As more states have passed ballot measures expanding access to abortion, conservative lawmakers and activists have been trying to mitigate the damage by passing laws to govern them and filing lawsuits to challenge them.
Since the overturn of Roe v. Wade, legal abortion activists have successfully ushered along state constitutional amendments that supersede laws restricting abortions in several states.
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Many of those amendments have been written vaguely by activists, opponents say, which gives the amendments expansive power and opens them to a wide range of interpretation, such as including phrases such as “reproductive freedom” that could extend legal protections to sex-change operations.
While Democrats in several states have advanced laws ensuring that sex-change interventions have explicit legal protection, Republicans in Ohio, Michigan, and Kansas have been trying to counter the expansion of such laws beyond abortion access by passing laws that weaken the scope and implementation of the amendments.
These legislative counters come as at least 11 states could see similar measures on their ballots in the 2024 general election.
Ohio
Ohio voters recently passed an amendment to their state constitution expanding abortion access and overriding the “heartbeat bill” passed by the legislature and signed by Gov. Mike DeWine (R-OH). So-called heartbeat bills get their titles from their ban on abortions after doctors can detect a fetal heartbeat, which is typically around six weeks of pregnancy.
The 14-point vote in favor of the amendment dealt a blow to opponents of legal abortion, but some legislators in Ohio are trying to make sure the legislature has the final say over its interpretation.
A group of state representatives led by Republican Rep. Jennifer Gross is looking to introduce legislation that would give the state General Assembly “the exclusive authority over implementing Issue 1,” which would deny the ability for state courts to interpret the amendment and “immediately dismiss” all lawsuits regarding implementation.
It would also charge judges with a misdemeanor if they did not comply, which could in theory lead to their impeachment.
“To prevent mischief by pro-abortion courts with Issue 1, Ohio legislators will consider removing jurisdiction from the judiciary over this ambiguous ballot initiative,” a press release from the four Ohio Republicans said. “The Ohio legislature alone will consider what, if any, modifications to make to existing laws based on public hearings and input from legal experts on both sides.”
After the passage of Ohio’s amendment, abortion providers and activists who were already in court over the heartbeat bill filed a new motion to strike down the law in light of the measure, which took effect Dec. 7.
In addition to legislative action, Buckeye State Republican Senate President Matt Huffman promised a “revolving door of ballot campaigns to repeal or replace Issue 1,” according to his spokesman.
Republican state House Speaker Jason Stephens similarly added that there are “multiple paths that we will explore to continue to protect innocent life,” saying the amendment is “not the end of the conversation.”
Michigan
Last year, Michigan passed Proposal 3, which enshrined abortion access into the state constitution. It has since been used by Democrats to expand the legal authority of the amendment beyond abortion access, with Democratic lawmakers eyeing an end to parental consent laws that prevent children from seeking abortions.
Getting rid of parental consent laws has been a consequence of nearly all such ballot initiatives.
Last month, Right to Life and three Michigan Republican lawmakers filed a federal lawsuit asking the court to halt implementation of Proposal 3.
The lawsuit said Michigan’s amendment creates a “super right” to abortion in violation of the First and 14th amendments of the U.S. Constitution, as well as the guarantee clause, which protects the public’s right to a republican form of government.
“At no time in our nation’s history has such a super-right, immune from all legislative action, ever been created by a popular vote outside of the checks and balances of a republican form of government,” the lawsuit said.
Kansas
Sunflower State voters rejected, by nearly 18 points, a ballot initiative last year to remove language guaranteeing abortion in the state’s constitution.
After the defeat for abortion opponents, conservative lawmakers filed 20 pieces of legislation to restrict the procedure in the state, many of which were vetoed by Gov. Laura Kelly (D-KS).
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However, the state legislature overrode Kelly’s vetoes on measures that included criminal penalties for abortion doctors and the requirement to inform users of chemical abortion pills that a reversal treatment exists in progesterone. Supporters of legal abortion, including medical groups that advocate the procedure, have attempted to discredit the efficacy of progesterone despite evidence to the contrary.
Some laws passed versions of a “born alive” act, requiring doctors to engage in lifesaving care in the event of a botched abortion, as well as mandating funding to counseling centers that advocate alternatives to abortion.
