The Voters Have Spoken: Protecting Reproductive Freedom Through Ballot Initiatives

After the Dobbs case (which overturned Roe v. Wade) was decided, several grassroots activists in various states appealed to the ballot constitutional amendment to protect reproductive freedom in their state constitutions. Brigitte Amiri, Deputy Director at the ACLU’s Reproductive Freedom Project, sits down to talk with us about recent reproductive freedom amendments, equal rights amendments, and current litigation around the U.S.

By getting measures on the ballot, collecting signatures, and gathering funds, activists have been committed to protecting reproductive autonomy via the state constitution. Cases are currently pending in Missouri, Ohio, Arizona, and Michigan, where litigators are in the process of blocking down and striking various abortion restrictions.

LINKS FROM THIS EPISODE

ACLU’s Reproductive Freedom Project
rePROs Fight Back’s 50-State Report Card
The Status of Abortion-related State Ballot Initiatives Since Dobbs – Kaiser Family Foundation
Proposition 139: The Ballot Measure that Could Protect Abortion in Arizona
The Status of Abortion Access in Florida After the Recent Ballot Initiative

TAKE ACTION

Transcript

Jennie: Welcome to rePROs Fight Back, a podcast on all things related to sexual and reproductive health, rights, and justice. [music intro]

Read More

Hi, rePROs. How's everybody doing? I'm your host, Jennie Wetter, and my pronouns are she/her. So, y'all, we just released our annual 50 state report card on sexual reproductive health and rights. Make sure to check it out. You can find it at reportcard.reprosfightback.com. It's an interactive microsite you can play with. You can see how your state fares against all the states overall. You can look under a specific indicator like sex education or abortion. It's really fun to play around and see all the different ways that your state may be succeeding or failing and seeing where your advocacy may be needed to push your state to do better. Overall, the story is pretty bleak. The US unsurprisingly got an F again between attacks on Title X and the “One Big Beautiful Bill Act,” which had defunded Planned Parenthood and cuts to Medicaid. Obviously, we had to give the US an F. This year we also had five states that got an A. That would be Washington, Oregon, California, New Mexico, and Vermont. And we got 25 states that failed. So, make sure to check out the report card, see how your state did. We will be doing an episode that will do a much deeper dive into the 50-state report card and talking about what is happening at the state level because that is where so much is happening when it comes to these issues. But the report card is about more than abortion. Like I said, we look at sex ed. We look at if the state requires hospitals to provide sexual assault victims with information on emergency contraception or emergency contraception itself. If it allows all minors to consent on their own to birth control, if the state has expanded Medicaid, expanded family planning services under Medicaid, if they have a maternal health expansion for one year postpartum under Medicaid, if there are any insurance restrictions on abortion. We look at a range of abortion restrictions and if they are in place in your state. And then we also look at if there are any bans around gender-affirming care for minors. So, it is a really wide-ranging report card, and I find the interactive website a lot of fun to see how your state is doing, and some that you would expect to be doing really well or not, because they don't require sex ed or are failing in certain parts. So, it is really interesting to see the ways that these states fall out when it comes to sexual and reproductive health and rights. So, highly recommend checking out the report card. It again, you can find it at reportcard.reprosfightback.com. Link will be in our show notes, and again, we'll be doing an episode on it soon. Also thought I would share: we recently had an in-person board meeting, and we decided to order the board some of the merch from our merch store. And one of those things we got them was a water bottle. And I hadn't seen the water bottles in person with them all printed, and they are gorgeous. I will be ordering myself one very shortly. So, definitely also check out our merch store. You can find us on Bonfire. Again, we'll have links in the show notes. Everything I have gotten from the merch store, I've loved the bags, the t-shirts. I have not gotten a mug yet or a water bottle. Both are on my list that I need to buy. But yeah, definitely check it out. We'll have links in our show notes if you want them. I find all the things really fun. We have our Liberal Jane designs we had her do. We have "our abortion is a human right, not a dirty word" design. Yeah. So, check it out. If you want to support rePROs, check out our merch store. Let's see what else.

Oh, updates. I feel like I had been talking about— I finally made that Guinness chocolate cake I was talking about, and it was so good. I put cream cheese frosting on it, which was delightful. I'm a little sad I didn't go out and get the Bailey's to do the Bailey's cream cheese frosting, but next time I will do the Bailey's frosting on the cake. But it was really good. Oh, I told you I had to take Cinder to the emergency vet. We are now two weeks past that. She is doing so much better, she has been fine. I am no longer having to fight with her to give her drugs, which is also super exciting because that was a real pain for both her and me. And so, very happy to be done with that. I feel like I have been talking a lot.

So, let's go to this week's interview. I am very excited to have on Brigitte Amiri with the ACLU to talk about the fight that the ACLU is having to get the protections enshrined and under ballot initiatives that were passed in 2024 to be in practice, right? So, the provisions that were passed were not self-executing. You have to sue to get them to take effect. And so, the ACLU has been suing lots of states to get them in place. So, we talk about the status with that, and we have a couple other things that we touch on, but it was a great conversation. And I'm so grateful for Brigitte for being on. So, I hope you enjoyed my conversation with Brigitte.

Hi, Brigitte. Thank you so much for being here today. Thanks for having me. Before we start our conversation, do you want to take a second and introduce yourself?

Brigitte: Sure. My name is Brigitte Amiri. I use she/her pronouns. I am a Deputy Director at the ACLU's Reproductive Freedom Project.

Jennie: I am so excited to talk to you today about what we are seeing with those ballot initiatives we had that passed in 2024 and what's next. But maybe before we talk about what's currently happening, we should just take a step back in case people don't remember the ballot initiatives and talk a little bit about what was in them.

Brigitte: Yes, absolutely. So, after Dobbs was decided, the Supreme Court case that overturned Roe v. Wade, a number of grassroots activists in various states decided that they were going to take to the ballot constitutional amendments to state constitutions to protect reproductive freedom. And so, it's important to note that even if the federal constitution no longer protects abortion, state constitutions always have independently and always can independently of the federal constitution. So, activists saw this as an opportunity to protect and in some cases restore the right to abortion in their states. So, through the process of getting measures on the ballot, activists gathered the signatures, raised the funds, and took to the ballot these reproductive freedom amendments to their state constitutions that protect a whole host of reproductive freedoms, including the right to abortion, contraception, prenatal care, pregnancy care. And they're all worded a little bit differently, but all have the same goal of enshrining the right to reproductive freedom in state constitutions.

Jennie: It was so energizing, just like in a time when there was always so much bad news on our issues to see just these huge wins at the state level. What was it, seven of ten states where it was on the ballot? Honestly, eight, because Florida had that super high threshold. I still see that as like a really good news story out of Florida, even though it lost. And so, I think a lot of people thought, great, we did it. It's done. It was expanded, but that's actually not the full story, is it?

Brigitte: Correct. So, a lot of people think that once these amendments get passed by the voters, that means that all of the bad abortion laws in that state are wiped off the books. And unfortunately for most of the states, that is not true. These amendments are not what we call self-executing. They don't just automatically take care of the bad laws. The next step in the process is that we, the litigators, have to go to court and challenge the abortion restrictions and abortion bans under these state constitutions and say, under this new state constitutional right, your abortion restriction is unconstitutional, and please strike it down. So that's what we have been busy doing in the context of our role as litigators enforcing the ballot initiatives. So where are we now? Yeah, so I mean, as you say, it's all very exciting because of the tremendous advocacy and all of the voters who went to the ballot box. We get to now tell the courts that the voters have spoken: they want a state that does not have abortion restrictions. And we have gone into court along with various partners in a bunch of states saying that these restrictions and demands on the books are unconstitutional. So, we have cases pending in Missouri and Ohio. I think we have five cases in Ohio, a couple of cases in Arizona and in Michigan, and we are in the process of blocking and striking down various abortion restrictions, which we can also talk about more in terms of what that looks like.

Jennie: Yeah, I would love to hear: what does it look like right now?

Brigitte: Yeah, so it's very exciting, and for us to be fighting the threats at the federal level, being able to do this proactive work at the state level is so exciting and so meaningful. So, for a state like Ohio, which was one of the first states to pass one of these reproductive freedom amendments, we have been able to create a state where abortion is accessible, and we have been able to increase access to abortion. And Ohio has become a place in the region where people can travel to for abortions because it's surrounded by many states that have banned abortion. So, for example, we've been able to block the six-week ban under the new constitution. We have been able to block a 24-hour waiting period two-trip requirement in the state. We have blocked a ban on telehealth for abortion and a whole host of other things. So, like I said, we have five cases in the state, and so far, we've been successful in blocking various restrictions that have really increased access both for people who live in Ohio but also for people who need to travel. So, if you think of someone coming from Kentucky, where previously they had to make two trips to a clinic in Ohio to be seen there. Now, that two-trip requirement with a 24-hour waiting in between those two trips is blocked. So, they can make one trip to Ohio. Now, obviously, we wish that we could restore abortion access in Kentucky too, and nobody would have to travel, but until we can do that, this means that people have increased access in Ohio.

Jennie: Yeah, I mean that's a huge win for not having to do the two trips. We always talk about what a huge hurdle that is, even though I think a lot of people feel like it sounds like such a low bar but is actually a really high bar for people to have to clear. And it was so great. We do an annual 50-state report card on sexual reproductive health and rights in the states, and this year's will be coming, will be out by the time this episode comes out. And it was so great to see the changes in some of the states that we were able to show improved access.

Brigitte: Yeah, absolutely. And a state like Arizona that had a 15-week abortion ban that we almost immediately got blocked after the constitutional amendment was passed, and we have now also have a permanent injunction against the two-trip requirement and telehealth ban in that's in that state as well, and recently filed a new case challenging the prohibition on advanced practice clinicians from providing abortions in Arizona. So, we just filed that case too. So we are on a roll, and with our partners in these various states, we'll continue to try to push to wipe all abortion restrictions off the books.

Jennie: That is so exciting, and also exciting was seeing that there are some ballot initiatives that are going to be happening this year as well. And one of the ones that really stood out to me is Missouri. And you've been fighting in Missouri, and now they are trying to hold kind of the opposite of the ballot initiative with the same name to confuse people. Do you maybe want to talk a little bit about what's happening in Missouri?

Brigitte: Yeah, absolutely. And so just to back up a little bit, abortion was heavily restricted in the state even before Roe v. Wade was overturned, with so many restrictions in the state piled on top of each other, which meant that there was very little abortion provision happening in the state altogether, even before Roe was overturned. And then the constitutional amendment, sorry, abortion was banned completely after Roe was overturned. And then, the coalition got the ballot measure passed, amending the constitution to protect reproductive freedom. And almost immediately with Planned Parenthood, we went into court and blocked a number of abortion restrictions, including bans at different points in pregnancy, a whole bunch of the targeted regulation of abortion providers, the trap laws that dictate things like how wide your hallways need to be, and things like that that have really prevented access in that in that state. And we were able to restore procedural abortion care. We recently had a trial in January where we're hoping to also be able to restore medication abortion provision. But as of now, at least there's procedural abortion care in Missouri. But obviously the other side is not content with the decision by the voters, the will of the people to amend the constitution, and so there will be a ballot measure that will try to repeal the constitutional amendment that protects reproductive freedom. And I think it's also just a lesson that we always need to keep fighting for the rights that we have fought to establish, and we will never be able to just say, oh well, we have a constitutional amendment, and so therefore we can rest easy. There will always be attacks, there will always be ways to try to unravel the progress we've made, and I think we clearly saw that with Roe v. Wade, right? We saw that as soon as Roe was decided, the other side started attacking the right and chipping away at it, and we always said the chipping away will result in the overturning of Roe v. Wade, and I think people didn't necessarily believe us, but those that chipping away led to the downfall of Roe. So that is, I think, what we are bracing for in other states, and Missouri is a direct attack to just repeat direct attack to repeal the amendment altogether, and it's gonna be a tremendous fight in terms of people power and also financing to prevent that change from happening.

Jennie: Yeah, I mean, Roe was already on life support before it was finally lost. It was definitely a death of a thousand cuts and then very fast, and I think it was hard to brace for that moment.

Brigitte: It was, and also, I should say what all of us know that Roe was never enough. Roe is the floor, it's not the ceiling, and these reproductive freedom amendments at the state constitution get us closer to the ceiling. They are really super protective, both in terms of the broad range of reproductive health care they protect and also creating a very high legal standard that we get to use in court to say that these abortion restrictions must be struck down under this very high legal standard. And we did not have such a high legal standard to protect the so-called fundamental right to abortion that was provided to us in Roe.

Jennie: And I think it's just worth I always try to point out as we're having these conversations about how Roe was chipped away at as we are seeing this exact same playbook playing out around gender-affirming care and transgender rights, and we need to make sure that we are in lockstep solidarity and not letting the same playbook be used to get it again.

Brigitte: That's absolutely right. And these are all questions of bodily autonomy. They are going after the most marginalized people first. They did it with abortion, they're doing it with gender-affirming care. That means minors, people who have Medicaid for their insurance. We see exactly the same type of tactics in the gender-affirming care space that we have in the abortion space.

Jennie: Is there anything else you're keeping an eye on right now? I know there's so many things happening in the legal space around reproductive health. Is there anything else that you feel like maybe isn't getting enough attention?

Brigitte: Well, the other thing I'll just mention is in addition to the reproductive freedom amendments, there have been equal rights amendments passed as well. So in Nevada, for example, there was an equal rights amendment passed a couple of years ago, and we were able to take that equal rights amendment and say that the state's prohibition on Medicaid coverage for abortion violated the Equal Rights Amendment because prohibiting abortion is prohibiting coverage of abortion rather is sex discrimination because it discriminates based on pregnancy-related care. So that's another avenue that we have been able to use to protect the right to abortion and expand access to abortion is the Equal Rights Amendment. So New York also passed an equal rights amendment recently, too, and I know advocates are looking at ways to try to implement that to expand abortion access in a state that's already provided a tremendous amount of abortion care, but we're always looking at ways to remove barriers and make it easier for people to access abortion care.

Jennie: Yeah, and since you mentioned Nevada, like worth mentioning, it is one of those states again that is gonna have a ballot initiative this fall because it has to be passed twice, correct?

Brigitte: Correct. That is exactly right. Yep. So, and I think a lot of people say, you know, well, if you have the Equal Rights Amendment, you still need the Reproductive Freedom Amendment. And I say, yes, like we need all the tools in the toolbox, we need belts and suspenders, we need everything, all the different protections we can get. Let's take them, let's enshrine them in the Constitution. And because of this chipping away effect that we've seen, we know that we need to really build our wall high and get all the protections we can.

Jennie: I'm trying to think if there's anything else we should talk about.

Brigitte: Yeah, so I mean, I’ll say one of the things that makes me so hopeful in a time where I feel like there's not a lot of hope is— I'm from Michigan. I was born and raised in Michigan. And when I was growing up in the 1970s and 80s and early 90s— I just dated myself— abortion was heavily restricted in Michigan. We had a very anti-abortion local government, sorry, not local government, but state government. I grew up in Ann Arbor, which was very progressive. It was a progressive enclave in a very conservative state. And I saw as a teenager the difficulties in people accessing abortion, and I saw the very restrictive policies that my state government was placing on abortion. And so, to fast forward in my lifetime to see my home state pass at the ballot a reproductive freedom amendment in such large numbers with such support, grassroots outpouring, so many people going to the ballot. Like, I have so much hope that there can be change like that in my lifetime to be able to see that is just so meaningful. And then what happened in Michigan is the legislature, after the constitutional amendment was passed, repealed a whole host of abortion restrictions based on the constitutional amendment's passage. So that was also incredible but also didn't go far enough. There were a number of abortion restrictions they didn't touch, including one that we challenged. So, we have a challenge to the prohibition on coverage for abortion in Medicaid, and the Center for Reproductive Rights challenged the two-trip requirement in Michigan and some other restrictions and have been successful so far. We have not been successful yet in our Medicaid case, but we're still trying. So, I just think that when we are having these moments of feeling of dread and hopelessness to remember a state like Michigan, and think of how far we've able to been able to come in just a matter of a couple of decades— my lifetime and not even my whole lifetime because even though I dated myself and I was a teenager in the 1980s, I still have hopefully a lot of life left. So, just thinking about that and thinking about progress and how progress really can happen, it gives me a lot of hope.

Jennie: Yeah, it is really hopeful to see a neighboring state do that. I was born and raised in Wisconsin, so I kind of had a little bit of the flip story of Wisconsin, definitely had its regression on a lot of those things, and still is not great on abortion. Had a big win at the Wisconsin Supreme Court that at least got rid of like a complete ban, which was amazing, but still a long ways to go. I have to say, my little piece of, like, nugget of good news out of Wisconsin was they were one of two states that did not have. The maternal postpartum one-year expansion for Medicaid along with Arkansas and Wisconsin. I'm trying to think when this comes out two weeks ago, we'll have signed their expansion into law. So now women or pregnant people can get a one-year postpartum expansion for Medicaid. So that is amazing. It's still not enough. There are still so many things that need to be done to improve access in Wisconsin. I know this isn't much of a spoiler, but obviously Wisconsin is going to get an F in the report card this year. But the little glimmer of hope was nice to see.

Brigitte: Absolutely. I think that these are all important wins and they're really meaningful for people. We sit here and talk about these rights and these cases and these laws that are passed and what it means for individuals who need that care. And we were talking before about the two-trip requirement. And I've talked to people who've had to make the drive from a state that has banned abortion to Ohio to get care and what it means for them and what it means for their daily lives. When can you afford the gas? How are you taking time off from work? Do you have childcare? All the very real things that people experience when trying to access any medical care, but especially when you push it out of reach, either because you haven't covered it in private or public insurance, and you have then also said it's banned in your state. And so, in order to get care, go out of state if you're lucky to be able to travel. So, these are all important wins that we should celebrate and all incredibly meaningful things for people's everyday lives.

Jennie: And yeah, because like that distance can be quite far. Wisconsin has access, but the clinics in Wisconsin are in a very small area, they're like in Milwaukee and Madison, and so that leaves a lot of travel for a large part of the state to access care to either go to Minnesota or Illinois if it's closer.

Brigitte: Yeah, and also another reason why the telehealth provisions are the provision of abortion through telehealth is so important. And so, when we have been bringing these challenges in states like Ohio, ensuring that within the state there it there can be telehealth provision of abortion care, so that even within the state that people don't have to travel as far distances to be able to obtain care if they're able to have medication abortion as an option.

Jennie: I mean, as we've seen with the Guttmacher data that came out this week, like, telehealth and being able to mail pills has really been just a huge difference in people still being able to access abortion care.

Brigitte: Yeah, absolutely, absolutely.

Jennie: Okay, I always like to turn the focus at the end to ways our audience can get involved. So, what are some of the things the audience can do at this moment to fight back on these issues?

Brigitte: Yeah, so I always like to say to people, start locally, see what's going on in your reproductive rights, health, and justice communities to see how you can plug in. And those local organizations will be able to tell you what fights are happening in your particular state or in your local government, and also ways to get involved. For example, if there is an abortion clinic in your area, do you want to volunteer to be an escort to ensure people can come into the clinic safely? Is there a letter writing campaign going on in your particular state? So, I always say see what folks are already doing locally, see how you can tap in, figure out what you feel comfortable doing, what you want to do. And I think it's important to say that like every bit helps, and I think about the people who gathered signatures to put these constitutional amendments on the ballot. Every single person who worked on these ballot measures and got them passed, and every voter who went to the voting box and voted for them are incredibly important, and this collective power is what is so important and what drives change.

Jennie: And there are just so many ways you can get involved. You don't need to do all the things, you just need to find the ones that fit best with your life. I have definitely found that big protests give me anxiety, so I don't really do those very much anymore. I'll go to the ones at the Supreme Court. It's smaller, it's right by my office, and super easy to leave if I need to. So, I don't do those, I can contribute another way. So, if you're a graphic designer, maybe that's something you could do. There are so many ways to engage on these issues. There's no one right way.

Brigitte: Absolutely. And I think stigma and shame have been a driving force in marginalizing abortion care in general. And so, I also say to people: having conversations with people who you feel comfortable having conversations with, or if you're really brave, having conversations with people you might not feel comfortable having conversations with, to normalize abortion. Abortion is part of healthcare. It is incredibly prevalent in our country, and it always will be a part of people's lives, it always has been a part of people's lives, and to normalize it and to take away the shame and stigma also takes away the anti-abortion movement's power. So, I also say just having these conversations with people is also just incredibly important in your own daily lives.

Jennie: Yeah, it can make a huge difference. Well, Brigitte, thank you so much for being here. I had so much fun talking to you.

Brigitte: I had so much fun talking to you too. Thank you so much for having me.

Jennie: Okay, y'all. I hope you enjoyed my conversation with Brigitte. It was so great to talk to her about what the ACLU is doing right now around the ballot initiatives and to kind of preview some of the ballot initiatives that will be coming this fall. And with that, I will see everybody next week. [music outro] If you have any questions, comments, or topics you would like us to cover, always feel free to shoot me an email. You can reach me at jennie@reprosfightback.com, or you can find us on social media. We're at rePROs Fight Back on Facebook and Twitter, or @reprosfb on Instagram. If you love our podcast and want to make sure more people find it, take the time to rate and review us on your favorite podcast platform. Or if you want to make sure to support the podcast, you can also donate on our website at reprosfightback.com.