By Karen Cooper and Diane Halcoussis
There is much that can be learned from this election and ReproHub is exploring the big takeaways and what we can do moving forward. The bad news is the American people have elected a Republican President, Senate, and House of Representatives. For folks in need of reproductive health care, the threats are real. Ironically, there is a silver lining: Across the country in both red and blue states, the majority of American people supported choice and voted to protect reproductive health care.
Abortion Ballot Measures in Red and Blue States
This year, abortion was on the ballot in 10 states. Eight of these measures received a majority of the votes, though only seven passed. Florida’s Amendment 4 received 57% of the vote but did not meet the super majority requirement. In 2022, voters supported reproductive rights in all six states where abortion was on the ballot, even in GOP strongholds. In 2023, voters in Ohio, Virginia, and Kentucky also supported reproductive rights.
We Do Not Need to Compromise on Limits
Very importantly, we learned this election that we do not need to compromise and accept 12- or 15-week limits or other barriers. As we saw in Ohio, Kansas, and Kentucky in 2022 and in Missouri, Arizona, and Florida this year, protecting abortion rights until fetal ‘viability’[1] receives over 50% of votes. Missouri offers an historic example. A deeply red state with one of the strictest abortion bans in the country saw that ban overturned and replaced with a constitutional amendment that enshrines protections until fetal ‘viability’2. It is clear after these wins, the voters will back policies with a standard of Roe v Wade.
The Conundrum: Voting for Abortion Rights and Individuals Who Vow to Take them Away
The frustrating news is that voters were not consistent in electing people who plan to keep these protections. For instance, Florida’s Amendment 4 garnered 57% of the vote even as the state saw a major shift to the right in candidates elected. More people voted for Amendment 4 than voted for Trump, yet because of the 60% supermajority requirement, Trump received Florida’s electoral votes but Amendment 4 failed. Additionally, voters in Florida decided to retain Judge Sasso, who is a member of the Federalist Society and who did not want Amendment 4 on the ballot at all. It seems voters are not necessarily making the connection that they are empowering the very people who may reverse the policies they have just passed.
In five of the states with abortion-focused ballot measures, a majority of residents voted in support of the ballot measures and also voted to elect the Republican nominee. At least one in seven Trump voters in states with ballot measures chose to protect abortion access, according to analysis of election results by the Associated Press. In more than 150 counties, these crossover voters represented 20% or more of Trump’s vote. As of Wednesday, November 6, the overlap for these voters was greatest in Missouri, where the initiative to protect abortion passed with a margin of about 100,000 votes. There were at least 300,000 voters who cast ballots for abortion protection and Trump. (Bloomberg) There is a disconnect here between electing anti-abortion candidates and supporting pro-abortion policies.
Federal Ban
With control of all three branches of government, we expect Republicans to try to pass a federal abortion ban. It is unclear what kind of a ban they would promote and it is important to be aware of how proposed policies are being worded. Republicans will most likely try to push through a policy that does not use the words “abortion ban” but acts as one in practice. We can hope that reproductive rights are not a primary focus for Trump, other than during an election campaign, and he may concentrate on other policies first. For more information on what abortion access and attacks could look like under the new administration, check out Jessica Valenti’s Q&A on the Substack Abortion, Every Day.
Protecting Mifepristone
Since 2022, the use of medication abortion either via telehealth or through self-managed abortions has risen across both red and blue states. Indeed, medication abortions mean much broader access and may be the only option for some people. Research from the Guttmacher Institute shows that more than three out of five abortion patients in the United States use medication abortion. With Trump in office once again, we anticipate a variety of attacks on the abortion drugs mifepristone and misoprostol. The anti’s are trying many tactics: challenging FDA approval of mifepristone, questioning its use for minors, disputing the process by which rules were changed under Covid, and even classifying them as controlled substances as in Louisiana. There is a concerted effort to track abortion data, to make abortion reports public records, and to criminalize medication abortion. These privacy violations are a clear tactic of intimidation meant to cause a chilling effect. In addition, they are trying to restrict access so abortion medication could only be used up to seven weeks of pregnancy and only some types of providers could prescribe the medication. (Abortion, Every Day) Amy Friedrich-Karnik, Guttmacher’s director of federal policy, says, “reinstating outdated and medically unnecessary restrictions on the provision of mifepristone would negatively impact people’s lives and decrease abortion access across the country.” (Guttmacher)
Expect a Focus on Birth Control
We also expect contraception including Plan B and hormonal birth control to be targeted, especially as the anti’s promote the lie that these are abortifacients. As Jessica Valenti shared in 2022, “Republicans are focused on doing two things: Claiming to support contraception while doing everything in their power to ensure that no one can get it. [And] classifying certain types of birth control as abortifacients in order to argue they are not fighting against contraception, but abortion.” (Abortion, Every Day) Since at least 2014, anti-abortion groups have been working to undermine birth control by conflating contraception and abortion and asserting that contraception ends, rather than prevents, pregnancy. This is in line with arguments of “fetal personhood” and is, of course, counter to legal and scientific definitions of pregnancy. (Guttmacher) Texas Attorney General Ken Paxton has attempted to broaden the definition of abortion to include medication that might be dangerous to a pregnancy, whatever Republicans may decide those dangers to be. Additional tactics include, preventing pharmacists from providing emergency contraception, not ensuring insurance coverage for IUDs, and stripping communities of medical providers and instead funding “crisis pregnancy centers” with policies against prescribing birth control. As Jessica Valenti said, “Republicans don’t need to explicitly outlaw birth control in order to keep women from taking it—they just have to make it impossible to obtain.” (Abortion, Every Day)
The Courts
Our most serious and threatening obstacle may be the courts. The Supreme Court will remain anti-choice for years to come. The Federalist Society will continue to suggest ultra-conservative judges for Trump to appoint and all will sail through the Republican Senate. State courts are also not protected. The Republican party at the state level has had success at getting ultra-conservative state Supreme Court judges elected. “Court rulings against abortion bans in some states underscore the power of the judiciary in the post-Roe period.” (States Newsroom) Anti-abortion packed courts will have a significant role in whether policies remain law. In this recent election, voters in Arizona had an opportunity to remove two judges who had upheld the 1864 abortion ban and have new judges appointed by Democratic Governor Katie Hobbs. Voters in the state chose to retain the current anti-abortion judges. In Ohio, the three Supreme Court seats all went to Republicans, resulting in a 6-1 Republican majority. Ohio’s abortion protection known as Issue 1 has previously been protected by a county judge, but with such a heavily packed Republican Supreme Court, protections may not be guaranteed.
Sometimes, however, state courts will support abortion and other reproductive rights. This year in Utah, the state Supreme Court upheld a lower court’s block on a trigger law meant to ban most abortions when the U.S. Supreme Court overturned Roe. For now, abortion is legal in Utah up to 18 weeks of pregnancy in most cases and this protection is being upheld by the courts.
Where Do We Go from Here?
No one knows exactly what the future holds, but we can expect that this fight will continue to be fought state by state, in the courts, and on ballots. With the majority of Americans supporting pro-choice policies, it is possible that the administration will choose not to engage at the national level. Although, we can expect state lawmakers to continue to push anti-choice policies with anti-democratic tactics. If a federal ban is proposed, pressuring Senators and Representatives, especially those in vulnerable districts, will be the first line of defense. There is a need for more research and more strategies to keep medication abortion available, such as the work ReproHub is involved in. We in the pro-choice movement need to focus on keeping these medications accessible. Whether it is electing pro-abortion representatives, selecting the courts, or passing ballot initiatives, all of these efforts need to be made continuously at a state level. With the will of the American people on the side of reproductive rights, we have an opportunity to push for progress in the states over the next two years.
*Please know that ‘viability’ is not a real medical standard, but a legal term invented by a few judges and a law clerk. Whether or not a fetus can survive on its own is determined by all sorts of factors, not a specific line in pregnancy. (WNYC’s “More Perfect” podcast did a helpful series on this, for those interested.) – Note from Abortion, Every Day
Karen Cooper is a member of the ReproHub Board of Directors. She is a campaign manager and political consultant who co-founded the Win With Women PAC, an organization dedicated to electing progressive women in Washington State. Previously, she served as Executive Director of NARAL Pro-Choice Washington.
Diane Halcoussis is a writer for ReproHub. She is a member of the Women Donor’s Network where she focuses on reproductive justice in the workplace.