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What do the midterm results say about the future of abortion rights?

This year's midterm was, in some ways, a direct response to the Supreme Court overturning Roe v. Wade. California, Michigan and Vermont voted in support of measures to enshrine abortion protections in their state constitutions. AP Photo/Damian Dovarganes

Voters in the midterm elections made their voices heard on the issue of abortion rights, but just how much of a difference it will make in the fight for abortion access is still unclear.

This year’s midterms were the first nationwide elections held since the Supreme Court overturned Roe v. Wade in June. With abortion on the ballot in states like Michigan, California, Vermont and Kentucky, the midterms were, in some ways, a referendum on a publicly unpopular Supreme Court decision. Abortion was a galvanizing issue leading into the election, yet when it came to ballot initiatives, voters largely maintained the status quo in their respective states.

“In some respects, we’re at the same point as we were before the election,” says Martha Davis, university distinguished professor of law at Northeastern. “States either rejected efforts to pull back reproductive rights or they supported efforts to further enshrine rights that were already being supported. It remains to be seen whether it’s not going to have a big impact on the ground in terms of peoples’ actual access.”

headshot of Martha Davis
Martha Davis, Northeastern University School of Law distinguished professor.

Solidly blue states like California and Vermont enshrined abortion protections in their state constitutions. As did Michigan, in which Democrats, buoyed by support for abortion rights, took control of both the state Senate and House of Representatives for the first time in 40 years.

In one of the most surprising moments in the midterms, Kentucky voters shot down a measure to ban abortions in the state constitution. The vote does not overturn the near-total ban on abortions in Kentucky, but could potentially affect the outcome of a lawsuit challenging the ban in the Kentucky Supreme Court next week.

The outcome in Kentucky, although still not a total victory for abortion rights advocates, shows how deep the support for abortion runs–even in states that lean Republican. Similarly, in August, voters in purple Kansas voted overwhelmingly to reject an amendment to the state constitution that would have removed abortion protections.

“The Kentucky referendum would have permitted laws with no exceptions,” Davis says. “I think what we’re seeing again and again is that there’s not an appetite for that kind of Draconian measure. In fact, there’s a lot of motivation to get out and uphold access to abortion, as we seesaw not only in Kansas but now Michigan, Vermont and California.”

“The success in Kansas, the success in Kentucky, shows that abortion opponents can’t count on even purple states and maybe even red states,” she adds.

At the same time, Republicans expanded control in states like Florida, where they now have a supermajority in both the state Senate and House of Representatives, and North Carolina, where Republicans now occupy a majority of state Supreme Court seats. 

“You can’t discount the anti-abortion folks who have been very creative in the ways that they’ve crafted arguments and developed media,” Davis says. “They’re not going to pack up now and go home. The fight at each individual state level is not over by any means.”

With Roe v. Wade overturned, each state, to a greater and lesser degree, is a battleground. Davis cautions that even measures like enshrining abortion protections in state constitutions are not guaranteed to protect abortion rights in perpetuity.

“One thing to keep in mind is that putting something in the state constitution is important, it creates stability, it is an important marker of protection and it’s not easy to reverse,” she says. “But state constitutions can be amended much more easily than the federal constitution.”

“It is an important marker and an indication of the state’s values and it’s something that can be used to protect abortion rights, but we can’t count on that necessarily forever.”

Despite her skepticism about how much of a sea change the midterm elections were, Davis does anticipate the results in Kentucky–and Kansas before it–making some waves in Congress, especially among Republicans.

“I would think that the outcomes of the abortion referendums so far would give members of Congress pause going forward with any kind of effort to restrict abortion legislatively,” Davis says. “Obviously, there’s not much support for that, aside from maybe their base, and they’re losing elections because of it.”

For media inquiries, please contact Marirose Sartoretto at m.sartoretto@northeastern.edu or 617-373-5718.

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