The Post-Roe Abortion Cause Is Still Finding Ways to Loosen the Law

A bortion is on the ballot in Missouri, Virginia, Idaho, and Nevada this election cycle.

While it’s the good fruit of Dobbs that state abortion laws can now be decided by the will of the people and not the whims of federal judges, there was never a guarantee that abortion would become more restricted nationwide. Of the four statewide ballot initiatives, only Missouri’s would restrict abortion access, with Amendment 3 proposing to overturn the “constitutional right to reproductive freedom.” The rest are propositions that would codify the right to abortion with provisions far more liberal than state laws currently on the books.

Question 1 on the Virginia ballot purports to merely codify the status quo of abortion laws by creating a constitutionally protected “fundamental right to reproductive freedom.” Ed Whelan writes for National Review that the amendment actually goes much further and would:

make abortion freely available throughout the third trimester of pregnancy, all the way up to birth, abolish the right of parents to be consulted on, and to consent to, abortions sought by their young daughters, [and] enable anyone to perform an abortion and to escape legal responsibility for botching an abortion . . . It would enable a child, without her parents’ knowledge or consent, to receive puberty blockers, cross-sex hormones, and sterilization surgery.

I encourage you to read his whole piece, but in brief: The amendment overrides current Virginia law that permits third-trimester abortions if the pregnancy is likely to result in death or “substantially or irremediably impair the mental or physical health of the woman” and that requires three physicians in total to sign off that such conditions exist. The new language, by contrast, demands only that the attending physician deem the abortion “medically indicated” to “protect the life or physical or mental health” of the woman. This means that any condition of mental discomfort could justify a late-term abortion. Making abortion “an individual’s right” rather than excepting minors also puts the autonomy of the pregnant girl over her parents’ right to consent to her medical decisions. The broad language could, as written, be interpreted by the state court to include gender-transition surgeries that have reproductive consequences. And the provision that Virginia law “shall not” prosecute any action taken by an individual who helps another individual in exercising the “fundamental right” to abortion hamstrings authorities in their ability to discipline a provider for procedures gone awry.

The most recent polling puts support for Question 1 at 66 percent, despite these potential ramifications. Most voters aren’t likely to read the actual text of the amendment, and misleading summaries keep them in the dark.

Idaho’s Proposition 1 is similar in its effect and means. The amendment establishes a statutory right to “reproductive freedom and privacy,” from abortion to fertility treatments to contraception, where there previously was none. The state “cannot infringe” on a “person’s voluntary exercise” of this right “unless such state action is narrowly tailored” to keep the person healthy “through the least restrictive means.” It provides no distinctions for minors or carveouts for parental consent. Abortion becomes legal up to fetal viability, after which the state can prohibit abortion “except in cases of medical emergency,” the meaning of which is to be “liberally construed in favor of reproductive freedom” by the practitioner performing the abortion, meaning in a manner that rewards the exercise of the right to abortion. The fetus (i.e., baby) is considered viable only if it has a “significant likelihood of survival outside of the uterus without extraordinary medical measures,” and it remains unclear what counts as an extraordinary measure. Could a common but intensive treatment like oxygen assistance for a fetus eight months into development be extraordinary? Apparently, if the abortion provider deems it so. The language of the amendment cloaks the whole operation in the language of liberty, going by the Reproductive Freedom and Privacy Act.

Will voters see through the obfuscation? Any new abortion measure in Idaho is likely to be met with resistance. Current state law prohibits abortion at any point in a pregnancy, with exceptions for rape, incest, ectopic pregnancies, or to save the life of the mother. A Democratic presidential candidate hasn’t won in deep-red Idaho since 1968. Republicans hold a supermajority in the legislature and occupy the governor’s office and virtually all major statewide offices. It’s a wonder that such a permissive option made it onto the ballot, but it did, with 75,478 valid signatures from 20 legislative districts.

Polling from last fall put support for the initiative, then hypothetical, at 60.5 percent, but take that figure with a grain of salt. Voters were asked at the time if they would support an act that “establishes a right to make private reproductive healthcare decisions, including abortion up to fetal viability and in medical emergencies.”

The questions are so hideously massaged and deprived of context that voters won’t even know what they’re voting for.

Per the official ballot option, “a ‘no’ vote opposes creating a right to reproductive freedom and privacy, declaring that the state can regulate abortion after the point of fetal viability, except in cases of medical emergency, and stating that the government can not interfere with personal decisions about reproductive healthcare.” Who would oppose “privacy” or state regulation of abortion after fetal viability?

Nevada’s Question 6, meanwhile, explicitly creates a constitutional right to abortion; the initiative won on the ballot in the 2024 election, but it must win again in 2026 to become law. As with Idaho and Virginia’s measures, “all individuals” would have a fundamental right to abortion “up to fetal viability” that is protected from state intervention unless justified by a compelling interest. The same concern that the new text will gut parental-consent laws applies, and “fetal viability” is a nebulous term that provides too much discretion to a single provider. But “yeas” trounced “nays,” 64.4 percent to 35.64 percent, in the 2024 vote, so it’s likely that the amendment will pass in November.

The abortion-law landscape in post-Roe America is still taking shape. Voters in Nevada, Virginia, and Idaho, each with very different political hues, should recognize that establishing a “right” to abortion is grounded in the same flawed logic that cratered Roe and is likely to lead to abuse and overreach, no matter how anodyne the ballot language makes it sound.