Ten states officially have a proposed constitutional amendment regarding abortion on the ballot in November 2024. In varying degrees, many of these amendment proposals would codify the right to abortion – the right to kill unborn babies – across these states where any previous state laws protecting unborn life and many regulations protecting women would be stripped away.
The states that have the abortion issue on this year’s ballot are Arizona, Colorado, Florida, Maryland, Missouri, Montana, Nebraska, Nevada, New York, and South Dakota.
When the U.S. Supreme Court made its Dobbs decision and overturned Roe v. Wade in June 2022, it reversed a perceived federal right to abortion and returned the issue to the individual states. Now, ballot measures to amend state constitutions have become the means to advance either a pro-death agenda or a pro-life cause. These ballot measures are particularly decisive because they change a state constitution, override previous state laws, in some cases render legislative intent irrelevant, and can only be reversed by voters through a different ballot measure.
Notably, ballot initiatives carry the power to determine whether a state is pro-life or pro-death. Since 2022, voters in California, Michigan, Ohio, and Vermont have all codified abortion as a “fundamental right” in their state constitutions. As a result, there are few restrictions to abortion in these states. On the other hand, in 2018, voters in Alabama, Louisiana, and West Virginia also amended their constitutions in favor of protecting unborn life. The people of Alabama guaranteed a right to life for the unborn and both the people of Louisiana and West Virginia declared there was no right to abortion in their state constitutions. These three states now protect women and babies with near-total abortion bans.
Most of the 10 proposed pro-abortion amendments to be voted on this November come with sweeping, and often vague, undefined language that could drastically affect each state. Many of them have generated controversy and legal challenges. Many pro-life organizations have warned that the wording of some of these measures are intentionally deceptive, misleading, and extreme. According to how most of these amendments are phrased, if approved, they could:
· allow abortion throughout all stages of pregnancy even up to birth.
· nullify any current abortion ban in the state.
· eliminate parental consent laws, and in some cases parental notification laws.
· in some cases may permit infanticide after the baby is born alive.
· in some cases require taxpayers to pay for abortions.
· make it easier for traffickers and abusers to cover up their crimes.
· in some cases eliminate health and safety regulations that protect women and girls.
· increase litigation that will take years and cost millions in taxpayer dollars to resolve all of the legal uncertainties.
Proposed State Abortion Amendments on the Ballot
ARIZONA
Arizona’s proposed constitutional amendment regarding abortion is Proposition 139. The ballot measure would amend the Arizona constitution giving “every individual” in the state “a fundamental right to abortion” before fetal viability, which is usually between 22-24 weeks of gestation. Under the new amendment, viability would be determined in Arizona by the “good-faith judgment” of a health care professional for when a baby could survive outside the womb without extraordinary medical measures. After viability, abortions would only be allowed to protect the life of the mother. The amendment would also prohibit penalties for a person helping another obtain an abortion.
Ballot language: Creates a fundamental right to abortion. Limits the state’s ability to interfere with that right before fetal viability. After fetal viability, abortions are allowed when necessary to protect the life or health of the pregnant individual. Prohibits laws penalizing a person for assisting an individual obtaining an abortion.
A “yes” vote shall have the effect of creating a fundamental right to abortion under Arizona’s constitution. The State will not be able to interfere with this fundamental right before fetal viability unless it has a compelling reason and does so in the least restrictive way possible. Fetal viability means the point in the pregnancy when, in the good-faith judgment of a treating health care professional, the fetus has a significant likelihood of survival outside the uterus. Throughout the pregnancy, both before and after fetal viability, the State will not be able to interfere with the good-faith judgment of a treating health care professional that an abortion is necessary to protect the life or health of the pregnant individual. The State will not be able to penalize any person for aiding or assisting a pregnant individual in exercising the right to an abortion.
A “no” vote shall have the effect of not creating a fundamental right to have an abortion under Arizona’s constitution, will leave in place current laws that restrict abortion before fetal viability, and will allow the State to further restrict or ban abortion in the future.
Pro-life supporters have called the proposal “sweeping” in that it could allow for abortions well beyond viability. They argue the measure would expand access to late-term abortions for any “health” reason, eliminate parental and informed consent laws regarding minors seeking abortions, remove the requirement for a doctor to be involved in an abortion, and remove restrictions on taxpayer-funding for abortion services.
Arizona currently has a 15-week abortion ban and the passage of this amendment would nullify that ban. A simple 50% majority vote will ratify the amendment.
COLORADO
The proposed constitutional amendment regarding abortion in Colorado is Initiative 89. The measure would enshrine a right to abortion in the state constitution, and the ballot’s language implies that right would be unlimited throughout all stages of pregnancy even up to birth.
Ballot language: The right to abortion is hereby recognized. Government shall not deny, impede, or discriminate against the exercise of that right, including prohibiting health insurance coverage for abortion.
Pro-life groups have noted Colorado is already a “pro-murder” state allowing abortion throughout all stages of pregnancy. However, critics warn that Initiative 89 offers even more “looming threats” for women and unborn children, such as elevating late-term abortion and possibly even infanticide as a constitutional right while eliminating any health and safety regulations that protect women during an abortion. The measure would also reverse the state’s ban on state funding for abortion and allow Medicaid or state employee insurance plans to cover abortion services.
The measure needs a supermajority of 55 percent to pass.
FLORIDA
The proposed constitutional abortion amendment in Florida is Amendment 4. According to pro-life supporters, this amendment is intentionally deceptive, vague, and extreme. The amendment would allow abortion for any reason even up to birth. Not even parental or informed consent laws or health and safety regulations would survive in the state.
Ballot language: No law shall prohibit, penalize, delay, or restrict abortion before viability or when necessary to protect the patient’s health, as determined by the patient’s healthcare provider. This amendment does not change the Legislature’s constitutional authority to require notification to a parent or guardian before a minor has an abortion.
Amendment 4 leaves the terms “viability,” “health care provider,” and “health” virtually undefined. While the amendment would allow unrestricted abortion before viability, after viability, the amendment would empower all 58 categories of practitioners the state recognizes – some of which without medical training – as sole authority to determine “viability” or when an abortion is necessary. Since “health” is also undefined, abortion would be allowed at any stage of pregnancy for any medical reason.
Passage of the amendment would override Florida’s six-week “heartbeat” law and the state’s requirement for a minor to have parental consent for an abortion. The amendment needs a 60 percent supermajority to pass. On August 30, President Donald Trump stated he would be voting “no” on Amendment 4 believing it to be “too extreme.”
MARYLAND
Maryland’s proposed constitutional abortion amendment is Question 1. The measure would enshrine a right to “reproductive freedom” (abortion) in the state constitution, and the ballot’s language implies that right would be unlimited throughout all stages of pregnancy even up to birth.
Ballot language: The proposed amendment confirms an individual’s fundamental right to reproductive freedom, including but not limited to the ability to make and effectuate decisions to prevent, continue, or end the individual’s pregnancy, and provides the State may not, directly or indirectly, deny, burden, or abridge the right unless justified by a compelling State interest achieved by the least restrictive means.
Pro-life supporters state the amendment is vague and is a “trojan horse” leaving so much open to interpretation. They say the undefined language of a “person,” “reproductive system,” and “reproductive anatomy” could mean there would never be any restrictions on abortion and abortion services while possibly opening the door to infanticide and no restrictions on mutilating gender surgeries for children.
Maryland already allows abortion up to viability, with exceptions after viability to protect the life or health of the mother or in the case of a fetal anomaly where the baby is unlikely to survive outside the womb. A simple 50 percent majority vote will ratify the amendment.
MISSOURI
Missouri’s proposed constitutional abortion amendment is Amendment 3. The measure would enshrine “a right to abortion at any time of pregnancy in the Missouri Constitution.” Missouri pro-life leaders called the measure “extreme” as it would nullify the state’s near-total abortion ban and strip the state of any health and safety regulations protecting women during an abortion. The amendment would also strip parental notification laws and prevent anyone from suing or bringing civil or criminal penalties against anyone for performing an abortion – even if the woman dies during an abortion.
Ballot language: Do you want to amend the Missouri Constitution to:
· establish a right to make decisions about reproductive health care, including abortion and contraceptives, with any governmental interference of that right presumed invalid;
· remove Missouri’s ban on abortion;
· allow regulation of reproductive health care to improve or maintain the health of the patient;
· require the government not to discriminate, in government programs, funding, and other activities, against persons providing or obtaining reproductive health care; and
· allow abortion to be restricted or banned after Fetal Viability except to protect the life or health of the woman?
A “yes” vote will enshrine the right to abortion at any time of pregnancy in the Missouri Constitution. Additionally, it will prohibit any regulation of abortion, including regulations designed to protect women undergoing abortions and prohibit any civil or criminal recourse against anyone who performs an abortion and hurts or kills the pregnant woman.
A “no” vote will continue the statutory prohibition of abortion in Missouri.
The amendment would override Missouri’s near-total abortion ban. The amendment requires a 50.1 percent majority to pass. On September 6, 2024, a Missouri judge ruled the measure was invalid because the coalition behind the initiative failed to meet the requirement to note which state laws would be repealed by the amendment. However, the judge did not remove it from the ballot choosing to let the state appeals court decide the issue since the constitutional deadline for printing ballots is Tuesday, September 10, 2024.
MONTANA
The proposed constitutional abortion amendment in Montana is CI-128 (Ballot Issue #14). The measure would enshrine a right to abortion before viability, as well as after viability when the judgment of a doctor determines it is necessary to protect a woman’s life or health. The measure would also prohibit the government from penalizing anyone involved in their own and another person’s decision to have an abortion.
Ballot language: CI-128 would amend the Montana Constitution to expressly provide a right to make and carry out decisions about one’s own pregnancy, including the right to abortion. It would prohibit the government from denying or burdening the right to abortion before fetal viability. It would also prohibit the government from denying or burdening access to an abortion when a treating healthcare professional determines it is medically indicated to protect the pregnant patient’s life or health. CI-128 prevents the government from penalizing patients, healthcare providers, or anyone who assists someone in exercising their right to make and carry out voluntary decisions about their pregnancy.
Pro-life critics call the measure “misleading” and a “grave threat” to women and unborn children. Critics argue the amendment would nullify all current regulations on abortion while potentially allowing late-term, partial-birth abortions, and even infanticide. As written, the language stating the amendment would bar the government from “burdening” abortion access calls into question whether any parental consent, notification, or health and safety laws in the state would survive. Furthermore, critics suggest the measure would prioritize abortion access over individual conscience rights and weaken the ability of health care workers and institutions who oppose abortion to abstain for moral or religious reasons.
In Montana, abortion is currently allowed up to viability while the state Supreme Court ruled in 1999 that the state constitution already protects abortion under the right to privacy. The amendment requires a simple 50 percent majority to be ratified.
NEBRASKA
Nebraska has two competing constitutional amendments regarding abortion that will appear on the November ballot. One measure is pro-abortion while the other is pro-life.
The proposed pro-abortion amendment is known as the “Protect the Right to Abortion” initiative. The measure would enshrine a “fundamental right to abortion until fetal viability” into the state constitution. It would also allow abortions after viability to protect the life and health of the mother.
Ballot language: All persons shall have a fundamental right to abortion until fetal viability, or when needed to protect the life or health of the pregnant patient, without interference from the state or its political subdivisions. Fetal viability means the point in pregnancy when, in the professional judgment of the patient’s treating health care practitioner, there is a significant likelihood of the fetus’ sustained survival outside the uterus without the application of extraordinary medical measures.
Pro-life groups consider the measure “broad” and “extreme.” The initiative’s broad language, such as “without interference from the state,” and “health,” suggest the measure would permit abortions through all nine months of pregnancy and impede the state from enacting any future protections for women and preborn children. Critics argue that the measure would prevent Nebraska from protecting women and girls by stripping health and safety requirements for abortion procedures, as well as removing parental and informed consent requirements allowing minors unobstructed access to abortions. They also argue the language would allow for non-medical factors, such as mental, social, and financial conditions, as grounds for late-term abortions.
Nebraska’s pro-life constitutional amendment is known as the “Protect Women and Children” initiative. The measure would essentially enshrine a right to life for unborn children in the second and third trimesters except in cases of rape, incest or when the mother experiences a medical emergency. The measure would essentially codify in the state constitution Nebraska’s current 12-week abortion law.
Ballot language: Except when a woman seeks an abortion necessitated by a medical emergency or when the pregnancy results from sexual assault or incest, unborn children shall be protected from abortion in the second and third trimesters.
According to Americans United for Life, this pro-life initiative would enshrine constitutional safeguards to protect women and unborn children and would “leave the door open” for the state legislature to enact future protections.
The Nebraska Supreme Court heard oral arguments on September 9, 2024 from both pro-abortion and pro-life advocates on whether the amendments should stay on the ballot. The lawsuits need to be resolved by September 13, 2024.
The pro-abortion measure and pro-life measure are competing and both cannot be enshrined into the state constitution. If both remain on the ballot, the one that receives the most “for” votes and has the support of at least 35 percent of voters casting ballots is the one that will be ratified.
NEVADA
Nevada’s proposed constitutional abortion amendment is Question 6. The measure would enshrine a “fundamental right to abortion” in the state constitution up to the point of fetal viability and after viability to protect the mother’s life or health.
Ballot language: Should the Nevada Constitution be amended to create an individual’s fundamental right to an abortion, without interference by state or local governments, whenever the abortion is performed by a qualified healthcare professional until fetal viability or when necessary to protect the health or life of the pregnant individual at any point during the pregnancy?
According to Americans United for Life (AUL), a pro-life advocacy group, Nevada’s abortion amendment is “deceptive” and “misleading.” AUL states that the measure would bring “abortion on-demand” to the state, allow abortionists free reign to run clinics without health and safety protections for women, eliminate parental consent, and would silence opposing voices against abortion in the state. AUL also states the terms “viability” and “health” are left vaguely defined leaving a lot of room for interpretation as to when a baby’s life could be ended.
Nevada currently allows abortion up to a defined fetal viability of 24 weeks. The amendment could allow abortionists the power to “usurp” this law and decide a baby’s viability with their own “subjective opinions.” The amendment must be approved by a simple 50 percent majority vote in two consecutive election cycles. A simple majority voting “yes” in 2024 will allow the amendment to be on the 2026 ballot. A second simple majority voting “yes” in 2026 amends the Nevada constitution.
NEW YORK
The proposed constitutional abortion amendment in New York is Proposal 1. The measure passed in the state legislature in two consecutive legislative sessions meeting the requirement to go before New York voters.
Ballot language: No person shall be denied the equal protection of the laws of this state or any subdivision thereof. No person shall, because of race, color, ethnicity, national origin, age, disability, creed, religion, or sex, including sexual orientation, gender identity, gender expression, pregnancy, pregnancy outcomes, and reproductive healthcare and autonomy, be subjected to any discrimination in their civil rights by any other person or by any firm, corporation, or institution, or by the state or any agency or subdivision of the state, pursuant to law.
Nothing in this section shall invalidate or prevent the adoption of any law, regulation, program, or practice that is designed to prevent or dismantle discrimination on the basis of a characteristic listed in this section, nor shall any characteristic listed in this section be interpreted to interfere with, limit, or deny the civil rights of any person based upon any other characteristic identified in this section.
While the measure is billed as an “equal rights amendment” to strengthen protections in the state against discrimination, the term “reproductive autonomy” has drawn many criticisms that the amendment protects abortion without ever using the word “abortion.” Pro-life supporters argue that this language is broad and vague and could be interpreted to protect a right to abortion, including late-term abortion. By elevating “reproductive autonomy” to a constitutional right, critics express it could also affect religious freedom fearing it could force religious institutions to pay for abortion and force healthcare providers to perform abortions against their sincerely held beliefs. Pro-life groups conclude the amendment will likely prevent the state from enacting any future abortion limitations and could be used to strike down any protections for women and unborn children.
In New York, abortion is currently legal up to 24 weeks and is legal after 24 weeks to protect the life and health of the mother. A simple 50 percent majority ratifies the amendment.
SOUTH DAKOTA
The proposed constitutional abortion amendment in South Dakota is Amendment G.
Ballot language: Before the end of the first trimester, the State may not regulate a pregnant woman’s abortion decision and its effectuation, which must be left to the judgment of the pregnant woman.
After the end of the first trimester and until the end of the second trimester, the State may regulate the pregnant woman’s abortion decision and its effectuation only in ways that are reasonably related to the physical health of the pregnant woman.
After the end of the second trimester, the State may regulate or prohibit abortion, except when abortion is necessary, in the medical judgment of the woman’s physician, to preserve the life or health of the pregnant woman.
Each paragraph in the ballot language represents one trimester of pregnancy. In the first paragraph, or first trimester, the measure would allow unrestricted abortions and would prohibit the state from regulating abortion in any way. The second paragraph of the measure dictates that only in the second trimester could the state begin to put health and safety regulations to ensure abortions are performed by licensed health care professionals in appropriate facilities. The third paragraph allows the state to prohibit most abortions in the third trimester. However, the measure leaves the “life or health” of the mother exception largely undefined and in the hands of her physician.
Pro-life groups in South Dakota describe the proposed amendment as “dangerous” and “extreme.” They argue that the measure would legalize abortion up to the point of birth, including during the late stages of pregnancy when a baby is considered viable, as long as a physician approves. Additionally, since the amendment would prohibit any regulation not related to the health of the mother, critics argue it would remove parental consent and notification requirements for minors seeking abortions, eliminate basic health and safety standards for abortion providers for first trimester abortions, override conscience protections to force health care providers to perform abortions against their will, and open the door for taxpayer-funded abortions.
South Dakota currently has a near-total abortion ban that would be nullified by the passage of Amendment G. The measure needs a simple 50 percent majority to be ratified.
Liberty Counsel Founder and Chairman Mat Staver stated, “Voters should understand that some of these abortion amendments are deceptive and misleading and will allow abortion up to birth for any reason. Many of them would place women and girls at risk by removing health and safety regulations while forcing taxpayers to pay for abortions. Due to their vague and broad language, many of these measures will be challenged in court taking years to resolve and costing taxpayers even more in litigation costs.”
For more information about each state’s proposed abortion amendments, visit Liberty Counsel’s website here.
