In 2024, abortion rights initiatives are on the ballot in 10 states

In 2022, protecting abortion rights was a winning issue in the six states that saw ballot initiatives related to abortion: That year, voters in the red states of Kansas, Kentucky and Montana rejected measures that would have restricted or removed existing protections for abortion access in those states, while voters in California, Michigan and Vermont approved measures that enshrined access to abortion in their states’ constitutions. In 2023, Ohio joined them. Next week, 11 more abortion-related initiatives will be on voters’ ballots — nine of them focused on restoring the right to abortion in individual states, one rival measure in Nebraska that would prohibit that right and one in New York that would expand the state’s anti-discrimination laws to include reproductive health protections.

It’s the largest and latest push after the Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization upended abortion politics in the summer of 2022 and left in place a patchwork of state-specific abortion protections and restrictions.

Though they vary somewhat, most state initiatives this year are seeking to restore the protections that were in place before the Dobbs decision under Roe v. Wade — and updated under Planned Parenthood v. Casey — which guaranteed the right to abortion before the point of "fetal viability." Since 2022, many Democrats — including Vice President Kamala Harris, whose full-throated support for abortion rights has been a centerpiece of her presidential campaign — have focused on "restoring Roe." For example, Harris said last month that she would support "eliminat[ing] the filibuster for Roe," so a Democratic majority in Congress could "put back in law the protections for reproductive freedom, and for the ability of every person and every woman to make decisions about their own body and not have their government tell them what to do."

But while her message on individuals’ rights to make health care decisions without government interference echoes a common refrain of abortion-rights advocates, some also say that simply restoring Roe is not enough, pointing out that many women struggled to access abortion care even before Dobbs. Polling since Dobbs has shown that there might be some support for this among voters.

Arizona, Florida, Missouri, Montana, Nebraska and Nevada will all have measures on the ballot next week that would guarantee the right to abortion until the point of fetal viability — generally defined as the point at which most experts say a fetus could survive outside the womb, and often considered to be around 24 weeks of pregnancy:

The fetal viability time frame is an inheritance of Roe’s framework, but it was always a medically ambiguous guideline: Whether a fetus can survive outside of the womb depends on a number of factors. Moreover, this standard, which centers on the life and health of the fetus, still led to high maternal mortality rates, particularly in states that had more restrictions.

The conventional wisdom has long been that most voters want some restrictions on abortion, and that abortion in the final trimester is less popular. And it is true that support for abortion drops when Americans are asked about whether the procedure should be legal later in a pregnancy. In an AP/NORC poll from June 2021, before the Dobbs decision, 61 percent of respondents thought abortion should be legal in all or most cases during the first trimester, but that dropped to 34 percent in the second and 19 percent in the third trimester. Annual AP/NORC polls since then showed similar results using a timeline more aligned with many ballot measures this year: In the most recent from this June, 76 percent said abortion should be allowed through the first 6 weeks of pregnancy, 54 percent through the first 15 weeks, and 30 percent through the first 24 weeks.

While those numbers were fairly stable over the last couple years, regular Gallup polling has shown a small but sustained rise in the number of Americans who think that abortion should be legal under "any" circumstances, from under 30 percent in most surveys before the Dobbs decision, to 35 percent this May.

In fact, measures in two states this year — Maryland and Colorado — include broader language that would protect access to abortion without mentioning fetal viability. There’s research to hint that this approach may be popular. A June 2023 survey from nonpartisan research firm PerryUndem found that registered voters may even be more likely to support a ballot initiative without viability limits than the same measure with viability limits, due to stronger support among those in favor of protecting abortion rights. In that survey, 45 percent said they would definitely vote yes and another 18 percent said they would probably vote or lean toward voting yes on a hypothetical ballot measure to "establish a new individual right to reproductive freedom." Among those presented with an identical ballot measure that would allow the state to regulate abortions after fetal viability, support was weaker, with 30 percent definitely in favor and 30 percent leaning toward the proposal.

A new survey conducted from Sept. 18 through 30 by PerryUndem and the National Institute of Reproductive Health — a group advocating for legal protections for abortion, including those beyond the Roe framework — suggests some potential explanations. For one, most Americans are suspicious of government regulation at any point during a pregnancy. Half of the survey respondents were asked if they think the decision of whether or not someone can have an abortion in the last three months of pregnancy should be "left to the person and their doctor" or "regulated by the government," while half were asked the same question without the phrase "in the last three months of pregnancy.” The results suggested that attitudes were somewhat but not radically different, with 66 percent in the first group saying the decision should be left to the person and their doctor in the third trimester, compared to 75 percent of those who were asked the question without a trimester framework.

Americans’ opposition to government regulation may be a key part of this finding: 63 percent in that survey said that recent abortion bans and restrictions have made them think about "wanting the government to stay out of abortion decisions all together" — including 38 percent of respondents who said they think abortion should be illegal in all or most cases. That’s similar to another PerryUndem survey from earlier this year: Among registered voters who said abortion should be illegal in the third trimester, nearly six in ten also agreed that "people should be able to make their own decisions on abortion throughout a pregnancy, without the government interfering."

Only about 1 percent of abortions are estimated to occur at or after 21 weeks of pregnancy, and the vast majority of them are necessary for the health of the pregnant person, or are the result of fatal fetal abnormalities, meaning that a fetus will never be viable. And even though states that prohibit later-term abortions often allow for exceptions in cases like these, advocates point out that restrictions have made them very difficult to obtain. That has been highlighted as numerous women, particularly women of color, have come forward in the post-Dobbs era to discuss the consequences of being denied an abortion, from giving birth to babies that are destined to die within hours of birth to nearly dying themselves.

Accordingly, 69 percent in the PerryUndem/NIRH survey said recent abortion bans and restrictions made them think about the "health and safety of Americans" — which for some may be linked to skepticism of the way exceptions are enforced in a post-Dobbs world. This idea was echoed by some participants in focus groups conducted in April for NIRH by Lake Research Partners, a liberal public opinion firm: "The interpretation of the law also is subjective because the law could be written by the interpretation of the law," said one Republican-leaning independent woman who identified as pro-choice.

“We know that exceptions don't work,” said Bonyen Lee-Gilmore, vice president of communications for NIRH. "[Americans are] seeing stories of people being denied care, they're seeing stories of Black women dying because they can't have access to abortion. They're seeing that abortion is a health and safety issue, and it goes far beyond identity politics or partisan politics."

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Meanwhile, the legal application of more expansive abortion rights measures is relatively untested. Vermont and California are the only states that have enshrined abortion rights in their state constitutions without any limits based on fetal viability, and while Vermont’s change had no practical effect on abortion access — the state had no existing gestational limits on abortion in place — California’s also failed to change the status quo: Existing restrictions on abortion after fetal viability remain in place there.

Of this year’s three states considering more expansive abortion rights initiatives, Colorado and Maryland’s existing laws would place them in the same boat as Vermont if passed. New York’s broader amendment could serve as a bigger test. The measure would extend the state’s current constitutional language to prohibit discrimination on the basis of sex, which would include "pregnancy, pregnancy outcomes and reproductive healthcare and autonomy" in addition to "sexual orientation, gender identity, [and] gender expression." While its broad scope makes it legally complicated, and has prompted attacks based on its non-abortion-related provisions, the proposal was designed to shore up legal protections for access to abortion rights along with protections for transgender health care, among other goals.

Advocates say this push to expand protections for health care access beyond pre-Dobbs abortion protections is critical because Dobbs showed that more than abortion is at stake. "Roe v. Wade fell, and we were shocked, and we realized that our rights are not as safe as we thought," said Andrew Taverrite, a spokesperson for New Yorkers for Equal Rights, the primary group advocating for the amendment. "That's not just about abortion rights … There is a much greater threat of the rights we count on in our daily lives being attacked next."

Ashley Kirzinger, an associate director of public opinion and survey research at KFF, a nonprofit health policy research organization, pointed out that it wouldn’t work for most politicians nationwide to campaign on abortion rights without restrictions for later pregnancies. "[Voters] want abortion access, but they want it with limitations," she said. "If [candidates] were campaigning on broader abortion access, they would be painted as ‘abortion without limitations,’ which is not where the majority of the electorate is.”

That raises a concern for advocates of expansive abortion protections: While education about the inexactness of terms like "fetal viability" may help change voters’ minds, distortions from the other side, like the falsehood repeated by former President Donald Trump that some states allow abortions "after birth," have proven particularly resonant.

Kelly Hall, executive director of the Fairness Project, a ballot-initiative organization that has helped with the Arizona, Florida, Missouri, Montana and Nebraska initiatives to protect abortion rights, said that state initiatives were driven by activists on the ground who were advocating for the kinds of initiatives they think can pass in their states, and they chose to add viability cutoffs to the ballot measures. "[It’s not that] one set of decision makers made a universal set of choices about how to approach this across the country," she said. "It really has been driven by local advocates who have a variety of views."

Lee-Gilmore, on the other hand, thinks those ideas are driven by out-of-date public opinion research that took the Roe status quo for granted. "People's values right now in America … are that they believe these are personal decisions, that the government doesn't belong," she said.

While it’s unclear whether abortion-rights ballot measures will help Democrats all that much at the ballot boxes next week, abortion remains a salient issue among their base. Some data suggests that Democratic women particularly have been more motivated to vote since Harris moved to the top of the ticket. If they help propel Harris and the Democrats to a win, the party will surely prioritize shoring up protections for abortion access. But if voters continue to call for more robust protections than the pre-Dobbs status quo, Democrats and abortion-rights advocates will also face difficult decisions about whether–and where–to draw the line.