Can Direct Democracy Save Abortion Rights?

In the first Presidential race since the Supreme Court overturned Roe v. Wade, the American electorate appeared to stake out two seemingly irreconcilable positions. Voters gave a mandate to Donald Trump, who appointed half of the conservative supermajority that abolished the constitutional right to abortion in Dobbs v. Jackson Women’s Health Organization. Yet, at the same time, eight states showed majority support for constitutional amendments that codified abortion rights, including five states that went for or are leaning toward Trump. In Missouri, where abortions are completely prohibited except for health emergencies, Trump won easily, but so did an amendment enshrining reproductive rights in the state constitution. Trump is poised to win in Arizona, which has a fifteen-week ban, and where voters affirmed an amendment protecting abortion rights until fetal viability. A similar measure in Trump’s home state of Florida, Amendment 4, won a slightly larger majority than Trump himself did—and yet the measure failed, because it did not reach Florida’s sixty-per-cent threshold for passing constitutional amendments. The South Florida Sun Sentinel, reporting on a ballot initiative that received fifty-seven per cent of the vote, ran the headline “Voters Reject Florida Abortion Rights Amendment.”

Florida, in fact, provides a vivid microcosm of large swaths of the U.S., where solid majorities back both reproductive freedom and the man who helped take it away. In Kamala Harris’s campaign against Trump, abortion rights were the Vice-President’s strongest issue. The fury and horror that many voters felt over the Dobbs decision powered the Democrats’ surprisingly robust showing in the 2022 midterms, with Harris’s command of the subject compensating for Joe Biden’s Catholic squeamishness. In March, Harris went to St. Paul, Minnesota, to visit an abortion clinic, something that no President or Vice-President had ever done before. “So everyone get ready for the language: uterus,” Harris said to reporters during the event. “That part of the body needs a lot of medical care from time to time.” Harris’s passion and candor on reproductive rights was well matched to the broad support for this year’s ballot initiatives, but it did not translate into broader support for the candidate herself. She won just forty-three per cent of the Florida vote—five points below Biden’s statewide result in 2020.

Because Florida fell short of a supermajority on Amendment 4, the state will continue under a severe six-week ban, although it makes exceptions for patients at “a serious risk of substantial and irreversible physical impairment” and nominally permits abortions up to the fifteen-week mark in cases of rape, incest, or human trafficking. Chelsea Daniels, a family physician and abortion provider in the Miami area who campaigned on behalf of the amendment, said that exceptions in Florida law don’t do nearly enough to protect patients in dire need. Recently, one of Daniels’s patients, a rape survivor, was told by law-enforcement officers that it would take months to procure the police report she needed in order to obtain a legal abortion. Another discovered she was pregnant while undergoing treatment for cancer; the patient’s oncologist wouldn’t continue her chemotherapy regimen unless she got an abortion, but first, Daniels said, “we had to prove she met the health-exception criteria, which meant mountains of paperwork.”

Daniels, with her clinic’s legal and oncology teams, searched for a hospital that would take on the patient’s case; as days and weeks ticked by, her pregnancy continued to progress, and the abortion care she needed became more complex. Eventually, Daniels and her colleagues located a suitable hospital, hours from the patient’s home. “This was a pregnant woman dying of cancer,” Daniels said. She went on, “No one in this state wants to touch abortion with a ten-foot pole.”

Trump has declared that Florida’s abortion ban was “a terrible mistake,” and yet he also said that, as a Florida resident, he planned to vote against overturning it in the 2024 ballot initiative. (Trump delivered his victory speech on Wednesday morning in Palm Beach County, home to Mar-a-Lago, and where sixty-six per cent of voters approved of Amendment 4.) This self-contradictory stance is typical of Trump’s yes-but-no approach to reproductive freedom. He has called himself “very pro-choice,” but also the “most pro-life President ever.” He has suggested that he would support a federal ban on abortion around fifteen weeks, or after twenty weeks, but he has also said that he would veto such legislation. He has said that “there has to be some form of punishment” for women who seek illegal abortions, but he has also disavowed that view, and, more recently, he has maintained that his view does not actually matter. In April, when a reporter from Time magazine asked Trump whether he would be “comfortable” with states prosecuting patients for unlawful abortions, he replied, “It’s irrelevant whether I’m comfortable or not. It’s totally irrelevant, because the states are going to make those decisions.” In August, when Trump was asked whether he would direct the F.D.A. to “revoke access to mifepristone”—one of the two drugs used in medication abortion—he deferred, once again, to direct democracy. “All I want to do is give everybody a vote, and the votes are taking place right now as we speak,” he said.

In the view of our once and future President, Dobbs consecrated abortion as a states’-rights issue. “Every legal scholar, every Democrat, every Republican, liberal, conservative—they all wanted this issue to be brought back to the states where the people could vote, and that’s what happened,” he has said. Justice Samuel Alito, writing for the majority in Dobbs, claimed that the decision “allows women on both sides of the abortion issue to seek to affect the legislative process by influencing public opinion, lobbying legislators, voting, and running for office.” In other words, Alito argued, overturning Roe gave women the right to choose.

But, among the seven states that, in 2022 and 2023, affirmed abortion rights through ballot measures, some have discovered that voting on a constitutional amendment is not the same as waving a magic wand that restores abortion rights to their 1973 settings. Especially in states that placed heavy restrictions on reproductive choice after Dobbs, local officials have not necessarily shown courtly deference to the will of the people.

Ohio is a case study. After Dobbs, a six-week abortion ban was in effect in the state for close to three months until a judge put it on temporary hold; then, in 2023, voters passed an amendment insuring the individual “right to make and carry out one’s own reproductive decisions,” by a fifty-seven-per-cent majority. Ohio’s attorney general, Dave Yost, a Republican, conceded that the ballot measure rendered the state’s ban unconstitutional. But Yost maintained that the amendment should not disturb other rules on Ohio’s books which were explicitly designed to hinder access to abortion, including a twenty-four-hour minimum waiting period and a requirement of two in-person doctor’s visits, among other restrictions. Doctors would still be required to discuss alternatives to abortion, distribute “fetal development guides,” test for “cardiac activity,” perform unnecessary ultrasounds, and obtain patients’ signatures acknowledging receipt of information that “the unborn human individual the pregnant woman is carrying has a fetal heartbeat.” Skipping one of these steps might still leave abortion providers vulnerable to felony charges, civil penalties, or loss of their license. It was only two weeks ago that a court in Ohio officially struck down the state ban in its entirety, saying it contravened the new amendment. (Yost’s office has said that it was reviewing the order and would decide within thirty days whether to appeal.)

Erika Boothman, an ob-gyn in Columbus, told me that, one year after Ohio voted in favor of reproductive freedom, legal battles over abortion continue to create a “quagmire” for physicians in the state. “Patients don’t know what’s legal, which laws have a stay or a temporary injunction or have been overturned or aren’t being enforced, and that goes for my colleagues as well,” she said. “It’s been kind of a week-by-week thing. If you don’t follow it really closely, then you don’t know what the actual laws are at that very moment.”

Recently, Boothman saw a patient whose water broke in her second trimester, a condition known as PPROM. Boothman’s patient “did not want to continue the pregnancy because she was at risk of infection that would threaten her uterus and her life,” Boothman said. “But the fetus still had a heartbeat, and so we had to consult our ethics and legal team to see if I was legally allowed to do a D&E” —dilation and evacuation, in which the physician uses suction and surgical instruments to empty the patient’s uterus. Boothman did ultimately receive permission to perform a D&E. “But all of us were kind of, like, ‘We hope we don’t get in trouble for this,’ ” Boothman said. “We didn’t have an expert in, you know, ‘What is abortion law in Ohio on this day in this month?’ ”

In Kansas, as in Ohio, popular support for abortion rights cuts against the conservative politics that dominate the state. In 2022, just months after Dobbs was handed down, fifty-nine per cent of voters in Kansas rejected a constitutional amendment outlawing abortion. Yet, last month, Kansas’s Republican attorney general, Kris Kobach, joined his counterparts in Idaho and Missouri in a lawsuit that would place extreme restrictions on medication abortion, which accounted for close to two-thirds of all abortions performed in the U.S. last year. The lawsuit, which was filed in Texas’s hard-right Fifth Circuit, is essentially a do-over of the challenge to the F.D.A.’s rules on mifepristone that the Supreme Court unanimously rejected last term (the Justices found that the plaintiffs, a consortium of anti-abortion physicians, lacked standing). “We’re pursuing this case to protect Kansas women,” Kobach said in a statement last month.

The revised complaint, which uses the word “baby” fourteen times, asks that patients seeking medication abortion make three in-person visits to a provider, bar doctors from offering this care after the seven-week mark, and ban minors from accessing it altogether. A provocative component of the attorneys general’s argument is that access to mifepristone would, by reducing teen pregnancy, eventually harms states by shrinking their tax base.

The suit also advocates for entirely eliminating telehealth abortion—which currently accounts for nearly one in five abortions nationwide—and for enforcing the nineteenth-century Comstock Act, which outlaws the mailing of abortifacients. Justice Alito and his colleague Clarence Thomas both invoked Comstock during oral arguments in the earlier, failed mifepristone case, which may have helped guide the approach of the new complaint. And now that Trump has been reëlected, he could, if he wished, simply instruct the Department of Justice to begin enforcing Comstock in order to restrict the distribution of mifepristone.

Despite the proven efficacy and popularity of medication abortion, the manufactured controversies about its safety have led some hospitals and providers to take a stance of preëmptive caution. Recently, Boothman, the ob-gyn in Ohio, asked that mifepristone be added to the formulary at the hospital where she works. She told me that she explained to a hospital administrator that the drug, which softens and dilates the cervix, is often used after a patient suffers what is known as intrauterine fetal demise, a tragic situation in which a physician needs either to induce a stillbirth or perform a D&E. Boothman also submitted numerous articles from peer-reviewed medical journals to back up her request. But the administrator turned her down. “My hesitation here is that there are multiple layers to this pharmaceutical that sadly transcend evidence-based medicine, especially here in Ohio,” he wrote.

“Mifepristone is safe, it decreases induction time, it makes it easier for the patient to deliver the baby and start the grieving process, it reduces the bleeding that they have afterward and any risk of complication, and we’re not allowed to use it,” Boothman said. She added, “It’s been a really bizarre last couple of years.”

The ongoing battles in Ohio and Kansas will inevitably add notes of caution and contingency to the amendment victories in states like Missouri and Arizona. So will the conservatives’ 6–3 lock on the Supreme Court, which is guaranteed to hold under a second Trump Administration. “Even when a majority of voters passes an initiative that is supportive of abortion rights, that doesn’t mean that anti-abortion activists and political élites are ever going to leave the issue alone,” Alesha Doan, a professor at the University of Kansas who studies the intersection of gender and public policy, said. “One of the limits of the ballot initiative is that it gives a false sense of security that this right has been decided, and we can move on.”

In a less imperfect world, the essential and long-established right to one’s own body would not have to be decided by majority vote (or, if your body is in Florida, by supermajority vote). “From an advocacy perspective, there are some states where the situation is sufficiently dire that ballot initiatives are a direct way to get people access,” Katherine Kraschel, an assistant professor of law and health sciences at Northeastern University School of Law, said. “If those initiatives are successful, people are going to receive life-saving care in those states.” At the same time, she went on, “Our Constitution should have some floor of liberties in order for all of us to be meaningfully able to participate in democracy. We should still want a federal Constitution that protects our right to reproductive autonomy.”

It is not possible to piece together a nationwide right to abortion, state by state, through citizen-initiated ballot measures—such referendums are allowed in only twenty-six states. They are not an option for motivated voters in Georgia, for example, where, two weeks after the state implemented a near-total abortion ban, twenty-eight-year-old Amber Thurman, the mother of a six-year-old son, died of septic shock after she was made to wait twenty hours for a D&C. Nor are they available in Texas, where, according to recent reporting in ProPublica, at least two women have died as a result of the state’s ban. Texas is also the home of Amanda Zurawski and Ondrea Lintz, both of whom were denied timely abortion care after suffering PPROM, developed catastrophic infections, and, as a consequence, may never be able to have children. Zurawski appeared in an unforgettable campaign spot for Joe Biden before he dropped out of the Presidential race, and Lintz made an equally searing ad for Kamala Harris.

In states where citizens are permitted to initiate abortion-rights referendums, their elected representatives often obstruct their efforts. In Arkansas, which has the nation’s highest maternal-mortality rate and one of its most draconian abortion bans, volunteers gathered more than a hundred thousand signatures in support of a pro-choice amendment, but the Republican secretary of state blocked it from the final ballot, citing a paperwork error. In Florida, people who provided signatures for the state’s ballot measure received visits from state police investigating spurious allegations of fraud, and local television stations were threatened with criminal prosecution for airing an ad for the amendment. And in Missouri, which is one of the states bringing the revised mifepristone lawsuit, the Republican secretary of state, Jay Ashcroft, attempted first to plant inflammatory language in the proposed Amendment 3—alleging that it would permit “dangerous, unregulated, and unrestricted abortions, from conception to live birth”—and then to unilaterally decertify it. (The state Supreme Court overruled Ashcroft on both counts.)

Opponents of Missouri’s proposed amendment also used billboards and local radio as the vehicles for a disinformation campaign. “I drive past billboards here that say absolutely false, baffling things,” Mark Valentine, an ob-gyn in St. Louis, told me, including one alleging that Amendment 3 would strip patients of their right to sue for malpractice and one linking the ballot measure to “child gender surgery.” Another baselessly claimed that the amendment would permit abortions through the ninth month of pregnancy. The political-action committee behind at least some of the billboards, Vote No on 3, reportedly received a last-minute, one-million-dollar donation from an advocacy group linked to Leonard Leo, the co-chairman of the Federalist Society.

Valentine is a board member of the Missouri Abortion Fund, which provides financial aid to people in need of abortion care, particularly those who are forced to travel long distances and struggle to cover the costs of transportation, lodging, child care, and lost wages. (In 2022, J. D. Vance, who is now the Vice-President–elect, said that a “federal response” was needed to block women from travelling out of state for abortions; last month, when a reporter from the Times repeatedly asked about this comment, Vance would not disavow it.) For Valentine, the referendum battle in Missouri has underscored the painfully finite resources that abortion-rights advocates have at their disposal. “The political and legal organizations have definitely had an influx of support and cash for the amendment, and the abortion funds are seeing that money dry up,” he said. “People have needed abortions this whole past year, and they will need them after the election, and they will have less and less support because abortion funds have less and less money.”

The financial struggle that Valentine describes is not unique to Missouri. Nationwide, the flood of post-Dobbs donations to abortion funds has slowed to a trickle, even as the cost of care has increased. Both Planned Parenthood and the National Abortion Federation, which help cover medical costs for low-income patients seeking abortions, recently announced cuts to this funding. The executive director of the Abortion Fund of Ohio recently said that the passage of the state’s abortion amendment has not attracted new donors to her organization, despite the enormous influx of patients seeking abortion care in Ohio from states with bans still in place.

Leilah Zahedi-Spung is a maternal-fetal-medicine specialist who relocated to Denver from Chattanooga after Tennessee enacted a near-total abortion ban. “I started in January of 2023, and it was March before I saw a patient from the state of Colorado,” she told me. Most of Zahedi-Spung’s out-of-state patients are from Texas, but she has also seen patients from Arizona, Idaho, Montana, Nebraska, and Oklahoma. She has even received referrals from her old practice in Tennessee, more than a thousand miles away.

Colorado’s Amendment 79, which passed on Tuesday with more than sixty-one per cent of the vote, repeals a ban on public funds being used for abortions. Although Colorado places few restrictions on reproductive rights, “there are still a lot of people in the state who can’t get abortion care, or it’s very hard for them, because they have Medicaid,” Zahedi-Spung said. Medicaid recipients are, on average, more at risk for complications than other groups; they are also more likely to need abortion at a later stage in pregnancy, often because of the time it takes to pull together the necessary cash. “If we could cover all of our patients in Colorado through insurance, then we could focus all of our funds on people coming out of state, and become even more of a haven,” Zahedi-Spung said. “Right now, we’re just hoping that we’re not missing anyone.”

Valentine is optimistic about what Missouri can eventually accomplish through its ballot measure, which prevailed with nearly fifty-two per cent of the vote. “In a state that leans politically the way that ours does, that outpouring of support is huge,” Valentine said. “If we can do that at the state level in Missouri, then surely there’s enough national support for protecting abortion in a much more complete way.” In the short term, though, Valentine said, “the next day, nothing will have changed. The next month, nothing will have changed, except that maybe we’ll have started a legal battle. There’s going to have to be multiple lawsuits, or maybe one very large lawsuit. I worry that people think that voting for this amendment is going to change the landscape of abortion in Missouri, and that’s unfortunately not true. We are still years out from restoring access to abortion in any meaningful way.” ♦