12 States Where the Fate of Abortion Rights Could Be on 2024 Ballots

The Washington Post / Amy B Wang, Leigh Ann Caldwell

15:50 JST, December 21, 2023

Voters in about a dozen states in 2024 could decide the fate of abortion rights with constitutional amendments on the ballot in a pivotal election year – including in several battlegrounds that will be key to deciding the presidential race and which party controls Congress.

Abortion rights advocates chose the path of constitutional amendments because if passed, they would supersede any law enacted by state legislatures. Those advocates have reason to be hopeful: Since the Supreme Court’s decision to overturn Roe v. Wade last June, every ballot measure that has sought to preserve or expand abortion access has been successful, while those that have sought to restrict abortion access have failed – even in states that skew conservative.

Weeks after the Dobbs v. Jackson Women’s Health Organization decision, voters in deep-red Kansas defeated a ballot measure that would have removed abortion protections from the state’s constitution. Last November, voters in Michigan, California and Vermont approved ballot initiatives that enshrined the right to abortion in state constitutions, while voters in Kentucky and Montana defeated antiabortion ballot measures. Voters in Ohio approved a measure to enshrine the right to an abortion last month, despite efforts by Republican officials to hamstring the process by raising the threshold required for a ballot measure to pass.

“It’s hard to overstate the momentum, the wind that’s at the back of abortion rights advocates using ballot measures to pass constitutional amendments,” said Kelly Hall, executive director of the Fairness Project, a group that supports state ballot measure efforts.

The issue has proved to galvanize turnout and play a major role in electing politicians who support abortion access. While abortion rights groups say the issue transcends party lines, the spillover effect has tended to benefit Democratic candidates who campaign to protect reproductive rights.

Kelsey Pritchard, director of state public affairs at Susan B. Anthony Pro-Life America, said elected officials need to “sound the alarm” on potential ballot measures that would preserve or expand abortion access. She accused abortion rights groups of misleading voters about the severity of the impact of abortion restrictions, contending that states with restrictions still allow for “the timely medical care of pregnant women experiencing an emergency.”

“Timely medical care” has not been the reality for many pregnant patients in several states that have greatly restricted reproductive care, with some of them suing for lack of medical care. One includes a Dallas-area woman, Kate Cox, who sought an abortion after learning that her fetus had a fatal genetic condition.

Voters in Maryland and New York, two blue states, will decide next year whether to codify a right to abortion in their state’s constitution because of measures put on the ballot by their state legislatures. In nine other states where the state constitution can be amended through citizen-initiated ballot measures, organizers are working to gather signatures to put the question directly before voters. Voters in at least one state, Iowa, are seeking to add a measure that restricts access to abortion.

The likelihood of successfully getting on the ballot differs from state to state, because of varied processes and the potential for lawsuits. Here is a look at the 12 states where voters could weigh in on abortion in 2024, ranked from the campaigns most likely to make it to the ballot to the ones that face the most obstacles.

Definite ballot measure to protect abortion rights

Maryland

– Current law: Since 1992, Maryland has allowed abortion until viability and after viability if the life or health of the mother is at risk, or if the fetus isn’t viable.

– The initiative: The Right to Reproductive Freedom initiative is a legislative-backed measure that would add the right to an abortion to the Declaration of Rights section in the state constitution, adding that every individual “has the fundamental right to reproductive freedom, including but not limited to the ability to make and effectuate decisions to prevent, continue, or end one’s own pregnancy.”

– State of play: The measure failed previously in the legislature, before Roe was overturned. But a revived measure passed both chambers with the required 60 percent support in April, placing it on the November ballot.

– The politics: Maryland is a deep-blue state that President Biden won by more than 33 percentage points. Abortion rights advocates hope candidates vowing to protect rights will be buoyed by the ballot measure in their competitive local races.

New York

– Current law: Abortion until 24 weeks gestation is legal in New York.

– The initiative: A legislature-driven initiative would protect abortion rights as part of an expanded Equal Rights Amendment that will appear on the ballot in November. Specifically on abortion, the measure protects against discrimination for pregnancy and pregnancy outcomes and would protect against government action that could limit reproductive care.

– State of play: The New York legislature fulfilled the requirement of passing the ERA twice consecutively through the legislature – in July 2022 and again in January. It will be on the ballot for voters in November.

– The politics: New York is a blue state that Biden won by more than 30 points. But New York will be a crucial battleground to determine control of the U.S. House with seven competitive seats. Democrats hope that the ballot initiative could lead to high turnout and benefit Democratic candidates. The initiative is a critical part of the election, particularly as Democrats plan to focus on anti-choice positions espoused by many Republicans.

Possible ballot measure to protect abortion rights

Arizona

– Current law: A 2022 Arizona law that went into effect after Roe v. Wade was overturned bans abortions after 15 weeks of pregnancy, with exceptions only for life endangerment and medical emergencies. There is also a territorial law – one that was passed in 1864, before Arizona became a state – that bans and criminalizes almost all abortions. The Arizona Supreme Court last week heard oral arguments to consider whether the conflicting laws can coexist.

– The initiative: Arizona for Abortion Access, a coalition of abortion rights advocates, is behind a proposed ballot measure that would enshrine the right to an abortion in the state’s constitution.

– State of play: The campaign in Arizona has been endorsed by numerous reproductive health and civil rights groups, including the ACLU of Arizona, and the state chapters of Planned Parenthood Advocates and Reproductive Freedom for All (formerly NARAL). The campaign must submit 383,923 valid signatures by July 3 to appear on the 2024 ballot. In Arizona, a simple majority is required to pass a ballot measure.

– The politics: Arizona is a battleground state that will be critical in the 2024 election cycle. Sen. Kyrsten Sinema (I-Ariz.) announced last year that she was leaving the Democratic Party to become an independent, complicating the thin Senate majority of Democrats. She is being challenged for reelection next year by Rep. Ruben Gallego (D) and Republican Kari Lake, who unsuccessfully ran for Arizona governor last year. Having an abortion measure on the ballot is likely to boost voter turnout, but it is unclear which Senate candidate would benefit. In 2020, Biden won Arizona by only 0.30 percentage points, becoming the first Democratic presidential candidate to win there since 1996.

Nevada

– Current law: Nevada state law allows abortion up to 24 weeks of pregnancy and after 24 weeks when a doctor has “reasonable cause” to believe it is “necessary to preserve the life or health of the pregnant person.”

– The initiative: A coalition of abortion rights advocates called Nevadans for Reproductive Freedom filed paperwork for a proposed ballot initiative that would amend the state constitution to include abortion before “fetal viability” as a fundamental right. The ballot measure, if passed, would be “an added layer of protection” for reproductive rights in the state, said Caroline Mello Roberson, director of state campaigns for Reproductive Freedom for All.

– State of play: The campaign is collecting signatures and must submit 102,362 by June 26. A district court judge last month struck down the group’s petition, saying it covered more than a single subject, but abortion rights advocates are hopeful the state’s all-female Supreme Court will rule in their favor on appeal.

Nevada requires two consecutive votes of the people to amend the state constitution through a citizen-initiated ballot measure – meaning that, if the ballot measure passes with a simple majority in 2024, the question will return to the ballot in 2026. If it passes again then with a simple majority, the state constitution will be amended.

– The politics: Biden narrowly carried Nevada in 2020, and the battleground state continues to produce extremely tight races: Last year, Democratic Sen. Catherine Cortez Masto won reelection in Nevada by 0.77 percentage points. Having an abortion measure on the ballot in 2024 could boost Democratic turnout that would help Biden as well as Sen. Jacky Rosen (D), who is facing a similarly tough race for reelection next year.

Colorado

– Current law: Colorado is the first state to statutorily protect abortion. It did so in 1967, five years before Roe was originally decided. While Colorado has had few limits on abortion, a proposition passed in 1984 restricted the use of health insurance and Medicaid for abortion.

– The initiative: The ballot initiative would enshrine the right to abortion in the Colorado constitution, and would allow health insurance coverage of an abortion. The initiative says the “government shall not deny, impede, or discriminate against the exercise of that right, including prohibiting health insurance coverage for abortion.”

– State of play: Led by the groups Cobalt and Colorado Organization for Latina Opportunity and Reproductive Rights, signatures are being gathered – 124,238 are necessary – and then must be approved by the secretary of state. The measure would then be a yes-or-no vote on the ballot, requiring 55 percent of votes to be “yes” to be adopted.

Abortion rights rights advocates beat back a ballot initiative in 2020 to restrict abortion rights before Roe was overturned. Coloradans overwhelmingly defeated it, outperforming Biden at the top of the ticket by 25,000 votes and John Hickenlooper, who won the Senate race, by more than 100,000 votes.

– The politics: Abortion rights groups have long been on the defensive. In addition to 2020, there have been antiabortion ballot initiatives three other times since 2008. This is the first time they are being proactive and trying to pass a measure that enshrines the right in the constitution. Advocates were very intentional in choosing a presidential year when voter turnout would be high. There are no other statewide races on the ballot in 2024, but Colorado will see at least two competitive House races, including that of Rep. Lauren Boebert (R).

Montana

– Current law: Montana has abortion protections in the state constitution under the right to privacy, though Republicans – who control the governor’s office and both chambers of the state legislature – tried to pursue restrictions.

– The initiative: Planned Parenthood Advocates of Montana last month filed paperwork for a ballot measure that would affirm “the right to make and carry out decisions about one’s own pregnancy, including the right to abortion” in the state constitution.

– State of play: The state attorney general is reviewing the legality of the ballot language. If it passes, the campaign must submit 60,359 valid signatures by July 19 for the measure to appear on the 2024 ballot. Montana voters last year rejected a referendum that would have criminalized medical professionals if they did not give care to any infant born alive, at any stage of development. The so-called born alive referendum was criticized for mischaracterizing abortions, and it was ultimately defeated at the polls by more than five percentage points.

– The politics: Sen. Jon Tester (D) announced earlier this year he would seek reelection to a fourth term, to the relief of many Democrats as the party faces a tough Senate map in 2024. Having an abortion measure on the ballot could boost Democratic turnout and help Tester win a difficult reelection race.

Nebraska

– Current law: Nebraska has been one of the more aggressive states attempting to roll back abortion rights, even when Roe was in place. After Roe fell, the Nebraska legislature passed a 12-week abortion ban with no exceptions for the life and health of the mother earlier this year after falling one vote short of a six-week ban.

– The initiative: The citizen-driven initiative Protect Our Rights is proposing a constitutional amendment to protect a right to abortion until “fetal viability.”

– State of play: Since the initiative was filed with the state, advocates have begun collecting the roughly 128,000 signatures of registered voters who hail from 38 counties as required by July.

– The politics: Nebraska is a deep-red state, voting for Donald Trump by 29 percentage points in 2020. Voters are increasingly using ballot initiatives in Nebraska to advance objectives the legislature refuses to take up. While incumbent Sen. Deb Fischer (R) is expected to easily win reelection, if the abortion initiative makes the ballot, it could impact the race of Rep. Don Bacon, who is one of the 17 Republican House members who represent a Biden-won district.

Florida

– Current law: Florida has a 15-week abortion ban, but a six-week ban signed by Gov. Ron DeSantis (R) could go into effect if the Florida Supreme Court ultimately approves the 15-week one.

– The initiative: The citizen-driven initiative to pass the Amendment to Limit Government Interference with Abortion is led by Floridians Protecting Freedom. It would codify in the constitution a right to abortion until “viability.”

– State of play: The group is in the process of collecting the required 891,523 signatures with a Feb. 1 deadline. More than 753,300 signatures have been approved as of Dec. 15, the group says. If the state certifies the effort, then the state Supreme Court will determine if the measure is valid to be placed on the ballot. The state Supreme Court has been hostile to abortion rights, and some advocates worry it will reject the effort.

– The politics: Florida is a crucial state for the abortion rights movement as DeSantis, a GOP presidential hopeful, presided over the passage of one of the most restrictive bans in the country. Trump now calls Florida home and won the state by more than three percentage points in 2020. There is also a Senate race in Florida that is seen as a key pickup opportunity for Democrats. Advocates who are pushing the initiative are adamant that it isn’t tied to partisan politics, and they note that at least 150,000 Republicans have signed onto the measure as of last week.

Missouri

– Current law: Missouri has a near-total ban on abortion, with exceptions only for life endangerment and medical emergencies, that went into effect after Roe was overturned.

– The initiatives: There have been numerous proposals submitted to the secretary of state’s office. Missourians for Constitutional Freedom filed 11 petitions with varying language: All would seek to overturn the state’s ban by enshrining in the state constitution “the right to make and carry out decisions about all matters relating to reproductive health care.”

The Missouri Women and Family Research Fund, led by longtime GOP operative Jamie Corley, filed multiple petitions with varying language that would add exceptions for rape and incest to the state’s current ban. The petitions also seek to legalize abortions in the state until 12 weeks of pregnancy.

– State of play: The efforts by Missourians for Constitutional Freedom are supported by the ACLU of Missouri and are tied up in a legal battle with the secretary of state over potential language. The efforts led by Corley also face an uphill battle, as they do not have the support of national abortion rights groups, who argue that they would not do enough to expand and protect reproductive rights. A campaign must submit at least 171,592 valid signatures by May 5 to appear on the 2024 ballot.

– The politics: Missouri has some of the strictest restrictions on abortion in the country, and the state – which Trump won by more than 15 points in 2020 – is reliably conservative. Sen. Josh Hawley (R) is up for reelection next year, and an abortion-related ballot measure could galvanize voter turnout for his to-be-determined Democratic opponent.

Arkansas

– Current law: Arkansas has a near-total ban on abortion, with exceptions only for life endangerment, that went into effect after Roe was overturned.

– The initiative: A group called Arkansans for Limited Government has proposed a constitutional amendment that would “prevent the state from restricting access to abortion up to 18 weeks after conception or in the instance of rape or incest, fatal fetal anomaly, or when abortion is needed to protect the pregnant woman’s life or health.”

– State of play: The state attorney general last month rejected the wording for the proposed ballot measure, sending it back to Arkansans for Limited Government to redraft. If the group prevails and the attorney general approves a reworded ballot measure, the group would need to collect 90,704 valid signatures by July 5 to gain ballot access.

– The politics: Ruby-red Arkansas will be an extremely challenging state in which to pass a ballot measure expanding abortion access. Republicans control the governor’s office and both chambers of the state legislature, and Arkansas’s entire congressional delegation is Republican. The group behind the ballot measure efforts is emphasizing a libertarian approach, arguing that matters such as abortion “are private and not to be dictated by the government.”

South Dakota

– Current law: A trigger law banning all abortions in South Dakota, with no exceptions for rape or incest, went into effect after the Supreme Court overturned Roe. In addition, state law dictates that anyone who helps someone procure an abortion, unless deemed medically necessary to preserve the life of the pregnant person, could face a felony charge.

– The initiative: Dakotans for Health filed paperwork proposing a citizen-initiated ballot measure that would establish a right to an abortion in the state’s constitution. If passed, the state could not regulate abortion during the first trimester of pregnancy, could regulate abortion if “reasonably related to the physical health of the pregnant woman” during the second trimester, and could regulate or even ban abortion in the third trimester, with exceptions for “life or health of the pregnant woman.”

– State of play: National reproductive rights groups are sitting out this campaign, saying the language in the proposed ballot measure will not do enough to restore abortion rights in South Dakota. Dakotans for Health must submit 35,017 signatures by May 7 to get on the 2024 ballot – where it needs a simple majority to pass.

– The politics: South Dakota is as conservative as it gets: Trump defeated Biden in the state in 2020 with nearly 62 percent of the vote, and Republicans control the governor’s office and both chambers of the state legislature. All three members of South Dakota’s congressional delegation are Republican.

Possible ballot measure to restrict abortion rights

Iowa

– Current law: The state legislature passed a six-week abortion ban in July that is being tested in the courts. Days after Roe was overturned, courts in Iowa reversed a previous decision that protected the right to an abortion.

– The initiative: Antiabortion groups are pushing a legislative initiative that would prohibit the right to an abortion in the Iowa constitution. The “no right to an abortion amendment” says the “Constitution does not recognize, grant, or secure a right to abortion or require the public funding of abortion.”

– State of play: Both chambers of the General Assembly must pass the constitutional amendment in two consecutive sessions. It already passed the measure in the last session and must pass it for a second time in the current legislative session that ends in 2024 for it to be on the ballot in November.

– The politics: Iowa has become a reliably Republican state in recent elections, with Biden losing Iowa by eight points in 2020. While Biden is unlikely to actively campaign in Iowa, the state does have at least one House race that could be competitive. Abortion rights groups are skeptical that the Iowa General Assembly will advance the constitutional amendment again after antiabortion defeats in similarly red Kansas and Ohio, fearing it could boost Democratic turnout in a presidential election year.