Abortion Ballot Measures Won’t Automatically Undo Existing Laws

On Tuesday, a judge in Michigan blocked some of the state’s lingering restrictions on abortion access, including a mandatory 24-hour waiting period. The ruling comes 19 months after voters added abortion rights to the state constitution in November 2022.

Michigan was one of the first states to protect abortion access at the ballot box after the Supreme Court overturned federal abortion protections in Dobbs v. Jackson Women’s Health Organization in 2022. But the amount of time some abortion restrictions in the state have remained on the books serves as a caution to other states holding similar votes. Election results may not be as clear-cut as you might think.

This year, voters in as many as 12 more states, including Missouri, could weigh in on abortion. Here, as in most of those states, a likely ballot measure would add abortion protections to the state constitution.

Abortions in Missouri have been banned in nearly every circumstance since the Dobbs ruling. But the procedure was largely halted here years earlier by a series of laws designed to make abortions scarce. These laws are sometimes called “targeted regulation of abortion providers,” or TRAP, laws.

By 2021, the last full year before Dobbs opened the door for Missouri’s ban, the state recorded only 150 abortions, down from 5,772 in 2011.

Even if Missouri voters enshrine abortion protections in the state constitution this year, state regulations such as a 72-hour waiting period and minimum dimensions for procedure rooms and hallways in clinics that provide abortions would remain on the books.

Such laws likely wouldn’t be overturned legislatively under a Republican-controlled legislature and governor’s office. But they will surely face legal challenges, which could take a while.

The lawsuit that led to Tuesday’s ruling in Michigan, for example, was filed 15 months after voters added abortion protections to the state’s constitution.

The delay had a purpose, according to Elisabeth Smith, state policy and advocacy director at the Center for Reproductive Rights, which filed the lawsuit: It afforded the Democratic-led legislature time to act. It’s often more effective to change laws through the legislature than through litigation because the courts can only strike down a law, not replace one.

Michigan did pass an abortion rights package that was signed into law by the state’s Democratic governor, Gretchen Whitmer, in December. But the package left some regulations intact, including the mandatory waiting period, mandatory counseling and a ban on abortions by non-doctor clinicians, such as nurse practitioners and midwives.

Abortion opponents such as Katie Daniel, state policy director for Susan B. Anthony Pro-Life America, are critical of the Michigan lawsuit and such policy unwinding efforts.

“The litigation proves these amendments go farther than they will ever admit in a 30-second commercial,” Daniel said.

Of the seven states that have voted on abortion since Dobbs, Ohio may be the most politically similar to Missouri.

Last year, Ohio Attorney General Dave Yost, an antiabortion Republican, said passing an amendment to protect abortion rights would upend at least 10 state laws limiting abortions.

Voters passed the measure with nearly 57 percent of the vote, but most of those state laws — including a 24-hour waiting period and a 20-week abortion ban — continue to govern Ohio health providers.

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