At a closed-door meeting last week, Sen. Mitch McConnell and other Republican senators were briefed on a new study encouraging them to move away from “pro-life” language as potentially alienating voters in the wake of Dobbs. This report was a direct response to a string of defeats the pro-life movement has experienced at the ballot box over the past year, mainly on proposals to amend state constitutions.
Proposals to neutralize the state constitution as a source of abortion rights were rejected by voters in Kansas and Kentucky, while, in California, Michigan, and Vermont, voters approved proposals to add so-called abortion rights to their state constitutions. The outcomes in California and Vermont were not surprising and, in any event, neither state was likely to regulate, much less prohibit, abortion. But the outcomes in Kansas, Kentucky, and, particularly, Michigan were very disappointing. The vote in Michigan effectively overturned 50 years of successful pro-life advocacy in the state, wiping out not only the pre-Roe law prohibiting abortion but a broad spectrum of post-Roe laws regulating abortion.
All of these results call for reflection by the pro-life movement. Reflection, not despondency, for all great social movements take time and often experience defeats on the way to ultimate victory. After all, it took almost 60 years for the Supreme Court, in Brown v. Board of Education (1954) to overrule Plessy v. Ferguson (1896) and ban segregation in public schools, and almost 50 years to persuade the Supreme Court, in Dobbs v. Jackson Women’s Health Organization (2022) to overrule Roe v. Wade (1973). Overruling Roe was the indispensable step — but only the first — toward restoring legal protection for unborn children. And, with respect to the issue of state ballot proposals, something else is called for in addition to reflection, and that is perspective.
What must be recognized at the outset is that it is not possible for advocates of legal abortion to “run the table,” so to speak, with citizen initiatives seeking to constitutionalize abortion “rights,” thereby bypassing conservative legislatures and nullifying pro-life legislation. More than two-thirds of the states allow their state constitutions to be amended only by a measure proposed by the state legislature, while less than one-third also allow amendments to be proposed by a citizen initiative.
Of the 25 states that have laws on the books prohibiting abortion through part or all of pregnancy, only nine allow citizen initiatives to be used to amend their state constitutions. And of those nine states, citizen initiatives to constitutionalize abortion rights have been proposed in six states — Arizona, Florida (which requires approval of 60 percent of the votes cast for an amendment), Missouri, Nebraska, Ohio, and South Dakota (to date, only the Missouri and Ohio measures have qualified for the ballot). No such initiative has (yet) been undertaken in Arkansas, North Dakota, or Oklahoma. There is, in sum, a very limited number of states in which a citizen initiative constitutionalizing a right to abortion could be pursued, and even fewer in which such a measure would likely be proposed, qualify for the ballot, and be approved by the voters.
Some political perspective is also in order. It must be acknowledged that on the same day Michigan voters approved a citizen initiative to constitutionalize abortion rights, they also (barely) turned over control of the state legislature to Democrats. But the outcome of ballot measures is not necessarily a reliable proxy for predicting elections to public office.
For example, in Montana, on the same day voters rejected a legislatively-sponsored, pro-life ballot measure (a statute, not a state constitutional amendment), they also decided to retain the Republicans in control of their legislature. Apart from Michigan, Republicans lost control of only two other legislative chambers — the Minnesota Senate and the Pennsylvania House — in contests that had no apparent relationship to any proposed or pending abortion legislation.
Republicans kept control of every other legislative chamber they had controlled before the election (57 of 88 chambers for which elections were held in 2022), including those legislatures that, prior to the election, had enacted laws prohibiting abortion. All 12 incumbent, pro-life, Republican governors (including several who had signed bills prohibiting abortion) were reelected, and a pro-life candidate (Sarah Huckabee Sanders) was elected governor of Arkansas. And although Republicans lost control of the Wisconsin Supreme Court earlier this year, they won control of the North Carolina Supreme Court last November.
Since Dobbs, no state supreme court has recognized a broad right to abortion, while five state supreme courts have either held that their state constitution does not protect a right to abortion (Idaho and South Carolina) or protects such a right only under narrow circumstances (Indiana, North Dakota, and Oklahoma). And, shortly before Dobbs was decided, the Iowa Supreme Court overruled its earlier decision recognizing a state constitutional right to abortion (and the Florida Supreme Court is expected to do so, as well).
Finally, since the Supreme Court overruled Roe v. Wade last year, 11 states enacted (or re-enacted) laws prohibiting abortion. All but two of those laws (Indiana and West Virginia) were enacted after the midterm elections and after the pro-life defeats on state constitutional amendments in California, Kansas, Kentucky, Michigan, and Vermont.
Given that we had a legal regime of abortion on demand for almost 50 years, it should not surprise anyone that it will take time to persuade the public that abortion is a moral and social evil that must be addressed by appropriate legislation. But with half of the states already providing at least some measure of protection (and 18 of those 25 state laws prohibit abortion throughout pregnancy), pro-life advocates and conservatives have achieved a good start toward that goal.
In light of these accomplishments since Dobbs, conservatives should not be reluctant to debate the issue or defend extending legal protection to the most defenseless of us all: unborn children.
Paul Benjamin Linton is the former General Counsel for Americans United for Life and has been professionally engaged in the pro-life movement for thirty-five years. He has submitted amicus curiae briefs in most of the Supreme Court’s abortion cases from Webster v. Reproductive Health Services (1989) to Dobbs v. Jackson Women’s Health Organization (2022), and has published the only full-length treatment of abortion as a state constitutional right, Abortion under State Constitutions (3d ed. 2020) (Carolina Academic Press).
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