• Abortion policy will be on the ballot in at least four states in 2022. 
  • The Supreme Court overturning Roe v. Wade puts abortion policy back in the purview of states. 
  • Voters in Kansas, Kentucky, Montana, and Vermont will vote on abortion-related ballot measures.

The US Supreme Court overturning the federal abortion protections in the landmark 1973 Roe v. Wade decision means abortion policy will be left entirely up to individual states – and in some cases, put directly to voters. 

Amendments and measures affecting abortion rights will be on the ballot in at least four states in 2022, according to Ballotpedia. This marks the highest number of abortion-related ballot measures to appear in a single year since 1986.

Kansas and Kentucky, red states that both have Democratic governors, will vote on constitutional amendments that would establish no right to abortions under their respective state constitutions.

Those amendments, if passed, would hold major significance for policy in a post-Roe world, when pro-abortion rights litigators will be relying entirely on state courts to interpret the right to abortions under state constitutions.

Over the past decade, voters in Alabama, Louisiana, Tennessee, and West Virginia have passed similar amendments establishing no constitutional right to abortions in their states.

In Montana, voters will weigh in on a "born-alive" amendment that would extend personhood to infants "born alive" at any stage, and require infants born from a C-section or a failed abortion to receive medical care, with the absence of such treatment carrying penalties of up to $50,000 fines and 20 years in prison.

At least three initiatives — all unsuccessful — referencing "partial birth" abortions or "born-alive" infants have appeared on ballots since Roe was passed, as third-trimester abortion, in particular, became a hot-button issue for conservatives. Third-trimester abortions make up a very small percentage of abortions to begin with, however, and instances of infants being born alive out of an abortion procedure are even more uncommon.

On the opposite side of the spectrum, Vermont voters will vote on Proposal 5, an amendment that would enshrine the right to abortions in the state constitution. 

Other ballot initiatives that would affect states' laws on abortion rights could appear on the ballot in Michigan and Oklahoma, if they obtain enough signatures. 

The Roe v. Wade decision barred states from banning abortions before the point of fetal viability, which usually occurs at 24-28 weeks of pregnancy, but still left states leeway to restrict abortions within those bounds.

And ballot initiatives quickly emerged as a potent mechanism for anti-abortion advocates, especially to put those restrictions right to the voters. 

Since the Roe ruling in 1973, 47 ballot initiatives, measures, and constitutional amendments related to abortions have been put directly to the voters. That number includes the four amendments that will be on the ballot in 2022.

The vast majority of those measures, 42 in total, have been supported by opponents of abortion rights seeking to restrict the procedure, according to Ballotpedia.

Those measures have included right-to-life or fetal personhood amendments, parental notification requirements for minors, limits on public funding for abortions, amendments establishing no right to abortions in state constitutions, and efforts to ban abortions altogether or restrict the procedure after a certain number of weeks.

But the shoe could soon be on the other foot with the high court overturning Roe, leaving abortion rights advocates on the defense and scrambling to establish affirmative rights to abortions under each state's constitution and laws. 

In Michigan, for example, advocates are currently gathering signatures to put an amendment on the 2022 ballot that would repeal the state's 1931 abortion ban, which is not in effect due to Roe, but still remains on the books. The measure would also "establish new individual right to reproductive freedom" in the state encompassing abortion, contraception, and infertility treatment. 


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