Activists clash over phrasing of 2024 abortion ballot measures
The 2024 Election: What to Expect from Ballot Initiatives Expanding Abortion Access
The upcoming 2024 election is set to witness a surge in states grappling with ballot initiatives aimed at expanding access to abortion. To understand what voters can anticipate if they approve similar measures, it’s worth examining how activists crafted the language of previously passed initiatives.
In the past 18 months, advocates of legal abortion have achieved success by promoting ballot initiatives in various states. These initiatives aim to expand abortion access and bypass laws enacted by state legislatures that restrict the procedure.
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While proponents market these initiatives as measures to ensure “reproductive freedom” and “keeping government out of decisions between a woman and her doctor,” the language used in many of these initiatives could have far-reaching implications.
One of the most prominent initiatives this year was in Ohio, where voters enshrined legal access to abortion in the state’s constitution. Despite concerns raised by opponents about the initiative’s language, including the absence of age limitations and potential allowance for gender transitions in minors, proponents dismissed these claims.
However, legislators in Ohio are now relying on the wording of the initiative to push for laws that go beyond adult abortion access.
Despite facing losses in 2022 and 2023 on legal abortion amendments, groups like SBA Pro-Life America are entering 2024 armed with evidence that their warnings about language were valid. Katie Daniel, the group’s state policy director, emphasized the importance of taking these warnings seriously, stating, “Take them seriously when they [say] they want anything and everything.”
The Power of Language: “Reproductive Healthcare” and “Reproductive Freedom”
Ballot initiatives often employ terms like “reproductive freedom” and “reproductive healthcare” as catch-all phrases. These phrases encompass surgical and chemical abortions, as well as transgender surgeries and drugs.
Ohio’s amendment, for instance, uses the phrases “reproductive freedom” and “reproductive decisions,” which are ”including but not limited to” abortion. This leaves room for interpretation, potentially legalizing any medical treatment related to reproductive systems.
Katie Daniel highlighted the rebranding of NARAL, a prominent abortion group, to Reproductive Freedom for All. She noted that the inclusion of phrases like “reproductive health” should be taken seriously, as it indicates a shift in their mission.
In Ohio, following the passage of the abortion ballot initiative, legislators recently introduced a bill defining “reproductive health care” to include “gender-affirming care” and “the intended or actual initiation or termination of a pregnancy,” among other things.
According to Daniel, these phrases are easily interpreted in a legal context to mean something entirely different from what an average voter might think. This is especially significant considering the vehement denial by proponents of legal abortion and a large portion of the media that an amendment focused on abortion could be used as a basis for liberal laws in other areas.
The Expansive Scope of “Health”
Supporters of legal abortion have increasingly included the term “health” in proposals to create new “exceptions” that could justify abortion for non-life-threatening and temporary diagnoses.
Ohio’s initiative, for example, states that “abortion may be prohibited after fetal viability. But in no case may such an abortion be prohibited if in the professional judgment of the pregnant patient’s treating physician it is necessary to protect the pregnant patient’s life or health.” This wording allows for abortions at any stage of pregnancy for any reason, as long as a doctor approves the procedure.
According to Daniel, this method of leaving room for the approval of abortions beyond statutory limitations is not new. In the 1973 case Doe v. Bolton, the Supreme Court explained that the term “health” could encompass various factors, including physical, emotional, psychological, familial, and age-related considerations.
By following the interpretation of Justice William Douglas in Bolton, Daniel argued that a woman’s stress level could be sufficient for a doctor to approve an abortion.
The Hazards of Vagueness
While terms like “reproductive freedom” are inherently vague, abortion ballot initiatives have also been written with deliberate omissions, such as age restrictions. This is done to prevent parental consent laws for minors seeking abortions or gender transitions.
Ohio’s measure serves as an example of what could be expected. It does not mention age and uses phrases like “pregnant patient” and “individual” instead of words that could limit its reach to adult women.
According to Daniel, when a ballot initiative is written to apply to “individuals,” it intentionally includes children. This issue has also arisen in South Dakota, where supporters of legal abortion have taken issue with the use of the word “women” in an upcoming abortion amendment, as it could potentially exclude minors.
Michigan faced a similar situation when a vaguely worded abortion ballot initiative was passed in 2022. Legal abortion advocacy groups subsequently called for an end to parental consent laws, citing the constitutional right to abortion and decisions related to reproductive health.
As Daniel emphasized, the choice of language is crucial. Terms like “woman” connote an adult, while “individual,” “female,” or “pregnant person” do not specify any age. This ambiguity must be taken seriously.
The Role of “Healthcare Professionals”
Another shift in language highlighted by Daniel is the use of “healthcare professionals” instead of “doctor” or “physician.” The long-term strategy of the abortion industry, according to Daniel, is to lower the standards for certification of ”healthcare professionals” who can perform abortions.
Currently, 16 states, including Connecticut, allow nonphysician practitioners to perform both chemical and surgical abortions.
Daniel explained that the majority of doctors do not perform abortions, necessitating the inclusion of other types of healthcare professionals to widen the pool of potential providers.
The ultimate goal, as Daniel concluded, is to make abortion pills available over the counter. This loosening of restrictions, from requiring an OBGYN to just a doctor, and now potentially even a nurse or someone selling pills online, is part of that broader objective.
In the upcoming 2024 election, at least 11 states, including Arizona, Arkansas, Colorado, Florida, Maryland, Missouri, Montana, Nebraska, Nevada, New York, and South Dakota, are expected to have similar abortion initiatives on their ballots.
How do the deliberate vagueness and omission of age restrictions in these initiatives raise concerns about parental consent laws for minors seeking abortions or gender transitions? How can the language of these initiatives extend their reach to include minors and transgender individuals
It opens the door for interpretations that extend beyond adult women to include minors and transgender individuals seeking abortions or gender-confirming treatments.
Proponents of these initiatives argue that they aim to expand access to reproductive healthcare and protect individuals’ rights to make decisions about their own bodies. However, opponents warn that the language used in these initiatives can have far-reaching implications that extend beyond abortion access.
As voters approach the 2024 election, it is crucial for them to examine the language of ballot initiatives carefully. The seemingly straightforward phrases used, such as “reproductive freedom” and “reproductive healthcare,” can encompass a wide range of medical treatments and procedures beyond abortion.
The power of language becomes evident when examining how legislators in Ohio have expanded the definition of “reproductive health care” to include gender-affirming treatments and the initiation or termination of pregnancy. This highlights the need for voters to take the language seriously and consider the broader implications of their votes.
The term “health” has also been used in these initiatives to create exceptions that allow for non-life-threatening and temporary diagnoses to justify abortions. By leaving room for interpretation, these initiatives can potentially allow for abortions at any stage of pregnancy as long as a doctor deems it necessary to protect the patient’s life or health.
The deliberate vagueness in these initiatives, such as the omission of age restrictions, raises concerns about parental consent laws for minors seeking abortions or gender transitions. By using terms like “pregnant patient” and “individual,” these initiatives can extend their reach to include minors and transgender individuals.
As the 2024 election approaches, it is crucial for voters to be informed about the language of ballot initiatives aimed at expanding abortion access. Understanding the potential implications of these initiatives is essential to make an informed decision at the polls. By examining how previously passed initiatives have been interpreted and expanded, voters can better anticipate what to expect if similar measures are approved in their states.
Ultimately, the language used in these ballot initiatives is critical as it shapes the scope and impact of laws relating to abortion access. Voters must carefully consider the potential consequences of expanding access to abortion and the broader implications of the language used in these initiatives before casting their vote in the upcoming elections.
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