In a post-Roe West, abortion is on the ballot

Reproductive rights are in the hands of the states — and their voters.

Amy Fitch-Heacock was driving from Phoenix to Tucson in May when she got an email from fellow reproductive rights organizers: A draft of an upcoming Supreme Court decision overturning Roe v. Wade had been leaked to Politico. She pulled off the freeway to read it, at first thinking it had to be misinformation. It was not. That night, Fitch-Heacock, a founding member of Arizonans for Reproductive Freedom, began working with a team of colleagues, lawyers and policymakers to draft a constitutional amendment to protect abortion in the state of Arizona. In 61 days, 3,000 volunteers collected 175,000 signatures. Though the campaign fell short of the 356,467 signatures necessary to put it on the November ballot, it reflects the reality of organizers scrambling to respond to a post-Roe landscape.


It’s now up to the states to determine the level of protection — or criminalization — that abortion will receive in their jurisdictions. Since Roe was overturned, laws in Wyoming and Utah that ban abortion have gone into effect, though it still remains protected in Oregon, Colorado, New Mexico and California. This November, there are five ballot measures concerning reproductive rights and abortion in states across the country — the highest number in an election year in U.S. history — though the campaign in Arizona and another in Colorado failed to gather enough signatures. “Abortion is absolutely on the ballot in 2022,” said Arizona ACLU policy director Darrell Hill. 

Source: Kaiser Family Foundation, data as of Sept. 15, 2022

Ballot measures are a powerful tool of direct democracy, since they enable any citizen who can gather enough signatures to put an issue in front of voters on a ballot. But now, some state legislatures, including Arizona’s, have referred measures to the ballot that would put limitations on future initiatives. Those limits include requiring a single issue per ballot measure, as well as a supermajority of 60% or more votes for any measure that involves taxes, and they would also give the state’s legislature the power to amend or repeal ballot measures if any part was deemed unconstitutional. “We are concerned that any attempts to kind of interfere with people’s democratic rights will eventually lead to an inability to regain full access to our abortion rights,” Hill added.

“We are concerned that any attempts to kind of interfere with people’s democratic rights will eventually lead to an inability to regain full access to our abortion rights.”

As of September, abortion is still legal under Montana’s Constitution, though three laws limiting it are currently hung up in the courts. On Election Day, voters will decide on the “Medical Care Requirements for Born-Alive Infants Measure,” which requires that medical care be provided to infants born alive after an attempted abortion, cesarean section or induced labor, and sets a $50,000 fine or 20 years of prison for physicians who violate the law. The measure is similar to a law passed by the U.S. Congress in 2002, though the state’s ballot measure carries harsher consequences. While Republicans characterize it as a bill for “the protection of all life,” physicians and Democrats say it is unnecessary and prescriptive.

And in California, voters will decide whether to add an amendment to their state Constitution that would protect “reproductive freedom,” including abortion. California has generally positioned itself as a safe state for people seeking abortions; in June, Gov. Gavin Newsom signed a bill that would protect people who travel to the state for help from states that criminalize abortion. Another 15 bills moving through the state Legislature would broaden accessibility to abortion and other reproductive needs. With Roe overturned, the need is there: A study by UCLA’s Center on Reproductive Health, Law, and Policy from June found that up to 16,000 more people may travel to California a year for an abortion.

Abortion rights activists protest during a rally in Tucson, Arizona, on July 4, 2022.
Sandy Huffaker/AFP via Getty Images

Meanwhile, in Arizona, there are three different efforts moving through the courts and Legislature to ban access to abortion. That includes a recent law that bans any abortion after 15 weeks and a 2021 law passed by the state Legislature that would declare “personhood” for fetuses at conception. Arizona’s attorney general has also argued that a law banning abortion that predates Arizona’s statehood is now in effect. The shifting legal landscape means that there’s “a lot of risk and fear for providers or persons who may seek an abortion in the state,” Hill told HCN before the 15-week ban went into effect Sept. 24.

The failure of the statewide ballot measure to protect reproductive rights in Arizona means that local elections now hold more power over whether residents will be able to access abortion. One such race is the election for Maricopa County’s attorney general, where Democratic candidate Julie Gunnigle has pledged not to prosecute abortion cases. That’s where the difficulties of voter suppression overlap with reproductive rights: Fitch-Heacock told HCN that the state’s gerrymandered electoral maps make it difficult to depend on the Legislature for solutions.      

Still, Fitch-Heacock considered the ballot campaign successful in its turnout of volunteer signature-gatherers and in the number of signatures it gathered in such a short amount of time. Even if it wasn’t enough for the 2022 ballot, organizers are in this for the long haul. “We do have the power. It’s just going to take a lot of us.”   

Anna V. Smith is an associate editor for High Country News. She has placed in the Native American Journalists Association’s Native Media Awards in the category of Best Coverage of Native America three times. Email High Country News at [email protected] or submit a letter to the editor. See our letters to the editor policy.