After the Supreme Court overturned Roe v. Wade, abortion-rights advocates took their fight to the states — and they won. The pro-choice side emerged victorious in nearly every 2022 election where abortion rights were at stake — including five ballot measures to either enshrine or abolish abortion rights in state constitutions. For many liberals, it felt like they had hit upon a winning strategy to protect abortion rights in a post-Roe world: bring the issue directly to the people. Talk quickly started about putting more pro-abortion-rights amendments on the ballot in 2024.
But there’s a problem: Many states don’t let citizens put constitutional amendments on the ballot. And that includes most of the states with the strictest abortion bans.
Of the 22 states that have a total or six-week abortion ban on the books (including states where courts have temporarily put the ban on hold), 15 do not allow citizen-initiated constitutional amendments. This includes some of the biggest and most important states for abortion access, like Texas, which, according to the American Community Survey, is home to nearly seven million reproductive-age women. Overall, nearly 20 million reproductive-age women live in those 15 states, which means their access to abortion can’t be changed by residents who want to put abortion rights on the ballot.
That said, it is possible for voters to nullify an existing ban in the other seven states, which are home to just over seven million reproductive-age women. A ballot measure enshrining abortion rights in the state constitution — like the one Michigan voters passed in 2022 — could legalize abortion in Arkansas, Missouri, Oklahoma and South Dakota. It would put a decisive end to the court fights over Arizona’s and North Dakota’s bans as well. The biggest battle could be in Ohio, where a six-week ban is currently blocked in court but there has been talk of passing an even stricter ban that covers all stages of pregnancy.
However, these amendments still wouldn’t be easy to pass. According to polling by Civiqs, a majority of adults in Arkansas, North Dakota, Oklahoma and South Dakota believe abortion should be illegal in most or all cases. And in Ohio, where a majority of adults do support legal abortion in most circumstances, Republicans have proposed raising the threshold to pass any citizen-initiated constitutional amendments from a simple majority to 60 percent. Republicans have denied that this is an intentional attempt to make it harder for a potential abortion-rights amendment to pass, but it would certainly have that effect. Abortion-rights advocates might end up having the best shot in Arizona, where a majority of residents think abortion should be legal in most cases, and a 19th-century ban on abortion is being challenged in the courts.
A few other states could also see abortion-related ballot measures in the future, even if they wouldn’t change the law as it stands right now. For example, abortion is currently legal before 20 weeks in Nebraska, but it’s possible the state will pass a stricter ban in the next few years. However, since Nebraska allows citizen-initiated constitutional amendments, a Michigan-style ballot measure could guard against this.
And abortion is currently protected in under the Florida and Montana state constitutions, but only because their state supreme courts have said so. And they could very well change their minds — there are currently abortion-related cases pending before both courts. Abortion-rights advocates may try to pass amendments explicitly protecting abortion rights in these states, too, as insurance against future unfavorable rulings.
Finally, Colorado, Massachusetts, Nevada and Oregon could use citizen-initiated constitutional amendments to protect abortion rights as well. Although abortion rights aren’t seriously threatened in these states, advocates may want to put pro-abortion-rights measures on their ballots anyway as a symbolic move (or to protect against extreme future scenarios) — similar to amendments passed by California and Vermont in the 2022 election. In fact, Democrats may see an advantage to be gained by doing so. In Michigan this year, high interest in the abortion amendment appeared to buoy Democrats up and down the ballot (though this did not appear to be true in California). Although most of these states are solidly blue, voters motivated by an abortion-rights measure could theoretically boost Democrats in districts like Colorado’s 3rd — where a Democrat nearly unseated Republican Rep. Lauren Boebert in November — and Oregon’s 5th. Of course, with 2024 being a presidential election year, many voters won’t need to be told twice to go to the polls.
CLARIFICATION (Dec. 14, 2022, 1:50 p.m.): This story has been updated to make clear that each state’s share of women 15-49 is relative to national numbers.
CORRECTION (Dec. 14, 2022, 2:10 p.m.): A previous version of this story said Illinois could pass a citizen-initiated constitutional amendment protecting abortion rights. However, constitutional amendments in Illinois are limited to changes in legislative structure or procedures.