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With Amendment 3, Missouri became the first state to overturn a near-total abortion ban at the ballot box.
This article appears in the December 2024 issue of The American Prospect magazine. Subscribe here.
In an era when the existence of women and girls’ reproductive rights will turn solely on their addresses, the 2024 election results—seven out of ten states enshrining abortion in their state constitutions—seemed to be an encouraging outcome on an otherwise bleak electoral map.
But November 5 was largely a victory for fine-tuning exercises. Voters in five of those seven states built upon existing protections. In four of them—Maryland, New York, Nevada, and Montana—abortion is already legal. Then there is Colorado, with no restrictions whatsoever. Two of the bluest Eastern states put forward their state constitutional remedies as proactive moves to prevent future interference by anti-abortion actors.
Only in Missouri and Arizona were meaningful restrictions rolled back. Those results not only opened up new efforts to eliminate abortion access implemented by ballot initiatives; they’ve set off some fresh attempts by legislative manipulators to jam up the machinery of direct democracy.
In Missouri, voters threw out a draconian ban that allowed abortions only for the gravest health issues and threats to the life of the mother in favor of a constitutional amendment that guarantees reproductive freedoms, including abortion, pregnancy, prenatal, and postnatal care. Seeking to expedite access when Amendment 3 goes into effect in early December, the ACLU of Missouri filed a lawsuit on behalf of two Planned Parenthood facilities seeking to strike down a number of existing regulations, such as TRAP (“targeted regulation of abortion providers”) laws—waiting periods and other regulations designed to make seeking an abortion more onerous—that would conflict with the amendment and endanger health care providers. A court must issue a preliminary injunction to block the state from enforcing those bans and restrictions; until that time, they remain in place.
The state has a Republican trifecta, but Missouri state lawmakers have set themselves up for a battle royale on the amendment. Although incoming House Speaker Jon Patterson has said that he will accept the will of state voters, Rep. Justin Sparks deems Patterson insufficiently pro-life and plans to challenge him for the post next year. Not surprisingly, anti-abortion lawmakers had indicated that they planned to pursue new restrictions before the results were even tallied.
The Kansas City Star explains that the Missouri legislature has a track record of returning to voters with initiative changes that include sweeteners designed to mask the fact that lawmakers are snatching previous gains out from under them. A 2018 initiative erased a voter-approved redistricting plan by dangling new restrictions like eliminating lawmakers’ ability to accept lobbyists’ gifts. It was accompanied by deceptive language (including a similar title) that glossed over the fact that voters were actually repealing the redistricting changes they’d made in a previous election cycle.
The temptation for Congress to finally implement a national abortion ban might just be too tantalizing to resist.
All state lawmakers need to do is agree on a new legislative constitutional amendment and that proposal can head straight on the ballot, minus the hoops that citizen-led initiatives, like Amendment 3, have to navigate to get on the ballot.
Meanwhile, Arizona’s constitutional amendment, which grants a right to abortion before fetal viability, goes into effect at the end of November, while pro-choice groups have a similar set of legal appeals to put forward to repeal the abortion laws already on the books. In January, Republicans will be in the majority in both chambers when the legislature reconvenes, and may well fight to take it on. They’ll have backup, too. The two judges who proved to be pivotal votes in resurrecting an 1864 territorial law’s near-total ban on abortion survived re-election challenges.
Arizona voters did stave off two attempts to make the citizen-initiated ballot measure process more difficult—a reassuring sign of democratic impulses. Voters decisively rejected a more complex formula that would have established signature minimums in each of the state’s 30 legislative districts (rather than statewide) to get on the ballot. They also opposed a measure that would have allowed anyone to challenge the constitutionality of a ballot imitative before an election.
The biggest loss came in Florida, where a citizen-led coalition aiming for an abortion constitutional amendment—which would have won in states where only simple majorities are required to pass a ballot measure—came up three percentage points short of the 60 percent threshold they needed to reach. Gov. Ron DeSantis used Florida taxpayer dollars to muddy the waters with all sorts of gambits, from threatening TV stations running abortion rights ads, to having his election police squad investigate individual voters over allegations of signature-gathering fraud, to directing the state health agency to create a pro-life website in a multimillion-dollar ad campaign—using funds allocated to fight the opioid epidemic to pay for those spots.
Other initiatives that shared the ballot with Florida’s Amendment 4, such as a state constitutional right to hunt and fish, were believed to be expressly added to the ballot by Republican lawmakers to attract more conservative voters—ones who might vote against the abortion amendment. (That one passed easily, 67 percent to 33 percent.) They also championed moving to partisan school boards and removing public financing for candidates who agreed to spending limits. (Both, however, failed.)
Despite their win, Florida’s anti-abortion supporters have vowed to fight on to make sure that if abortion supporters circle back for another amendment attempt, they’ll have to navigate minefields of bureaucratic obstacles, in what may prove to be one of the country’s more audacious forays into direct-democracy backsliding.
In October, the Florida secretary of state’s Office of Election Crimes and Security published an interim report that declared that the sponsor of Amendment 4, Floridians Protecting Freedom, ran a petition signature-gathering effort that was rife with fraud. It included claims that the contracted petition signature gatherers forged voter signatures and used “known fraudsters” to handle those jobs. The use of state contractors and subcontractors and nonresident signature gathers, and people with criminal records, also came under withering criticism.
The report notes that “barring outside companies” from working on petition drives might prevent future problems, as might restricting nonresidents and returning residents from collecting signatures. (Campaigns across the country rely on nonresidents, but some states have moved to prohibit the practice.) The report also suggests making future signature-gathering efforts as complicated as possible: “It is imperative that the state,” the report intones, “consider major reforms to the initiative petition process to prevent groups from doing this ever again in Florida.” Expect Florida’s Republican lawmakers to take these challenges up.
Leaving the states to sort through the legislative and legal exercises on abortion would seem to be one way to lower the national temperature. The courts could also settle the issue. The Comstock strategy, for example, now rests with federal District Court Judge Matthew Kacsmaryk, the anti-abortion maverick who has become a central figure in medication abortion cases. Named for a notorious anti-vice crusader, the 1873 Comstock Act has been a dead letter for decades, but specifically prohibits “any article or thing designed or intended for the prevention of conception or procuring an abortion” to be sent through the mails.
The Republican attorneys general of Missouri, Kansas, and Idaho are pursuing new federal restrictions on mifepristone and other limitations that could ensnare medical items used in some conventional abortion procedures (such as surgical instruments) and set the stage for broader nationwide restrictions. Those questions would end up on the Supreme Court’s docket rather than in Congress or the White House.
However, with an electoral victory that dropped complete control of Congress into the laps of Republicans, the temptation for Capitol Hill’s solons to finally implement a national ban (or a set of narrow restrictions tantamount to a ban, such as a six-week “heartbeat bill”) might just be too tantalizing to resist. What Trump might do in those circumstances would be pure conjecture at this stage: He has both boasted about his Supreme Court nominations that produced the Dobbs decision and offered that he would veto any national ban that comes to his desk. He could very well use his veto pen, and then declare helplessness since Congress would have the two-thirds majorities they’d need in both chambers to override his veto. Under that scenario, Trump Republicans would achieve one of their most anticipated goals—any new federal abortion restrictions would go into effect, preempting the seven states’ newly passed constitutional amendments as well as every other state law that currently sanctions the ancient practice.
