The Anti-Abortion Movement's Latest Strategy Worked on Election Day

In a ballot initiative Tuesday, Louisianians voted for a new amendment to the state’s constitution saying it won’t protect abortion rights.
November 4, 2020, 10:14pm
Anti-abortion demonstrators rally outside  the U.S. Supreme Court in Washington, Wednesday, March 4, 2020. The Supreme Court is taking up the first major abortion case of the Trump era Wednesday, an election-year look at a Louisiana dispute that could rev
Anti-abortion demonstrators rally outside  the U.S. Supreme Court in Washington, Wednesday, March 4, 2020. (AP Photo/Jose Luis Magana)

Louisiana just became the fourth state to explicitly strip its constitution of abortion protections in anticipation of the fall of Roe v. Wade, the Supreme Court decision that legalized abortion nationwide.

In a ballot initiative Tuesday, Louisiana voters agreed to add a sentence to the state constitution that declares, “To protect human life, nothing in this constitution shall be construed to secure or protect a right to abortion or require the funding of abortion.”

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Right now, that sentence has basically no impact on Louisianians who want abortions. But thanks to Louisiana’s new amendment, the state’s constitution won’t protect abortion rights. If someone wants to sue over an abortion restriction in the state, it’d be almost impossible in state court—and if Roe is overturned, they may soon be unable to win in federal court either. 

Abortion rights supporters would be left without legal recourse in a state that has passed 89 restrictions since 1973, more than any other state. One of those laws would ban abortion if Roe falls.

Now that Amy Coney Barrett has been confirmed to the Supreme Court, cementing its 6-3 conservative majority and further imperiling Roe’s future, ballot initiatives to erase abortion protections will only become more widespread, according to Elizabeth Nash, interim associate director of state issues at the Guttmacher Insitute, which tracks abortion restrictions.

“Abortion opponents are anticipating that the federal abortion rights will be undermined,” Nash told VICE News last week, ahead of Election Day. “They’re seeing where else to undermine rights, so that abortion bans could go into effect.”

In the four decades since Roe, abortion opponents have passed hundreds of laws to restrict abortion. Many of these laws nibble away at the edges of abortion access; for years, courts have halted the more aggressive types of restrictions, such as laws that would prohibit abortions ahead of fetal viability, since Roe protects the right to abortion up until fetal viability (typically pegged at around 24 weeks of pregnancy).

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But if Roe is overturned, states will have the ability to determine if and how to regulate the procedure. Twenty-one states currently have laws on the books that could restrict abortion’s legal status, according to the Guttmacher Institute. Nine states still have bans that date back to the days before Roe, which are currently unenforced; 10 have what are known as “trigger laws,” which would ban all or almost all abortions in the event that Roe is overturned.

Still, abortion rights supporters in those states could try to get state courts to protect the procedure. So, in recent years, anti-abortion advocates in five states have used ballot initiatives to make it clear that, constitutionally speaking, their state doesn’t stand for abortion.

In 2014, voters in North Dakota agreed to amend the constitution to decree, “The inalienable right to life of every human being at any stage of development must be recognized and protected.” 

That same year, Tennesseeans voted in favor of their own constitutional amendment, which sounded slightly different. The amendment declared that nothing in the states’ constitutions “secures or protects a right to abortion or requires the funding of abortion.” 

Tennessee’s stronger, more concrete language is now popping up across the country. In 2018, voters in West Virginia and Alabama passed amendments with wording that looked nearly identical to Tennessee’s.

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But Alabama voters went even further: They also made their state the first in the nation to add what’s known as a fetal “personhood clause” to its state constitution. Alabama now recognizes “the rights of unborn children, including the right to life.” 

Katrina L. Rogers, campaign manager for Louisiana for Personal Freedoms, a group that opposed the Louisiana ballot initiative, pointed to the nearly identical language in Louisiana and West Virginia’s ballot initiatives as proof that they were part of a “coordinated national effort.” Both initiatives mention that the constitution shall not protect or secure “a right to abortion or requires the funding of abortion.”

Louisiana already blocks the use of Medicaid funds for abortion, except in cases of rape, incest, or life endangerment. Provisions that bar funding for abortion won’t stop abortion, Rogers said—they’ll just drive poor people to more desperate ends to get them.

“Abortion has been happening forever, and abortion will continue,” she said. People who want abortions and who can afford to leave the state, or the country, will do that. “Amendment 1 really just punishes people who don’t have disposable income.”

Movements to strip state constitutions of abortion protections have also recently gained traction in Iowa and Kansas, where courts recently declared that their state constitutions did include the right to abortion independently of Roe. Legislators in both states attempted to advance ballot initiatives that would have amended their constitutions to remove those rights, but both failed to pass out of the legislature, which needed to approve them before they could go to voters.

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Nash attributed the popularity of these ballot measures to two key factors. First, abortion restrictions of all stripes tend to come in waves; after one state successfully passes a a new kind of regulation, other states tend to follow. And second: “The Supreme Court is now solidly anti-abortion,” Nash said.

The Supreme Court has had a 5-4 conservative tilt since 2018, when President Donald Trump nominated Brett Kavanaugh to the bench. His ascension set off a wave of high-profile abortion restrictions, including a handful of bans that sought to restrict abortion at six weeks of pregnancy or less. These laws were designed to offer the court a way to reconsider Roe, which protects the right to abortion up until fetal viability, typically pegged at around 24 weeks of pregnancy. (Thanks to legal challenges, these bans are not in effect.)

Now, with the confirmation of Barrett, who has indicated several times that she personally opposes abortion, the end of Roe may now be closer than ever.

On Friday, the Supreme Court is to set to consider whether to take up a case from Mississippi, which has passed a law to ban abortion after just 15 weeks of pregnancy. The justices have been asked to weigh “whether all pre-viability prohibitions on elective abortions are unconstitutional,” Roe’s key decision.

Although the justices could reschedule their conference on the case—as they have now done four times—only four justices need to agree to review the merits of the case for the Supreme Court to officially take it up.

“If the Supreme Court takes this case, it means they are planning on revisiting the underpinnings of Roe and dismantling abortion rights,” Nash said.