Opinion: Why abortion is on the ballot everywhere

Editor’s Note: Mary Ziegler (@maryrziegler) is the Martin Luther King Jr. Professor of Law at UC Davis. She is the author of “Dollars for Life: The Antiabortion Movement and the Fall of the Republican Establishment” and “Roe: The History of a National Obsession.” The views expressed in this commentary are her own. Read more opinion on CNN.

The 2024 election has prompted an avalanche of stories about the places where abortion is on the ballot. Usually, these stories zero in on the states that are likely to have reproductive rights propositions on the ballot in November (such a ballot initiative is already going forward in two states, Florida and Maryland, and additional measures could be on the ballot in ten other states by the fall).

Ballot initiatives are certainly important. In states with gerrymandered legislatures and limited partisan competition, such measures allow voters to set abortion policy directly.

But the received wisdom underestimates the extent to which abortion is on the ballot in every state — even when there is no ballot initiative that poses the question to voters directly.

In some states that already have or could soon have state constitutional protections, the 2024 election will determine whether state legislatures and the many Supreme Court justices who face some kind of election, will interpret state court decisions in line with the will of voters. And then there is the simple reality that a possible federal backdoor ban could preempt any state protections voters create.

These tensions are higher because of two pending US Supreme Court cases on abortion. One, a challenge to nationwide access to mifepristone, a drug used in more than half of all abortions, appears likely to be dismissed because the plaintiffs don’t have standing to sue. The result in a second case, on access to abortion in medical emergencies, is harder to predict — but could very well allow states to limit access to abortion for more pregnant patients facing medical emergencies.

Ultimately, 2024 will likely be taken as critical evidence by both Democrats and Republicans about how much the abortion issue matters. If voters put former President Donald Trump back in the White House and award Republicans control of the House, Senate or both, pundits will read that — rightly or wrongly — as a sign that the electorate does not care that much about reproductive rights after all. All of this means that abortion is on the ballot in far more — and more consequential — ways than in decades.

Start with the complexities of state elections. If a ballot initiative on reproductive rights passes, there will be open questions about how the measure will be implemented and interpreted. In Florida, for example, voters approved Amendment 4, which restored the voting rights of former felons after they served their time. But in implementing Amendment 4, the Florida legislature created legislation requiring that former convicts pay off certain legal financial obligations before their rights were restored — a hurdle that prevented many Floridians from voting.

If states pass a ballot initiative on reproductive rights, hostile legislatures could likewise pass legislation testing the limits of new constitutional protections — for example, by imposing limits claimed to help women. That means that state legislative majorities and governors will have a good deal to say about abortion policy in a state, even if a ballot initiative passes.

The same is true of state Supreme Court elections. State courts are tasked with interpreting the open-seeming terms of ballot initiatives — and determining whether they would permit specific restrictions. Most state Supreme Courts require their judges to face some sort of election.

Critical partisan races in states like Ohio, Wisconsin and Michigan will determine the balance of power on state Supreme Courts. Retention elections, which tend to reward incumbents, can also produce surprises, especially when a state court hands down an unpopular, high-profile ruling. State courts will decide whether to interpret a ballot initiative to permit more regulation — or even whether a state constitution protects the personhood and fetuses and embryos and thus potentially prohibits abortion or IVF.

If state legislatures or judges can gut ballot initiatives, a Republican president might set the stage for a federal ban that would preempt state constitutional protections. Conservative activists who worked in the first Trump Administration (and who remain close to the former president) have promised that Trump’s Department of Justice would interpret the Comstock Act, a 1873 obscenity law, as a de facto ban on all abortions and prosecute doctors and drug companies across the country, even in states where reproductive rights are protected.

If Trump wins office, embraces this argument and convinces the Supreme Court to agree with his interpretation, the Comstock Act, as a federal law, could override any state protections voters create. Trump has been asked repeatedly about the Comstock Act and has thus far refused to answer the question — a telling omission given his public position that the states, not the federal government, should decide the abortion question.

And significantly, the 2024 election will be taken as a bellwether about whether voters actually care about issues related to reproductive rights. For years, conventional wisdom suggested that most voters opposed criminalizing abortion — especially early in pregnancy— but that reproductive health issues were a top priority only for a relatively small fraction of the electorate. That made Republicans comfortable tying themselves to the antiabortion movement, even if that movement’s favored laws were unpopular: most voters may disagree, but few seemed to prioritize the issue.

That assumption no longer seemed to hold true after the Dobbs decision. Democrats’ position on abortion seems to have prevented a widely expected red wave in the 2022 midterm. Voters who supported reproductive rights began ranking the issue as one of the most critical to their decision. It is for that reason that President Joe Biden and others have made reproductive rights so central to their campaigns.

If Trump wins, pundits — and the GOP — will conclude that voters do not care much about reproductive issues after all. Republicans, who have been caught between the demands of base voters opposed to abortion and the majority unhappy with the status quo, will be sorely tempted to read a Trump win as a way out. Many Republicans will want to give the antiabortion movement more of what it wants without consequences. That means that if Trump wins, it could encourage far more aggressive actions on abortion by Republicans across the country.

So it is absolutely right to think that abortion is on the ballot. But if anything, the stakes are far higher than the fight over ballot measures would suggest.