Overall, the people we send to Congress can and will have a huge impact on national reproductive health policy. A more solid Democratic majority of the House and Senate, for example, could ensure that the Women's Health Protection Act—which federally protects a person's right to abortion without unnecessary restrictions—actually gets signed into law. On the flip side, Republican Senator Lindsey Graham (R-SC) introduced legislation back in September that would make abortion illegal nationwide after 15 weeks. While he doesn't have the votes right now for it to pass, he could if Republicans regain control of Congress. And despite current mixed reactions from GOP politicians on this proposed law, we the people have certainly learned the hard way that the Republican party is capable of some pretty wild things (like, you know, trying to get rid of abortion, ban gay marriage, and attempting to overturn a legitimate democratic election.)
Since states now are the arbiters of abortion access, who is in power in your state government matters greatly. There are some key gubernatorial races, for example, that could impact how abortion is handled in those particular states. In Pennsylvania, the outgoing Democratic governor has successfully vetoed several bills that would have restricted abortion rights, but a new governor could either ensure that those bills are signed into law. Similarly in Arizona, where abortion access is complex post-Roe thanks to conflicting state laws on the subject, whoever is elected as governor could either veto further restrictive abortion laws or ensure the passage of said laws. Whoever is elected to your state's legislature or supreme court also impacts potential future abortion laws, either by passing legislation or upholding/overturning it, so pay attention to those candidates and their views before voting.
There are also five states in which voters can directly weigh in on reproductive rights through ballot measures. In California, Kentucky, Michigan, and Vermont, people will have the chance to update their state's constitution to either enshrine abortion rights or to explicitly exclude them. Why does that matter? Including abortion rights in a state's constitution grants them added legal protections and makes it harder for judges (or anti-abortion rights legislators) to infringe on those rights with new laws or rulings.
These ballot measures are critical because they give American voters a chance to directly impact reproductive health legislation in their state. Data consistently show that the American public generally supports the legal right to abortion in some or all forms. In fact, in previous instances where these issues were left up to voters (like in Kansas earlier this year), they chose to keep abortion legal.
Here's what to know about the specific ballot measures concerning reproductive health and abortion that you might find on your ballot this Election Day:
Proposition 1: Adding the right to abortion and contraception to the state's constitution
California is already known for being fairly protective of abortion access. Under current state law, abortion is legal until fetal viability, state Medicaid funds and private health insurance plans cover abortion, and there's a state fund to help pay for abortion care, per the Guttmacher Institute. Now, California voters will have the opportunity to change the state's constitution to specifically state that individuals have the right to reproductive freedom, "which includes the fundamental right to choose to have an abortion and the fundamental right to choose or refuse contraceptives."
Amendment 2: Change the state's constitution to ensure a total ban on abortion
Kentucky's proposed Amendment 2, as written, would add this language to the state's constitution: "To protect human life, nothing in this Constitution shall be construed to secure or protect a right to abortion or require the funding of abortion." Essentially, this means the constitution would explicitly not protect the right or access to abortion for Kentucky residents. The American College of Obstetricians and Gynecologists (ACOG) says that this ballot measure could allow abortion bans to go into effect, and says that voting no "would help protect abortion from medically unjustified legislative interference."
Interestingly, this ballot measure is very similar to one that failed in Kansas earlier this year. Abortion rights activists were able to get voters to turn out and defeat that state's proposed anti-abortion amendment. Abortion remains legal in Kansas for up to 20 weeks, per NPR.
Proposal 3: Change the state constitution to protect reproductive rights
Also known as the "Reproductive Freedom for All" petition, Proposal 3 would update Michigan's constitution to ensure that "every individual has a right to reproductive freedom, including the right to make and carry out pregnancy-related decisions such as those concerning prenatal care, childbirth, postpartum care, contraception, sterilization, abortion, miscarriage management, and infertility care." Per NBC News, this proposal would officially nullify the state's existing abortion ban from the 1930s, which technically went back into effect after Roe v. Wade was overturned by the Supreme Court this summer (but was blocked by state courts).
It's also worth noting that the governor's race will also play a major role in how abortion rights (and other issues) are handled in the state. Current Governor Gretchen Whitmer, who is up for re-election, has been supportive of reproductive rights. Her opponent, Tudor Dixon, is staunchly anti-abortion and has been endorsed by anti-abortion groups, according to the Associated Press.
LR-131: Establishes rights for "born alive" fetuses to complicate reproductive care
This ballot measure isn't directly about abortion—which remains legal in Montana—but does impact reproductive health care in the state. The "Born Alive" law, at its face, requires doctors to give resuscitative care to infants born at any stage of development. Health care professionals who do not take these measures would face up to 20 years in prison and up to $50,000 in fines. The bill also defines a "born-alive" infant as a legal person who breathes, has a heartbeat, or has voluntary muscle movement after an abortion or delivery.
Since data shows that fetuses rarely survive abortion procedures (and only 1 percent of all abortions are performed at or after fetal viability), opponents of this bill say that the penalties would primarily apply to doctors who help patients with early deliveries or miscarriages, potentially forcing them to choose between the health needs of the birthing parent and a fetus, per Kaiser Health News. The ACOG says that this initiative would "interfere in the patient-physician relationship" and affects the quality of life of families who are already going through difficult pregnancies.
Proposition 5: Protecting reproductive freedom in the state constitution
Vermonters have the opportunity to update their state's constitution to explicitly protect reproductive rights via Proposition 5. If passed, this language will be added: "That an individual's right to personal reproductive autonomy is central to the liberty and dignity to determine one's own life course and shall not be denied or infringed unless justified by a compelling State interest achieved by the least restrictive means." The state also passed a law in 2019 that recognizes individuals' fundamental rights to choose or refuse contraception, sterilization, and abortion.
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