Your Ballot, Your Choice: Midterms in Post-Dobbs America
Depending on where you live, the Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization has already had a vastly divergent effect on the accessibility of reproductive health care services in your state. Several states in the South and Midwest had trigger laws lying in wait for the High Court’s decision to overturn a half-century of precedent. Other states, mainly on the East and West coasts, proactively passed legislation to ensure access to care remained available within their borders regardless of the Court’s decision. A handful of states are still uncertain of their post-Dobbs status, thanks to 19th-century zombie laws that remained on the books despite the establishment of reproductive freedom as a fundamental right in the 1973 case of Roe v. Wade. Regardless of the current state of the law where you live, the Dobbs decision solidified one thing for sure: the right to choose will be on the ballot in every state, in every election for the foreseeable future.
So, what is really at stake as voters head to the polls this November? From gubernatorial races to congressional contests, control of state legislatures to ballot initiatives, the right to abortion access in each state will depend heavily on the outcome of the 2022 midterm elections. This analysis highlights the races that will directly impact reproductive rights across the country.
State Legislatures on the Front Lines
The Dobbs decision not only eradicated the right to bodily autonomy for millions of Americans with the bang of a gavel; it also delivered state legislatures greater supremacy to regulate the actions of their residents. With authority to determine the right to abortion awarded to the states, state houses across the country will serve as the arbiter of reproductive health access within their borders. This November, the legislatures in 45 states are up for election, and the outcome of those races will have dramatic effects. State houses in Michigan, Pennsylvania, and Arizona are controlled by Republicans but could see those majorities shrink in the midterms. Alternatively, state legislatures currently held by Democrats in Washington, Oregon, Maine, and Colorado could swing to Republican control.
Modeled after the US Congress, most state legislatures comprise two houses: an upper house and a lower house. As a result of decades of amplified funding and hyperfocus on state legislative races, Republicans currently hold both chambers of the legislature in 30 states. Republican-controlled state legislatures have been preparing for years for Roe to be overturned, passing trigger laws that immediately went into effect when the Dobbs decision was released. Nearly every state that has passed a law to ban abortion before the viability standard established in Roe has Republicans in control of both state houses. Aside from eradicating reproductive freedom, Republicans have also used their control of these legislatures to make it harder to vote, easier to get a gun, and more difficult for students to learn history in school.
The threat to abortion access is not just rampant in states controlled by Republican legislatures. While 24 states currently prohibit abortion before the viability standard, proposals to regulate women’s reproductive rights have been introduced in nearly every state. As of August 2022, 85 proposals have been introduced in state legislatures across the country to ban all or most abortions. This includes not only Republican-controlled states in the Midwest and South, but also Democrat-controlled Colorado and Maryland. Forty-four proposals, including in New York, Massachusetts, and Virginia, seek to heavily restrict abortion providers’ ability to administer comprehensive health care.
Even those legislatures that have effectively eliminated abortion access in their states continue to propose additional restrictions on reproductive freedom. The Oklahoma legislature, which already implemented a total abortion ban, recently passed a law that authorizes criminal charges for anyone who “aids and abets” an elective abortion in the state. This could include the doctor who performs the procedure or a friend who provides a ride to the clinic. In similar fashion, the South Carolina state legislature, whose six-week abortion ban is currently being blocked by the state supreme court, proposed a bill that would essentially make it illegal for anyone to provide or share information about abortion services. Thankfully, the proposal was rejected by several moderate Republican lawmakers, but it remains on the docket for a more extreme coalition to revisit at any time. This particular proposal has the potential for widespread devastation as it’s being touted by the National Right to Life Committee as the “Post-Roe Model Abortion Law.”
State legislative races have always been an essential element of our democracy, but this midterm cycle proves they are more critical than ever. Voters must familiarize themselves with their legislators in the state house, where abortion regulation will be determined until the federal government decides otherwise.
The Gubernatorial Firewall
The fall of Roe has also propelled state governors into the abortion access spotlight, as their role as chief executive serves as a check and balance to their state legislature. In some places where GOP state legislators have proposed restrictive bans, Democrats in the governor’s mansion have thwarted their efforts with a veto, effectively serving as a firewall against destructive GOP extremism. In Michigan, Gov. Gretchen Whitmer has stood firmly against efforts to ban abortion in her state. In Pennsylvania, Gov. Tom Wolf has vowed to oppose any anti-abortion legislation that crosses his desk. In Wisconsin, Gov. Tony Evers has vetoed abortion legislation passed by the GOP-controlled legislature. Although a zombie law is presumed to be in effect there, Gov. Evers has filed suit in state court to invalidate the law.
Gubernatorial elections will take place in 36 states this November. Much of the focus leading up to Election Day will be on crucial toss-up races where a reversal in power could drastically change the trajectory of abortion access in those states. Before the Dobbs decision, Republicans fared best by simply focusing on the economy, inflation, and crime while giving little consideration to other social issues. However, after Dobbs and subsequent special elections where Republican candidates and proposals fell short of victory, many Republican gubernatorial candidates have been forced to walk back their extreme views on abortion or just pretend they never existed at all.
In Kansas, where Democratic Gov. Laura Kelly is running for reelection against the state’s Attorney General Derek Schmidt, an August ballot initiative to repeal the state constitution’s establishment of the right to an abortion was handily defeated. When the Supreme Court overturned Roe in June, Schmidt praised the decision and vowed support for the ballot initiative. More recently, Schmidt has largely avoided the topic, except to erroneously portray Gov. Kelly as a pro-choice extremist who supports abortion access up until birth.
The convenient abandonment of restrictive views on abortion has been observed in several Republican gubernatorial campaigns as of late. In the Spring, Republican Scott Jensen, who is opposing the Democrat incumbent Gov. Tim Waltz for governor of Minnesota, staunchly defended his pledge to ban all abortions if elected. Recently, however, his campaign ads have conceded abortion access as a constitutional right that he is not running to oppose. Similarly in Wisconsin, Gov. Tony Evers’ Republican challenger Tim Michels has reversed his earlier position against exceptions to the state’s abortion ban by declaring that he would sign a bill that included exceptions for rape and incest.
This would not be the first campaign cycle where Republican candidates have tried to conceal their true abortion agenda to make themselves more palatable to moderate voters. In Virginia’s 2021 gubernatorial contest, then-candidate Glenn Younkin was secretly recorded admitting that while he could not make his anti-abortion stance a focal point of his campaign, he planned to go on the offense to implement an abortion ban in the state once he was elected. True to his word, the Republican governor has since voiced support for a 15-week abortion ban, served as a surrogate on the campaign trail for several anti-abortion midterm candidates, and headlined a fundraising gala for Susan B. Anthony Pro-Life America, one of the nation’s largest anti-abortion organizations.
Not every Republican candidate for governor has shied away from their extreme positions on abortion; some have even doubled down. In Pennsylvania, far-right Republican Doug Mastriano, who has championed numerous abortion bans as a state senator, recently reaffirmed his commitment to a six-week abortion ban with no exceptions for rape or incest. Gov. Whitmer’s Republican opponent in Michigan, right-wing media host Tudor Dixon, has also steadfastly defended her support of total abortion bans, even for child victims of incest.
Whoever is elevated to the governor’s mansion will undoubtedly have a significant impact on the reproductive healthcare available in their state. In order to make informed decisions at the ballot box, voters should evaluate each candidate’s record of support, not just their talking points of the day.
Top Cops in the Hot Spots
Gubernatorial races are not the only state executive offices on the ballot that will have an impact on reproductive freedom. In 30 states, voters will select an attorney general, who will serve as the state’s chief prosecutor and law enforcement officer. While attorneys general races don’t usually produce as much fanfare as other statewide contests, the fall of Roe has thrust these top lawyers into the media spotlight, with several making abortion access a cornerstone of their campaign.
In states with restrictive abortion bans, the attorney general oversees efforts to bring criminal charges against individuals who violate the state’s law. They also petition state and federal courts to determine the validity of dubious state legislation. The office can serve as an ally for the reproductive regulations they support, or a roadblock for those they oppose.
In Wisconsin, Attorney General Josh Kaul, who is running for reelection, has filed suit in state court to invalidate Wisconsin’s 19th-century abortion ban that is presumed to apply following the Dobbs decision. Kaul also vowed not to prosecute anyone for violating the zombie law. In contrast, his Republican opponent Eric Toney pledged to enforce the near-total ban, which does not provide exceptions for rape or incest.
Michigan’s Attorney General Dana Nessel also affirmed that she would not prosecute violations of her state’s pre-Roe abortion ban, which is currently being enjoined by the courts. She also refused to defend the state against a lawsuit brought by Planned Parenthood of Michigan challenging the 1931 zombie law. Her Republican opponent in the midterm race, Matthew DePerno, not only supports a total abortion ban with no exceptions for rape and incest but has asserted that the Plan B pill should also be banned.
State attorneys general will continue to play a significant role in the fight for reproductive freedom unless and until those rights are restored at the federal level. Unfortunately, this important office often gets overlooked on Election Day. Voters should get to know the contenders vying to earn their support and cast their ballot for the selection that best represents their interests in these top law enforcement races.
Shielding the House
When the Supreme Court returned their decision in Dobbs, they were effectively giving the green light for each state to determine whether to permit access to abortion services within their borders. The High Court made this decision with the full understanding that at least 13 states had trigger laws in place that could ban abortion the second Roe was overturned. Other states had antiquated zombie laws on the books just waiting for Roe’s reversal to resurrect them from their legislative graveyard. What the Supreme Court likely also knew is that the focus of the anti-abortion movement has never been to deliver autonomy to the states. The end goal always has been and continues to be a national abortion ban.
Before the dust had a chance to settle after the Dobbs decision, Congressional lawmakers were drafting legislation to consecrate an abortion ban at the national level. This Congress, 123 House Republicans signed on as cosponsors to H.R. 705, the Heartbeat Protection Act, which would ban abortion after a fetal heartbeat has been detected—usually around the 6 week mark, when many women do not yet know they are pregnant. Additionally H.R. 8501, the Preventing Abortion Sanctuaries Act, would restrict the Department of Health and Human Services from providing funds to so-called “abortion sanctuary” states that either offer resources to out-of-state patients seeking an abortion, refuse to enforce another state’s abortion regulations, or decline to enact gestational restriction on abortion procedures.
All 435 seats in the US House of Representatives are up for election in November, and historical trends predict Republicans are likely to regain control of the lower house. A Republican majority in the House will embolden those who advocate for a national ban and eliminate the chance to move forward the Women’s Health Protection Act, legislation that would codify Roe’s precedent into federal law, which most recently passed in the House by the slim margin of 219-210.
Like Republican candidates for state office, some Congressional contenders have also walked back previous hardline stances on abortion, hoping to not dissuade swing voters in tightly contested races. Several have rid their website of any mention of a national abortion ban, instead saying more vaguely that their religious values warrant pro-life beliefs.
However, if you look to the not-so-distant past, most candidates were singing a demonstrably different tune. In Nevada’s 3rd district, Republican April Becker recently spoke out against the proposed federal abortion ban, calling the legislation unconstitutional. However, Becker has been endorsed by the prominent anti-abortion groups pushing for a national ban. In Colorado’s 8th district, Republican State Sen. Barbara Kirkmeyer, who previously voiced support for a no-exceptions ban for abortions and the Plan B pill, has rid her campaign website of all abortion-related language and deleted a video of her speaking at an anti-abortion rally. And in Virginia’s 7th district, Republican Yesli Vega has declined to respond to questions about her abortion stance, despite previously casting doubt on whether a woman could get pregnant from being raped.
Faced with the stark realization that their extreme anti-abortion policies are widely unpopular, Republican candidates are hoping voters don’t look beyond the headlines for their true views on women’s reproductive freedom. If they can just keep their radical agenda as quiet as possible, they hope no one will notice how destructive their service in Congress would be for the nation.
Strengthening the Senate
Democrats have a better prospect of retaining power in the Senate than in the House. Only 34 of 100 US Senate seats are up for election this midterm cycle, which guarantees that over half of Senators currently in office will serve in the next Congress. A Democratic Senate majority would ensure that efforts by a Republican-led House to advance national abortion regulations wouldn’t make it to the President’s desk.
A Democratic majority in the Senate is imperative, not only to check a possible Republican House majority, but also to ensure that the judges that are elevated to the federal judiciary are willing to protect the rights of every American. So far, President Biden has appointed more federal judges than the past ten presidents two years into their term. However, the success of his judicial nominees is all but certain to halt if Republicans gain control of the Senate. Democrats maintaining their Senate majority is a critical piece of the nationwide fight against increasingly extreme and harmful anti-abortion legislation.
GOP control of the Senate would not only obstruct the President’s ability to shape the judiciary; it would also put anti-abortion activists in the driver’s seat to accelerate their destructive agenda. Just weeks ago, Republican Senator Lindsay Graham generated intra-party outrage when he introduced national abortion ban legislation, S. 4840, despite the fact that he has introduced the Pain-Capable Unborn Child Protection Act in every Congress for the past decade. The previous five versions of the legislation featured the co-sponsorship of nearly every sitting Republican senator.
Like their incumbent counterparts, Senate challengers across the country hope voters will forget about their past anti-abortion crusades when they cast their ballots in November. Blake Masters, the Republican running in Arizona who previously equated abortion to genocide, cleansed his campaign website of language supporting a federal personhood law (which would outlaw all abortions as well as common forms of birth control) and describing himself as 100% pro-life. In Pennsylvania, Republican Mehmet Oz is leaving voters befuddled with his fluctuating views on abortion. When the tv personality was “America’s Doctor,” he supported the viability standard set in Roe and denounced the notion of an abortion ban. As a Senate candidate in a Republican primary, he likened abortion to murder. Recently, he has claimed he does not endorse criminalizing abortion services and supports abortion ban exceptions for rape, incest, and to save a woman’s life. Tracking his views on this issue is truly head-spinning.
Republicans fighting for seats in the US Senate will have to convince their constituents that they are aligned with the American people. That will be a difficult feat for most who have risen through the ranks by embracing the most outrageous attempts to degrade and disenfranchise women. Thankfully, in today’s world, voters are just a mouse click away from discovering a candidate’s sincere views on abortion and how they might impact the debate in Washington.
Conclusion
In every state and in every race, abortion is on the ballot in the 2022 midterm elections. Our democracy’s resilience in a post-Dobbs world will be directly reflected when voters head to the polls on November 8th. The stakes are high, and the responsibility is immense. But the American people can deliver victory for freedom and bodily autonomy for all by casting their ballots and making their voices heard.