Abortion Won At The Ballot Box, But Will It Be Enough?

On Election Day, 10 states took to the ballot to vote not just for the president, but on the issue of abortion. Specifically, whether abortion rights should be enshrined in their state constitutions. Arizona, Colorado, Florida, Maryland, Missouri, Montana, New York, and Nevada all voted in favor abortion access, with states like Arizona, Florida, and Missouri explicitly voting to expand access beyond their more restrictive, current laws.

But the victory for abortions rights advocates was not total: Nebraska and South Dakota did not pass their right to abortion initiatives and while Floridians voted overwhelmingly in favor of the ballot measure (57%), the vote fell short of the 60% majority required to alter the state constitution.

With the GOP poised to take control of the presidency, House, and Senate – as well as a Conservative-majority Supreme Court – some legal experts wonder what abortion rights, and the fight for them, will look like moving forward. And they’re getting ready.

It’s important to note that these passed amendments have not yet taken effect.

Israel Cook, Legislative Counsel on the State Policy and Advocacy team at the Center for Reproductive Rights, says that implementation is a specific process that looks different state by state, but generally follows a similar pattern.

“There is usually some sort of validation of the election results and then an effective date [for the newly adopted amendment]. And then once there's this effective date, there is the implementation phase,” she says.

That phase, she explains, will entail litigation regarding how the amendment will affect laws currently on the books. Some experts have suggested this will be a more uncertain and complicated process in states whose current laws conflict with these new amendments.

Of the states that voted to adopt abortion rights into their constitutions, however, Colorado, Maryland, Montana, New York, and Nevada already had fairly robust abortion protections. Fundamentally, daily life for abortion providers and pregnant people won’t change.

“It's good that they passed, but they didn't really create anything new,” says Dale Margolin Cecka, Director of the Family Violence Litigation Clinic at Albany Law School. “But it is symbolic.”

As for Arizona and Missouri, however, these constitutional protections profoundly change existing law. Arizona currently bans abortion after 15 weeks. By and large, this protects the vast majority of abortions performed, but, prior to the adoption of the Constitutional amendment, creates barriers to accessing care for patients who only discover a life threatening condition or fetal abnormality incompatible with life after a 20-week anatomy scan. In Missouri, the Right to Abortion Initiative fundamentally changes the landscape of abortion access. Currently, abortion is all but banned in the state; the amendment makes it illegal to interfere with abortion rights until the point of “fetal viability.”

“Well, who defines fetal viability?”

“Fetal viability is a weird term and it's not a legal definition,” Cecka points out before continuing. “It's a series of judgment calls based on the training of people who are board-certified obstetricians.”

Indeed, the American College of Obstetrics and Gynecology (ACOG) notes that there is no single formally recognized clinical definition of “viability” and, in fact, the term is used in two distinct circumstances: one, whether a pregnancy is developing normally and two, whether a fetus can survive outside of the uterus. As such, ACOG “strongly discourages the inclusion of viability in legislation or regulation.”

But Cook observes that many of the amendments specifically have provisions defining “viability” as being subject to the judgment of the patient’s physician. And while “there is always a way in which anti-choice activists can come and argue,” there are state-by-state precedents regarding the definition of fetal viability.

“The Center and other partners, she adds, “are really preparing and gearing up for some of those arguments and challenges as well.”

In an email to Scary Mommy, the Center for Reproductive Rights added that “fetal viability”– generally regarded to be around 24 weeks gestation – “proved a durable standard” in the era of Roe v. Wade and held firm against gestation-based bans. “These new amendments,” they say, “should prove equally resilient.”

There’s also no requirement for states to restrict abortion at the point of fetal viability.

“It is not necessarily saying that the state has to restrict abortion up to then,” Cook says. “It's just saying that it can, if reasonable, restrict up to [that point]. So I think yes, that fetal viability piece can sometimes be tricky and could be concerning, but I do think [it’s important to focus on the fact] that we have abortion protected up until viability and that states can go above and beyond that.”

Currently, there are no reliable federal protections to abortion.

Roe v. Wade’s overturning in 2022 after nearly 50 years was the first and by far most serious blow to federal abortion rights.

The Biden administration attempted to hold up the the Emergency Medical Treatment and Labor Act, or EMTALA, as federal protection intended to empower hospitals to treat patients in medical need of an abortion, but it’s currently in a state of limbo after the Supreme Court refused to hear a challenge to the law by Idaho earlier this year.

“The Court kicked the can down the road on whether state abortion bans can override EMTALA,” the Center tells Scary Mommy. “The ruling leaves millions of people in states banning abortion vulnerable since hospitals have been reluctant to provide emergency abortion care due to the risk of severe criminal penalties under state abortion bans. As such, state protections, particularly those at a constitutional level, are invaluable to upholding abortion rights.”

“As an advocate in this space, EMTALA was the only light in the darkness that we all saw,” says Cecka, noting that the legislation was initially passed in the 1980s to prevent hospitals from turning away poor patients in need of urgent care. “EMTALA was passed for a very good reason: you must provide care. ... This legislation makes sense. And now EMTALA is just being eviscerated.”

While president-elect Trump declared on the campaign trail that he would veto any federal abortion ban that crossed his desk, his running mate JD Vance has signaled support of a “minimum national standard” which many abortion rights activists claim is simply a euphemistic term for an abortion ban. While there is no standard definition of “minimum national standard,” Trump, Vance and other congressional Republicans have signaled support for banning the procedure federally at 15 weeks, effectively rolling back abortion protections beyond that even in states that currently allow it beyond that point.

“The state constitutional amendments are the strongest form of protection at the state level,” says Cook, “but unfortunately the federal law and policies can supersede that state law. And so there is that kind of vulnerability for these protections … Our litigators and other policy folks will continue to try to work within the confines if there is a federal ban to see where we can protect abortion access and keep that access available. And I think a lot of folks are preparing to fight those things on a federal level as well.”

“Abortion is a winning issue.”

While uncertainty down the road is troubling, Cook emphasizes the fact that abortion rights have proven again and again to be popular.

“And it is winning,” she says. “Even though we have faced some roadblocks. … We still have a lot to fight for and to work towards … Look for the people already doing the work, and just know that you're not alone and that you're supportive: this is definitely a winning issue.”