Widespread support for abortion rights continued to defy partisan labels in this week’s election, but several of the ballot measures approved by voters could face legal and legislative challenges in the coming months. And advocates worry that federal efforts could ultimately override state measures.
Voters in seven states — including the deep red states of Missouri and Montana — chose to protect or expand access to abortion through ballot initiatives.
“This will not be the last time Missourians vote on so-called ‘reproductive rights,'” said Republican Sen. Mary Elizabeth Coleman of Missouri, who opposed the ballot measure. wrote in a press release. “I will do everything in my power to ensure the vote takes place.”
In Missouri and ArizonaThe ballot measures will expand access to abortion beyond what is currently permitted by law. Although these constitutional changes are set to take effect in the coming weeks, it is unlikely that abortion will become immediately available in these states as abortion rights advocates will have to go to court to overturn existing laws.
In addition, anti-abortion groups and their legislative allies have worked in recent years to undermine abortion protections through laws and legal challenges based on concepts such as fetal personhood, parental rights and fetal viability. These efforts could limit the impact of the fresh ballot measures.
Supporters of the Missouri measure expect continued opposition. Mallory Schwartz, executive director of Abortion Action Missouri, told a celebrating crowd Tuesday night that “anti-abortion and anti-democracy politicians are going to try to eradicate us.” according to the Missouri Independent.
“They’re going to try to fight us in court, and they’re going to file new challenges in Jefferson City,” Schwartz said.
Some abortion rights advocates worry that without a federal constitutional right to abortion, which the U.S. Supreme Court struck down in its 2022 Dobbs ruling, the fresh state-level protections are vulnerable to federal action that could override them.
After the Dobbs decision, the Biden administration several steps taken to protect access to contraception, abortion medications, and emergency abortion care in hospitals.
But Nourbese Flint, president of the abortion rights group All* In Action Fund, said the fresh Trump administration could restrict access even in states where abortion rights measures are planned.
We find ourselves in a situation where actual, concrete access to medication abortion may be more arduous, even if your state has passed extensive legislation.
— Nourbese Flint, president of the abortion rights group All* In Action Fund
President-elect Donald Trump has turned on its head in abortion and other reproductive rights, has bragged for years that his U.S. Supreme Court nominations led to the Dobbs decision — and told Fox News viewers last month that some state abortion laws were “too strict” and were being “overtaken.”
“Unfortunately, we are in a situation where actual, tangible access to medication abortion may be more difficult in the future, even if your state has passed great laws,” Flint said.
Some anti-abortion groups want the Trump administration to enforce the Comstock Act, a long-dormant 1873 law that they believe could be used to make sending or receiving abortion pills by mail a federal crime .
The Trump administration could also reverse a recent U.S. Food and Drug Administration policy allowing abortion drugs to be shipped. And when the U.S. Supreme Court dismissed a case earlier this year involving FDA regulation of the abortion drug mifepristone, this was the case left the door open for future challenges. Some states now have laws restricting access, e.g personal doctor visits required for abortion medications, effectively preventing patients from accessing them via telemedicine.
“I don’t want people to think that just because they voted ‘yes’ to protect reproductive rights, there’s going to be a magic wand to restore those rights,” said Chris Melody Fields Figueredo, executive director of the Ballot Initiative Strategy Center, which supports progressive ballot initiatives nationwide.
“They must step up and fight to ensure people receive the reproductive care they need and deserve.”
In addition to reliably red Missouri and Montana, voters on Tuesday also approved abortion rights measures in the contested presidential races of Arizona and Nevada, as well as solidly blue Colorado, Maryland and New York. In Nevada, voters must approve the change again in 2026 for it to take effect.
Before last week, voters in six states — including conservative Kansas and Kentucky — had supported abortion rights when presented with ballot questions about abortion.
But Tuesday’s election was the first since Roe v. Wade said abortion rights ballot measures failed: Voters rejected proposed changes in Nebraska and South Dakota. And in Florida, 57% of voters supported an abortion rights amendment, but it fell tiny of the 60% supermajority needed for passage.
Question feasibility
Ballot measures in Arizona, Missouri and Montana establish the right to abortion until “fetal viability.” It is a term for which there is no precise description medical or legal definition, and thanks to medical advances over the years, viability has shifted earlier in pregnancy. Nowadays it is generally assumed that it is around the 23rd or 24th week of pregnancy.
“‘Fetal viability’ is not a legal term,” said Dale Margolin Cecka, director of the Family Violence Litigation Clinic at Albany Law School and a former assistant attorney general of Georgia. “Even in states that have now changed their constitutions [to permit abortion]I can imagine challenges to the ‘fetal viability’ aspect of these amendments.”
For example, she said, state lawmakers could try to restrict abortions by defining “fetal viability” in state law in a way that could create doubt among providers about whether a patient’s pregnancy meets state requirements for a legal abortion.
In the days before the election, Florida Attorney General Ashley Moody, a Republican, was installed the vagueness of the “viability” standard in Florida’s proposed abortion amendment, asking the state’s highest court to keep the measure off the ballot, although the court refused.
In Montana, where abortion was already legal until the fetus was viable under a 1999 state Supreme Court ruling, the fresh constitutional amendment strengthens this protection by defining the viability of the fetus. The amendment states that feasibility should be based on “the good faith judgment of a treating healthcare professional and on the particular facts of the case.”
“Personality” and parental rights
The concept of “fetal personality” could also be used to circumvent state constitutional amendments on abortion. Fetal personhood has long been a cornerstone of the anti-abortion movement and is the idea that a fetus, embryo, or fertilized egg has the same legal rights as a person born. If state law considers fetuses to be human, abortion would be considered murder, the opinion goes.
Brian Seitz, a Missouri Republican, told Stateline in July that he planned to implement it a bill on fetal personality decided in the coming legislative period to grant “unborn children” the same rights as newborns. His hope was that the bill could protect embryos and fetuses regardless of whether Missourians passed a constitutional amendment guaranteeing the right to abortion.
Cecka also expects state lawmakers will continue to test abortion protections with so-called parental rights laws. Since Dobbs, conservative lawmakers in several states have filed lawsuits Invoices for parental consent restrict access to abortion, birth control and other reproductive health services for people under 18 years of age. Supporter argue Such laws are necessary to protect parents’ rights and prevent other adults from persuading teenagers to have abortions.
The lawsuit filed last week by reproductive care providers in Missouri called for the repeal of several laws restricting abortion in Missouri following the passage of the constitutional amendment does not challenge the state’s parental consent law.
In Cecka’s view, access to abortion remains at risk, even in states that have enacted protective laws, unless federal protections are implemented.
“In the red states where the push is strong enough, the movement against reproductive freedom is a big machine with a strong bench, and they are ready to fight,” she said.
