State Trends: Ballot Initiatives Take Center Stage

Rachel Gold and Elizabeth Nash

This year, the most significant developments in state-level reproductive health law lie ahead, in the form of ballot initiatives that will come before voters in three states in November.

So far this year, there has
only been moderate activity around reproductive health issues in state
legislatures. Attention to these issues often subsides in election years,
when legislators historically have been reluctant to take on potentially
divisive social issues. Moreover, this year in particular, legislators
have needed to focus on the serious budgetary issues that confront their
states as a result of the economic downturn. With most legislatures
already adjourned, it appears that the most significant developments
of the year still lie ahead, in the form of ballot initiatives that
will come before voters in three states in November.

In contrast to the usual procedure
in which proposed state laws move through the legislature and, following
approval, go to the governor for signature, ballot initiatives allow
voters in some states to bypass the conventional legislative process
entirely. This strategy, which has been used in the past by antichoice
advocates, allows measures approved by the electorate to either become
law or amend the state constitution without legislative approval. Advocates
in two states (South Dakota and Colorado) have secured sufficient signatures
to force a vote on measures that take different approaches toward the
long-term goal of banning abortion. In California, meanwhile, the electorate
will vote for the third time in four years on an initiative to require
parental notification prior to a minor’s abortion.

The measure that will go before
South Dakota voters in November would ban most abortions outright. This
is the second attempt to ban abortion in South Dakota in the past two
years. In 2006, voters defeated an initiative that would have prohibited
abortion except in cases of life endangerment. In contrast, the measure
before voters this year seeks to ban abortion except in cases of life
endangerment, rape and incest and if "there is serious risk of a substantial
and irreversible impairment of the functioning of a major bodily organ
or system." As was the case with the 2006 initiative, the purpose
of this year’s attempt is to bring a direct challenge to Roe v.
to the U.S. Supreme Court.

Abortion opponents in Colorado
are taking a more indirect approach to the same long-term goal of banning
abortion: A proposed amendment to the state constitution on the ballot
this November would define a person throughout Colorado law as a "human
being from the moment of fertilization."

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Moreover, the reach of the
Colorado initiative potentially goes much further. By declaring
that legal personhood begins at fertilization, the initiative could
pave the way for banning common methods of birth control, including
oral contraceptives, which may sometimes act post-fertilization (although
their primary mode of action is to block ovulation). In this way, the
Colorado provision is strikingly similar
to regulations currently under consideration
— but
not as yet formally proposed — by the Bush administration, which would
allow a wide range of individuals and institutions involved in health
insurance or health care to self-define such contraceptives as abortifacients
so as to claim a conscientious objection to paying for them, providing
them or even tangentially assisting in their provision.

The third initiative related
to reproductive health issues will be yet another attempt to secure
approval of a measure to require parental notification when a teen in
California seeks an abortion. Similar proposals were presented and soundly
defeated in 2005 and 2006. (A state law requiring parental consent was
overturned by the California Supreme Court in 1997.) If the current
initiative is passed, a minor would be unable to obtain an abortion
for 48 hours after a physician has informed her parents in writing of
his or her intent to perform the procedure. Passage of the California
measure would bring to 36 the number of states requiring parental
involvement for minors seeking an abortion

For summaries of major state
legislative actions so far this year, click here.

For a table showing legislation
enacted in 2008, click here.

For the status of state law
and policy on key reproductive health and rights issues, click here.

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