Another election, another referendum on the rights of millions of people — the 2024 election may go down in history as one of the most bizarre and confusing in a generation. Donald Trump, who in his first term secured the court majority overturned Roe v. Wade, was reelected president. And despite sending Trump back to the White House, voters still overwhelmingly expressed their support for abortion rights.
Before election night 2024, abortion rights had won every single time they had been on the ballot since Dobbs v. Jackson overturned the constitutional right to an abortion in June of 2022. Even decidedly red states like Kansas, Kentucky, Montana and Ohio voted to protect abortion rights in the months and years after the end of Roe v. Wade. Abortion rights were on the ballot in 10 states this election cycle, and even though they didn’t win in all of them, they won in most. While that undefeated streak is now over, and the future of abortion rights at the federal level is bleak at best, legal abortion remains one of the most politically popular and unifying issues in the U.S.
First, the good news: Voters in seven states supported legal abortion. Five of them — Colorado, Maryland, Montana, New York and Nevada — are states in which abortion is already legal. However, voters in these states took new steps toward solidifying abortion’s legality for future generations. Voters in Colorado, Nevada and Montana enshrined abortion in their state constitutions, while Maryland voters did the same by specifically adding language to the state’s constitution that protects “the ability to make and effectuate decisions to prevent, continue, or end one’s own pregnancy.” That’s a further bulwark against potential anti-choice lawmakers trying to pass abortion restrictions and bans in the state.
The biggest and most transformational wins were in Missouri and Arizona, states that somehow simultaneously voted for Donald Trump and abortion rights.
In Arizona, abortion is currently banned after 15 weeks. In April of this year, the Arizona Supreme Court ruled that the state’s dormant 1864 abortion ban could go into effect, outraging Americans and motivating state congressional members to finally repeal it. But repealing that ban simply reverted the state back to its existing 15-week ban. This week, Arizona voters decided that wasn’t enough and affirmed a constitutional right to an abortion and bar the state from restricting the procedure before fetal viability (typically considered 24-28 weeks).
Missouri will enact the biggest change. Right now, the state has a total ban on abortion, with no exceptions for rape, incest or the health of the pregnant person. It’s a rabidly draconian law, and clearly out of step with Missourians — a majority of voters (51.6 percent) voted to establish a right to an abortion in the state constitution. This is a win, but the initiative doesn’t explicitly overturn the state’s existing abortion ban. In order to do that, abortion rights supporters will need to file suit, armed with the new fundamental right to abortion in the state, to undo the ban and once again permit abortions to be legally performed in the state. That will take time. Plus, the initiative does allow for the state to restrict abortion at the point of fetal viability, which means that pregnant people facing issues later in their pregnancy will likely still be forced to leave the state for care.
It’s a win, but it’s not a win yet, and it’s not a win for all pregnant people.
Despite sending Trump back to the White House, voters still overwhelmingly expressed their support for abortion rights.
The same argument could be made for Florida, where Proposition 4, which would have established the fundamental right to an abortion in the state, failed to pass because it did not meet the 60 percent threshold required for ballot initiatives. However, it still garnered 57 percent of the vote. That is a significant majority in any state, but particularly perplexing for Florida, which Donald Trump won by more than 13 points. If the state didn’t have a 60 percent threshold — a standard which became law in 2006 after ironically winning only 57 percent of the vote — abortion would be legal again in Florida, radically changing abortion access in the Southeast. Unfortunately, pregnant people in the state and the region must still live in a legal abortion desert.
Nebraska was the only state that had two competing initiatives on the ballot, one to protect legal abortion in the state and the other to ban abortion after the first trimester. Voters narrowly rejected (51 percent) the initiative to protect legal abortion and voted to enshrine the state’s existing first trimester ban in the constitution by 55 percent. This result will make it exponentially harder to undo this restrictive ban in the state.
Abortion rights also lost in South Dakota, where a majority of voters rejected a ballot initiative that would have made abortion a constitutional right, a disheartening result for people who can become pregnant in that state. Abortion is already completely banned in South Dakota, and that doesn’t look like it will change anytime soon.
And then, of course, there’s the federal level. With the election of Donald Trump, the landscape for abortion access looks bleak. Americans can expect a national ban of some kind, most likely via the Comstock Act, an 1873 law that made it a federal offense to share contraceptives, abortifacients and information about either across state lines or through the mail. The Comstock law could wreak havoc on abortion access — sending abortion medication through the mail could become a felony, and even sending abortion-related health care instruments. It’s a “zombie law” that is arguably unenforceable, but wouldn’t require any kind of congressional action — just an executive branch determined to implement it and a Supreme Court that would allow it to go into effect. Unfortunately, that doesn’t seem out of the realm of possibility now.
The United States is facing some bleak days ahead. Yes, federal law trumps state law, and a national abortion ban would override any state law that counters it. Despite that, we shouldn’t lose sight of the public support that abortion rights continue to have. The big wins that millions of voters across so many states delivered for abortion rights, including the ruby red state of Missouri, can serve as a source of hope in a moment of profound anguish.
This post was originally published on here
