Voters Across the Country Backed Abortion Rights. It Might Not Matter.
Josselli Barnica, Nevaeh Crain, Candi Miller, Amber Nicole Thurman. These are the names of women who died because they were denied care due to abortion bans—and there are almost certainly more that may take years to be reported. In Tucson, Arizona, where one woman recently wrote about being denied an abortion despite life-threatening pregnancy complications, supporters of the state’s ballot measure to expand abortion rights carried posters memorializing Barnica, Crain, Miller, and Thurman at the All Souls Procession on Sunday. Their stories have resonated across the country, fueling anger and resolve to win back abortion rights via state ballot initiatives. On Tuesday, in Arizona, that initiative won. A ballot initiative in Missouri won as well, set to overturn a near-total ban. In Colorado, Maryland, Montana, New York, and Nevada, voters made abortion rights part of their state constitutions.
Abortion was on the ballot for direct voter input in 10 states overall. Only in three states did efforts to expand or preserve abortion access fail: Florida, Nebraska, and South Dakota. But even as voters mostly chose to support abortion on the ballot, many also voted for a presidential candidate who has worked to restrict it: Donald Trump. As abortion rights advocates knew long before election night, pro–abortion rights ballot measures often succeed in Republican-dominated states like Kansas and Ohio precisely because they allow voters to consider the legality of abortion separately from their party affiliation or other political preferences. As predicted, and as feared by some, abortion rights proved more popular than Democrats.
What does it mean, then, for abortion rights to be expanded in some states, and further enshrined and protected in others, when Trump takes the White House? And just how protected will people in these states be if Trump does as many advisers and supporters have urged him, enacting a national abortion ban, with or without passing new legislation? State-based protections for abortion could be guaranteeing access to something that’s not accessible, or a federal crime to access.
To answer this question, it’s first important to understand that the problems we face on abortion rights are bigger than Trump. On the campaign trail, Harris and her surrogates repeatedly told voters that Trump was an anti-abortion candidate. They called state abortion bans “Trump abortion bans.” When women died in Texas due to being denied an abortion, that was seen widely as proof of the horrors that the Dobbs decision, rendered by a Supreme Court newly outfitted with three Trump appointees, had wrought. In truth, the near-total abortion ban in Texas was already in effect before the end of Roe. It may have seemed politically useful, but not every bad thing that has happened around abortion since Dobbs is due to Dobbs, or Trump. And despite this story, which was only partially true to begin with, voters seemed happy to vote for Trump anyway.
Even people in states where the right to an abortion will now be protected in the state constitution will have other dangers to contend with. Nevada’s constitutional amendment, for example, would not change the outcome of one of the stories that garnered outrage ahead of the election: of a mother of three, struggling to get housing for her family, who was arrested and prosecuted in 2018 for an apparent stillbirth. Prosecutors used a law from 1911 that effectively criminalizes self-managed abortion after 24 weeks, and which remains on the books.
Georgia didn’t even have a ban on self-managed abortion when police arrested a woman in 2015 from her hospital bed, after a late miscarriage. Convinced that she had self-managed an abortion, prosecutors charged her with “malice murder,” until a campaign pressured the prosecutors to drop the charge. They did, and pursued a drug charge against her instead. These cases point to an uncomfortable truth for people otherwise inclined to take comfort in Tuesday’s pro-abortion victories: Ballot measures provide no protection from a system of policing that will use any tools at its disposal, especially if those tools allow them to go after people the police already disproportionately target—Black women, Indigenous women, queer people, trans and gender-nonconforming people, poor people, and people who use drugs.
A larger and more systematic threat may come from the 1873 Comstock Act, still on the books, which anti-abortion advocates claim Trump can and should start enforcing starting on Inauguration Day. If he did, we would see federal prosecutions for those who mail the abortion pills misoprostol and mifepristone, which are critical for maintaining access in ban states. This is laid out in Project 2025; is supported by nearly 150 members of Congress; was given an airing at the Supreme Court this year and seemingly taken seriously by two justices. This is what they want Trump to do, or to direct the Department of Justice to do. It doesn’t matter that Trump claimed to not support a national abortion ban on the campaign trail. His evasion will not protect anyone but himself. He doesn’t need to “sign” a federal abortion ban; he could pressure the Food and Drug Administration to regulate mifepristone as a dangerous drug.
No one should treat the success of abortion rights ballot initiatives this week as a reason to relax. Maybe some of the energy and momentum that went into turning out voters for these measures could be galvanized toward making those abortion rights matter under Trump. With or without him, we were already going to have to contend with the decimation of abortion access, through the demise of clinics (after a ban lifts, they don’t just reopen), financial strains on abortion providers and funds, and the abandonment by donors after the drop-off of Roe rage-giving. Maybe some of the voters who turned out to support abortion rights ballot initiatives on Tuesday will have learned more about the reality of abortion through those campaigns. But many of them, based on Trump’s success in states like Missouri and Montana, may sit this out.
Pundits already seem to be struggling to comprehend that some states may have won back abortion rights via the ballot support of women who also voted for Trump, and have no commitment to abortion rights as part of some larger feminist or progressive project. It will be so tempting, as it was in 2016, to imagine such women voters as having bafflingly voted against their own interest. But to imagine these women voters as confused or misled—as was imagined about white women Trump voters in 2016 or 2020, when some rushed to find them an alibi—is an act of self-soothing, of inventing solidarity when none is owed or offered. There are women who support abortion rights for themselves, but may support jailing pregnant women who use drugs. There are women who support abortion rights for their daughters, but not for other teenagers, or not for immigrants. There are women who want to be able to get an abortion if they ever need one, and that’s where it ends. There are women who woke up today feeling great.