Voters expand or protect abortion rights in 7 states, but measures fail in 3 other states

In a handful of states, voters weighed in on reproductive rights two years after Roe was overturned. In seven of them, voters expanded or protected the right to an abortion. But in three states, abortion bans will remain in place. John Yang discussed more with Mary Ziegler.
Geoff Bennett:
The next president and control of Congress weren’t the only things voters were deciding in Tuesday’s election.
John Yang has more on the results of numerous state ballot measures focused on reproductive rights two years after Roe v. Wade was overturned.
John Yang:
Geoff, voters in 10 states were asked whether to amend their state constitutions to protect reproductive rights.
The ballot measures passed in seven states. In three states, Nebraska, South Dakota, and Florida, abortion bans will remain in place; 57 percent of Florida voters supported the amendment, but because 60 percent was required for passage, the state’s six-week ban remains.
In addition, the return of Donald Trump to the White House could bring changes at the national level.
Mary Ziegler is a law professor at U.C. Davis. She’s an expert on the law, history, and politics of reproductive rights.
Mary, in some of these states, the amendments really just reinforce current law. But in other places, the voters repudiated current law. Where are some of the biggest changes going to be or biggest effects going to be?
Mary Ziegler, University of California, Davis: Probably, the most significant effects are going to be in Missouri. Missouri had had one of and still has one of the nation’s most stringent abortion bans.
And by a pretty slim margin, voters in that state chose to institute state protection for reproductive rights. So we expect to see a court challenge to the state ban in short order. And likely we will see that state ban struck down by the courts of the state.
There was also a pretty significant shift in Arizona, which had a ban at 15 weeks and potentially with a Republican majority legislature in the future, the prospect for more stringent laws in the future. So, there, I think we’re going to see significant challenges to the status quo that are likely to succeed in the near term.
John Yang:
And I want to follow up on that because you say that these take court challenges. These amendments don’t wipe out these laws automatically.
Mary Ziegler:
Right.
So, if people remember back to when Roe v. Wade was the law, if a state passed an unconstitutional law, it didn’t just disappear because Roe v. Wade was on the books. Someone needed to go to court and raise a challenge. A court would then need to adjudicate that challenge. And that’s what we would expect to see with these ballot measures and what we have seen to date, for example, in Ohio, where the state Supreme Court just invalidated that state’s six-week ban.
John Yang:
South Dakota yesterday was the first state since the end of Roe to turn down, to reject a state constitutional amendment. And in Nebraska, you actually had voters approve a constitutional amendment enshrining restrictions.
What do you make of that?
Mary Ziegler:
Well, I think there are different lessons that can be learned.
Nebraska’s measure essentially enshrined into the state constitution the status quo, which was access until 12 weeks of abortion, but not thereafter. So we may see abortion opponents try to replicate that strategy by defending what look like more incremental bans, rather than bans at fertilization.
That’s not inevitably going to work. Arizona had a 15-week ban, and that didn’t help abortion opponents in that state. Abortion opponents don’t want to defend incremental bans. They want to ban abortion from fertilization. But that’s one lesson we might draw there.
South Dakota is a very conservative state that has a majority of voters that seem to oppose abortion. So this was kind of the most clear-cut victory for abortion opponents in a ballot initiative fight since Dobbs. And you may, I think, see abortion opponents taking more heart from that they can fight similar battles and win in states that we may see in the future, for example, Arkansas or Oklahoma.
John Yang:
Donald Trump, of course, going back to the White House, retaking the reins of control of the federal government.
What are the potential consequences for reproductive rights of that?
Mary Ziegler:
Conservatives have outlined plans for Trump to restrict access to abortion, even if Congress isn’t willing to go along, for example, using the 19th century Comstock Act, which is an obscenity law, and interpreting it to prohibit the mailing or receipt of any item or information or drug related to abortion.
It’s possible that a Trump Department of Justice could use that law to prosecute doctors, not just in red states, but in blue states or states with ballot initiatives. That would trigger a court challenge, but it’s something that could lead to much more onerous restrictions in large swathes of the country than we see today.
There are steps that a Trump FDA or a Trump secretary of Health and Human Services could take to try to limit access to mifepristone, which is a drug that’s used in more than half of all abortions across the United States.
It’s likely that Trump will have a major impact on the courts, both in not defending certain challenges that are currently before judges, like access to abortion and medical emergencies, and in nominating more federal judges to the court and kind of shifting the Overton window as to what conservative judges are willing to do when it comes to questions of reproduction.
John Yang:
Trump said during the campaign that he opposed a nationwide ban, but wouldn’t enforcing the Comstock Act essentially do that, because nothing, no material dealing with abortion could go through the U.S. mails anywhere in the country?
Mary Ziegler:
Absolutely.
I think that that would essentially be a de facto ban on abortion if Trump were to interpret the Comstock Act in that light. And so I think this will be kind of where the rubber meets the road, because Trump on the campaign trail was kind of giving signals to base voters that he still was in their corner and would try to advance something that looked like national restrictions on abortion.
He was also sending signals to swing voters that he truly viewed this as a states’ rights issue and would not put a thumb on the scale as far as the federal government was concerned. Both of those stories can’t be true, right? So now someone is going to call the question. We’re going to see where Trump actually stands as far as the Comstock Act is concerned.
John Yang:
Mary Ziegler, thank you very much.
Mary Ziegler:
Thanks for having me.