State abortion ballots prepare for post-Roe world
Anti-abortion initiatives on the ballot in West Virginia and Alabama this November could lay the foundation for the states to ban or sharply limit legal abortion as change comes to the Supreme Court.
Both ballot measures were in the works before President Donald Trump nominated conservative Judge Brett Kavanaugh to replace the more moderate Justice Anthony Kennedy on the high court. But they take on greater import — and will likely draw far more national attention — given the shifting ideological balance on the court.
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“They’re setting the stage for if and when Roe falls,” West Virginia abortion rights activist Margaret Chapman Pomponio said. “The criminal code will immediately be triggered.”
No ballot initiative can outright ban abortion as long as Roe v. Wade remains the law of the land. But the West Virginia and Alabama measures would amend their respective state constitutions to declare that abortion rights are not protected. That would pave the way for conservative state legislatures to ban or restrict abortion if the Supreme Court acts.
It’s too late to get similar measures on the ballot in other states this November, but another burst of activity could happen by 2020, according to Elizabeth Nash, senior state issues manager at the Guttmacher Institute, a research organization that supports abortion rights.
The White House hopes Kavanaugh will be confirmed shortly before the November election, a move that will unify and energize Republican voters — as well as Democratic voters, in opposition — as control of the House and Senate are on the line. In West Virginia, in particular, the Democratic incumbent, Sen. Joe Manchin, is vulnerable in a state where Trump is popular.
Ballot measures like these typically get little attention from anyone except people most ardently engaged in the abortion rights debate. But anti-abortion groups have pushed them to bring like-minded voters to the polls.
West Virginia’s measure would amend the state constitution to expressly state that it doesn’t protect the right to abortion or state funding for the procedure. The ballot initiative, pushed by West Virginians for Life, has largely flown under the radar; neither of the state’s U.S. senators knew about it when asked recently.
“We’ll see what happens,” Manchin added.
“I don’t know where that is going to land,” said Republican Sen. Shelley Moore Capito. “I’m not going to openly support or oppose.”
West Virginians for Life is pushing the effort because of a 1993 court ruling that found a constitutional right to abortion, and for state funding. Dr. Wanda Franz, president of West Virginians for Life, says it’s trying to undo that decision and “cleanse our constitution of the abortion issue” — not respond to a potential decision against Roe.
West Virginia state Sen. Patricia Rucker said: “We already in West Virginia believe and feel that abortion should be regulated by the states and the states do have the authority to regulate it.” Rucker argued that getting an abortion will still be legal in West Virginia, contrary to claims by the measure’s opponents.
Alabama’s measure is more stringent. It would add language to the state constitution to give rights to a fetus, a move that would prohibit abortion and which could also have implications for in vitro fertilization. It could also mean that a murder of a pregnant woman would be prosecuted as a double homicide.
Alabama Rep. Robert Aderholt, a Republican, said he didn’t know about the measure, either, and suggested other Alabamians didn’t yet. But he surmised the measure has a strong chance at passage.
“There’s a lot of things [on the ballot] that the average person learns about just right before the election unless the news media covers it, unless there is a campaign about it,” he said. Still, “Alabama is very strongly pro-life.”
Alabama Sen. Doug Jones, a Democrat, chalked it up to nothing more than a messaging effort. “That was put on the ballot just to try to drive people to the poll,” he said. He declined to say whether he will support it.