Abortion Issue’s Potency Tested by November Ballot Questions

Abortion laws governing more than a sixth of the US population could be locked in place as a result of the November elections.

Ballot questions in the first general election since the US Supreme Court overturned Roe v. Wade will demonstrate the strength of reproduction as a political issue; test how arguments linking abortion and hormone therapy land with voters; and provide direction for the legislators who want new state laws.

Tens of millions of dollars have been spent to try to sway opinion in California, Michigan, and Vermont, where voters are being asked whether they want to enshrine pregnancy termination rights into their states’ constitutions; in Kentucky, where state courts could be blocked from finding a right to an abortion within that state’s constitution; and in Montana, where citizens are being asked to rule on what happens in cases of “infants born alive after an abortion”.

Meanwhile, in Alaska the possibility of a new abortion law has supercharged what in the past have been routine votes on the need for a constitutional convention.

Ballot That Doesn’t Mention Abortion Is Really About Abortion

In each of those states, activists and financial backers were influenced by the August vote to kill a proposed anti-abortion ballot measure in Kansas. And the results will be scrutinized far beyond the handful of places where citizens will weigh in on Nov. 8.

“If this confusing, extreme language passes here, it will be brought to other states next,” Christen Pollo, executive director of Protect Life Michigan, said in an email, referring to Michigan’s ballot measure which would guarantee a right to abortion and contraception.

“There’s no bigger poll in America than this election, and everyone is waiting to see where the chips fall,” NARAL Pro-Choice America President Mini Timmaraju said in an interview.

The highest-spending campaign so far is in Michigan, where the state’s 1931 law bans abortion with no exceptions for rape and incest. That law is on ice because of a preliminary court order, and would be negated if voters approve a right-to-abortion amendment (Proposal 3).

Anti-abortion groups including Citizens to Support Michigan Women and Children have spent at least $23.3 million, according to the ad-tracking company AdImpact. A typical spot calls the proposed amendment “too confusing and extreme.”

Another ad by the same group seeks to expand the conversation, telling viewers the amendment could lead to youths getting sex-hormone therapy without parental consent. Hormone therapy is not explicitly mentioned in the amendment.

Darci McConnell, communications director for the group Reproductive Freedom for All, condemned what she termed “massive amounts of out-of-state dark money that is funding deceptive and outrageous lies on television.”

Her group is among abortion-rights advocates that have put $17.9 million into TV ads with a libertarian flavor, arguing that if successful the amendment would keep politicians out of women’s health care decisions and lets doctors do their jobs.

Rejection of government decision-making is a theme that resonates with a variety of voters, according to conservative focus group consultant Sarah Longwell.

“When I talk to Trump voters, at least half the group is typically pro-choice, and especially in swing-voting groups, people will say, ‘I’m pro-life, but I still think women should have a right to choose,” said Longwell, who has conducted about 25 focus groups with voters since the US Supreme Court overruled Roe earlier this year. “The first time I heard it, I thought it was sort of funny, but I’ve heard it in every group.”

That helps explain why Kansas voters came out in record numbers, she said.

Women in Kansas registered at rates higher than men between the June Supreme Court ruling and the August vote, and political consultants have noticed gender registration gaps in other states.

“Basically anyone without a party affiliation showed up to reject the amendment in Kansas,” said Rachel Sweet, who manages opposition campaigns in both Kansas and Kentucky.

“In Kansas, the GOP has a two-to-one registration advantage over Democrats. In Kentucky they don’t. Republicans and Democrats are about equal in terms of voter registration,” she said.

The anti-abortion campaign in Kentucky didn’t respond to requests for comment. Republican Attorney General Daniel Cameron released an advisory Monday, saying “yes” would mean “decisions on regulating abortion will be made by the elected representatives of the General Assembly—not courts.”

Kentucky has a ban on nearly all abortions. Its ballot measure (proposed Constitutional Amendment 2) would block state courts from finding a right to an abortion within the state constitution. A court hearing on a challenge to current law is set for after the election.

Fundraising Disparity

Fundraising in Kansas was fairly close between the abortion-rights and anti-abortion campaigns. Each side collected millions of dollars from donors—the anti-abortion side collected roughly $1 million more—and each side spent more than $6 million on TV ads, according to the tracking firm AdImpact.

Since then abortion-rights groups have pulled ahead:

• A California measure to place abortion rights in the state Constitution (Proposition 1) has raised more than $9 million. The opposition has raised less than $300,000, according to campaign disclosures.
• A Montana group opposing a referendum (LR-131) that would enact a statute requiring doctors to attempt “life-saving care” for infants “born alive after an abortion” raised about $312,000, according to campaign disclosures. No group supporting the measure filed a report.
• In Alaska abortion rights supporters are out-raising opponents nearly 100-to-1 and opposing a constitutional convention (Ballot Measure No. 1) that could endanger a state court ruling granting abortion rights.
• While Michigan anti-abortion groups have spent more on ads, the abortion-rights campaign raised roughly $12.4 million compared to the anti-abortion group’s roughly $400,000 in donations, according to disclosures filed with the state.

In Kansas, Catholic churches provided more than $2 million to the anti-abortion ballot measure campaign.

While religious groups have been some of the largest single donors to anti-abortion campaigns in the November round of ballot measures—Catholic churches donated roughly $250,000 in Michigan, churches provided nearly all of the roughly $620,000 raised by the anti-abortion campaign in Kentucky, and the Catholic church provided $50,000 in Vermont—those donations were often swamped by abortion-rights backers.

For example, in Michigan the ACLU gave at least $4.2 million in cash donations and Planned Parenthood at least $750,000. Those groups also provided hundreds of thousands of dollars of additional in-kind donations for free use of staff members for the campaign.

Opponents of Vermont’s ballot measure (Proposal 5), which would enshrine “reproductive liberty” in the Constitution, had expected to raise about three times the roughly $600,000 the campaign has received, according to Matthew Strong, executive director of Vermonters for Good Government.

His group opposes what he said could be the “most extreme” pro-abortion rights environment in the country, foreclosing the ability of the state to restrict late-term abortions. Vermont already had a state court ruling providing a right to an abortion prior to Roe v. Wade, and Vermont enacted a statute providing access to abortion throughout pregnancy in 2019.

With limited funds—they’re spending around $45,000 on TV ads—in one of the most Democratic-leaning states in the country, that nuanced message has been difficult to spread, he said. “When Roe was overturned, Vermont became a front-line in the battle and no one noticed it.”

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Lucy Leriche, vice president of public policy for Vermont with Planned Parenthood Northern New England, said the campaign urging support of Proposal 5 has reached out to voters at chicken pie suppers, a mountain bike ride, and an abortion rights comedy night.

Small-group outreach is also part of the political campaigning in much-larger California, where opponents of that state’s ballot issue say they’re trying to influence opinions one by one. Catherine Hadro, spokeswoman for No on Proposition 1 campaign, said her group’s core message is that the proposed constitutional amendment could allow late-term abortions.

“People are nuanced on the abortion issue,” she said. “Californians are not exempt on that.”

“Other states are looking to California, looking to see what the vote turnout is, what the enthusiasm is,” said Jodi Hicks, CEO and president of Planned Parenthood Affiliates of California. “It sends a message to policy makers across the country that this is a popular issue and people will not want abortion rights taken away.”

To contact the reporter on this story: Alex Ebert in Madison, Wisconsin at aebert@bloomberglaw.com

To contact the editors responsible for this story: Katherine Rizzo at krizzo@bgov.com; Bennett Roth at broth@bgov.com