Partisans on both sides of the abortion debate recognize that legislation can be changed and is not enough to provide a permanent resolution. Accordingly, they turned to state constitutional amendments to establish whether or not there is a right to abortion in each state’s constitution. Establishing a right to abortion in a state constitution does the same thing as the Roe decision—invalidates all laws restricting abortion and prevents future ones from coming into effect. Amendments that reject a constitutional right to abortion are more limited: they essentially tell the state supreme court that it can’t issue a Roe-like decision and find a right to abortion, but they don’t change any existing laws or prevent abortion-friendly laws from being passed.

Estimated reading time: 6 minutes

Voters in Kansas, California, Kentucky, Michigan, Montana, and Vermont voted directly on these amendments by referenda in the 2022 midterm elections. Here’s a breakdown of each:

Kansas

Kansas held its abortion referendum on August 2, 2022 and was the only state to do so during its primary (rather than general) election. This constitutional amendment appeared on the ballot as “Amendment” and would have established that there is no right to abortion in Kansas, after a 2019 Kansas Supreme Court decision declared abortion a fundamental constitutional right. The amendment failed, with only 41% voting to prohibit courts from adding a constitutional right to abortion. If it had passed, abortion would still have been legal in Kansas because it would not have affected a law allowing abortion pre-viability.

California

California held its abortion referendum on November 8, 2022. This constitutional amendment appeared on the ballot as “Proposition 1” and established an official right to abortion in California. The amendment passed with only 33% voting against a constitutional right to abortion. If it had not passed, abortion would still have been legal in California because it would have not affected a extremely permissive laws and existing judicial rulings allowing abortion pre-viability.

Kentucky

Kentucky held its abortion referendum on November 8, 2022. This constitutional amendment appeared on the ballot as “Amendment 2” and would have established that there is no right to abortion in Kentucky. The amendment failed, with only 47% voting to prohibit courts from adding a constitutional right to abortion. Though it did not pass, abortion is still largely illegal in Kentucky.

Michigan

Michigan held its abortion referendum on November 8, 2022. This constitutional amendment appeared on the ballot as “Proposal 3” and established an official right to abortion in Michigan. The amendment passed with only 43% voting against a constitutional right to abortion. If it had not passed, abortion would still be legal due to its 1931 abortion ban being ruled unconstitutional earlier in 2022. In March 2023, Michigan Democrats began the official process of repealing this law.

Based on the vague verbiage of this amendment, opponents are concerned that it will be more far-reaching than simply allowing abortion including allowing abortion up through birth, repealing parental consent for minors seeking abortions, and even allowing non-doctors to perform abortions without prosecution for malpractice. (Disclosure: I personally worked on the campaign against Proposal 3 by going door-to-door and sharing my concerns with voters.)

Montana

Montana held its referendum on November 8, 2022, and rather than touching on abortion itself, it addressed infants born alive after a failed abortion. The amendment would have increased the likelihood and length of criminal charges for healthcare workers unless they take “all medically appropriate and reasonable actions to preserve the life” of an infant born alive, including after an attempted abortion. However, opponents claimed that this legislation could rob parents of precious time with infants who are suffering from a condition that would cause them to die very soon. Ultimately, the law failed with only 47% voting to increase criminal charges. Though it did not pass, it is still illegal for an infant to be killed outside the womb after a failed abortion.

Vermont

Vermont held its abortion referendum on November 8, 2022. This constitutional amendment appeared on the ballot as “Amendment” and established an official right to abortion in Vermont. The amendment passed with only 23% voting against a constitutional right to abortion. Even if it did not pass, abortion would still be legal in Vermont due to a 2019 state law.

How Should Pro-Lifers Respond to Ballot Losses?

These election results can be discouraging. Every pro-life amendment was shot down and every pro-choice amendment is now enshrined in its state constitution. While we can say that Roe was imposed on the public against the will of the people, these amendments were all decided by direct vote, so they’re a real barometer for public opinion. So we were able to get rid of Roe, but now public opinion is against us.

But that doesn’t mean Dobbs was a net loss for the pro-life movement, and it doesn’t mean we can’t successfully legislate against abortion at the state level.

There are many states that have now banned or restricted abortion. This has saved many lives and continues to save many lives. It can seem like that there hasn’t been much of a difference, and it’s true that the effect has been attenuated by mail-order abortion pills and abortions across state lines, but for many children, they are alive today because Roe has been overturned. It makes a world of a difference to them and their families. That is certainly still a win worth celebrating.

Even in states where abortion is still legal, and especially in those that had a referendum, pro-life political campaigns have broadcasted the pro-life message through door-knocking, literature distribution, billboard advertisements, and more. Reaching people is absolutely vital to our mission, because sharing the pro-life message and changing minds about legal abortion is what will ultimately end it. The 2022 midterm elections demonstrated that we need public opinion on our side in order to change the law in a long-lasting and meaningful way. That will certainly be necessary for our ultimate legislative goal, the inclusion of a national Human Life Amendment that affirms the right to life from fertilization.

Though this can seem like an impossible task, we must remember what it was like in 1973. The United States Constitution suddenly guaranteed a (fabricated) right to abortion. What could seem more final and unchangeable than that? But rather than accept legalized abortion as a fact of life, the pro-life people of 1973 formed a movement to answer the particular challenges of their time. It took 49 years to overturn Roe; we persevered then, and there’s no reason to give up now. We’re in a new era in the fight for unborn children, and we can now create and uphold laws that protect them. We must be bold as we advocate for these laws, even at the expense of our comfort, because the unborn cannot speak for themselves, and they deserve to be defended.

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The post The 2022 Abortion Referenda: Responding to Pro-Life Setbacks originally appeared at the Equal Rights Institute blog. Subscribe to our email list with the form below and get a FREE gift. Click here to learn more about our pro-life apologetics course, “Equipped for Life: A Fresh Approach to Conversations About Abortion.” 

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