Election Day Brings the Potential to Alter the Reproductive Rights Landscape Across the Country

Elected officials and those seeking office weren’t the only thing on the ballot on Election Day, which also saw several state-level ballot measures reflecting the continued legal battle surrounding reproductive rights. On Tuesday, California, Michigan, and Vermont voters all passed ballot measures enshrining the right to abortion in their state’s constitution, while Kentucky voters rejected a ballot measure that sought greater abortion restrictions. A Montana ballot measure has the potential to provide greater rights to a fetus or embryo, but it is still unknown if it will pass. Below is a brief overview of the abortion ballot measures that were on the ballots in state elections.

California

Although California already had legislation protecting abortion rights prior to the viability of a fetus, voters in California approved a constitutional amendment that goes one step further. Through the approval of Proposition 1, California voters endorsed a constitutional amendment that will explicitly establish a constitutional right to abortion and contraception. More specifically, the constitutional amendment creates a fundamental right to reproductive freedom, abortion, and contraceptives. Notably, Proposition 1 did not specify any limitations on abortion.

Michigan

Michigan voters similarly voted in favor of a state constitutional amendment overruling a 1931 Michigan ban on abortions. Although the 1931 law had not been enforced since the Roe decision in 1973, voters still sought to affirmatively include a new, individual right to reproductive freedom in their state’s constitution. The constitutional amendment allows the state to regulate abortion after fetal viability, with protections surrounding the pregnant patient’s life, as well as protections regarding the pregnant patient’s mental and physical health.

Vermont

Vermont currently has legislation providing protections for the reproductive rights of individuals, including becoming pregnant and birth control. Overwhelmingly, Vermont voters passed a constitutional amendment specifically including language in their state’s constitution establishing that “personal reproductive autonomy” is central to the “liberty and dignity to determine one’s own life course.” Unlike the amendments in California and Vermont, the practical implications of this constitutional amendment will likely not be known until its language is interpreted and tested by Vermont courts.

Kentucky

Kentucky voters rejected a potential constitutional amendment that would have allowed its state Legislature to ban abortion in most instances, other than narrow exceptions for medical emergencies, and would not have provided exceptions for rape or incest. The proposed constitutional amendment would have followed in the footsteps of Tennessee, West Virginia, Alabama, and Louisiana, which already have similar constitutional amendments in effect.

Montana

Currently, abortion in Montana is illegal after fetal viability, except in instances where the pregnant patient’s life is endangered or their health is severely compromised. Montana voters were asked to vote on a ballot measure requiring medical providers to administer life-sustaining care to newborns, regardless of their condition. If approved, this ballot measure would require medical providers to provide resuscitative efforts to any “born-alive infant,” regardless of gestational age or medical condition. “Born-alive infant” is defined as an “infant” born with a heartbeat, breathing, or definite movement of voluntary muscles, after the compete expulsion or extraction from the mother.” This measure would also prohibit medical care such as abortion in cases of lethal fetal birth defects or pre-viable preterm birth. Medical providers found in violation of the law would face up to 20 years in prison, a $50,000 fine, or both.

As new developments arise, we will update our Dobbs Decision Resource Center.  In the meantime, if you have any questions about this executive order, please contact one of the lawyers in Shipman’s Health Law practice group.