November 18, 2022
The recent midterm elections have produced many important reproductive rights developments and set the stage for future legislative action at the state level. We continue to see important decisions by state courts regarding the constitutionality of existing laws.
Reproductive rights did well in the November elections. Voters in California, Michigan and Vermont passed constitutional amendments establishing rights to reproductive freedom. Meanwhile, an amendment that would have restricted access to abortions in Kentucky and a referendum law in Montana on medical care for “liveborn” infants after an abortion failed by a wide margin.
Candidates championing reproductive rights also won key gubernatorial elections in Arizona, Kansas, New Mexico, Michigan, Pennsylvania and Wisconsin. Anti-abortion activists also made some gains. The incumbent Nevada governor, who has been vocal about reproductive rights, lost to a more conservative opponent. Republicans also secured a filibuster-proof majority in Nebraska, opening the door to more restrictive legislation in that state.
There were also developments outside of the elections. A Georgia state judge ruled that the fetal heartbeat law was unconstitutional, and the Kentucky Supreme Court heard hearings in a case challenging its laws. Additionally, Republicans in the Ohio Legislature are returning for the final weeks of their 2022 session, and there is reportedly interest in introducing a new abortion law.
The election results indicated broad voter support for reproductive rights protections, even in typically conservative states like Kentucky and Montana.
Constitutional amendments enshrining the right to reproductive freedom in Michigan and Vermont passed by about 56% and 76% of the vote, respectively. Votes are still being counted in California, but his amendment received 66% of the vote as of this writing.
The Michigan vote effectively ends litigation over the enforceability of a preliminary ruling.roe Penal Code as the amendment prohibits any regulation of abortion before the viability of the fetus. The California and Vermont changes appear to be a ban any Regulate abortion unless justified by an “overriding interest of the state.”
In Kentucky, 53% of voters rejected an amendment that said there is no right to abortion in the state constitution – this amendment would have restricted the right to access abortion. A Montana legislative referendum directly related to abortion and calling for post-abortion medical care for “liveborn infants” failed after receiving only 47% support.
Neither finding will have an immediate substantive impact on state law, but, as discussed below, in Kentucky, the finding could feed into the decision of the Kentucky Supreme Court in cases challenging the constitutionality of existing Kentucky abortion laws .
Candidates who advocated access to reproductive rights also did well in individual elections. Incumbents who resisted efforts to pass new restrictions,Dobbs in Kansas, Michigan and Wisconsin were re-elected. New candidates who pledged to support access to abortion also won in Arizona, New Mexico and Pennsylvania. Finally, Republican efforts to elect veto-proof majorities to end efforts by their Democratic governors to block abortion restrictions and other policy initiatives in Wisconsin and North Carolina failed.
There have also been victories for anti-abortionists. In Nevada, the incumbent governor lost to a challenger who advocates abortion restrictions. That could lead to a repeal of the state executive order that protects women from criminal prosecution for requesting an abortion. Additionally, Nebraska Republicans appear to have secured a filibuster-proof majority in the state’s unicameral legislature, opening the door for a stalled 12-week abortion ban to be passed in the next session.
Some important races are still too close to announce. For example, the Attorney General’s races in Arizona are still undecided at the time of this writing. The outcome of this race will likely determine the fate of Arizona’s pre-roe criminal ban.
A judge on the Fulton County Superior Court ruled on November 15 that Georgia’s existing heartbeat abortion law was unconstitutional and therefore void.
The Georgian law was passed in 2019 and came into force in 2020. The law was enacted by a federal district court in accordance with Supreme Court precedent roe and Casey. Georgia appealed the decision, but the case was stayed pending the outcome of the trial Dobbs. Shortly thereafter Dobbs was ruled, the US Court of Appeals for the Eleventh Circuit vacated the previous injunction and allowed the law to go into effect.
Reproductive health organizations then filed suit in state court, claiming the law violates the Georgia Constitution. They also argued that the law should be struck down as unconstitutional back then it was enacted. The state court agreed with this second argument, noting that the law was void upon passage because it clearly contradicted existing precedent.
This is the first time a court has used this argument to invalidate a law. We assume that the decision will be appealed.
The Kentucky Supreme Court on Nov. 15 heard hearings in cases challenging the constitutionality of the state’s two abortion laws. Reproductive health groups claim that Kentucky’s six-week ban and near-total ban on abortion after conception violates privacy rights protected by the Kentucky Constitution.
The cases would have been contentious if Kentucky voters had accepted the proposed amendment that says there is no abortion right in the state constitution. Rejecting this amendment gives the court leeway to rule in favor of abortion protections.
Decisions in the cases are not expected for several months.
Michigan, New Jersey and Ohio are the only state legislatures still in session. After the election, news outlets reported that Ohio was interested in introducing new abortion laws in November and December.
There are two proposals that legislators can consider. The first would be a bill aimed at clarifying aspects of Ohio’s existing fetal heartbeat law in hopes of bolstering it against ongoing legal challenges. At least one news report indicates that after Thanksgiving, the Ohio Senate will focus on action in that direction.
The second would be an almost total ban on all post-conception abortions except when necessary to save the life of the pregnant person. This policy is reflected in HB 598/S. 123. The bills would also prohibit the “promotion of abortion,” which they define narrowly as the manufacture, possession, distribution, or promotion of drugs or devices capable of causing an abortion and used primarily to cause an abortion in recipients, who the person knows have the intent to cause an abortion. Violating the abortion ban would be a felony, punishable by up to two years in prison and a $2,500 fine. Promoting abortion would be a criminal offense punishable by up to 180 days in prison and a $1,000 fine. No bill has yet gone through the committee.
Ohio law currently prohibits abortion after detection of a fetal heartbeat or about six weeks after conception. This law was enacted by a state court, which found it violated the Ohio Constitution. The Ohio Attorney General has appealed that ruling.
Current efforts to pass new restrictions on abortion access in South Carolina officially ended on November 13 with the formal adjournment of the Legislature. Members of a committee appointed by the State Senate and House of Representatives met Nov. 9 to negotiate differences in their respective bills. These efforts failed. The Senate then voted on the House proposal that would ban almost all abortions after conception, formally rejecting it for the third time.
The South Carolina Legislature will return for a new session in January 2023. Republicans won several seats in the state house on election night, but the composition of the South Carolina Senate will remain the same in the new session.
Reproductive Rights: Post–Dobbs influence
Our Reproductive Rights Task Force closely monitors and analyzes the impact of state laws regulating access to abortion to advise clients on how best to respond. Visit our centralized portal that aggregates our insights and analytics Dobbs and his subsequent influence on state laws in the United States.
If you have any questions or would like more information about any of the topics covered in this insight, please contact one of the following:
Sharon Perley Masling
E. Pierce Blue
Saghi (sage) Fattahian