Abortion Access Gains in Red America (with Kate Shaw)
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Joining me to discuss is Kate Shaw. Professor Shaw is a constitutional law professor at the University of Pennsylvania Penn Carey Law School and a co-host of the podcast Strict Scrutiny. She breaks down the various ballot measures and what the results mean for the future of abortion access in a second Trump presidency. Kate, welcome back to the show. Great. Thanks for having me. So, you know, a lot went on this past week. There was obviously the federal election and a lot of ink has been spilled and a lot of discussion has been had about

A little bit less on the radar, I feel, were these 10 measures. Could you first of all explain to folks why there's this movement to have measures on ballots in states? Is this a direct result of the Dobbs decision that overturned Roe v. Wade?

It is a direct result of Dobbs that it's been on the ballot in so many places. You know, you could have put, and some states did put questions about abortion on the ballot prior to Dobbs. But when Roe versus Wade was the law of the land, the Constitution imposed protections and states couldn't, you know, put a measure on the ballot and have it enforced if it was going to conflict with what the

Supreme Court had said about the constitutional protection for abortion. So when Dobbs was decided in 2022, the Constitution, according to a majority of the Supreme Court, no longer had anything to say about abortion. And so states had free rein to regulate abortion, to protect it, to restrict it, to ban it outright. And a lot of states responded pretty quickly. So you actually had a number of states in the immediate wake of Dobbs put abortion on the ballot, either to restrict it or to protect it.

And actually, abortion rights fared incredibly well on the ballot in the aftermath of Dobbs. So in states like Kansas, where there were elections pretty soon after Dobbs, a lot of people were surprised there was actually a measure to restrict abortion rights, and it failed in Kansas. So abortion access won.

Ohio also in an off-cycle election had a ballot measure that actually was successful in enshrining protections for abortion in the Ohio Constitution. Then, of course, in the midterm elections, four different states voted to enshrine abortion protections in their constitution. So this is something that had happened previously in the post-Dobbs era. But, you know, the 10 states that had abortion questions on the ballot in last week's election—

obviously were kind of a high watermark in terms of how much activity there was in ballot initiatives on abortion-related questions. And in all 10 states was the presentation of the question on the ballot

by people who were in favor of expanding abortion rights, or were there any in the opposite direction? Just Nebraska, which had actually two competing initiatives, one to prohibit and one to protect abortion, and the prohibit one and the protect lost. So that was one of the losses for abortion access on a night that was actually very favorable to abortion rights, but not in the sort of uniform way that the pre-abortion

Tuesday night kind of results had looked on abortion. Is there anything, this is sort of a politics question, does anything strike you about how some of these abortion ballot questions turned out in states that otherwise went for Trump?

Are people separating those things out in their minds? Well, it's really striking. So just a couple of examples. So first take Florida. So more than 57% of Floridians voted to adopt Amendment 4, which would have added abortion protections to the Florida Constitution up to the point of fetal viability. So very expansive protections in a state that has virtually no access to abortion right now. 57% of Floridians wanted to add robust protections to the Florida Constitutions.

Now, it turns out that wasn't enough because in Florida, it takes 60% to add protections or to add an amendment to the Florida Constitution, and that's an outlier. Most states don't have such a high threshold. So Florida didn't successfully protect abortion access, but I do think there's something really expressively important about 57% of voters choosing to adopt the amendment in a state where Trump won 56% of the vote. So you had to have voters who...

wished both to protect abortion access and to return Donald Trump to the White House. And so that was striking. And maybe one more example, which is Missouri. In some ways, this is the most striking example. So Missouri is a state that had a total abortion ban without a rape exception.

So one of the most restrictive abortion regimes in the country. And voters in that state voted to amend the state constitution, again, to add protection for abortion up to the point of fetal viability, essentially restoring Roe versus Wade in the state of Missouri. And that's a state that Trump won by 18 points. Yeah, so I'm going to need you to explain that.

Yeah, Josh Hawley was reelected by 15 points. I mean, I would like to explain it. I can't pretend to totally understand or at all to understand what was in the minds of people. Was there something about in Missouri, for example, was there a difference in the get out the vote in how the campaigning was done on the ballot question versus for the candidates? Is there just a big disconnect? Do people carve out their views on reproductive rights separate from their otherwise potentially fairly conservative views?

In terms of the kind of mobilization and targeting strategies, I just think somebody on the ground in Missouri would have to answer that. And I don't know. So I'm really just speculating. We've got to find that person. I think it'd be a really illuminating conversation. But I do think that, you know, so Trump in the weeks closest to the election really retreated from some of his more extreme positions on abortion and seemed to basically double down on the view that the states can decide we're not going to, you know, ban abortion federally. I mean, you know, he hedged on that.

question a lot. But that was, you know, what he said most frequently closest to the election. The states will be able to decide. And I think it is entirely possible that voters in Missouri basically said, well, so they're not going to pass a federal abortion ban. We do actually think, you know, that people should be left alone to make their own medical decisions. And Donald Trump's not going to interfere with that so we can protect abortion. And by the way, Missouri actually also voted in a different ballot initiative to increase the state minimum wage.

But, you know, we like a lot of what Donald Trump is selling on, I don't know, the economy. And so we're going to cast those two facially pretty inconsistent votes. But one thing I just think is really important to say about both Missouri and Florida and all these states where people may have been operating on the assumption that, you know, we're not worried about what Donald Trump or a Republican Congress might do on abortion because it's protected here. There just is a fundamental failure, I think, to grasp that. Now, they may be making a predictive judgment about what's likely to happen.

But if they're wrong and a Republican Congress or just a Republican White House and Department of Justice try to either through legislation or just enforcement ban abortion federally, a state protection won't do anything because that's federal supremacy. Federal law is supreme and it supersedes state law to the contrary. So if there's a ban that Congress passes, state law won't save you. And I just I worry the people did not grasp that.

Do conservatives always believe that federal law is supreme? Is that always true in the abortion context? You're a constitutional law professor. How does that play out in different contexts? Well, look, I mean, I think that there's been an interesting valence.

flip or and we're probably going to see much more of it, which is that traditionally, historically kind of federalism, the sort of, you know, the autonomy of states to make a lot of decisions for themselves is a value that conservatives and Republicans have touted more than liberals and Democrats. And I think that's not been kind of universally true. But in the kind of, you know, last 30, 40 years of our politics, that's basically the valence. And I do think that during the first Trump administration and I'm sure during the second Trump

administration, we have seen this real resurgence of kind of progressive or liberal federalism. This idea of protecting domains or pockets of state sovereignty to decide legal questions differently from the federal government to, you know, create pockets of resistance.

So I don't think there's an absolute answer to sort of who owns kind of good faith arguments about the prerogative and authority of states to make decisions for themselves. But I do think that the Supreme Court, which in our system does have the final word on questions of constitutional meaning, that the rule has traditionally been federal law itself.

is supreme and state law to the contrary or in conflict with federal law is superseded. And of course, where there's a real conflict, what kind of conflict, you know, exists sometimes might be in the eye of the beholder. So I think lawyers can make all kinds of arguments that state law does survive even, you know, kind of potentially inconsistent federal law in all directions. But I...

So I think there's not like an absolute and for all time answer to the question of like sort of who's on what side of that debate. I want to stick with Missouri for a second so we understand the consequences and the durability of that ballot measure. In Missouri, did they amend the constitution of the state or something else? Yeah, the state constitutional amendment. And as you said, that will not be a bulwark against infringement of that right necessarily.

If Congress passes a federal law. So even if the Constitution of the United States has nothing to say about it, a mere federal law would take precedence over a state constitution. Yeah. So and it might seem like, oh, that seems weird. A constitutional amendment in a state should somehow it seems more powerful than a federal statute, which isn't in the Constitution. But federal law is supreme over state law and state law could mean state statute or state constitutional language or, you know, state. I just want to make sure people understand that.

Yeah, because in Missouri, the amendment that they adopted protects abortion to the point of fetal viability. And if Congress wanted to pass a law that imposed a nationwide ban on abortion after 16 weeks or 12 weeks or something like that, that would control over the more expansive protections in Missouri. So for all intents and purposes, when it comes to reproductive rights and the right to abortion specifically, does Missouri have the same rights for its citizens as a state like New York now?

I mean, yeah, essentially, yes. I mean, New York has also now adopted a kind of more expansive equal protection provision that is about not just access to abortion. That passed, too. And New York was one of the states where it wasn't like this radical shift in law. You know, we already had pretty robust statutory protections. This was just constitutionalizing this broad issue.

equality, sex equality in New York and, you know, Maryland and a few other states already had statutory protections. But this was just about, you know, kind of entrenching more robust protections in the state constitution. But yeah, so right now, I mean, I think it's pretty wild that a state as conservative as Missouri, again, 18 points for Donald Trump, has protections that are as comprehensive, at least as to abortion and, you know, maybe wouldn't extend to kind of other things, you

surrogacy, contraception, like other kinds of reproductive rights and justice questions that might be encompassed within the broader New York equal protection language. But yeah, on abortion, pretty comparable. In Missouri, was it like Florida where they required a 60% vote? Only a simple majority can amend the Constitution in Missouri? A simple majority, and that's actually true. Now, you know, not every state has the ability to amend the Constitution by ballot initiative, so it's about half of the states in some ways. And most states, there's

I think it's 49 states the legislature can propose and the public, you know, ratifies essentially a constitutional law. It's a lot harder, as you know, better than anyone around as a constitutional law professor to amend the U.S. Constitution to

Takes a little bit more than 50% of the public. It's a huge, you know, Article 5 of the federal constitution that, you know, is about the constitutional amendment process is, has been described as, you know, creating essentially the most difficult constitution to amend in the world. And so I think, and it's, you know, that's right. We have not amended the constitution in

in any meaningful way in the lifetimes of many young Americans. The most recent constitutional amendment from 1991, I guess, is about congressional salaries, but that's not a particularly meaningful constitutional amendment. So it's well over 40 years since we've done anything significant to amend the Constitution, and every state constitution is far more easily amendable than the U.S. Constitution. Stay tuned for more discussion. We'll be right back after a short break. Fox Creative.

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See att.com slash iPhone for details. So I want to talk about the durability of some of these measures. So in Missouri, given what you said about majority rule, an amendment to the Constitution, does anything prevent another ballot measure going the other way in two years or in four years or in six years or every two years?

No, I don't think so. I mean, it's possible there are certain places. It's pretty precarious. It is. I mean, let me just say, I think that's not true. I think with Missouri, there's no, the only thing, the only qualifier I want to add is there are some, you know, states are, and we should celebrate, there's all kinds of, you know, distinct practices that states use when it comes to amending their constitution and everything else. And Nevada is one of the places where the right to abortion was adopted, where it was successful on the ballot, but it has to pass in two successive elections.

before it actually becomes part of the Constitution. So that's Nevada. It was a yes on abortion, but it's not law yet. It has to pass again. So some states build in these kind of mechanisms for kind of making extra sure through successive votes that people really do want to amend the Constitution. And it's at least possible that there are states that repeal an amendment quickly or within some period of time. I just don't know. But for the most part, yeah, there are not like kind of broad states

constraints on the ability to make those changes. And so there is not, there's nothing that I'm aware of that would prevent states from moving in the other direction. So I suppose it's a possibility. Look, even the enshrined constitutional right to an abortion lasted only 50 years and was under attack for much of that half century, right? Yeah. You mentioned a federal abortion ban a couple of times.

It seems like Donald Trump saw the threat of that politically and electorally and has made statements saying he's all about the states. Allies of his, I think, said as recently as a few days ago that Donald Trump does not support a federal abortion ban and would veto one if it came to his desk. I think that's true. My staff and team will check. What should people make of those statements?

I mean, I think he probably, I think it's entirely, first of all, I think those are opportunistic statements, right, on the eve of the election, because it was pretty clear that a federal abortion ban would be very unpopular. And so I think everyone should take with a grain of salt those kinds of pledges. At least for now, you know, we do have a legislative filibuster. And so that would need to overcome a filibuster in the Senate. Because while Republicans have taken the Senate, they have not taken a filibuster proof, you know, they have not taken a 60 vote majority in the Senate. And, you know, as we're recording, there's still a couple of,

those races outstanding, but there's no world in which they have 60 votes. So there's that. But if there were, you know, if Congress did actually pass and if it wasn't a total ban, but, you know, a restriction that had a number of weeks attached to it,

I truly don't know. I mean, the political dynamics, and I usually stay in the more legal lane, but to sort of talk politically for a minute, I think that there was, you know, a big part of the kind of, you know, sort of elite constituency and maybe also base that Trump was very concerned about when he was the president for the first time really did care deeply about restricting and eliminating access to abortion. And that may still be true. But, you know, he's

kind of a lame duck, right? He's not running for reelection again. So I'm just not sure that sort of attending to those constituencies is going to be front of mind in the same way. So he may not feel the need to be as responsive. So I think that's a possibility, but I wouldn't rule it out. And the other thing I think is really important to underscore, and this is something we've talked on my podcast about a good amount, is

A Trump White House and Department of Justice and FDA could do a lot to limit or eliminate access to abortion without any act of Congress. Explain that. Yeah, explain that. Yeah. So the 1873 Comstock Act, which people might have heard of, this Victorian era anti-vice law that has been dormant but is still on the books, was never repealed.

is something that a number of people around Trump have suggested will be enforced in a second Trump administration and enforced to target individuals who send abortion pills through the mails, maybe even who ship medical supplies for use in ordinary procedural, not medication abortion, but surgical or procedural abortions. So if you decided that the

The pills and devices used in abortions are essentially the kinds of immoral goods or devices that this, again, Victorian-era statute prohibits sending through the mails. Then they might try to target people, again, physicians, providers, drug manufacturers under the Comstock Act. Now,

Let me be clear. I think the act and that kind of enforcement is clearly unconstitutional, but you'd have to bank on a majority of the Supreme Court agreeing with you. And the fact that, you know, that may be the ultimate result would not preclude their trying that kind of enforcement in the short term. So that's one, you know, no Congress needed route. Right. And that's an example where they don't need to pass a law. They would just rely on a not used dormant law called the Comstock Act, which

And that would require an initiative from the next Justice Department. And that's it, right? Yeah, I think it just depends a lot on who the Attorney General is. And then the other possibility is the FDA.

which, you know, back in 2001 approved this two, you know, drug protocol, Mifepristone and Lysoprostol, yeah, to end early pregnancies. And that has been the target of a lot of litigation in the last couple of years. The Supreme Court dismissed this challenge to kind of recent regulations of Mifepristone, which relaxed these earlier restrictions on its prescription and use. And the court took this off ramp. So that case is now back in the lower courts, in

And that's a challenge, again, to the current conditions under which mefapristone is available. But it's not out of the realm of the possible that a Trump FDA could decide to revisit and potentially to reverse just the approval at all of mefapristone for ending early pregnancies. And that would essentially be, you know, it would create a ban on access, again, at least through legal means.

channels to Mifepristone everywhere, including states like New York and now, you know, Missouri, where abortion is legal. But if you can't get the pills to end an early pregnancy, there's just that's going to just remove, you know, a huge the most common method of ending pregnancy today is these abortion pills. And, you know, reversing their approval would obviously take that off the table. And so even if you're a state like New York for a long time or a state like Missouri going forward, you're not necessarily protected. Exactly.

Do you think that these 10 ballot measures will inspire other states to do the same? And are there particular states that you think are on the horizon for this kind of activity? There are a handful of other states where there were efforts that state officials, a

essentially interfered with to get these initiatives on the ballot. So maybe I should say at the outset, it's not the case that you could do this in every state. So there are states like Wisconsin that just don't really have much statewide direct democracy ballot initiatives, referenda, things like that. You can do these local kind of advisory ballot initiatives, but there just isn't much that can be done at the state level. So unless and until states decide to change the

way their citizens can access direct lawmaking, and that does sometimes happen, there's a ceiling on how many states actually could put these questions before the voters. But there are a handful that are still, you know, that haven't yet done an abortion question, but that could. And the example that springs to mind right now is Arkansas, where actually proponents of abortion access...

did this very successful signature drive. So the first step in every state, even though the process is really different everywhere, but in every state you have to gather a bunch of signatures on petitions that demonstrate that there's interest in putting a question before the full voting public. And there are lots of rules regarding how many signatures and sometimes where the signatures come from, like not just how many, but do they have to be distributed among the state in a certain way? Do you have to have representatives from every county, things like that?

But in any event, in Arkansas, there was a legal challenge to the way that the abortion amendment proponents had gathered their signatures. And there was this kind of trivial argument about a missing cover page that wasn't filed with the final signatures, even though there definitely were enough signatures. And it ended up resulting in a 4-3 decision by the Arkansas Supreme Court that the ballot initiative could not go before the voters this November. So that's a state where I presume that the effort will start afresh at the next possible opportunity, and maybe Arkansas will also protect abortion rights. So there are definitely others on

the horizon. Could you remind people, before I let you go, what the relationship is between the Dobbs decision and these policy pronouncements and these ballot initiatives and the procedure known as IVF? Because I think it's confusing to people and there are folks who say, well, this is leading us down a path to potentially the banning of IVF that a lot of couples rely upon to have children. And other people say that's fear-mongering. What's true?

So, you know, the Supreme Court's decision in Roe v. Wade in 1973 and then Planned Parenthood v. Casey, which reaffirmed Roe in 1992, were, you know, on their face about abortion. But also in their reasoning were about kind of protecting the zone of autonomy and privacy that individuals or couples have to make certain kinds of medical choices about, you know, child rearing, childbearing and parenting. And...

The Constitution, as read in those two earlier decisions, was understood to kind of protect some of that. And when Dobbs repudiated that kind of core logic of Roe and Casey that basically said there's a space that kind of government can't enter when it comes, again, to these questions of pregnancy and childbearing, that, I think, for many people sent a very ominous signal about government's ability to

to interfere with other kinds of related activities and rights. And so again, even though nothing in Roe or Casey said, the Constitution also protects your right to access in vitro fertilization, medical assistance, becoming pregnant for individuals and couples who need some sort of assistance.

The broad framework of those cases was understood to protect those kinds of practices and was obviously understood to, you know, just even from the very idea of passing a law that would restrict or ban IVF would have been unthinkable in a world where the logic of Roe and Casey were the law of the land. And so when you remove those cases and the general understanding of the Constitution that they contain and reflect...

I think that does open up a lot of questions about things like accessing IVF. And so the Alabama Supreme Court decision from last year that basically held that this, you know, wrongful death statute in Alabama also extended to the accidental destruction of embryos by this, you know, hospital clinic that performed and provided IVF services.

That was a decision that I think just would have been unthinkable in a world where the federal constitution was understood to extend these protections that sort of limited the way both state statutes and state, you know, common law decisions worked.

could be understood essentially in that case to protect this or to extend this wrongful death statute to these fertilized embryos. And so I think you're right to pose the question because there are these kind of intervening steps that you have to sort of walk through before I think it's really clear why IVF and a basic legal framework that was understood to protect access to IVF

is just perilous in a post-Dobbs world. It doesn't mean that Dobbs says IVF necessarily can be restricted or that it's itself somehow legally suspect. Like, none of that, I think, is on the face of Dobbs, but I think the deep logic of the opinion...

is correctly understood to at least raise questions about whether states could, if they wanted to, make moves to endanger IVF. But that would require, I think, them to actually take steps. And so I think that's where kind of political mobilization and I think even the signaling that these ballot initiatives reflect are really important because I think they do tell lawmakers that the electorate

If the electorate in some of these deep red states is willing to protect abortion access in their state constitutions, you'd hope that legislators in those states would understand that IVF and restricting access to IVF is not something that they should even attempt, you know, if they want to align what they're doing with the preferences of the polity. Before you go, Kate, what's your assessment of how abortion rights, reproductive rights will evolve or devolve over the next four years of a Trump presidency?

I think that there are glimmers of hope that the results of these ballot initiatives, I think, contain. And I think everybody should seize on that. I think it's, of course, understandable to really focus on what happened with the

with the presidency out of this election, but they're, and that's why I'm really glad we're having this conversation. There were a lot of things on the ballot, both, you know, state and local races, but also these questions. And I do think that one big takeaway is this is an American public that is going to be very, very skeptical about efforts to really restrict access to abortion. But affirmative protections cannot be created in every state because not every state has

direct democracy on the ballot. So I do think that, you know, that we are going to be in a patchwork for now. And sort of one big takeaway, I hope that lawmakers see this expression of broad support for abortion access and pull back from some of the efforts we have started to see to do things like restrict access to travel, interstate travel to access abortion care, because that's something I was and remain really worried about. But I would hope that this sends a strong signal that that's not something that the public will tolerate. That's a good note to end on.

Kate Shaw, thanks for your time. Thanks for your insight. Be well. Thank you for having me, Braden.

If you like what we do, rate and review the show on Apple Podcasts or wherever you listen. Every positive review helps new listeners find the show. Send me your questions about news, politics, and justice. Tweet them to me at Preet Bharara with the hashtag AskPreet.

You can also now reach me on threads, or you can call and leave me a message at 669-247-7338. That's 669-24-PREET. Or you can send an email to letters at cafe.com. Stay Tuned is presented by Cafe and the Vox Media Podcast Network.

The executive producer is Tamara Sepper. The technical director is David Tadishore. The deputy editor is Celine Rohr. The editorial producers are Noah Azoulay and Jake Kaplan. The associate producer is Claudia Hernandez. And the cafe team is Matthew Billy, Nat Wiener, and Leanna Greenway. Our music is by Andrew Dost. I'm your host, Preet Bharara. As always, stay tuned.

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