The abortion rights movement may be regaining the upper hand

Voters are showing displeasure with the demise of Roe v. Wade and rollbacks on abortion access — especially when they get to separate this question from partisan politics.

A supporter holds her breath as preliminary results for Michigan Proposal 3 are announced at a watch party in Detroit, Mich., on Nov. 8.Ryan Sun | [e-mail]/Associated Press

The 2022 midterm elections were supposed to be our first look at what voters really think about abortion. Last summer, the Supreme Court overturned Roe v. Wade and erased a right to choose abortion that was almost 50 years old. That outcome, in Dobbs v. Jackson Women’s Health Organization, was deeply unpopular: Polls consistently showed that Americans favored the idea of an abortion right and did not want Roe to be overturned.

This week’s results hardly clear everything up. After all, Roe is dead, but Republicans still apparently made gains in Congress. Maybe the price of reversing Roe was not so high after all.

However, Republicans turned in a historically weak performance for a party out of power. And the outcomes of ballot initiatives that directly asked voters to decide the abortion question all fell on the side of choice. Voters in Michigan, Vermont, and California decided to add abortion rights to those states’ constitutions. Even in ruby red Kentucky, voters rejected a proposal that would have held that the state constitution does not recognize an abortion right. That came after voters in Kansas decided in August to protect abortion rights.

What does this all mean for the future of abortion rights?

For one thing, ballot initiatives may be giving abortion rights supporters the upper hand in many parts of the country. Before Roe v. Wade, it was antiabortion groups that favored this strategy of directly appealing to voters. The antiabortion movement had suffered a string of losses in state legislatures in the 1960s and 1970s, but then, antiabortion groups convinced voters in several states to reject ballot initiatives on abortion rights. Their biggest win came in 1972 in Michigan, where more than 60 percent of voters rejected a proposal to legalize abortion until 20 weeks.

This week, 56 percent of Michigan voters decided to write reproductive freedom into their state’s constitution. In Kentucky, about 52 percent of voters rejected a proposal that would have eliminated any possible recognition of a right to abortion.

What’s changed?

Before Roe, abortion wasn’t a partisan issue as it is now. There was no shortage of Democrats opposed to legal abortion or Republicans in favor of it. That meant that many voters could pick a candidate based on their abortion position without setting aside their partisan preferences. And at the time, the idea of an abortion right seemed radical and new. Michiganders, like other Americans, had lived for decades with a sweeping abortion ban and could be persuaded that a right to abortion was extreme and unnecessary — likely to open a Pandora’s box.

Now the calculus is different. Voters in states like Michigan are used to abortion rights, which held for nearly half a century. The psychology of loss aversion tells us that the pain of losing a right can be twice as strong as the vindication of gaining a liberty.

Plus, the parade of horribles that abortion foes like to mention doesn’t seem believable anymore. In California, for example, opponents of Proposition 1, the ballot initiative in that state, told voters that recognizing a state constitutional right to abortion would lead to a flood of lawsuits and late abortions. But voters weren’t buying it: It was hard to sell them on the idea that recognizing abortion rights would usher in a frightening new era when those rights were long the status quo.

Ballot initiatives also offer voters a kind of escape valve. Since the early 1980s, the parties’ positions on abortion have diverged and hardened. Our politics are far more polarized, and negative partisanship — hostility to members of the opposing party — has been increasing. All of that means that it’s relatively difficult for voters to set aside their partisan preferences when choosing a candidate, no matter how unhappy they may be with the candidate’s position on abortion. In a way, this week’s ballot initiatives offer a cautionary tale to both Republicans and Democrats. Democrats, who still seem poised to lose the House despite the death of Roe, will see how hard it is for prochoice voters who lean right on other issues to cross party lines. And Republicans will learn what voters actually think about abortion when partisanship isn’t shaping their decisions.

That means ballot initiatives might be the wave of the future for voters who support abortion rights. States like Arizona, Idaho, Missouri, Montana, Nebraska, North Dakota, Oklahoma, South Dakota, and Utah allow citizens to propose constitutional amendments by petitioning the legislature or going directly to voters. Others, like Ohio and Wyoming, allow voters to petition to get constitutional amendments before voters. If Kentucky and Kansas voters sided against the antiabortion movement, those supporting abortion rights will be willing to try their luck almost anywhere.

Ballot initiatives won’t be the end of the story. Plenty of states lack a mechanism for citizens to bypass the state legislature or force it to consider an issue. Others, like Alabama, already have the protection of fetal life written into their state constitutions. But the 2022 midterms proved that abortion does matter, despite the many predictions that voters would forget about Roe when the price of gas got too high.

If running on the abortion issue did not win the midterms for Democrats, it certainly didn’t hurt. And voters have not yet seen all the changes the Dobbs decision will wreak. Republicans did their best not to talk about abortion in this race. Some backpedaled from their previous support for outright bans or reassured voters that they would look for a middle ground. Senate Republican leader Mitch McConnell dismissed talk of passing the federal prohibition on abortion that antiabortion groups have been clamoring for. State legislatures have been relatively quiet since October; in fact, most legislatures have not been in session since Dobbs. What we have seen so far may be devastating for some women, but it may get much worse from here.

In other words, the meaning of the Dobbs decision may look quite different six months from now, especially if Republicans in safe seats believe that their votes on abortion have no consequences. States may try to stop women from traveling to get the procedure or try to punish people for providing abortions to their residents in states where the procedure is legal. Some may consider broad definitions of aiding or abetting that would sweep in everyone from Uber drivers to Internet service providers and major corporations. Any of these steps would put abortion back in the news and even more firmly at the front of voters’ minds.

This summer, in reversing Roe, Supreme Court Justice Samuel Alito suggested that voters who didn’t like what the court had done could simply go to the polls. If the 2022 election is any indication, many of us heard him loud and clear, and this may be just the beginning.

Mary Ziegler, a professor of law at the University of California, Davis, is the author of “Dollars for Life: The Anti-Abortion Movement and the Fall of the Republican Establishment.”