Where Abortion Is on the Ballot in November

Three states could restrict or preemptively criminalize abortion at a time when there is uncertainty over the future of Roe v. Wade.
by | September 17, 2018
An anti-abortion protester standing near the West Alabama Women's Center, in Tuscaloosa, Ala. (AP/Brynn Anderson)

For a summary of November's most important ballot measures, click here.

"West Virginia doesn’t see ballot fights like this. We usually vote on road bonds and things like that, but we don’t vote on contentious issues like this. It would be the first time in 100 years we would be taking away a right."

That's Margaret Chapman Pomponio, CEO of WVFree, an advocacy group campaigning against a ballot measure on abortion.

In West Virginia, and two other states, voters will weigh in on abortion this November. The referendums come at a time when advocates on both sides of the issue either fear or hope that the expected confirmation of Brett Kavanaugh to the U.S. Supreme Court will increase abortion regulations and limit women's access to the procedure. Kavanaugh's record is more conservative than that of Anthony Kennedy, the swing-vote conservative justice he would replace.

Two of the states, Alabama and West Virginia, still have existing but currently unenforceable abortion bans on the books that predate Roe v. Wade, the 1973 case that legalized abortion. November's ballot measures, if passed, would also largely be unforceable unless Roe v. Wade is overturned or severely gutted.

West Virginia's Amendment 1, titled "No Right to Abortion in Constitution Measure," would, as the name says, change the state’s constitution to ensure that nothing in it “secures or protects a right to abortion or requires the funding of abortion." It would also make receiving or performing an abortion punishable by up to three to 10 years in jail. The measure would have one immediate effect: It would no longer make West Virginia one of 17 states that allows Medicaid, the nation's health insurance for the poor, to cover abortion services.

Meanwhile, Alabama's ballot measure would not only change the state’s constitution to explicitly state that there is no right to an abortion but would also recognize the "sanctity of unborn life and the rights of unborn children, including the right to life."

Fetal rights propositions are controversial, even among some anti-abortion advocates. Recognizing fetal rights could criminalize some forms of birth control or fertility treatments. Mississippi, a red state, had a measure on the ballot in 2011 that would have established life as beginning at conception. But it was defeated.

Planned Parenthood, the ACLU and Democratic lawmakers have come out against both measures, while Republican lawmakers and Right to Life associations have come out in support of them.

Campaign spending on these ballot measures is light. Neither camp in Alabama has any recorded money on hand, while the anti-abortion group, West Virginians for Life, reported only $8,606 in cash.

In Oregon, the third state with abortion on the ballot, the issue is more about money and less about whether abortion should be legal. Measure 106, if passed, would prevent state money from going toward abortion. In turn, it would end abortion benefits for public employees and women on Medicaid. Oregon is one of 17 states that allows taxpayer dollars to fund abortion coverage for public health plans.

“It will not stop people from choosing an abortion, but it gives taxpayers the freedom from having to pay for another person’s choice," says Nichole Bentz, spokesman for Yes On Measure 106. "This is important for Oregon because it will give the residents a chance to choose how their tax dollars are being spent.”

This is the fourth time Oregonians have voted on abortion restrictions in the last few decades, and each time, the measures were defeated. This year, the opposition has outspent the proponents so far, with No Cuts to Care, the political action committee against the measure, recording $294,511 in cash. Meanwhile, Stop the Funding, the political action committee in support, has $176,425.

The Oregon Catholic Conference and the state’s Right to Life PAC are in support of Measure 106, while Democratic Gov. Kate Brown, the ACLU and Planned Parenthood are against it.

Getting measures on the ballot often starts a year before an election. So while none of the measures in these three states are a result of the potential changes on the Supreme Court, each will offer a test of voters' feelings about the issue. And if Kavanaugh is confirmed, experts expect more states to push the boundaries of abortion law.

“We’re looking at about a dozen of abortion cases making their way through the courts where the outcome could upend Roe," says Elizabeth Nash, state policy expert for the Guttmacher Institute, a research organization that supports abortion access. "Those are already in the works. Should Kavanaugh be appointed to the court, I think it’ll up the ante.”

For a summary of November's most important ballot measures, click here.