After Kansas voters rejected a proposed state constitutional amendment that would have allowed state lawmakers to enact abortion restrictions this summer, a handful of other states took the issue to the voters.
On Tuesday, voters in Michigan, California and Vermont amended their respective state constitutions to include reproductive rights. In Kentucky, voters narrowly rejected an amendment that would have said there was no right to abortion.
Montanans, meanwhile, rejected a legislative referendum that would have required mandatory medical interventions to save “born-alive” infants, including fetuses diagnosed as nonviable. Fifty-three percent of voters cast ballots against the referendum, which would have established criminal penalties for health care providers who refused to intervene. The proposed penalties included sentences up to 20 years in jail and a $50,000 fine.
University of Utah law professor Teneille Brown said the referendums were a powerful check on the Supreme Court’s 6-3 decision to uphold Mississippi’s restrictive abortion law and the 5-4 vote to overturn Roe v. Wade that has led to all but total bans on the procedure in about half of the states.
Brown, who specializes in bioethics, biomedical science, biotechnology and torts, said she sometimes has concerns about referendums being used too often to make trivial changes in statutes.
“But when it comes to personal freedom, autonomy, it doesn’t seem like a trivial use of the referenda process at all. Important rights are at stake,” Brown said.
Brown sees the language of some of the referendums as problematic.
Bowling Green, Kentucky, television station WNKY reported that the ballot language in the Bluegrass State left some voters asking “What exactly will my ‘yes’ vote or my ‘no’ vote mean?”
Brown said framing a referendum as a negative is confusing and bad practice.
“You don’t want people who are earnest and who are trying to educate themselves on what to do and make sure that aligns with their values like they want, to feel like ‘I don’t know what it’s telling me,’” she said.
According to the Guttmacher Institute, Kentucky’s state abortion law is considered one of most restrictive nationwide. Abortion is completely banned with very limited exceptions. Medication abortion is required to be provided in person because the state bans the use of telehealth or mailing pills, among other provisions.
Montana’s ballot question was also problematic because it uses language that physicians do not know how to define, Brown said.
Many state abortion statutes use “terminology that’s not at all medical. That is not the way physicians make decisions” and yet they are subject to penalties under the proposed referendum, Brown said.
“That Montana law was super weird because it’s saying physicians are required to make every effort to save a fetus or baby that is ‘born alive.’ But if it’s truly alive and capable of staying alive, of course, physicians are going to make every effort. That’s already part of their canons of medical ethics and professional obligations. They could be sued for malpractice for not making every effort to save a baby that is born alive,” she said.
Asked if the successful passage of these referendum portends more state initiatives or referendums in upcoming elections, Brown said the outcome of Tuesday’s election is “definitely encouraging that this is an avenue to protect rights to a greater extent than the federal government does.”
In states where the lawmakers are more conservative than the electorate, referendums are an important means to bring about political change, she said.
“It could be a means in Utah, if we could get women to see that their reproductive rights matter and that this is an equal protection issue. It’s not just about freedom. It’s about equal protection under law,” she said.
Public opinion polling conducted for the Deseret News and the University of Utah’s Hinckley Institute of Politics last spring indicated 46% of Utahns say abortion should only be legal in cases of rape, incest and threats to the health of the mother.
Sen. Curt Bramble, R-Provo, said “I suspect in my district, a constitutional amendment protecting the right of an unborn child to life would have some possibility of passing.” Bramble’s campaign website describes him as “staunchly pro-life.”
Bramble said Utahns can seek policy changes through Utah’s initiative process, but only the Utah Legislature can place a proposed constitutional amendment on the statewide ballot.
It is unclear whether a ballot question in Utah would result in a different outcome than existing law.
Constitutional amendments require a two-thirds vote of the House and Senate to place the issue on the ballot and approval from a majority of voters voting on the proposed amendment is required for its passage.
“The brilliance of our founders is that the Constitution has a much higher bar to be amended. When I was president of NCSL (National Conference of State Legislatures), I was stunned at the number of states that would regularly change their constitutions. I see constitutional provisions being principle based, not policy based,” he said.
Utah’s initiative and referendum processes are robust, too. According to vote.utah.gov, backers of initiatives must obtain signatures of 137,929 registered voters and meet thresholds of signature collection in at least 26 of Utah’s 29 Senate districts to qualify for placing a question on the ballot.
Those seeking to place a referendum on the statewide ballot must also obtain signatures of 137,929 registered voters and meet thresholds of signature collection in at least 15 of Utah’s 29 Senate districts, according to vote.utah.gov.
In 2020, Utah lawmakers passed a trigger law that bans most abortions if Roe was overturned. Enforcement of the law remains on hold amid an ongoing court challenge by Planned Parenthood of Utah and ACLU of Utah.
Utah’s trigger law went into effect on June 24, the same day the Supreme Court handed down its 5-4 decision overturning Roe v. Wade, the landmark 1973 ruling that recognized women’s right to abortion.
SB174 allows abortions only if the mother’s life is at risk, if the pregnancy was a result of rape or incest or if two physicians who practice “maternal fetal medicine” both determine that the fetus “has a defect that is uniformly diagnosable and uniformly lethal or ... has a severe brain abnormality that is uniformly diagnosable.”