Key Takeaways:
- Abortion was a key issue for voters in the midterm elections, with voters in California, Vermont and Michigan voting in favor of constitutional amendments that will strengthen abortion protections, and voters in Kentucky and Montana rejecting constitutional amendments that would further curtail abortion rights in those states.
- Republican victories in swing states could result in additional abortion restrictions in Florida and Ohio, while a gubernatorial win for Republican Joe Lombardo could result in a repeal of shield protections for reproductive health care services in Nevada.
- Overall, the status quo of abortion rights in America generally seems to have been maintained, at least for the near future.
Overview
Voters went to the polls on Tuesday, November 8, 2022, in the first national elections since the Supreme Court overturned Roe v. Wade with its ruling in Dobbs v. Jackson Women's Health earlier this year. Abortion was a key issue for voters in states where abortion-related measures were on the ballot, with some Democratic states cementing existing abortion protections through the passage of constitutional amendments, and some Republican states declining to implement new abortion restrictions beyond those that are already in place. However, the expansion of Republican power in swing states such as Florida and Ohio could create the framework for new abortion restrictions in those states in the coming years. Overall, the status quo of abortion rights in America generally seems to have been maintained, at least for the near future.
The following is an overview of how the midterm elections affected state-level abortion rights across the country.
States that Strengthened Existing Abortion Protections
California voters approved Senate Constitutional Amendment No. 10, which amended the state constitution to protect the rights to abortion and contraceptives. The new amendment supplements current California abortion protections, including the California Health & Safety Code's "fundamental right of privacy with respect to personal reproductive decisions." The new amendment can only be repealed by a voter referendum, which seems unlikely in the coming years given the state's general public policy toward protecting abortion rights.
Vermont voters also approved of a constitutional amendment that guarantees a right to personal reproductive autonomy. Abortion is already legal in the state with no gestational limit.
Michigan voters enacted an amendment that will enshrine abortion rights into the state constitution. This was a notable development as anti-abortion advocates in Michigan had recently sought to begin enforcing a 1931 state abortion ban, which was dormant until the Dobbs ruling. In September 2022, a lower Michigan court found that the 1931 ban was unconstitutional and blocked it from being enforced, but some observers expected that anti-abortion advocates would appeal the decision. The new amendment now renders any future appeal moot.
States that Rejected Expansion of Existing Abortion Restrictions
Kentucky has a near total abortion ban in effect. On Election Day, voters rejected a constitutional amendment which would have expressly stated that there is no right to an abortion in Kentucky. The voters' decision will not affect the current ban. However, it could potentially be considered by Kentucky state courts in connection with a challenge to the current ban that the ACLU recently brought. This development in Kentucky is similar to what happened in Kansas in August 2022, when voters rejected a proposed constitutional amendment to restrict abortion. On Election Day, Kansas voters also re-elected Democratic governor Laura Kelly, which will make it more difficult for the Republican-controlled Kansas legislature to pass new abortion restrictions in the future.
Montana is a traditionally Republican state that protects access to abortion. The state legislature passed three anti-abortion laws in 2021, but the Montana Supreme Court struck each one down on the grounds that the state constitution protects the right to an abortion. During the midterm elections, voters rejected Referendum 131, which would have established that infants born alive at any stage of development are legal persons.
Voters' rejection of anti-abortion ballot initiatives in Kentucky, Kansas, and Montana suggests that support for reproductive health care rights remains strong even in states where Republicans largely control the three branches of government.
Republican Victories in Swing States Set Stage For Future Abortion Restrictions
In Florida, no constitutional amendment or initiative related to abortion was on the ballot, but voters elected a super majority of Republican candidates to both chambers of the state legislature, and re-elected Republican governor Ron DeSantis. The Florida Supreme Court recognized a right to an abortion in the state constitution three decades ago, but three of the seven current justices have now been appointed by Governor DeSantis and he may have the opportunity to appoint more in his upcoming term. On the day that the Dobbs decision was issued, Governor DeSantis tweeted that, under his administration, Florida "will work to expand pro-life protections, and will stand for life ..." With the support of the Florida legislature and a more conservative state Supreme Court, he could move to switch Florida's current 15-week abortion ban to a six-week or total ban.
Ohio is another state where changes to the state Supreme Court could lead to a dramatic shift in abortion rights. In 2019, a lower Ohio court blocked a ban on abortions after the detection of a fetal heartbeat, which Republican governor Mike DeWine signed into law. An appeal of that decision is working its way through the state courts. On Election Day, conservative judges won all three seats that were up for election on the state Supreme Court. Governor DeWine will also soon appoint an additional judge to a vacant seat, securing a conservative majority. The state Supreme Court has not previously ruled on abortion rights, but some pro-choice groups are already expecting that it will approve of Governor DeWine's six-week ban if given the chance in the future.
Changes to State Shield Protections for Abortion Rights
In the wake of Dobbs, Democratic governors in several states issued executive orders establishing certain "shield protections" for patients or physicians who receive or perform reproductive health care services. Depending on the state, these shield protections may prohibit state executive agencies from assisting with civil or criminal cases brought by other states concerning abortion-related care, allow a patient or physician to quash a subpoena related to reproductive health care services, or prohibit the extradition of a patient or physician to another state. On Election Day, these Democratic governors won re-election (or were replaced by Democratic successors) in Colorado, Maine, Minnesota, New Mexico, and Rhode Island. The shield protections implemented via executive order in these states should remain intact for at least the next gubernatorial term.
North Carolina did not vote for a governor this year. Republicans won a super majority in the state Senate but fell just short of a super majority in the state House. This was an important development because a Republican super majority in the North Carolina legislature may have attempted to force through legislation negating the shield protections that Democratic governor Roy Cooper implemented via executive order.
As of the time of this alert's publication, the Nevada governor race has not yet been called, but initial returns suggest that Republican candidate Joe Lombardo has been elected over incumbent Democratic governor Steve Sisolak. The executive order issued by Governor Sisolak which provides for certain shield protections for those seeking or providing abortion-related care could thus soon be rescinded.
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