Two of the three anti-abortion initiatives on state ballots this year succeeded Tuesday. Neither of them would prohibit abortion outright because Roe v. Wade and Planned Parenthood v. Casey prohibit states from doing so before fetuses become viable. But both set the stage for criminalizing abortion if the 45-year-old Roe ruling is overturned by the Supreme Court, where extremist Brett Kavanaugh now fills the seat of retired moderate Justice Anthony Kennedy.
But let’s take the good news first.
By a 3-2 margin, Oregonians crushed Measure 106. Had it passed, it would have prevented state money being spent on abortions in Oregon except in instances of rape, incest, a threat to the woman’s health, or ectopic pregnancies. In other words, it would have ended abortion benefits for public employees and Medicaid recipients and overridden the state’s 2017 Reproductive Health Equity Act that guarantees everyone in the state access to abortion and other reproductive health services at no cost.
Lauren Holter at Rewire.News reports that supporters spent more than $444,000 campaigning for Measure 106 while foes led by the No Cuts to Care PAC and Defend Oregon spent $9.9 million opposing 106 and other ballot measures. Polls indicated before the election that 53 percent of Oregonians opposed the initiative, but with three-fourths of the ballots counted, 65 percent of those who turned out had voted against it.
In West Virginia and Alabama, it was a different story. Both successful ballot proposals are among the numerous “trigger laws” that four other states have already passed. Like the others, these two can’t prohibit abortion now, but they are designed to intentionally run afoul of federal rulings, generating what supporters hope are lawsuits that ultimately reach the U.S. Supreme Court and topple Roe.
The West Virginia proposal—Amendment 1, the No Constitutional Right to Abortion Amendment—passed with about 53 percent of the vote. It changes the state constitution by adding one sentence: “Nothing in this Constitution secures or protects a right to abortion or requires the funding of abortion.” That removes a state Supreme Court ruling 25 years ago that guaranteed a right to abortion care and Medicaid funding for low-income women. Previously, the state had banned such funding. Some 28 percent of West Virginia’s residents are on Medicaid, and Amendment 1 will mean that for many of them abortion will be unaffordable.
Amendment 1 also yanks the authority of state courts to rule on abortion measures. Erin Beck at the Register-Herald reports:
"We've been hearing for months from the architects of this amendment that they are not out to pass more restrictive abortion laws," Joseph Cohen, executive director of the West Virginia chapter of the ACLU, said in a speech at a Charleston watch party Tuesday. "Now, our job is to hold them to that promise.”
Lawyers and other observers familiar with the checks and balances system of government in West Virginia and nationwide noted that the amendment would remove the ability of courts to find constitutional problems with any abortion restriction the legislature might want to enact.
While the amendment will remain unenforceable as long as Roe stands, if it falls, abortion would be forbidden in the state even in cases of rape, incest, and when a woman’s life is endangered. Women would be forced to carry pregnancies to term regardless of the impact on their mental and physical health. The amendment would criminalize abortion, making physicians, nurses, and women obtaining abortions subject to punishment, including incarceration.
Contrary to the situation in Congress, where forced-birther Democrats are now exceedingly rare, the West Virginia amendment would never have made it to the ballot had it not been for the nine Democrats in the House of Delegates who joined Republicans to ensure the required two-thirds majority.
Alabama’s Amendment 2 goes further. It’s a personhood amendment of the sort passed by other states although it won’t have immediate effects the way West Virginia’s could. It's a statute, not an amendment, to the state constitution. It makes it state policy “to recognize and support the sanctity of unborn life and the rights of unborn children, including the right to life.” Christina Cauterucci at Slate writes:
Adding fetal rights to the constitution could have far-reaching effects, from criminalizing abortion and certain kinds of contraception to allowing 5-day-old embryos to sue adult humans in court and requiring couples who undergo fertility treatments to pay for the upkeep of their spare frozen embryos in perpetuity.
Here’s Holter again:
The [...] amendment doesn’t make any specific actions illegal, but signals that state policy will protect the rights of “unborn children” over the right to have an abortion. [...] Nothing would change while Roe remains intact, however.
[Cindi] Branham, the Alabama Reproductive Rights Advocates member, noted that the ballot measure doesn’t specify any exemptions to the criminalization of abortion, as similar measures in other states have. “Amendment 2 contains no provision for cases of rape, incest or the life of the mother,” Branham said. “We consider this amendment in its entirety an abomination against women and families.”
Whether they are activists harassing women entering clinics providing abortions, legislators seeking to restrict reproductive rights, or Supreme Court justices eager to whack Roe, forced-birthers are an abomination against women and families. Their efforts do nothing less than make women second-class citizens.