Abortion on the ballot? Not if these Republican lawmakers can help it

Oklahoma’s leading anti-abortion group is pushing GOP lawmakers to loosen the state’s near-total ban.

In a recent letter to legislators, Oklahomans for Life Chair Tony Lauinger argued that if they don’t amend the state’s anti-abortion law to add exceptions for rape and incest, there is a real chance a citizen-led ballot initiative to make all abortion legal will eventually succeed.

His efforts, which other lawmakers and anti-abortion groups have slammed as immoral and politically naive, are the latest example of the national scramble to prevent voters from restoring abortion access by popular vote.

Legislatures in Arkansas, Florida, Idaho, Missouri, North Dakota, Ohio and Oklahoma are debating bills this session that would hike the filing fees, raise the number of signatures required to get on the ballot, restrict who can collect signatures, mandate broader geographic distribution of signatures, and raise the vote threshold to pass an amendment from a majority to a supermajority. While the bills vary in wording, they would have the same impact: limiting voters' power to override abortion restrictions that Republicans imposed, which took effect after the Supreme Court overturned Roe v. Wade last year.

After watching the pro-abortion rights side win all six ballot initiative fights related to abortion in 2022 — including in conservative states such as Kansas and Kentucky — conservatives fear, and are mobilizing to avoid, a repeat.

“It was a wake-up call that taught us we have a ton of work to do,” said Kelsey Pritchard, the state public affairs director for Susan B. Anthony Pro-Life America, which plans to spend tens of millions of dollars on ballot initiative fights on abortion over the next two years. “We’re going to be really engaged on these ballot measures that are often very radical and go far beyond what Roe ever did.”

In Mississippi, where a court order froze all ballot efforts in 2021, GOP lawmakers are advancing legislation that would restore the mechanism but prohibit voters from putting abortion-related measures on the ballot.

“I think it just continues the policy of Mississippi and our state leaders that we're going to be a pro-life state,” said Mississippi state Rep. Nick Bain, who presented the bill on the House floor.

But in most states, the GOP proposals to tighten restrictions on ballot initiatives are not explicitly targeting abortion. The push to change the rules began years before the Dobbs decision overturned Roe v. Wade in June of 2022 — spurred by progressive efforts to legalize marijuana, expand Medicaid and raise the minimum wage in several red states — though it reached new heights over the past year as voters and elected officials clashed over abortion policies.

Still, some anti-abortion activists worry that the trend could backfire, preventing groups from using the tactic to pass their own constitutional amendments via popular vote.

“In Florida, it’s a double-edged sword,” said Andrew Shirvell, the leader of the group Florida Voice for the Unborn that is working to put an anti-abortion measure on the 2024 ballot. “So we’re conflicted about it, because there is a large contingent of pro-life grassroots advocates who feel our governor and legislature have failed us on this issue for far too long and want to take things into our own hands.”

Interest on the left in using ballot initiatives to protect or expand abortion access exploded in the wake of the 2022 midterm elections. Efforts are already underway in Missouri, Ohio and South Dakota to insert language restoring abortion rights into the states’ constitutions, while advocates in several other states are mulling their options.

The campaign is furthest along in Ohio, where abortion rights advocates began collecting signatures this week. A coalition of anti-abortion groups called Protect Women Ohio formed in response and announced a $5 million ad buy this week to air a 30-second spot suggesting the proposed amendment would take away parents’ rights to decide whether their children should obtain abortions and other kinds of health care.

At the same time, some Ohio lawmakers are pushing for a proposal that would raise the voter approval threshold for constitutional amendments from a simple majority to 60 percent.

In Missouri, where progressive groups have submitted several versions of an abortion-rights ballot initiative to state authorities for review, lawmakers are similarly weighing proposals to impose a supermajority vote requirement and mandate that the measure pass in more than half of Missouri House districts to take effect.

“It’s about making sure everyone has a voice, and that includes middle Missouri as well,” said Missouri Right to Life Executive Director Susan Klein. “We have known for some time that the threat to legalize abortion was going around different states and would ultimately come to Missouri. We’ve been hard at work preparing for this challenge and we’re ready.”

In Idaho, lawmakers are trying to require backers of initiative petitions to gather signatures from 6 percent of registered voters to qualify for the ballot.

“I call these bills ‘death by a thousand cuts,’” said Kelly Hall, the executive director of the progressive ballot initiative group The Fairness Project. “When you hear about each one in isolation, they seem like not that big a deal. But taken together, they have an exclusionary effect on people’s participation in democracy.”

Conservative lawmakers and advocates pushing the rule changes say they reflect their beliefs about how laws should be crafted and are not solely about abortion — but they are upfront about wanting to make it harder to pass the kind of broad protections voters in California, Michigan and Vermont enacted last year.

“I did not start this out due to abortion, but … Planned Parenthood is actively trying to enshrine a lack of protections for the unborn into constitutions,” said North Dakota state Sen. Janne Myrdal, who heads the state legislature’s Pro-Life Caucus. “You can sit in California or New York or Washington and throw a dart, attach a couple million dollars to it, and you change our constitution.”

The resolution Myrdal is sponsoring, which passed the Senate last month and is awaiting a vote in the House, would require proposed constitutional amendments to pass twice — during the primary and general elections — and bump up the signature-gathering requirement from 4 percent to 5 percent of residents. If approved, the proposed changes would appear on the state’s 2024 ballot.

Major national anti-abortion groups say they’re not formally endorsing these efforts, but support the GOP lawmakers behind them.

“It starts to diminish the importance of a constitution if it can be changed by the whim of the current culture,” Carol Tobias, the president of the National Right to Life Committee, said.

Even in states that have not yet taken steps to put an abortion-rights measure on the ballot, conservative fears of such a move are driving some surprising legislative action.

In Oklahoma, the anti-abortion leader Lauinger is arguing to lawmakers that polling shows overwhelming support for rape and incest exceptions — as one lawmaker has proposed in a bill that cleared its first committee last month — and overwhelming opposition to leaving the state’s ban as-is.

If the state didn’t have a ballot measure process, he said, he wouldn’t support exceptions. But since that threat exists, he argued, “We must not allow the perfect to be the enemy of the good.”

“The abortion industry has the weapon to defeat what we regard as the ideal policy,” Lauinger told the lawmakers. “The initiative petition is their trump card.”

Lauinger did not respond to multiple requests for comment. Yet National Right to Life, the parent group of his organization, told POLITICO it backs his argument that it’s better to make exceptions for rape and incest than risk a sweeping ballot initiative enshrining the right to abortion in the state constitution.

“This isn’t a betrayal,” insisted Tobias. “If you really look at what we’re facing, we could either save 95 percent of all babies or we could lose everything and all babies could be subject to death. It’s kind of hard to not see the reality.”

Advocates on both sides of the abortion fight stress, however, that a ballot initiative fight in Oklahoma is still possible — even likely — whether the state approves exceptions for rape and incest or not.

"They’re probably going to try to do one anyway, regardless of what we do," said Oklahoma state Rep. Jim Olsen, a Republican who launched an effort with other conservative lawmakers in the state to defeat the exceptions bill. "The fight hasn’t even come and we’re already backing away.”