Why Direct Democracy Is Proving So Powerful for Protecting Abortion Rights

The lesson here goes beyond the unpopularity of many abortion restrictions. With the reversal of Roe v. Wade, people have looked primarily to political parties to defend abortion rights (or undo them)—and have come to expect outcomes that break cleanly along partisan lines. The results of these latest ballot measures suggest that we’ve underestimated the abortion-rights protections that direct democracy—not party politics—can produce. The fact is that disentangling questions about abortion from political affiliation may provide one of the best ways to protect or to restore abortion access in red and purple states, at least in the short run.

Lessons on how and why can be gleaned from an effort that took place an ocean away: Ireland’s 2018 campaign to repeal the Eighth Amendment, which had, since 1983, recognized fetal rights and thus banned abortion. In subsequent years, the country was repeatedly chastised by the European Court of Human Rights for violating the human rights of women, but it was able to resist many demands for change by insisting that the country had democratically established its strong consensus in favor of fetal rights. In reality, support for legal abortion grew over the years, fueled, in part, by outrage over the death of Savita Halappanavar, a woman who died of sepsis after being refused an abortion following an incomplete miscarriage.

At the risk of oversimplifying the comparison, in certain respects our post-Roe country already resembles Ireland under the Eighth Amendment. Travel to procure abortions was common among Irish women—prior to 2018, as many as 3,000 traveled to Britain each year to end a pregnancy. Others took abortion medication, even though Irish law made doing so a crime.

Parallels in the arguments made to voters are worth noting, too. The campaign to repeal the Eighth Amendment relied on personal stories about real people and stressed that “you don’t necessarily need to be pro-abortion to be pro-choice.” In Kansas, abortion-rights supporters tailored their messages to reach voters with a range of views, including those who were deeply religious or politically conservative and opposed to abortion on principle. Campaign messages reached those who, at some level, believe that people might have good reasons to end pregnancies. Just as Irish voters recoiled at the real-world effects of the Eighth Amendment, accounts of people denied emergency care when they have incomplete miscarriages, like Halappanavar, have already shaken many Americans.

If the results of ballot measures tell us anything, it is that those who campaigned to repeal the Eighth Amendment were on to something: They made abortion a stand-alone issue, not a part of party politics, and in doing so, tapped surprising sources of support. They recognized that politicians did not want to commit to abortion-law reform, much less vote for the repeal. By going directly to voters, the scope of agreement on abortion-law reform was made clear. In what was once decidedly an anti-abortion country, more than 66 percent of Irish voters backed the repeal effort—a victory that was as much a surprise on election night in Dublin as the outcomes of the recent state ballot measures were in Wichita or Lansing or Louisville.

Since the 1980s, the U.S. Republican Party has catered not to the majority of voters but to those it believes care the most about preventing abortion access. Since that period, negative and affective partisanship—hostility to leaders and voters in the opposing political party—has grown, making voters reluctant to break ranks when electing legislators, even when they disapprove of other policies sponsored by their party. In many states, the law doesn’t reflect attitudes about abortion, which polls show are far more forgiving. Ballot initiatives can separate what Americans think about abortion from which party they might otherwise prefer.

That is not to say ballot initiatives are a perfect solution. Some states, such as Georgia and Wisconsin, have no citizen-driven process for constitutional amendments. Many of the states that have curbed abortion rights have also sharply limited voting access. Add to that confusion about what voters actually are choosing: In Montana, voters rejected a measure that would have sentenced physicians to up to 20 years in prison for failing to provide “medically appropriate and reasonable actions to preserve the life and health of a born-alive infant”—something that already seemed to be mandatory under state laws on infanticide. The wording of the legislation was so confusing that many people may not have known what they were voting for.

Despite these limitations, direct democracy could nevertheless be the best way to preserve abortion rights in the years ahead. Eighteen states that allow voters to directly amend a state constitution can follow in Michigan’s and Kansas’s footsteps. Colorado and Ohio, where abortion remains at least partly legal (Ohio has a ban after six weeks) and where the majority of people say they support abortion rights, could pursue ballot measures that entrench a commitment to protect, rather than restrict, abortion access. Even voters in Arizona and Florida might be persuaded to enshrine some kind of abortion right in state constitutions. Future ballot measures no doubt will face intense opposition. But abortion support at the polls in places like Kentucky and Michigan show the ability of pro-choice advocates to take abortion questions away from state legislators. Surprise results like Kansas’s may turn out, in the long run, not to be so surprising.