Now that Amy Coney Barrett is on the Supreme Court, cementing the bench’s 6-3 conservative majority, abortion rights supporters are terrified that federal protections for the procedure will be erased.
It could be months, if not years, before the court takes up an abortion case, but it’s already on the ballot in two states this Election Day.
On Tuesday, voters in Colorado and Louisiana will have a chance to weigh in on ballot initiatives that will dictate the future of their abortion access.
These measures are laying the groundwork for what will happen if Roe v. Wade, the landmark 1973 Supreme Court decision that legalized abortion nationwide, is overturned. States would then have free rein to decide if and how to regulate abortion themselves—including potentially banning it entirely.
Colorado: Proposition 115
The first initiative, Colorado’s Proposition 115, would ban abortion after 22 weeks of pregnancy, except in cases where the mother’s life is at risk due to some kind of physical condition. It does not include exceptions for rape or incest.
Anti-abortion advocates say that children born at that point in a pregnancy can survive, although OB-GYNs usually date fetal viability at around 24 weeks. Although Roe v. Wade protects abortion up until the fetus’ point of viability, 18 states have already banned abortion starting at the 20- to 22-week mark, according to the Guttmacher Institute, which tracks abortion restrictions.
Only a tiny fraction of abortions take place that late into a pregnancy. In 2016, about 1.2% of abortions were performed during or after 21 weeks of pregnancy, according to the Centers for Disease Control and Prevention. Although abortion opponents call these abortions “late-term,” that phrase is not based in medicine; doctors call pregnancies “late-term” if they extend past a patient’s due date. And while there’s not great data about why those kind of abortions occur, physicians and reproductive health groups say they usually happen because of some kind of devastating medical condition.
Opponents of Proposition 115 appear to have vastly outmaneuvered its supporters: They have raised $8.7 million to fight the initiative, roughly 14 times the war chest of its supporters, the Colorado Sun reported, but early polling data shows that the vote is close.
If the ban passes, its effects would be felt far beyond Colorado’s borders. In 2019, 11% of Colorado’s abortion patients had travelled in from 30 other states, according to data from the Colorado Department of Public Health and Environment. In the spring, as state officials in nearby states like Oklahoma and Texas called for clinics to stop performing abortions because of the coronavirus pandemic, Colorado became something of a safe haven for people who wanted abortions; providers reported that they started seeing more out-of-state patients fleeing abortion bans in other states.
Under Proposition 115, Colorado women who intend to undergo a later abortion would also have to travel far from home and out of state to get the procedure. Women of reproductive age would have to travel at least 300 miles each way to reach the nearest clinic that offers later abortions, analysts at the Guttmacher Institute found.
Although the state is reliably blue, it has an ardent anti-abortion movement. Since 2008, abortion foes have asked voters to weigh in on three separate ballot initiatives that would have amended the state constitution and redefine personhood to include fetuses. (They’ve all failed.)
Louisiana: Amendment 1
This election, Louisiana is also contending with its own proposed abortion restriction.
Voters are being asked to consider Amendment 1, which would add a sentence to the Louisiana 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.”
Unlike Colorado, Louisiana has long been deeply hostile to abortion rights. As of February, it had enacted 89 abortion restrictions since 1973—more than any other state, according to Guttmacher. The state even got an abortion case in front of the Supreme Court this year, in an attempt to enact a restriction that was virtually identical to a Texas law that the Supreme Court struck down in a 2016 case. (Louisiana lost.)
The state already blocks the use of Medicaid funds for abortion, except in cases of rape, incest, or life endangerment.
But by enshrining opposition to abortion in its constitution, Louisiana is going a step further. This measure would effectively block abortion rights supporters from ever challenging an abortion restriction or ban in state court, just as the federal protections for abortion are on the verge of disappearing altogether.
If both federal and state courts are hostile to abortion rights, reproductive rights advocates in the U.S. may be left without any way to hold back a deluge of restrictions or outright bans on the procedure.
Louisiana Right to Life, an anti-abortion organization that supports Amendment 1, makes clear on its website that the amendment will keep judges from interfering with abortion access.
“It ensures that the Louisiana Constitution is protected from state judges taking the abortion issue away from the people,” the group wrote in a press release.
Katrina L. Rogers, campaign manager for Louisiana for Personal Freedoms, a group that opposes Amendment 1, pointed out that Amendment 1’s language is very similar to a 2018 West Virginia ballot initiative that stripped that state’s constitution of abortion protections.
“The amendment is not a response or a mandate from the people in Louisiana. This isn’t something that the people asked for,” said Rogers. “This is a coordinated national effort.”