Nearly five months after the Supreme Court overturned Roe v. Wade, a number of states voted in favor of abortion rights in Tuesday’s midterm elections.
By early Wednesday morning, a proposed amendment to the Kentucky Constitution that would say it does not include the right to abortion or require government funding for abortions looked poised to fail. If Amendment 2 had passed, it would have added the language “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” to the state constitution.
Amendment 2 was losing by about 6 points on the same night Republican Sen. Rand Paul won by more than 20 points in his reelection bid. Donald Trump won the Bluegrass State by 26 points in 2020. More than $6 million was spent on the race, with the majority coming from those supporting reproductive rights. The initiative was similar to a referendum in Kansas that was soundly defeated in August.
“We fought a long and hard campaign to inform Kentuckians of what Amendment 2 would mean for the commonwealth, and we succeeded,” Amber Duke, interim executive director for the ACLU of Kentucky, said in a statement. “Alongside our partners in Protect Kentucky Access, we turned out the majority of Kentuckians who support abortion rights by canvassing neighborhoods, text banking, phone banking, taking the message to our social media networks, and talking to our friends and neighbors.”
Kentucky currently has a near-total ban on abortion in place, with exceptions for rape or incest, after a trigger law went into effect following the overturning of Roe in June. The state Supreme Court will begin hearing arguments against the ban later this month.
In Michigan, voters chose to enshrine the “fundamental right to reproductive freedom” in their state’s constitution.
According to the Associated Press’s unofficial tally of the results, by 9:35 a.m. on Wednesday, 56% of Michigan voters had approved Proposal 3, which would establish a constitutional amendment guaranteeing individuals the right to abortion, contraception and other reproductive health care.
The proposed amendment, which invalidates conflicting state laws already on the books, allows the state to regulate abortion after fetal viability, but not prohibit it if medically necessary to protect a patient’s life or mental or physical health. It also bars the prosecution of anyone who exercises, or helps another person exercise, their right to an abortion.
"Today, the people of Michigan voted to restore the reproductive rights they’ve had for 50 years,” said Darci McConnell, communication director for Reproductive Freedom for All, the coalition of advocacy groups behind the proposal. "Proposal 3's passage marks an historic victory for abortion access in our state and in our country — and Michigan has paved the way for future efforts to restore the rights and protections of Roe v. Wade nationwide."
The Reproductive Freedom for All campaign secured a record number of signatures for the ballot initiative this summer following the U.S. Supreme Court’s decision to overturn Roe, the landmark ruling that had guaranteed a nationwide right to abortion for nearly 50 years, but Republicans on the state’s election panel initially refused to certify it. In September the Michigan Supreme Court court ordered the measure to be put to a vote, ultimately cementing its path to the ballot.
Opponents criticized the measure as extreme and, in the run-up to Tuesday’s election, sought to paint it as a “Pandora’s box” that, they claimed, would allow children to undergo gender reassignment treatment without parental consent, even though the proposed language of the amendment includes no references to gender-affirming care.
On Wednesday, a spokesperson for Support MI Women & Children, a coalition of anti-abortion groups that campaigned against Proposal 3, issued a statement vowing to challenge the amendment with a “flood of litigation.”
In Vermont, Proposal 5 cruised to a victory with nearly 80% support, ensuring protections for abortion access, contraception and sterilization. The passage adds the following language to the state’s constitution: “That 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.”
The Vermont for Reproductive Liberty Ballot Committee, which promoted the amendment, was supported by the state's branches of the American Civil Liberties Union, the League of Women Voters and Planned Parenthood, as well as the Alliance for a Better Vermont.
“Vermonters support reproductive freedom in all four corners of the state,” the committee said in a statement, “and they believe that our reproductive decisions are ours to make without interference from politicians.”
Later in the evening, the Associated Press called the race for Proposition 1 in California for abortion advocates. Proposed following the decision that overturned Roe, the initiative will amend the state constitution “to expressly include an individual’s fundamental right to reproductive freedom, which includes the fundamental right to choose to have an abortion and the fundamental right to choose or refuse contraceptives.”
Meanwhile, in Montana, the fate of a legislative referendum on the Born Alive Infant Protection Act was still too close to call. As of Wednesday morning, LR-131 was failing by about 6 points, another win for reproductive rights activists. If victorious, the law would declare that an embryo or fetus “born alive,” at any gestational age, is a legal person with the right to medical care, and would penalize doctors who fail to make every effort to save the life of an infant born prematurely or “during an attempted abortion.”