” said they supported him, according to pre-election polls. Some abortion opponents credit him with neutralizing the issue politically, admitting that a national limit is unlikely to pass — and pointing out there are plenty of other actions he can take as president.
Trump’s avowal that “the states now have it, and people can make their own decisions within the states” doesn’t address how much this hinges on the choices of a presidential administration — especially for the availability of abortion pills.
To begin with, Trump has promised to appoint judges who are as conservative as those he elevated in his first term. And his control of federal agencies could directly reduce access to abortion pills. He can nominate a commissioner of the Food and Drug Administration who orders a reversal of the agency’s approval for mailing the abortion medication mifepristone. The White House could also allow enforcement of the Comstock Act, an 1873 law that makes it a federal crime to send or receive anything that causes an abortion, provisions that have been dormant for nearly a century. Trump’s Justice Department could reverse the longstanding practice of federal authorities and open the door to prosecuting people who mail and receive abortion pills.
These would be radical changes. Access to abortion pills is very popular, according to polls. But Trump is unpredictable, and given the election results, abortion opponents may feel emboldened about trying to persuade him.
For a time, the power Trump and his anti-abortion allies wield in Washington will overshadow everything else. But activists say they will continue to work at a local level, even though incremental strategies for change are inherently slow and often piecemeal. “Not every state is poised to win in one cycle,” said Sarah Standiford, the national campaigns director for Planned Parenthood Action Fund, which helped raise the money for Amendment 4. “We have to look at every angle, but with the losses of some candidates this week who supported reproductive health, we know that ballot measures will continue to be extremely important to protect and restore abortion in the states.” In 10 states where abortion is banned or severely restricted, citizen-sponsored ballot initiatives aren’t available, so advocates will have to consider other routes, like chipping away at bans with lawsuits and proposing legislation.
Harris’s supporters credit her with revitalizing abortion access as a political issue. “She made it front and center in a way no Democratic presidential candidate had before,” said Michelle Colón, the executive director of the reproductive justice group SHERo in Mississippi. Abortion rights have especially high support among young people, suggesting that eventually, democracy could return to women what Dobbs took away.
Carole Joffe, a sociologist who has studied reproductive health for over 40 years, is finishing a forthcoming book, “After Dobbs: How the Supreme Court Ended Roe but Not Abortion,” with her co-author, David S. Cohen. “We’re writing the epilogue now,” Joffe said. “We will point out that abortion is a historical constant. Dobbs has caused death and injury and misery, and in light of the election we could see more of that. But the political pendulum in the U.S. will swing back.”
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