Voters in Colorado and Louisiana have the opportunity to weigh in on two different abortion restrictions through ballot initiatives this fall, following the approval of two similar initiatives in conservative states in 2018.
This comes as the national debate over the future of the 1973 Roe v. Wade abortion case intensifies with the Senate poised to confirm Amy Coney Barrett to the Supreme Court on Monday. Advocates on both sides of the issue say she could play a major role in upcoming cases before the high court that could chip away at abortion access.
So far, 17 cases are currently only one step away from the court. State-level changes through ballot initiatives or legislation could have major implications if the Supreme Court changes precedent on this issue.
“Major shifts in the Supreme Court tend to result in action at the state level. I’d imagine we might be seeing other states look to adopt these kinds of amendments,” said Elizabeth Nash, interim associate director of state issues at the Guttmacher Institute, an abortion rights group that specializes in reproductive health research. She noted that when Justice Brett M. Kavanaugh was confirmed in 2018, states began passing more abortion limits.
Colorado voters will decide whether to add restrictions to abortion based on the fetus’ gestational age, and Louisiana voters will decide if there is a right to abortion in the state constitution.
“This kind of amendment, which is setting up a longer-term game, essentially has the ability to be part of that legal framework that would make it much harder to access abortion services in the future if Roe were overturned,” Nash said.
Other states, including Kansas and Michigan, fell short of getting measures on the ballot this election.
In 2018, two states passed reproductive health initiatives. Alabama and West Virginia both amended their state constitutions with language to clarify that they do not include the right to an abortion. Neither initiative would prohibit abortion but would have the effect of making it clear that state bans are possible in the future if Roe, which declared abortion to be constitutional, is overturned. Oregon voters rejected an initiative to cut public funding for abortion in most cases.
Colorado voters will vote on whether the state should ban abortion after 22 weeks of pregnancy, with an exception only to save the life of the woman. If the initiative passes, a provider who performs or attempts to perform an abortion after this point could face a fine, misdemeanor charge and loss of medical license for at least three years. The person seeking the abortion would not be reprimanded.
Half of states prohibit abortion around this stage in pregnancy. Opponents of the measure say protecting abortion rights is not just for Coloradans since women from other parts of the country with stricter abortion laws travel to Colorado.
Spending in opposition to the measure greatly outweighs spending in favor of it. A group known as Abortion Access for All — No on 115 reportedly poured in $6.8 million to fight the initiative, in comparison to about $333,000 spent in favor of it.
Giuliana Day, a co-sponsor of the proposition, said anti-abortion advocates “have been able to counter their money with grassroots phone calling, texting, literature dissemination and social media.”
“Word of mouth is a powerful thing. The passion of our volunteers will be our secret to success on Nov. 3,” she added.
Day told CQ Roll Call the initiative represents a compromise among the state’s anti-abortion groups, after amendments to recognize fetal personhood were unable to pass.
But strong opposition to the measure comes from a coalition of reproductive health rights and justice groups in the state, who say the initiative language doesn’t have exceptions for rape, incest or a lethal fetal diagnosis.
Stefanie Clarke, a spokeswoman for the No on 115 coalition that opposes the amendment, said the coalition has a large voter contact program that includes calling and texting, social media and direct mail campaigns.
“We’ve always known that this [election] was going to be tight,” Clarke said. “We’re not going to stop until we have talked to every last voter and educate every voter about what this proposition is.”
Louisiana voters are faced with a different question: whether to approve a constitutional amendment that would ensure that the state constitution does not protect the right to abortion or require funding for abortion.
The state currently does not provide funding for abortion. If passed, the amendment would only allow further action to prohibit abortion if the Supreme Court changes its precedent under Roe.
Katrina L. Rogers, campaign director for the Louisiana for Personal Freedoms coalition, which supports abortion rights, told reporters Thursday she will not be surprised if the Supreme Court does change the existing precedent regarding abortion.
“I always operated under the assumption that that was going to happen one way or another,” she said. “There are a number of reasons for people to need and want to access abortion care, and the amendment doesn’t make any room for any of that.”
Rogers said that if passed, the amendment would make things much harder for women like Hannah Udell, who had to travel out of state to receive an abortion last year after her doctor discovered a fetal anomaly.
Udell said existing restrictions already prevented her from seeking care in the state, leading her to travel 1,200 miles to New Jersey to have the abortion at a later stage in pregnancy.
“The reason that I really want to talk about this is that the amendment in general in my opinion is really scary. The part that makes me the most concerned about it is just how overreaching it is and the absolute lack of exception for anything, for rape, for incest or in my case, the health of the mother,” Udell said.
But the constitutional amendment faces bipartisan support in the state, where more Democrats oppose abortion compared to those at the national level.
Louisiana state Sen. Katrina Jackson wrote a letter Wednesday supporting the amendment. Jackson, a Democrat, is also the sponsor behind the Louisiana abortion law that the Supreme Court ruled against in June Medical Services v. Russo earlier this year.
In that case, the court ruled 5-4 that a Louisiana law that would have required abortion providers to have admitting privileges at a hospital within 30 miles of the abortion clinic was unconstitutional.
Other more traditional anti-abortion allies also back the amendment.
Angie Thomas, associate director of Louisiana Right to Life, applauded the amendment as a “unique opportunity to vote directly on the issue of abortion.”
“It was important for us as a state to make sure that the people had a voice in this,” Thomas said, adding that the pandemic has caused supporters of the amendment to rethink how to get the word out about the issue.
Churches that would have served as an avenue for spreading support were closed for in-person services, for example.
Instead, anti-abortion groups relied on social media, yard signs and commercials.
“It’s important for people to know that this is not a ban in itself. It just simply puts it back into the hands of the Legislature,” Thomas said.