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A Bad Night for Abortion Rights

Alabama and West Virginia voters preemptively criminalized abortion in case Roe v. Wade is struck down. But voters in Oregon defeated an attempt to restrict coverage.

Supreme Court Abortion
An anti-abortion protester standing near the West Alabama Women's Center, in Tuscaloosa, Ala.
(AP/Brynn Anderson)
Last Updated at 11:40 p.m. ET

At a time when advocates on both sides of the issue either fear or hope that Brett Kavanaugh's appointment to the U.S. Supreme Court will increase abortion regulations and limit women's access to the procedure, voters in Alabama and West Virginia have taken away a woman's right to an abortion.

The new laws, however, will be largely unforceable unless Roe v. Wade, the 1973 case that legalized abortion, is overturned or severely gutted by the new Supreme Court.

Meanwhile, voters in Oregon defeated a ballot measure that would have ended abortion coverage for public employees and Medicaid patients.

West Virginia's ballot measure will have one immediate effect: Medicaid, the nation's health insurance for the poor, will no longer cover abortion services in the state.

With 96 percent of precincts reporting, West Virginia's Amendment 1 passed with 51 percent of the vote. The measure will 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 will also make receiving or performing an abortion punishable by up to three to 10 years in jail. 

"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," said Margaret Chapman Pomponio, CEO of WVFree, an advocacy group campaigning against the ballot measure.

Alabama's ballot measure, meanwhile, was approved 59 percent to 40 percent. It will not only change the state’s constitution to explicitly state that there is no right to an abortion but will 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. Alabama's approval of a fetal rights measure signals a further push to the right on abortion in solid red states.

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

The win in Alabama comes despite heavy spending from the opposition, which raised more than $1 million, largely from Planned Parenthood. Supporters only had about $8,000 on hand. Spending in West Virginia was light, with only $9,000 on hand from supporters and none from opponents.

Oregon, however, represented a bright spot for abortion rights advocates on Tuesday.

Measure 106 would have ended 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. But it was defeated 66 percent to 34 percent.

This is the fourth time Oregonians have voted down abortion restrictions in the past few decades.

The Oregon Catholic Conference and the state’s Right to Life PAC supported Measure 106, while Democratic Gov. Kate Brown, the ACLU and Planned Parenthood were 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 changes on the Supreme Court, each will offer a test of voters' feelings about the issue. And with Kavanaugh's confirmation, 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," said Elizabeth Nash, state policy expert for the Guttmacher Institute, a research organization that supports abortion access. With's Kavanaugh's appointment, "I think it’ll up the ante.” 

For results of the most important ballot measures, click here.

Mattie covers all things health for Governing.

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