The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
In Dobbs, the Court concluded that the Constitution doesn't speak on whether abortion should or shouldn't be legal, and that therefore the question should be returned "to the people and their elected representatives." But if we look at national surveys, it appears that the people sharply support abortion rights in the first three months of pregnancy (60%-29% according to one recent poll) and oppose "midterm abortions" (by 56%-30%) as well as "late-term abortions" (67%-19%). That suggests a result quite different from Roe (which basically drew the line at six months) and even Casey (which drew the line at viability, likely around five to five-and-half months). Yet it also suggests a result vastly different from total prohibition on abortion (even with exceptions for the life of the mother and possibly health of the mother, rape, incest, and the like), which are being implemented in some states and likely to be implemented in some more.
One explanation for this, of course, is interstate variation in public attitudes (see, e.g., this post by Louis Jacobson [Sabato's Crystal Ball]). But in some of states, part of it may be the difference between the views of "the people" and "their elected representatives."
Such differences are familiar, and need not be malign:
- In some fields, the elected representatives may just be more knowledgeable than individual voters, since we hire them (and their staffs) to look closely at issues that individual voters would rarely be expert on.
- But even in fields where the key questions are moral rather than empirical, well-organized, committed political minority groups can often overcome less organized, less devoted political majority opposition. That's the reason, I think, for why many gun control proposals that seem to enjoy majority support are blocked in the legislative process, and also, on the other side, why many race-based affirmative action programs that seem to be opposed by the majority of voters can succeed in the legislative process. (This phenomenon is related to, though likely not entirely exhausted by, Mancur Olson's The Logic of Collective Action, and it goes beyond just concentrated economic interests.) Again, that isn't necessarily bad; but it's there.
- And in some contexts, a past legislative (or popular) majority might have enacted a law, which remains on the books, and that enjoys the support of legislative inertia: Even if there might be majority public support for repealing it or changing it, it often takes supermajority support for the legislature to act—given various requirements such as having the law be passed by both houses of the legislature and signed by the governor, state-level filibusters in some states, or other such features. The legislature might thus do nothing, even if a slight majority of voters wants it to act.
- Geographical concentration of particular voters (whether filtered through an alleged gerrymander or through non-gerrymandered districting) may also make the results on some issues differ from the statewide view. To take a stylized example, in a state with 100 districts, if 60 districts are 55%-45% for a particular abortion restriction, and 40 districts are 65%-35% against the restriction, the result would be 60 legislative votes for the restriction, even though the public as a whole is 53%-47% against it.
Direct democracy is a standard means of getting around this phenomenon. In many American states, for instance, voters can propose initiatives—either statutes or constitutional amendments—which can then be enacted by direct popular vote. And in many states, voters can call for referenda, in which newly enacted legislation can be blocked by direct popular vote. (In many states, the legislature can also place measures on the ballot for public vote, but that of course involves some degree of concurrence between the legislature and the public, rather than the public's ability to trump legislative action or inaction.) I expect this to happen quite a bit with regard to abortion, at least in many states.
I hope to blog more about such matters in the future, but for now I'm delighted to report that Ryan Byrne of Ballotpedia has very kindly come up with some excellent and specific materials on this very question, which I'm very glad to be able to pass along:
What initiatives have been proposed for the ballot in 2022?
There are two active initiative campaigns—one in Michigan, and one in Arizona—to provide that "Every individual has a fundamental right to reproductive freedom …" Both initiatives would define the term reproductive freedom to include abortion, as well as "decisions about all matters relating to pregnancy." There is also an active campaign, in Colorado, to prohibit abortion except in cases to save the mother's life, when the fetus is no longer alive, and for ectopic pregnancies.
Could we see additional ballot initiatives that aren't yet proposed on the ballot in 2022?
Deadlines for signature filings have either passed or are before July 15 in 22 of 24 states that allow citizen-initiated statutes or amendments. The two states with later deadlines are Colorado (August 8) and Oklahoma (August 30). Overall, there isn't much time left for new initiative proposals this year. Some states allow initiatives on odd-year ballots, including Maine, Ohio, and Washington. Others will need to propose initiatives that can appear on ballots in 2024.
Legislatures also have the power to put issues before voters. There will be at least four legislative referrals addressing abortion this year.
- In Vermont, voters will decide on a constitutional amendment to provide that "an individual's right to personal reproductive autonomy is central to the liberty and dignity to determine one's own life course."
- In Kansas, voters will decide on a constitutional amendment on Aug. 2. The constitutional amendment would provide that nothing in the state constitution creates a right to abortion or requires government funding of abortions and declares that the Legislature has to power to pass laws regarding abortion.
- In Kentucky, a similar amendment is on the ballot but will be decided in November. The constitutional amendment would provide that nothing in the state constitution creates a right to abortion or requires government funding of abortions.
- In Montana, voters will decide on a measure to provide, in state law, that infants born alive at any stage of development are legal persons. The ballot measure would also require medical care to be provided to infants born alive after an induced labor, cesarean section, attempted abortion, or another method.
There is one potential legislative referral that has passed one chamber and is awaiting a vote in the second:
- In California, the Legislature is considering a constitutional amendment declaring that the "state shall not deny or interfere with an individual's reproductive freedom in their most intimate decisions," including "their fundamental right to choose to have an abortion and their fundamental right to choose or refuse contraceptives."
"Any thoughts on how well-equipped various groups would be to call for referenda about new abortion restrictions, for which the timeline would of course be linked to the enactment of a restriction?"
Here is some context about whether we could see additional veto referendums this year.
Citizens can propose a veto referendum in 23 states. These measures put adopted legislation before voters to uphold or repeal. This varies from state to state, but, in 18 states, the signature drive timeframe is 90 days after a session is over or after the governor signs a bill.
Legislatures have adjourned their regular sessions in 41 states. Of the 9 remaining states, four provide for veto referendums—California, Massachusetts, Michigan, and Ohio. Of these 4, one is a Republican trifecta—Ohio. As most state legislatures have adjourned, there are limited opportunities for veto referendums against abortion legislation passed this year. However, there could be special legislative sessions to address abortion post-Dobbs, including in states that allow for veto referendums, such as Nebraska and South Dakota.
Here is some context about how well-equipped groups are. We cannot answer that question, but I can provide some notes about initiative and referendum campaigns in general.
Campaigns that have described themselves as pro-life have organized in-kind contributions and volunteers, thus keeping their signature costs low compared to the average ballot initiative campaign. Since 2010, these campaigns have spent an average of 62 cents per required signature (three were volunteer-driven and two others spent $1.52 per required signature and $1.59 per required signature). This is lower than the average for citizen-initiated measures during this period of $6.46 per required signature.
How do campaigns that have described themselves as pro-choice or pro-reproductive rights compare? We can't make the comparison because there haven't been signature drives associated with these groups since 1991 (see timeline). With active signature drives in Arizona and Michigan, 2022 could be the first year since 1991 in which these campaigns petition an issue to the ballot. In Michigan, the campaign Reproductive Freedom for All reported that more than 10,000 people signed up to volunteer following the opinion draft leak on May 2. On Friday, the campaign tweeted that $100,000 in donations were received and an additional 4,500 volunteer sign-ups. Signatures are due on July 11 in Michigan.
UPDATE: I added item 4 above about district lines, prompted by a comment by commenter bratschewurst noting the potential importance of the issue.