When It Comes to Abortion, Voters May Get More Than They Bargained For 

Advocates of legal abortion won decisively in Ohio, passing Issue 1 by a margin of 56.6 percent to 43.4 percent. This amended the state constitution to give Ohioans the “right to make and carry out one’s own reproductive decisions,” including on abortion.

Abortion advocates are on an astonishing winning streak around the country, having won six ballot initiatives last year. Most of these initiatives enshrine or preserve an expansive right to abortion at the state constitutional level far beyond what the United States Supreme Court guaranteed under Roe v. Wade (1973) and Planned Parenthood v. Casey (1992).

For example, California voters passed a constitutional amendment saying the “state shall not deny or interfere with an individual’s reproductive freedom in their most intimate decisions.” Michigan voters passed a constitutional amendment that created a right to “reproductive freedom,” defined as “the right to make and effectuate decisions about all matters relating to pregnancy, including but not limited to . . . abortion care.” Vermont voters passed a constitutional amendment stating “an individual’s right to personal reproductive autonomy is central to the liberty and dignity to determine one’s own life course and shall not be denied or infringed unless justified by a compelling State interest achieved by the least restrictive means.”

Voters in both Kansas and Kentucky rejected abortion neutrality amendments that simply would have provided that their state constitutions do not include a right to abortion, leaving abortion policy up to the people and their elected representatives. By rejecting its neutrality amendment, Kansas voters left in place a 2019 state Supreme Court decision, known as Hodes, which had found a fundamental right to abortion in the state constitution and requires the application of a strict legal test to all abortion regulations.

The broad unconditional wording of these constitutional regimes provides no textual basis for those states to restrict abortion (or any expression of “reproductive autonomy”) in any meaningful way. Since most Americans have moderate views on abortion law and policy, why would they support such extremely permissive legal regimes of abortion on demand?

There are many possible explanations. It may represent a natural pendulum swing, a political reaction against Dobbs. Or perhaps many Americans are ill-equipped to understand complicated legal arguments, confusing ballot language, and abstract questions of constitutional interpretation. Certainly, massively funded ad campaigns have deliberately misled many voters by distorting the law in furtherance of political goals.

Perhaps voters simply don’t know, or are unwilling to admit, that cases of “unregulated abortion” really do exist, that some abortion clinics operate in unsafe or unhygienic conditions, that some mothers abort healthy infants in the second and third trimesters for purely elective reasons, or that women and minor girls are often pressured, or even coerced, to obtain abortions.

Perhaps the prevalence of casual sex, outside of committed relationships ordered toward welcoming children, is so common that voters want to ensure abortion access for their friends or daughters in case contraception fails (or isn’t used).

Or perhaps, as one Notre Dame professor said in an attempt to explain his university administration’s inexplicable embrace of pro-abortion politicians, voters think that “abortion is bad, . . . but it’s not all that bad.”

The sobering truth behind all these explanations is that when presented with two perceived “extremes”—unregulated abortion on one hand, or abortion bans on the other—voters are willing to put up with the former to avoid even a chance of the latter.

Abortion advocates have exploited this political advantage. While conservatives argue over which abortion policy is moderate enough to be politically palatable, the abortion industry has managed to appear rhetorically moderate while executing a legal strategy that brooks no restraint on its operations.

To be sure, there remains an enormous cultural task to soften the hearts and minds of voters about the dignity of unborn human life and the need to accompany pregnant women in distress. But voters, especially those that consider themselves moderate on abortion, should acknowledge the full implications of the bargain they have struck. 

The probable and drastic consequence of these expansive constitutional regimes is the judicial invalidation of even the most benign and moderate abortion laws. Many abortion advocates dismiss this likelihood, calling such arguments “scaremongering.” Instead, they successfully convince voters that many reasonable, commonsense abortion restrictions are safely “on the books.” For example, the Ohio Chapter of the American Academy of Pediatrics, which endorsed Issue 1, claimed it will have no impact on the state’s parental consent law and accused “anti-abortion extremists” of spreading lies to the contrary.

But the reality is that courts in states with broadly worded constitutional protections for abortion do strike down parental consent laws, parental notice laws, waiting periods, and restrictions on public funding of abortion. There is overwhelming evidence from case law in many states to establish this, but a recent example from Kansas illustrates the point.

In the Hodes decision, the Kansas Supreme Court found a “natural right” to abortion in the state constitution and adopted a strict legal test for all abortion regulations. Last year, when Kansas voters considered the constitutional amendment that would have overruled Hodes, abortion advocates repeatedly assured Kansas voters that the amendment was not necessary and that sufficient restrictions on abortion were already in place.

Conveniently, abortion providers waited until after the amendment initiative failed to challenge any of those modest restrictions. Within a year, though, they filed a lawsuit challenging the Women’s Right to Know Act, a widely supported, commonsense informed consent law passed over twenty years ago with bipartisan support. The law is meant to ensure that a woman seeking an abortion receives in-person counseling from the physician who will perform the abortion, accurate, non-coercive information relevant to her decision, and a brief time period—twenty-four hours—to process the information before the procedure. Most Americans support such laws, which only promote voluntary, informed decision-making and do nothing to prevent a woman’s ultimate access to abortion. More than thirty states, including Ohio and Michigan, have similar laws.

The abortion providers’ complaint in this lawsuit reveals the ultimate goal of the abortion industry: no legal limits, even those that pose no meaningful barrier to abortion. The abortion providers acknowledge that women seeking abortions are often motivated by social pressures, such as educational goals, and economic pressures like the demands of raising existing children, or that women “do not feel they can adequately parent and provide for other children.” Yet they object to providing a woman with information relevant to her concerns, like the availability of medical and material resources should she decide to parent, or alternatives to parenting like adoption, or about the father’s enforceable obligation to support his child.

Abortion providers don’t like mandatory delays, even a mere twenty-four hours, for an obvious reason: they limit their ability to perform a large number of abortions. Therefore, they object to a requirement that the actual abortion provider meet privately with the patient, ensuring her questions will be answered in her own language, and giving her time to process the information.

Predictably, the judge in the Kansas lawsuit, using the strict legal test from Hodes, issued a temporary injunction preventing the informed consent law from being enforced. Emboldened by this legal success, abortion providers in Kansas can be expected to challenge other bipartisan abortion regulations, such as the limit on elective abortions after twenty-two weeks’ gestation, restrictions on public funding of abortion, and the state’s parental consent law. We can expect courts in Ohio to strike down similar bipartisan, moderate laws under its new constitutional amendment.

If legal consequences do not persuade citizens of the full import of their votes, perhaps explosive growth in the number of abortions will. That is the human cost for accepting unregulated legal abortion regimes. Again, Kansas is illustrative as it is quickly becoming, as abortion advocates proudly advertised, an abortion “haven state.” In 2019, the year of the Hodes decision, there were 6,916 abortions in Kansas. Since then, the number of abortions has skyrocketed: in 2022 alone, there were 12,318 abortions. Of those, 8,475 (nearly 70%) were out-of-state residents. According to one report, there were an estimated 9,800 abortions in the first six months of 2023, putting the state on track to hit nearly 20,000 abortions by the end of this year.

What is emerging post-Dobbs in many places throughout the nation is a legal regime that protects and privileges abortion to a far greater extent than Roe and Casey ever did. As other states follow Kansas’s lead, they will likely see the same consequence of their permissive abortion legal regimes: a booming abortion business.

Image by mrallen and licensed via Adobe Stock. Image resized.