Oregon, Alabama and West Virginia voters will face separate ballot initiatives next month aimed at restricting abortion access in those states.
These initiatives fit into a larger fight over abortion that continues to heat up. Anti-abortion advocates hope that changes at the state level can be used as test cases and later implemented more broadly, while abortion rights advocates hope to defeat them. A particularly contentious ballot initiative can be used as a messaging move to drive voters to the polls in tight elections such as this fall’s West Virginia Senate race.
The abortion fight isn’t new to the polls. In 2014, three states weighed in at the ballot box, while two did so in 2012, according to the nonpartisan National Conference of State Legislatures. No abortion language was on the ballot in 2016.
The process to get a measure on the ballot varies from state to state, and isn’t always simple. Typically, either the state legislature can vote to have an initiative on the ballot or citizens can gather signatures to have a measure included.
West Virginia’s measure, a constitutional amendment prompted by state legislative action, would clarify that nothing in the state constitution “protects a right to abortion or requires the funding of abortion.”
The West Virginia initiative would ban state Medicaid funds from going to abortion except in cases like rape, incest, a fetal anomaly or threats to the life of the woman.
The West Virginia Supreme Court overturned a state law in 1993 that would have barred abortions except in those four situations. Currently, Medicaid pays for abortions in the state that are deemed “medically necessary.”
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“Our purpose in passing this is to take the decision away from the courts and remove it from our constitution and get it back into the legislative environment,” said Wanda Franz, president of West Virginians for Life, which opposes abortion.
WV Free, a state abortion rights group that is part of the Vote No on Amendment 1 coalition, is organizing a push in opposition, including phone banking and speaking to prospective voters.
“This coalition was formed to stop dangerous government overreach into the personal, intimate medical decisions between a woman, her faith, family and doctor,” said Julie Warden, a spokeswoman for the coalition. “We’re committed to talking to voters in every corner of the state and help them understand why Amendment 1 is dangerous and must be stopped.”
A similar initiative passed in Tennessee in 2014, but another measure in Florida in 2012 did not.
Ballot initiatives are used sometimes to encourage certain voters to go to the polls to “vote for similarly minded candidates,” said Elizabeth Nash, senior state issues manager at the Guttmacher Institute, a reproductive health think tank that supports abortion rights.
The ballot initiative could hurt West Virginia Senate Democrat Joe Manchin III if abortion opponents motivated to vote for the ballot initiative back Manchin’s opponent, Patrick Morrisey.
“At the beginning of 2018, it was looking like progressive voters were more interested in the midterms,” said Nash, noting that this dynamic has since changed.
Oregon’s measure would challenge the legality of public funding for abortion except in the case of an ectopic pregnancy or if the woman’s life is in danger. Three previous attempts failed to gather enough signatures to appear on the ballot.
Oregon Life United needed to collect 117,578 signatures to appear on the ballot this year and exceeded the goal.
Oregon has not passed any restrictions on abortion since the landmark Supreme Court case Roe v. Wade, which guaranteed a woman’s right to an abortion, was decided in 1973. The state is one of 17 that allow some state funding for abortion. On the federal level, the Hyde amendment, an annual appropriations rider, prohibits federal funds from paying for abortions except in the case of incest, rape or if a woman’s life is at risk.
Part of the motivation for the ballot initiative’s timing may be due to a new Oregon law that takes effect next year and requires private insurance to cover abortion without copayments. State officials also plan to provide abortion coverage for women in plans that are exempt from the mandate, such as those for religious group employers who oppose abortion. The law also covers abortion for individuals who would qualify for Medicaid if not for their immigration status.
Proponents, aware that Oregon’s voters typically support abortion, emphasize that the initiative’s proposed changes wouldn’t prevent people from seeking abortions, but only ensure that the public is not forced to subsidize them.
“Because Measure 106 is not a ban on abortion, and because we know both pro-choice and pro-life voters don’t want their money to be used to fund other people’s personal choices, we believe this can pass — even in a state like Oregon,” said Nichole Bentz, media communications manager at Yes on Measure 106.
Opponents argue that this limits options for low-income women.
Oregon Gov. Kate Brown, a Democrat, criticized the measure earlier this year, saying it “would set a dangerous precedent by cherry-picking which medical procedures public insurance will and won’t cover.”
Alabama’s initiative would “recognize and support the sanctity of unborn life and the rights of unborn children.”
The Alabama measure would amend the state constitution to grant “fetal personhood,” which could also affect pregnancy attempts through in vitro fertilization and inheritance rights.
Opponents argue that fetal personhood initiatives are too broad, without any exceptions.
“The real aim is to ban abortion, but that’s not what you see in the language. This is just very broad. We have seen some split among conservatives over this,” Nash said.
The initiative serves as what liberal groups call a “trigger law,” meaning it would not be enforced unless the Supreme Court overturns Roe v. Wade.
“Amendment Two declares Alabama as a pro-life state and positions us to take action in the event that Roe v. Wade is overturned, which seems an increasing possibility with the confirmation of Justice Brett Kavanaugh,” said Alabama Public Service Commission President Twinkle Andress Cavanaugh, who also co-chairs the Alliance for a Pro-Life Alabama.
The measure, if it passes, will likely be challenged in court.
The idea of personhood was on the ballot in Colorado in 2008 and 2010, Mississippi in 2011 and North Dakota in 2014, falling short each time by fairly large margins.
The outcome “depends on what else is going on politically; it depends on the other races in the state; and what is happening in the larger political context. It also depends on what kinds of education campaigns are being put out there for people to learn about these initiatives,” said Nash.