What to know as the battle over abortion rights shifts to state ballots in 2024

Since the U.S. Supreme Court overturned Roe v. Wade in 2022, attempts to use the ballot box to enshrine the right to access abortion services into state constitutions have proliferated. This November, the issue could be on the ballot in as many as a dozen states, including some where abortion is banned or severely restricted. John Yang speaks with legal historian Mary Ziegler to learn more.

Read the Full Transcript

Notice: Transcripts are machine and human generated and lightly edited for accuracy. They may contain errors.

  • John Yang:

    Since the Supreme Court said that access to abortion services was not protected by the U.S. Constitution. Attempts to use the ballot box to enshrine that right into state constitutions have proliferated. Following the Supreme Court this isn't in 2022, voters in seven states some red, some blue have been asked to decide about abortion rights and every time they voted to protect abortion rights.

    This fall, the issue could be on the ballot in as many as a dozen states, including some where abortion is either totally banned or severely restricted. Mary Ziegler is a professor at the University of California Davis Law School. She's written several books on abortion law, the most recent is "Roe: The History of a National Obsession."

    Mary, for so long, the anti-abortion movement wanted to get Roe overturned, they get it overturned, and now they have state after state some of them pretty conservative states voting to put that right into the state constitution. What does this tell us? Or does it tell us anything more about Americans attitude toward abortion?

    Mary Ziegler, UC Davis School of Law: Yeah, I think what we've seen post Dobbs has been lots of polls confirming that Americans support abortion rights. And I think we've seen some increases in support for abortion rights, in part because I think the reality of banning abortion is a lot harder for Americans to digest than sort of abstract concepts might have been like the idea of being pro-life or pro-fetal rights, I think has struck Americans differently than the reality of living in bands and a large swath of the country.

  • John Yang:

    And why are so many of the attempts targeting state constitutions amending the state constitution? Do they think that's going to be harder for judges and lawmakers to circumvent?

  • Mary Ziegler:

    I think it's because ballot initiative processes go directly to voters, right. So we've seen that state lawmakers in a variety of jurisdictions are continuing to cater to anti-abortion voters and anti-abortion advocates, even if that isn't in line with what a majority of voters in their states would prefer. And they're banking on the idea that voters won't turn them out of office because of partisan divides gerrymandering and the rest.

    So if you bypass those legislators and you go directly to voters, you give voters sort of a straight up and down decision on whether they want to enshrine reproductive rights in their constitution or not independent of what partisan identity they may have an independently of what their state legislators may be willing to do.

  • John Yang:

    On Friday here in Washington, we have the annual March for Life, the anti-abortion rally marking today that Roe was handed down. Since that unifying goal of overturning Roe is now gone. Is there any single unifying goal that's uniting the anti-abortion movement?

  • Mary Ziegler:

    There is. So even before Roe, the anti-abortion movement school was the recognition of fetal personhood, right? The idea that a fetus is a constitutional rights holder. And so that will really preceded Roe, and it continued in the decades after Roe.

    The problem, of course, is that we're a long way from the recognition of fetal personhood, I think either through the Supreme Court, much less through Congress or some kind of constitutional amendment.

    So in the short term, I think you're seeing anti-abortion groups, either looking to shore up bands in the States or find a way a kind of backdoor way to get to a nationwide ban. We've seen a lot of conservative groups rallying around the Hyde Amendment, which is a 19th century law that no one's thought much about since the 1930s, saying, in effect, it turns out that it is a nationwide abortion ban.

    And the reason we're seeing that and I think a focus on both the courts and the executive branch is precisely because anti-abortion groups are realizing that they're struggling when they put the question directly to voters. They're struggling with politicians who would have to enact new laws. So they're looking for ways to avoid those two things.

  • John Yang:

    On that you say they're looking at the executive branch, could the outcome of the presidential election in the fall affect abortion rights?

  • Mary Ziegler:

    Dramatically? Right. So I mean, I think it may not seem that way, in part because President Biden, for example, hasn't been able to codify Roe v Wade into law. There are any number of strategies that conservative groups have outlines that for example, a second Trump administration could take, like removing the abortion pill mifepristone from the market, which is used in over half of the portions, reviving this 19th century law, the Comstock Act in a way that would allow prosecutions against doctors or drug companies in blue states or states that have been trying to abortion and reproductive rights in their constitutions, even making changes to access to emergency contraceptives.

    All of these are steps that at least conservatives want to try, and they say that they don't need Congress to achieve. So there's — the potential of a lot of dramatic change in the direction of less access to abortion rights moving even further from Roe, depending on the outcome of the election.

  • John Yang:

    And in the election, this is of course, a presidential election year. The other ballot initiatives we talked about were in an off year. Will that greater turnout in a presidential election year affect the outcomes do you think?

  • Mary Ziegler:

    I wouldn't expect them too dramatically. We've seen pretty good turnout for ballot initiatives. We've also seen in a variety of states that Republicans as well as independents are sometimes voting for abortion rights ballot initiatives. It's not breaking down on clean partisan lines in places like Ohio, Kentucky, Montana, Kansas.

    At the same time, I think the kind of interesting and complicated question is what will support for an abortion rights ballot initiative necessarily translate into support for Democrats? For the same reason, right the fact but some of the people who are voting for abortion rights ballot initiatives are Republicans, some of those same people were voting for Republican state lawmakers or Republican gubernatorial candidates.

    So I think the real trick for the Biden campaign in 2020 foreign for other Democrats down ticket is going to be to translate that energy for abortion rights into votes for Democrats, I think by explaining either what they can achieve if they are elected, or conversely, what a Republican could achieve if elected. Right. And I think that's the challenge is going into 2024.

  • John Yang:

    But those initiatives aren't likely to draw, draw turnout, drive turnout up for either side or the other?

  • Mary Ziegler:

    Well, I think, based on the data we have so far, we would expect to see more turnout among Democrats or among abortion rights supporters. I think Republicans and people who identify as pro-life or anti-abortion are a little bit I think, less excited one because there isn't as clear a kind of short term unifying goal, as you mentioned earlier, and two because they've already achieved bans in a lot of states. And the tricky question is how to enforce them. Right?

    There's no sort of easy low hanging fruit solution to how do you enforce a ban when people can travel across state lines when people can order pills on the internet. So I think we would expect to see a driving turnout more amongst orders of worship rights than the other way around.

  • John Yang:

    Mary Ziegler with University of California Davis, thank you very much.

  • Mary Ziegler:

    Thanks for having me.

Listen to this Segment