Lawyers on the Post-Dobbs Landscape: The Case of the Ballot Initiative
Table of Contents Show
Introduction
The common wisdom about the Court’s unprecedented decision in Dobbs v. Jackson Women’s Health Organization[1] is that it moved decision-making about abortion from the federal government to the states. No doubt this is true: A regime that regulated abortion through a single federal constitutional standard has been transformed overnight into fifty widely varying regimes of state regulation. But less appreciated is the fact that Dobbs relegated abortion regulation to a highly heterogeneous state institutional landscape.[2] States have approached the devolution ordained by Dobbs from a range of different starting points. Some already protected abortion through their state constitutions, while others had trigger laws setting in place various abortion bans as soon as Dobbs was announced. Some had precarious and volatile judicial or legislative majorities, which could swing the decision based on a single seat, while others were gerrymandered into ossified failures of representation. Some authorized plebiscitary processes, which would allow popular decisions on the question, while others did not. And finally, some authorized the power of the executive or legislature to intervene in these popular processes, while others left the authority to intervene ambiguous.[3]
For lawyers, this institutional heterogeneity poses new questions of orientation, skill-building, and collaboration. For half a century, the skills that lawyers needed to defend the right to abortion consisted primarily of appellate advocacy. Leading advocacy organizations also devised legislative strategies aimed at combatting restrictive state legislation and kept questions of messaging in their peripheral vision. But the fact that abortion questions were ultimately resolved in federal courts kept the strategy and skill set focused on litigation and kept lawyers in the lead. These features have shifted dramatically in the wake of Dobbs. Litigation remains a vital component of any state-based strategy: It may predominate in jurisdictions with strong state constitutional protections for abortion, and it may be intermittently valuable to prevent the obstruction of pro-abortion strategies by officials in “red” states. But litigation is no longer the master tool in the reproductive advocate’s box. In states without constitutional protection for abortion, Dobbs has moved the focus to the legislature, to electoral campaigns for legislative or judicial office, or to the public through the ballot box. If reproductive freedoms are going to be protected, lawyers will have to develop new skills and establish new collaborations in this post-Dobbs reality.
In this Essay, I examine the challenges facing lawyers in this new institutional landscape by focusing on one promising strategy for protecting abortion rights in conservative states: the initiative petition to amend a state’s constitution. This strategy, inaugurated in Kansas just months after Dobbs, has succeeded in the majority of states where it has been implemented.[4] For example, the strategy has prevented conservative states, like Kentucky and Kansas, from enshrining abortion bans in their state constitutions.[5] More ambitiously, it has incorporated constitutional protection for abortion in states controlled by conservative officials, such as Arizona, Missouri, and Ohio.[6]
Yet initiative campaigns also vividly illustrate the challenges facing lawyers in the post-Dobbs landscape. These campaigns enable only intermittent recourse—often in emergency postures—to well-honed practices of litigation. Their advantages lie in their potential to undo the bans enabled by Dobbs in individual states, to counter dominant narratives of loss and peril, and to lift public morale. But whether and how this potential will come to fruition will be difficult to assess, particularly for lawyers accustomed to a litigation-focused path. Ballot issues require a host of skills that lawyers might not already possess: polling, framing and messaging, fundraising, developing publicly-accessible narratives, and door-knocking—to name just a few examples. Re-orientation, skill-building, delegation, and collaboration will likely also be essential. Moreover, achieving the promise of this strategy is likely to demand a longer-term effort than campaigns often suggest: an uncertain path that may require the sustained participation of lay, law-adjacent activists, a group that may be challenging to mobilize in the United States. In mapping these challenges, I draw on an ongoing empirical research project, which analyzes strategies and coalition building among reproductive advocates in “red” states, as well as the trajectory of a highly visible pro-abortion plebiscite—the 2018 Repeal campaign in Ireland.[7]
A. The Appeal of the Plebiscite: Energizing the Public and Reclaiming Familiar Terrain
The appeal of the ballot in responding to abortion bans is clear. Ballot campaigns express the felt needs of women and others subject to the transformations of Dobbs while also giving space to the important perceptions and intuitions of lawyers. Ballot elections promise to stem the dramatic, damaging consequences unleashed by state abortion bans. Many ballot initiatives promise a restoration of the status quo ex ante: the re-establishment of Roe v. Wade at the state level. This restoration returns members of the public to a familiar legal regime, though members may be more skeptical of this return if they were disadvantaged by Roe’s viability limits or by Court-approved restrictions on abortion funding. For lawyers, a plebiscitary amendment also holds appeal. Enacting an amendment modeled on Roe re-establishes a legal order in which they have decades of professional and, often, political investment. Even an amendment reflecting a different scope of protection promises lawyers a return to a regime whose basic structure of time limits, state interests, and exceptions is familiar, and which they can easily envision their post-election role defending.
At an individual, psychological level, ballot elections provide an opportunity for women and others who can become pregnant to reclaim some degree of autonomy in the face of a brutal succession of losses.[8] Such elections mitigate, to some degree, Dobbs’s abandonment of the powerful reliance interest created by Roe and explicitly preserved by Planned Parenthood of Southeastern Pennsylvania v. Casey. With the elimination of a safeguard on which many had relied to plan their familial and professional futures, women and others have experienced a potent sense of precarity and loss of control.[9] The ability to fight back through a straightforward act of political participation may offer an antidote. Lawyers appreciate this autonomy, for which they have fought avidly, and may view popular action to amend the state constitution as an appropriate way to respond to its loss.[10]
Finally, in a more political vein, ballot measures provide citizens of “red” states a means of “talking back” to legislatures whose bans disregard majority support for abortion rights. For lawyers in these states, the ballot is a vehicle well suited for circumventing a conspicuous legislative process failure: gerrymandering, which produces an overrepresentation of Republicans in both legislative bodies and specific supermajority districts. In some states, such as Missouri,[11] using plebiscites to address failures of legislative representation is not new. In other states, where the use of these initiatives to answer legislative unresponsiveness is less common, lawyers may feel relieved to find an institutional answer that can substitute for the role once played by the federal courts in reinforcing representation.[12]
B. The Challenge of the Plebiscite: Compromised Goals and Narrative Concessions
While the ballot issue responds to powerful intuitions and needs of both lawyers and the affected public, the past three years of ballot elections have highlighted a set of vexing issues that legal professionals are only beginning to appraise.
An abortion-protective amendment to a state’s constitution seeks to establish, in one vote, a legal standard that previously would have been elaborated through ongoing, fact-sensitive litigation. Moreover, that legal standard must be approved by a heterogeneous group of voters who may not understand the state’s laws, their effects, or the change that the amendment will create. Ballot drafters and campaigners must make choices that involve difficult trade-offs—decisions about what is or is not protected, what is or is not centered in public discussions. The choices that have been made in ballot campaigns thus far have been strikingly risk averse. They have prioritized the least controversial reproductive protections and highlighted the most “relatable” abortion stories, neglecting those most acutely affected by abortion bans. Whether these choices have reflected the institutionally conservative, precedent-focused thinking of legal professionals, the caution of campaigners focused on short-term victory, or some mixture of both, they should be carefully assessed as ballot campaigns continue to unfold.
I. Roe as Floor or Ceiling?
One question concerns formal compromises incorporated in the ballot language itself. The triumphant Kansas ballot issue was a “no” campaign. Responding to the efforts of state officials seeking to constitutionalize anti-abortion protections, the Kansas ballot issue did not need to specify what kinds of abortions could be legal in the state. Many subsequent ballot issues, however, have been framed as “yes” campaigns. Rather than rejecting proposed anti-abortion measures, “yes” campaigns push back on state abortion bans by approving abortion-protective constitutional language.[13] This type of campaign gives rise to controversial questions: How long and under what circumstances should abortions be protected? Should there be exceptions? Who gets to decide? These are questions lawyers will be central in resolving, given that they bring skills in legislative drafting and understanding the import of legal language. However, because these standards will be voted on by a heterogeneous public, lawyers will have an unfamiliar range of considerations to balance. Whose input should be weighed in devising the standard? What kinds of cases should be considered? Should drafters opt for the standard posing the least political risk or offering the broadest protection? What do polls suggest? These questions were not central for lawyers under the Roe regime because their role was to prioritize the defense of a previously articulated judicial standard. But when advocates are free to redefine the scope of reproductive protection, these questions come quickly to the fore: In states with “yes” ballots, these questions have produced a range of opinions and pointed disagreement among pro-abortion advocates.
One flash point for this controversy has been the limits placed on abortion protection in proposed constitutional amendments and, specifically, the use of the “viability standard” articulated in Casey and Roe.[14] Legacy abortion advocates, such as Planned Parenthood, have publicly rejected ballot amendments whose protections fall short of viability. For example, in Arkansas, where the ballot issue proposed a limit on abortion eighteen weeks after fertilization (twenty weeks into pregnancy) and, in South Dakota, where the proposed amendment protected only the first trimester of pregnancy, Planned Parenthood’s Action Fund and the American Civil Liberties Union’s director of ballot initiatives have withheld support. In response to the proposed ballot issue, Planned Parenthood stated: “In 2024 . . . we must invest and engage [in] those states where there is an opportunity to protect or restore an expansive right to abortion for as many patients as possible.”[15] Ballot proponents defended their more restrictive language by arguing that these limits reflected what voters in conservative states would feel comfortable supporting, though in some conservative ballot states, Roe’s viability standard has garnered supermajority support. An even more complicated question about the limits of the “possible” has arisen where the issue is not meeting, but expanding, the limits established by Roe.
In Missouri, advocates submitted eleven versions of a prospective amendment, calculating that once they were certified, coalition members could select among them. A disagreement subsequently arose between advocates who favored versions containing “viability” language and advocates who preferred a version with no such limits.[16] The amendment versions that tracked the protections of Roe were favored by many members of the coalition. They relied on outcomes in states like Michigan, and later Ohio, as well as national polling that showed supermajorities in favor of abortion protections structured around a viability limit.[17] The version without viability limits was defended by others who prioritized reproductive justice: a broader vision that addresses race- and class-based reproductive inequalities, extending beyond abortion to health care disparities and support and respect for the building of families.[18] These advocates relied on a poll by the firm PerryUndem, indicating that larger majorities of the public supported a right to abortion with no articulated limits.[19] The reproductive justice advocates also offered two substantive arguments for the unqualified abortion protection that arose from their more encompassing view of reproductive freedom.[20] First, time limits on the availability of abortion would prove most harmful to low-income people, including many women of color, whose disparate access to quality reproductive care would delay their discovery of pregnancy, or of risks to it, that would necessitate abortion services. Second, constitutionalizing a state interest in the fetus, or in the outcomes of pregnancy, at any stage could bolster the claims of the state to intervene in childbearing (through the criminalization of pregnancy or its outcomes) or family formation (through the family regulation system). Both forms of state intervention bear disproportionately on pregnant people at the margins and on Black women in particular.[21]
Through their defense of Roe—whose limits, from the viability standard to the abortion funding decisions,[22] have disproportionately excluded those at the reproductive margins[23]—lawyers have invested their professional efforts in a limited vision of what reproductive rights could embody. Incorporating viability in state constitutional amendments raises the question of whether lawyers should remain presumptively committed to Roe’s limits when the inequalities they produce have become clear and when ballot amendments provide a real opportunity to move beyond them.[24]
II. Faces of the Movement: Whose Stories Get Told?
The question of compromise, however, extends beyond the formal language of ballot issues. Because ballot campaigns are aimed at a predominantly lay electorate, they do not rest solely—or even primarily—on the language of the amendment but on arguments and images that convey what is at stake. Ireland’s Repeal campaign offers ample insight on this subject. In particular, the reflection of Fiona de Londras, an Irish legal scholar and participant in the Repeal campaign, is worth considering. De Londras writes: “The degree of narrative concessions you have to make during the campaign will shape the ‘after’ period and it is very difficult to do something optimal in the context of this kind of campaign.”[25] These concessions, in the first instance, concern the capsule arguments that are made to voters on doorsteps or in high volume locations to persuade them to turn out and support the ballot issue. Such arguments have revolved largely around the idea that prospective parents and their medical professionals, and not the state, should be making these kinds of decisions.[26] But these concessions also concern the kinds of stories—first- and third-person accounts of concrete life experience—that are used to explain to voters the stakes of abortion bans and the need for legal change. De Londras notes that Ireland’s Repeal campaign excluded three kinds of stories about the effects of abortion bans largely because they were judged to be “too complicated” for the public or less likely to garner the sympathy necessary to advance the campaign.[27] These were stories about 1) trans and gender non-conforming people who become pregnant, 2) migrant and asylum seekers who require abortion services, and 3) everyday abortions.[28] Emma Burns, another legal scholar and Repeal campaign participant, echoes this concern, noting that the stories that were most often highlighted were those of women with wanted pregnancies but fetal anomalies that forced them to seek abortion services.[29] Burns describes this uncomplicated storytelling as an effect of campaign professionalization. She argues that the narrative scope of the campaign narrowed when “[w]e switched from being purely grassroots, home-grown, diverse, feminist organisations . . . to a slick, centrally directed, professionally run campaign with strict messaging and zero tolerance for deviation from the messaging book.” She explains:
The faces of the campaign were Irish and white . . . . Each discussion panel that we held had to have a doctor, a lawyer, and someone whose pregnancy was affected by fatal fetal anomaly . . . .
For the most part, we didn’t hear from the messier edges of the campaign, from the places where multiple oppressions occur to squeeze people of their rights.[30]
Although Burns concludes that “Yes on Repeal” would not have won the referendum “without a unified campaign,” she also “recognize[s] the damage done to marginalised groups by the disengagement from the collaborative efforts that had informed the movement up until this point.”[31]
A similar pattern of centering and exclusion seems to be occurring in the United States, although it may arise through a more contingent process. In a country as large as the United States, where ballot elections in distinct political environments are occurring simultaneously, there is unlikely to be the same level of “unification” among abortion campaigns.[32] However, as these elections unfold, national media coverage of abortion—which has been intensive since the Dobbs leak, amplified through social media algorithms, and refracted through dominant cultural lenses—has elevated some kinds of stories over others. In addition, life stories that become the focus of litigation often garner more intense or sustained attention. Consequently, stories involving abortions sought for fatal fetal anomalies, specifically by married women with wanted pregnancies, have proven to be as prominent in the United States as they were in Ireland.
Such stories first gained visibility in the United States through the Zurawski litigation[33] and the Cox case.[34] Both cases arose in Texas, which has a stringent abortion ban and no constitutional option for citizen-initiated petitions for amendment. Both were also brought by a leading reproductive rights organization. These kinds of cases have a potentially broad appeal because they focus on pregnant people who are relatable to the mainstream: married women, usually White, who want to start families but face problems when pregnancy complications require action in conflict with state abortion bans. Zurawski and Cox garnered far more intensive and persistent coverage than Brittany Watts, for example, whose miscarriage following a premature rupture of membranes triggered a “felony charge of abuse of a corpse.”[35] They also eclipsed the case of Yeni Alvarez Glick, who died following complications from a high-risk pregnancy, lived in a maternity care desert,[36] and received no suggestion from her liability-wary Texas doctors that an abortion might mitigate her peril.[37] These latter cases, involving low-income women of color, implicated not only abortion bans (and tragic medical circumstances) but also inadequate and unequal health care and the consequences of racially disparate state intervention in pregnancy.[38]
The more palatable fetal anomaly cases have also crowded out stories of “ordinary abortions”—those sought by women who decide that they are not currently able to parent a(nother) child. This dynamic was vividly illustrated during a hearing called by Senator Patty Murray on the fifty-first anniversary of Roe.[39] This hearing featured testimony by Dr. Austin Dennard, a Texas OB-GYN who became a plaintiff in the Zurawski case after she was forced to travel to end a pregnancy rendered non-viable by fetal anomaly. It also featured testimony by Dr. Serena Floyd, the medical director of Planned Parenthood of Washington D.C., who described the plight of a young woman who had traveled from a southern state on two different buses to access abortion care in Washington D.C. and spent the nights surrounding her abortion in a homeless shelter because she could not afford a hotel. Subsequent discussion among senators focused heavily on Dr. Dennard’s case and others involving unexpected complications of wanted pregnancies; not one speaker chose to amplify the case of the young woman who was forced to take two buses and sleep in a homeless shelter to vindicate what was previously a constitutional right. Reproductive rights advocates observe that narratives of fetal anomaly in desired pregnancies have brought new supporters to the table[40] and that they can be used to help explain why protecting late-term abortions is vital.[41] Yet prioritizing such cases in reproductive advocacy risks creating an implicit hierarchy of deserving cases that could affect public opinion, shape legal language, and further penalize those at the margins who require reproductive care. Centering such stories may also be more politically cautious than is necessary. As the Repeal campaign’s Emma Burns observed: “[T]hose of us who campaigned by knocking on people’s doors . . . learned that ordinary people . . . who are not engaged in actions or politics, are not as conservative or uninformed as we might assume.”[42]
Ballot campaigns are not exclusively, or perhaps even primarily, responsible for these disparities in focus and visibility, though their condensed timeline may further polarize advocates or foreclose the painstaking coalition building that might generate more inclusive policies.[43] But where initiative petitions are on the ballot, questions of narrative visibility create a challenge that the coalition leadership, in which lawyers are disproportionately represented, must address. Against the inevitable media focus on needed litigation, like Zurawski, or stories that seem “relatable” to the public, lawyers and their coalition partners will need to consider how to amplify stories that the media or members of the public may not.
III. The Long Aftermath of Ballot Elections
The final challenge raised by ballot elections is that they are likely to mark the beginning, rather than the end, of the fight for change, particularly in conservative states. This is a point that advocates are coming to appreciate but may have understated in their desire to mobilize prospective voters. Organizing for ballot campaigns tends not to focus on the aftermath of a ballot election. Part of the appeal of the ballot issue is its apparent potential to make a quick and comprehensive change to abortion regulation in places where it has become oppressive. This short-term focus is also suited to political cultures, like that of the United States, that treat minor, episodic commitment—like voting—as the paradigmatic expression of political responsibility. But it is clear from both U.S. and Irish examples that ballot elections, in and of themselves, may not be sufficient to produce the changes supporters seek.
Ballot amendments do not immediately control the availability of abortion, particularly if they are enacted against the backdrop of restrictive legislation or if the state’s political branches are controlled by anti-abortion officials.[44] Where a state votes on a “no” petition, which prevents legislators from placing an abortion ban in the state constitution, its legislature may continue to enact anti-abortion legislation, despite conflicts with voters’ expressed preferences. In Kansas, where voters rejected by 59 percent an effort to ban abortion through the state constitution, the state legislature has continued to enact anti-abortion laws, often overriding the veto of Democratic Governor Laura Kelly and creating an ongoing struggle to vindicate the expressed preferences of the electorate.[45] In states where the ballot petition places abortion protection in the state constitution, the petition has generally been enacted against the backdrop of a stringent ban, and, in some cases, a host of TRAP laws[46] that pre-date the Dobbs decision. This means that the legislature must repeal the conflicting statutes or litigators must challenge them in state courts under the new constitutional provision. In some states where elected branches are controlled by anti-abortion officials, legislatures and attorneys general may continue enacting and enforcing barriers to abortion, despite their conflict with explicit protections in the constitution.[47]
Finally, a ballot state with a legislative ban and no functioning abortion clinics may face even greater obstacles to the resumption of abortion services. Missouri, where the victory of Amendment 3 in November 2024 placed a right to abortion in the state constitution, illustrates this conundrum. At the time of the 2024 election, Missouri had no functioning abortion clinics and had not for years. Although one abortion clinic formally remained at the time Dobbs was decided, a gamut of state TRAP laws had led virtually all Missouri patients to seek abortions in Illinois (or elsewhere) rather than in-state.[48] Following the Dobbs decision in 2022, Missouri’s abortion ban went into effect due to a previously enacted trigger law, officially terminating all abortion services in the state.[49] When Amendment 3 was passed in 2024 after a momentous organizing campaign,[50] it immediately sparked the opposition of the state legislature.[51] In late May of 2025, after months-long efforts, the Republican-controlled legislature approved a bill that would refer to the voters a new constitutional amendment that would effectively eliminate the protections of Amendment 3.[52] The new proposed amendment would allow abortion only in cases of rape or incest (in the first twelve weeks of pregnancy), medical emergencies, and fatal fetal anomalies.[53] Amendment 3 has also encountered problems in the Missouri courts. Initially, a lower state court issued a preliminary injunction against a host of TRAP laws, including against what clinics had described as the final barrier to resuming procedural abortion services: a TRAP law requiring state licensure of abortion facilities.[54] Three clinics subsequently began to offer limited procedural abortion services.[55] However, on May 27, 2025, the state Supreme Court instructed the lower court to vacate and reconsider its preliminary injunction, responding to the state’s argument that the court had applied an incorrect standard, and imposing, in the words of Amendment 3 proponents, “a de facto abortion ban.”[56]
Anti-abortion legislators and activists may also learn from two strategies that defeated ballot issues this term: requiring a supermajority for passage of a ballot amendment, which doomed the Florida amendment, notwithstanding its robust 57 percent support,[57] and running a competing amendment that codifies a highly restrictive regulation alongside an amendment granting broader protection, which produced a victory for anti-abortion forces in Nebraska.[58] In addition, some funders who had hoped that abortion-protective ballot issues would fuel Democratic victories may be dissuaded by the fact that, in some states, ballot issues have created a kind of steam pressure valve that has allowed centrist or Republican voters to release pro-abortion energy while enabling them to support conservative presidential or state legislative candidates.[59] With these results, it is clear that while ballot amendments may be one potential vehicle for re-establishing abortion rights,[60] they are far from the silver bullet that enthusiasm from early victories may have implied.[61]
IV. Advocacy after Dobbs: Lawyering for and with Affected Communities
The length and complexity of the post-election path has implications for legal goals, public-facing discourse, organization, and collaboration. First, lawyers should take the opportunity to re-examine two stances that have been central to their role before Dobbs: their presumptive commitment to the Roe standard and their tendency to function more as leaders than as collaborators. When Roe was the law, and its defense was situated almost exclusively in the courts, these stances were understandable, if not always optimal. But at this moment, many critical features of the reproductive landscape have changed. First, lawyers know—or can learn if they are willing to do so—more about Roe’s costs. This step will require a level of professional humility that was not required by the Roe regime but will serve the legal profession now. Lawyers need to be in active conversation with those who have been excluded and disserved by the Roe standard and especially to learn about the urgent needs of pregnant people who require post-viability abortion care. Many factors may affect the ability to discover a pregnancy, understand its complications, and access abortion services within the viability period: youth, limited access to health information and health care, precarity in employment or housing, and the need to travel out of state to obtain abortion services—as well as the now-familiar discovery of a fetal anomaly or maternal health threat later in pregnancy. Lawyers are most likely to learn about these factors from speaking directly to those most affected. Second, after Dobbs, lawyers face a paradoxical situation where there is both greater risk to all abortion access and potentially a broader lane in which to discover whether a different approach to reproductive rights might be possible. Both in conservative states and now at the federal level, lawyers face an anti-abortion movement that is newly empowered and committed to re-establishing a highly conservative vision of gender and family life. But they also see a public that remains broadly supportive of abortion rights and is rapidly learning what it means for the state to be deeply entangled in reproductive decisions. Whether this exposure can create public support for a legal standard that precludes state entanglement at any stage of pregnancy[62] is a question that should be explored.
Second, lawyers must think critically about the messaging used to approach members of the public both during and after ballot campaigns. This messaging—developed in collaboration with pollsters, “deep canvassers,” communications consultants, and advocates from earlier campaigns—will inevitably vary based on each state’s environment.[63] But two dimensions seem particularly ripe for reconsideration. First, the kinds of cases or “stories” used to educate the public should include a wider spectrum of hardships that have arisen from abortion bans. The stories of White, married women with intended pregnancies who are compelled to fly to a distant state to address a fetal anomaly may well garner support. But to be transparent about the reality of these cases, advocates should be clear that the diagnosis of a fatal fetal anomaly and the search for a state and clinic in which abortion care can be provided often mean that the pregnant person will pass the point of viability before an abortion can be performed.[64] However, focusing predominantly on these “palatable” cases elides many effects of abortion bans that the public should know about, including their impact on “ordinary abortion”: that is, pregnant persons who seek abortion because they do not feel able to parent or to parent additional children. Moreover, abortion stories should make clear that bans are not experienced equally across groups—the need and search for abortion care may vary with a pregnant person’s socioeconomic status, race, disability, gender identity, and immigration status. Even in campaigns for ballot amendments that contain viability limits, reminding voters about the young women who must take multiple buses and sleep in homeless shelters to obtain abortions and emphasizing the stories of Yeni Alvarez Glick and Amber Nicole Thurman, as well as Kate Cox and Austin Dennard, may help voters to think critically about viability limits or may highlight the connection between reproductive rights and a broader agenda of reproductive justice.
In addition, ballot proponents should temper the public’s expectations about the post-election trajectory of a ballot issue to prevent disappointment and foster an attitude of longer-term commitment to pro-abortion political engagement. Many campaigns have contended ballot amendments, alone, will restore the reproductive freedoms that supporters seek. While this claim may rally a broad swath of voters to mobilize in support of proposed amendments, it may be less successful in preparing voters for the longer political path that will likely unfold, particularly in conservative states. Telling voters that a ballot victory will “restore” abortion rights may leave them feeling disillusioned or even betrayed, particularly when they discover that their electoral win will remain symbolic without extended implementation.[65] Organizers might more accurately frame the ballot issue as the vital first step in the process of changing the state’s laws. And they might gird participants for a sustained effort by more fully explaining the stakes of the election. The best way to do this may not be to adopt the least controversial and most energizing description of the change that is needed. It may be better, for example, to describe in more complete terms the vision that animates abortion-restrictive states: the compelled and sacrificial maternalization of more privileged women and the criminalization of less privileged women, through the elevation of fetal personhood.[66] And it may be useful to illustrate the impact of this vision through varying examples of hardship that have arisen from abortion bans. Giving voters a more complete view of the future that is at stake could simultaneously animate them for the plebiscite and prepare them for the implementation effort that may follow.
A third issue that should guide lawyers is the need for collaborations between lawyers and community-based organizations to sustain a more extended effort, either to implement a ballot amendment or to advance the longer-term process of change that will be required in the many states that have no ballot amendment option.[67] Here, the Irish example is illuminating because the 2018 Repeal campaign offers a larger window into the post-election phase of activity. In Ireland, the “after” work has been extensive, in part because details concerning the new, narrowly prescribed right to abortion continue to be worked out on the ground.[68] Analyzing this experience, some Irish legal scholars have highlighted the role of lay, law-adjacent pro-abortion activists—sometimes described as “feminist law workers”[69]—in collaborating with legal actors to produce legal change.
Feminist law work in Ireland, predating the Repeal campaign, was vital in publicizing cases that illustrated the harsh personal costs of criminalization. But this law adjacent work was consolidated and extended by the Repeal campaign and continued actively through its aftermath. Recent interviews with these feminist law workers have highlighted some of the distinctive features of this group.[70] First, these activists, not trained as lawyers, approached the law with ambivalence, understanding its utility but also its demonstrated potential “to subject women to ever more extensive legal control.”[71] Second, despite their lack of formal training, feminist law workers acted with growing proficiency across a range of legal institutions, supporting advocacy in legislatures, national courts, and international human rights commissions, as well as opposing political campaigns like Brexit.[72] They were in regular communication with legal advocates, who drew on their experience and insight as they formulated their own positions. Third, with legal understanding decoupled from professional socialization, feminist law workers were able to play “everyday” roles in approaching the public. They presented explanations of legal concepts that were accessible to laypersons, supported storytellers whose experiences demonstrated the stakes of reform,[73] and served in vital harm-reduction roles, providing practical assistance and counseling to abortion-seekers.[74]
These adaptable, committed, and public-facing lay advocates represent a force that U.S. pro-abortion advocates may struggle to match. Part of the problem is that the United States lacks a broad-based, grassroots feminist movement,[75] as indicated, for example, by the truncated face-to-face implementation of the #MeToo movement.[76] A tendency to delegate the work of gender-based change to lawyers[77] is even more pronounced in the area of reproductive rights, where lawyers have virtually occupied the field in preserving abortion access for half a century.[78] We saw one consequence of this monopolization, or delegation, of leadership following the announcement of Dobbs, which prompted only moderate levels of grassroots protest.[79]
Another part of the problem arises from tensions among pro-abortion forces. Much of the successful grassroots work on reproduction since Roe has been done by Black women, who are justifiably wary of both the mainstream movement for reproductive rights and the role of law more generally. Moreover, their support for abortion is nested in a larger agenda that includes pressing questions of health care inequity, pregnancy justice, and family policing. Organizations led by lawyers—a group historically associated with a narrower campaign for reproductive rights—may want to take ballot campaigns as an opportunity to build bridges to these activated communities of color.[80] Possible steps toward more effective coalition building might include a broader discussion of the stakes of viability limits, which particularly impact lower-income pregnant persons of color.[81] Critical too will be commitment to voice and leadership from women of color in reproductive rights and justice campaigns.[82] Individual lawyers may cultivate trust with community organizations by helping them to build capacity, such as by increasing their “participation and control over complicated and time-consuming legal processes that can otherwise be alienating.”[83] Understanding relevant legal rules and processes, or learning to take part in institutional or public advocacy, may be forms of capacity-building that lawyers can help with. As organizations that have gathered signatures, canvassed, or mobilized voters seek to foster longer-term activism among their campaign volunteers,[84] lawyers might play a similar role by supporting these organizations and their emergent activists.
Conclusion
Lawyers should respond to the challenges of the post-Dobbs period by embracing a more pluralistic vision of their professional role and by reconsidering the hierarchical style of leadership sometimes reflexively assumed within the field. There will be continuing need for litigation and litigators, not only to challenge bans and TRAP laws after successful ballot campaigns, but to defend against federal enforcement under the Comstock Act, attacks on “blue” state “shield law” providers, U.S. Food and Drug Administration (FDA) authorization of mifepristone, and changes in federal guidance on the Emergency Medical Treatment and Labor Act (EMTALA).[85] But as securing reproductive rights and justice increasingly involves the long-term organizing necessary to reshape institutions and change hearts and minds, there will be other roles for lawyers to play as well. Lawyers will need to collaborate on long-term strategy with organizations focused on voter mobilization, policy advocacy, and funding for abortion seekers. They will need to collaborate with and learn from community-based activists, who have been central to legal change and abortion access in other countries and whose power-building efforts in the United States may be strengthened by legal assistance, strategizing, and education. Lawyers who approach their professional role with humility and imagination may be the most useful allies to the many who must now navigate a harsh and unfamiliar reproductive landscape.
Copyright © Kathryn Abrams, Herma Hill Kay Distinguished Professor of Law. I am grateful to Helen Jennings, Hila Keren, Yvette Lindgren, Fiona de Londras, Kristin Luker, Robin Maril, Michelle Oberman, and participants in the California Law Review “Equality Besieged: A Critical Analysis of Supreme Court Jurisprudence” Symposium; the West Coast Gender and Sexuality Scholars Conference; the Law and Society Association Roundtable: Dispatches from the Abortion Frontlines; and the Bixby Abortion Workshop, UCSF Medical School, for valuable conversations on the ideas explored here.
[1]. 597 U.S. 215 (2022).
[2]. Cf. Melissa Murray & Katherine Shaw, Dobbs and Democracy, 137 Harv. L. Rev. 728, 763–66 (2024) (making a related point that the Dobbs opinion neglects that many institutions play a role in state democratic processes).
[3]. See, e.g., State Constitutions and Abortion Rights, Ctr. for Reprod. Rts., https://reproductiverights.org/maps/state-constitutions-and-abortion-rights/ [https://perma.cc/3GZM-F8WF] (indicating that eleven state high courts have recognized that their state constitutions protect abortion rights independently from the federal Constitution); Elizabeth Nash & Isabel Guarnieri, 13 States Have Abortion Trigger Bans: Here’s What Happens when Roe Is Overturned, Guttmacher Inst. (June 2022), https://www.guttmacher.org/article/2022/06/13-states-have-abortion-trigger-bans-heres-what-happens-when-roe-overturned [https://perma.cc/WMP3-4FQZ] (enumerating and describing the process for states with trigger bans); James Pollard, South Carolina’s New All-Male Highest Court Reverses Course on Abortion, Upholding Strict 6-Week Ban, Associated Press (Aug. 23, 2023), https://apnews.com/article/south-carolina-abortion-ban-f4e0d8ef8187fdd1e8db54dd464011b9 [https://perma.cc/6NUH-N5KA] (describing how after a change in court personnel, the state supreme court upheld a six-week ban similar to one it previously struck down); David A. Lieb, Abortion Ruling Puts Spotlight on Gerrymandered Legislatures, PBS News (July 3, 2022), https://www.pbs.org/newshour/politics/abortion-ruling-puts-spotlight-on-gerrymandered-legislatures [https://perma.cc/DPH2-VJXD] (discussing how court decisions declining jurisdiction on political gerrymandering have enabled legislatures that are more heavily partisan than state populations as a whole and thus insulate anti-abortion legislation in Republican-led states); States with Initiative or Referendum, Ballotpedia, https://ballotpedia.org/States_with_initiative_or_referendum [https://perma.cc/S6WG-B2LZ] (naming eighteen states that authorize amendment of state constitutions by citizen initiatives); Kathryn Abrams, If You Want to Know Republican Plans Following the Ohio Abortion Vote, Look to Missouri, Slate (Aug. 9, 2023), https://slate.com/news-and-politics/2023/08/missouri-republicans-ohio-abortion-vote-fail.html [https://perma.cc/GVB4-6B93] (describing how state executive officials utilized formal powers—such as certifying state auditors’ cost estimates or framing descriptions of ballot issues—to impede ballot initiatives protecting abortion).
[4]. In the November 2024 election, citizen-initiated constitutional amendments passed in seven of the ten states where they were on the ballot. Isabel Guarnieri & Krystal Leaphart, Abortion Rights Ballot Measures Win in 7 out of 10 US States, Guttmacher Inst. (Nov. 6, 2024), https://www.guttmacher.org/2024/11/abortion-rights-state-ballot-measures-2024 [https://perma.cc/7E9U-RTVP]. Previously, ballot amendments had prevailed in every state in which they had been proposed. See Emily Bazelon, The Surprising Places Where Abortion Rights Are on the Ballot, and Winning, N.Y. Times (Sept. 12, 2023), https://www.nytimes.com/2023/09/12/magazine/abortion-laws-states.html [https://perma.cc/4CKU-EMBA].
[5]. See Bazelon, supra note 4.
[6]. See Carter Sherman, Noa Yachot & Andrew Witherspoon, Tracking Abortion Ballot Measures: Missouri and Arizona Expand Rights as Florida Vote Falls Short, Guardian (Nov. 6, 2024), https://www.theguardian.com/us-news/ng-interactive/2024/nov/05/abortion-ballot-results-tracker-ban-states [https://perma.cc/WYG2-4GE3]; Kate Zernike, Ohio Vote Continues a Winning Streak for Abortion Rights, N.Y Times (Nov. 7, 2023), https://www.nytimes.com/2023/11/07/us/politics/ohio-abortion-amendment.html [https://perma.cc/W3MD-BE44]. Michigan, similarly, passed an amendment enshrining an abortion right in the state constitution in November 2022. Alice Miranda Ollstein, Michigan Votes to Put Abortion Rights into State Constitution, Politico (Nov. 9, 2022), https://www.politico.com/news/2022/11/09/michigan-abortion-amendment-results-2022-00064778 [https://perma.cc/7ZW2-89RR]. However, with Democrats winning the governor’s office in 2018 and control of the state legislature in 2022, Michigan has been more receptive to abortion rights than Ohio, where Republicans control all elected branches.
[7]. For a comprehensive introduction to the issues raised by that election, see generally Fiona de Londras & Máiréad Enright, Repealing the 8th (2018).
[8]. See Interview with J, in Kansas City, Mo. (Sept. 2024); Interview with K, in Kansas City, Mo. (Sept. 2024).
[9]. Hila Keren argues that the violation of expectations fostered by legal doctrine or institutional arrangements can generate feelings of helplessness in affected parties. Hila Keren, Divided and Conquered: The Neoliberal Roots and Emotional Consequences of the Arbitration Revolution, 72 Fla. L. Rev. 575, 616–35 (2020) (discussing emotional effects of diminished access to justice through “arbitration revolution”).
[10]. In an analogy from contract doctrine, damage to parties who rely on an unfulfilled term of a contract can be mitigated by a contractual modification. See Restatement (Second) of Contracts § 89 (Am. L. Inst. 1981). Here, the harms stemming from Dobbs’s refusal to credit women’s long-standing reliance on the availability of abortion can be mitigated by electoral action to modify the effect of that decision in the state context.
[11]. See Gabrielle Hays, How Missouri Republicans Want to Change the Process for Voters to Amend the Constitution, PBS News (Jan. 31, 2024), https://www.pbs.org/newshour/politics/in-missouri-another-push-to-make-it-harder-for-voters-to-amend-the-constitution [https://perma.cc/3XZC-G66P] (citing the use of ballot initiatives to expand Medicaid and legalize marijuana).
[12]. See generally John Hart Ely, Democracy and Distrust: A Theory of Judicial Review 101 (1980) (interpreting the U.S. Constitution in footnote four of Carolene Products, which supports “representation-reinforcing” judicial intervention where democratic process fails).
[13]. Of the eleven measures proposing to amend state constitutions that were on the ballot in 2024 (two in Nebraska and one in nine other states), all but one (the successful measure banning abortion in the second and third trimesters in Nebraska) were “yes” amendments. See Ballot Tracker: Outcome of Abortion-Related State Constitutional Measures in the 2024 Election, KFF (Nov. 6, 2024), https://www.kff.org/womens-health-policy/dashboard/ballot-tracker-status-of-abortion-related-state-constitutional-amendment-measures/ [https://perma.cc/CS5Q-FEXZ]. All but two were citizen initiated, and the remaining two were legislatively referred. Id.
[14]. See Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833, 870 (1992) (“We conclude that the line should be drawn at viability.”); Roe v. Wade, 410 U.S. 113, 163 (1973) (“With respect to the State’s important and legitimate interest in potential life, the ‘compelling’ point is at viability.”).
[15]. Arit John, Steve Contorno & Michelle Shen, Abortion Rights Advocates Are on a Ballot Initiative Winning Streak. 2024 Could Change That, CNN (Apr. 6, 2024) (emphasis added), https://www.cnn.com/2024/04/06/politics/abortion-rights-ballot-initiatives-2024/index.html [perma.cc/Z6PL-YXZH].
[16]. See generally Alice Miranda Ollstein & Megan Messerly, Democrats Want to Restore Roe. They’re Divided on Whether to Go Even Further, Politico (Apr. 4, 2023), https://www.politico.com/news/2023/04/04/divisions-threaten-abortion-rights-ballot-campaigns-00090021 [https://perma.cc/PH8Q-JZYR]. For a discussion of the dispute over viability limits and its relation to larger disagreements about the scope and pace of reproductive change, see generally Kathryn Abrams, Democratic Change, Fast and Slow: Navigating Tensions in Pro-Abortion Organizing, 99 Wash. U. L. Rev. (forthcoming 2025).
[17]. See Ollstein and Messerly, supra note 16 (citing polling and language used in Michigan election).
[18]. For an exposition of central precepts, see Reproductive Justice, SisterSong, https://www.sistersong.net/reproductive-justice [https://perma.cc/HJ2U-YFA9].
[19]. See PerryUndem, Exploring the Impact of a Viability Limit on Support for Ballot Measures: Results from an Experiment 6–11 (2023), https://perryundem.com/wp-content/uploads/2023/07/PerryUndem-Experiment-on-Viability-Limits.pdf [https://perma.cc/YP7T-YUHD] (showing that a version of the Michigan ballot issue, which had viability language removed, received more support than actual language containing viability limits). See also Online Interview with D (Feb. 2024).
[20]. For a comprehensive exposition of these arguments against viability limits enacted through federal or state law, see generally Abortion Just. Now, https://www.abortionjusticenow.com [https://perma.cc/MU7L-V9BN]. See also Online Interview with D, supra note 19; Interview with E, in St. Louis, Mo. (Apr. 2024).
[21]. See generally Abortion Just. Now, supra note 20, at Part II.A (explaining how viability limits enable “policing and surveillance, criminalization, family separation, and incarceration,” which bear disproportionately on marginalized populations). See also Michele Goodwin, Policing the Womb: Invisible Women and the Criminalization of Motherhood 28–45 (2020).
[22]. See generally Harris v. McRae, 448 U.S. 297 (1980); Maher v. Roe, 432 U.S. 464 (1977).
[23]. See Abortion Just. Now, supra note 20, at Part II.
[24]. See Justice Gatson, Remarks at the Reale Justice Network 50th Anniversary Celebration of Roe v. Wade (Jan. 2023) (“Roe was always the floor.”); Online Interview with D, supra note 19; Interview with E, supra note 20.
[25]. Fiona de Londras, Roundtable at the Law & Society Association Annual Meeting: Dispatches from the Abortion Frontlines (June 9, 2024).
[26]. See Poppy Noor, She Led Two Historic Victories for Abortion Rights – By Persuading Republicans, Guardian (Jan. 1, 2023), https://www.theguardian.com/world/2023/jan/01/rachel-sweet-abortion-victories-kentucky-kansas-republicans [https://perma.cc/E5DG-NZLM] (Rachel Sweet describes an argument against state interference in reproductive decision-making). See also Online Interview with F (July 2024) (describing use of the same conceptual strategy in Ohio).
[27]. de Londras, supra note 25.
[28]. de Londras, supra note 25.
[29]. Emma Burns, Intersectionality and the Irish Abortion Rights Campaign of 2018: Presentation at 10th International Disability Law Summer School, Centre for Disability Law & Policy (June 21, 2018), https://emmaqburns.com/2018/09/19/10thdss-intersectionality-and-the-irish-abortion-rights-campaign-of-2018/ [https://perma.cc/9AKW-2GNZ].
[30]. Id.
[31]. Id.
[32]. However, there is likely to be some level of coordination because ballot campaigns may share the same funders, see, e.g., Abortion Rights, Economic Justice Measures Win with Voters Nationwide, Fairness Project (Nov. 7, 2024) https://thefairnessproject.org/blog/2024/11/07/abortion-right-economic-justice-ballot-measures-win-with-voters-nationwide/ [https://perma.cc/WAR2-VVZX] (noting that Fairness Project supported abortion ballot measures in Missouri, Arizona, Montana, Florida, and Nebraska in November 2024), and leaders may also work successively on different ballot measures, see Gabriella Borter, Abortion-Rights Advocate Takes on Her Toughest Case: Missouri, Reuters (Oct. 20, 2024) https://www.reuters.com/world/us/rachel-sweet-has-won-two-nations-toughest-abortion-fights-she-heads-home-2024-10-19/ [https://perma.cc/WR5K-BF8X] (discussing Rachel Sweet’s direction of ballot campaigns in Kansas, Kentucky, and Missouri and her role as a senior advisor on Ohio’s ballot measure).
[33]. Plaintiffs’ First Amended Verified Petition for Declaratory Judgment & Application for Temporary & Permanent Injunction, Zurawski v. State, Cause No. D-1-GN-23-000968 (Tex. Dist. Ct. May 22, 2023). See generally State v. Zurawski, 690 S.W.3d 644 (Tex. 2024) (rejecting a challenge to an abortion ban and providing minimal guidance about the interpretation of exceptions).
[34]. Plaintiffs’ Original Verified Petition for Declaratory Judgment & Application for Temporary Restraining Order & Permanent Injunction, Cox v. State, Cause No. D-1-GN-23-008611 (Tex. Dist. Ct. Dec. 5, 2023). See generally In re State, 682 S.W.3d 890 (Tex. 2023) (ordering the district court to vacate a restraining order that permitted Cox to obtain an abortion).
[35]. Remy Tumin, Grand Jury Declines to Indict Ohio Woman Who Miscarried at Home, N.Y. Times (Jan. 11, 2024), https://www.nytimes.com/2024/01/11/us/brittany-watts-ohio-miscarriage.html [https://perma.cc/JGZ8-RWW4].
[36]. A maternity care desert is defined as a county “without a hospital or birthing center offering obstetric care and without any obstetric care providers.” March of Dimes, Nowhere to Go: Maternity Care Deserts Across the U.S. 6 (2022), https://www.marchofdimes.org/sites/default/files/2022-10/2022_Maternity_Care_Report.pdf [https://perma.cc/RLV2-3W8W].
[37]. Stephania Taladrid, Did an Abortion Ban Cost a Young Texas Woman Her Life?, New Yorker (Jan. 8, 2024), https://www.newyorker.com/magazine/2024/01/15/abortion-high-risk-pregnancy-yeni-glick [https://perma.cc/UWZ5-27XP].
[38]. In September 2024, ProPublica published detailed accounts of the deaths of two Black women from Georgia. Amber Nicole Thurman and Candi Miller died after medication abortions failed to produce the expulsion of all fetal tissue, which led to sepsis. A maternal health commission in the state deemed their deaths “preventable” and attributable to the state’s abortion ban: Miller was afraid to seek care because of the ban, and Thurman sought care, but her doctors were hesitant to treat her, fearing the consequences of the ban. See Kavitha Surana, Afraid to Seek Care Amid Georgia’s Abortion Ban, She Stayed Home and Died, ProPublica (Sept. 18, 2024), https://www.propublica.org/article/candi-miller-abortion-ban-death-georgia [https://perma.cc/6ZVF-UG4J]; Kavitha Surana, Abortion Bans Have Delayed Emergency Care. In Georgia, Experts Say This Mother’s Death was Preventable, ProPublica (Sept. 16, 2024), https://www.propublica.org/article/georgia-abortion-ban-amber-thurman-death [https://perma.cc/JT5S-ZYKR]. These cases, unlike those of Watts and Alvarez Glick, received sustained media attention. Although this development may signal a turn toward publicizing a broader range of abortion stories and abortion seekers, it is also possible that these cases received heightened attention because Vice President Kamala Harris raised Thurman’s and Miller’s stories during her presidential campaign. See, e.g., Jennifer Gerson, ‘Preventable’ and ‘Predictable’: In Atlanta, Harris Addresses Deaths Tied to Georgia Abortion Ban, 19th (Sept. 20, 2024), https://19thnews.org/2024/09/kamala-harris-atlanta-deaths-women-georgia-abortion-ban/ [https://perma.cc/GJU4-Z5Z5].
[39]. Patty Murray, Senator Murray, Senate Democrats Host Abortion Briefing Ahead of Roe v. Wade Anniversary, YouTube (Jan. 17, 2024), https://www.youtube.com/watch?v=yGnc8JkaUII [https://perma.cc/536A-MNVF].
[40]. See Ezra Klein Show, How America’s Two Abortion Realities Are Clashing, N.Y. Times Op. (Mar. 8, 2024) [https://perma.cc/VAN2-XUE2] (interviewing legal historian Mary Ziegler and discussing how stories of wanted pregnancies, followed by health-threatening miscarriage or fetal anomalies, have destigmatized abortion and shaped understanding of who seeks later-term abortions).
[41]. See Jessica Valenti & Pamela Merritt, Chat with Pam Merritt, Medical Students for Choice, Substack: Abortion, Every Day (Nov. 22, 2024), https://jessica.substack.com/p/chat-with-pam-merritt-medical-students [https://perma.cc/K6ZL-9HUA] (arguing that cases of fetal anomaly, often diagnosed well into the second trimester, provide a strong argument for late-term abortions—though this connection has not been sufficiently highlighted in media coverage).
[42]. Burns, supra note 29.
[43]. See Online Interview with D, supra note 19; Michelle Oberman, Comments at the Bixby Abortion Workshop (May 22, 2024).
[44]. See Jessica Valenti, GOP Platform Author Admits There’s a National Ban, Substack: Abortion, Every Day (July 16, 2024), https://jessica.substack.com/p/gop-platform-author-admits-theres [https://perma.cc/M2AD-SDNG] (“Once states pass pro-choice ballot measures, it doesn’t mean the work is done. Abortion rights activists [must] then go through the painstaking process of challenging each . . . restriction to get it repealed . . . that’s . . . what’s happening in Ohio and Michigan.”).
[45]. See, e.g., Jason Alatidd, Kansas Lawmakers Override Anti-Abortion Vetoes Months After Voters Spurned Value Them Both, Topeka Cap.-J. (Apr. 27, 2023), https://www.cjonline.com/story/news/politics/government/2023/04/27/kansas-legislature-enacts-anti-abortion-laws-overriding-vetoes/70154888007/ [https://perma.cc/2NH5-UQ8S].
[46]. TRAP laws, or “targeted regulation of abortion providers,” are laws that restrict abortion access under the guise of serving women’s health. What Are TRAP Laws?, Planned Parenthood, https://www.plannedparenthoodaction.org/issues/abortion/types-attacks/trap-laws [https://perma.cc/K46Z-GTA9]. Such laws work by imposing burdens on abortion providers or clinics that make it more difficult for them to function (e.g., by requiring that abortion clinics meet the state requirements for surgical centers) or by reducing abortions by deterring patients from seeking them (e.g., by requiring two visits and an extended waiting period before an abortion can be performed).
[47]. See Online Interview with F, supra note 26 (describing how Ohio continued to enforce twenty-four hour waiting periods following the approval of the ballot amendment, necessitating litigation). A lower state court enjoined the application of the twenty-four hour waiting period, holding that it was unconstitutional under the new amendment. Karen Kasler, Ohio’s 24-hour Waiting Period on Abortion Is on Hold in Lawsuit over Its Constitutionality, Statehouse News Bureau (Aug. 23, 2024). https://www.statenews.org/government-politics/2024-08-23/ohios-24-hour-abortion-waiting-period-on-hold-in-lawsuit-over-its-constitutionality [https://perma.cc/TF2C-RC5V]. Although the state’s attorney general initially announced plans to appeal, he has not done so. The case is ongoing and is currently in the discovery stage, but pursuant to the preliminary injunction, abortions may take place without the waiting period.
[48]. In the final year before Dobbs, only one hundred and fifty abortions were provided in Missouri. Number of Reported Legal Abortions by State of Occurrence (2021), KFF, https://www.kff.org/womens-health-policy/state-indicator/number-of-abortions [https://perma.cc/7BGV-3JEJ].
[49]. Following Dobbs, Planned Parenthood St. Louis created a mobile abortion clinic to serve Missourians in Illinois. Gabrielle Hays, ‘Our Act of Defiance’: Why Planned Parenthood is Launching Its 1st Mobile Clinic, PBS News (Jan. 31, 2023), https://www.pbs.org/newshour/nation/how-these-states-with-legal-abortion-are-bolstering-access-for-neighbors-without-it [https://perma.cc/HE5V-4LHW].
[50]. See Anna Spoerre, More Than 380,000 Missourians Sign Initiative Petition to Put Abortion on the Ballot, Mo. Indep. (May 3, 2024) https://missouriindependent.com/2024/05/03/missourians-signatures-abortion-amendment-viability/ [https://perma.cc/SJK6-B4EH] (noting that supporters collected more than 380,000 signatures to place the pro-abortion amendment on the ballot, more than twice the number that was required, and defeated efforts by state officials to thwart the ballot measure).
[51]. See Anna Spoerre, Missouri Republicans Want to Restrict Abortion Again. Can They Agree on How?, Mo. Indep. (Dec. 20, 2024) https://missouriindependent.com/2024/12/20/missouri-republicans-restrict-abortion-amendment-3/ [https://perma.cc/TAM9-VAAW]. From the outset, some state legislators have argued that the modest margin of victory (51.6%) delegitimized the victory (itself a bizarre response to a majority vote in a democratic system). See Jeremy Kohler, Missouri Voters Enshrined Abortion Rights. GOP Lawmakers are Already Working to Roll Them Back., ProPublica (Dec. 5, 2024) https://www.propublica.org/article/missouri-abortion-amendment-republican-bill-proposals [https://perma.cc/MH56-4EET] (citing a Republican legislator as stating “[a] clear mandate has not been achieved . . . so I think it’s fair to again bring the question up”). Others argued that proposed restrictions on the newly-created right offer Missourians “an opportunity to modify and clarify the abortion laws of Missouri.” See Sarah Kellogg, Missouri Legislators Seek to Overturn Abortion Rights Passed Under Amendment 3, St. Louis Pub. Radio (Feb. 5, 2025), https://www.stlpr.org/government-politics-issues/2025-02-05/missouri-legislators-seek-to-overturn-abortion-rights-passed-under-amendment-3 [https://perma.cc/6C9F-LNLJ].
[52]. See Kurt Erickson, Missouri Senate GOP Slams Door on Democrats in Bid to Repeal Abortion Rights, Paid Sick Leave, St. Louis Post-Dispatch (May 15, 2025) https://www.stltoday.com/news/local/government-politics/article_6349734a-87bb-49cf-94f3-9c1855059302.html. [https://perma.cc/BWS5-Z3CA].
[53]. Id.
[54]. See Comprehensive Health of Planned Parenthood Great Plains v. State, No. 2416-CV31931 (Mo. Cir. Ct. Jackson Cnty. Feb. 14, 2025); Hannah Wyman, As Abortion Services Resume in Missouri, Protests Do Too, St. Louis Post-Dispatch (Feb. 17, 2025), https://www.stltoday.com/news/local/crime-courts/as-abortion-services-resume-in-missouri-protests-do-too/article_e9ef28bc-ed3f-11ef-8ac2-c317aca561fc.html [https://perma.cc/C8FL-WFY4]. For a discussion of the barrier created by state licensure requirement, see Anna Spoerre, Missouri Judge Strikes Down Abortion Ban, but Clinics Say Access Remains Blocked, Mo. Indep. (Dec. 20, 2024) https://missouriindependent.com/2024/12/20/missouri-amendment-3-abortion-regulations-trap-laws/ [https://perma.cc/2ZJM-BLGA].
[55]. See Associated Press, Planned Parenthood St. Louis Resumes Surgical Abortions Services, While Missouri Blocks Others, CNN.com, (March 29, 2025) https://www.cnn.com/2025/03/29/us/abortion-missouri-planned-parenthood [https://perma.cc/2T5P-VE9B] (reporting that procedural abortions have begun to be offered in Kansas City, St. Louis, and Columbia, but an emergency change in state regulations for medication abortion has triggered a rejection of pending applications for resumption of medication abortion services in the state).
[56]. Jack Suntrup, Missouri Back Under a ‘De Facto Abortion Ban’ After Supreme Court Order, St. Louis Post-Dispatch (May 29, 2025) https://www.stltoday.com/news/local/government-politics/article_e5636c36-368d-4916-b883-1444ef93d115.html [https://perma.cc/GZA6-WYCM].
[57]. Christina Cauterucci, Florida Just Became the First State in the Country to Say No to Abortion Rights, Slate (Nov. 5, 2024), https://slate.com/news-and-politics/2024/11/florida-abortion-ballot-initiative-results-loss-why.html [https://perma.cc/U9EB-WSUD].
[58]. Aaron Sanderford, Nebraska Passes Abortion-Restrictions Amendment, Bucking National Trend, Neb. Exam’r (Nov. 6, 2024), https://nebraskaexaminer.com/2024/11/06/nebraska-passes-abortion-restrictions-amendment-bucking-national-trend/ [https://perma.cc/LFQ2-HSDD].
[59]. Alex Wagner Tonight, Abortion Ballot Measures Confirm Public Support but Confound with Trump Voter Crossover, MSNBC (Nov. 6, 2024), https://www.msnbc.com/alex-wagner-tonight/watch/abortion-rights-ballot-measures-confirm-public-support-but-confound-with-trump-voter-crossover-223793221950 [https://perma.cc/J9RP-VB75]. In this interview, Professor Melissa Murray explained that: “Part of the idea [behind the ballot measures] was that the interest in those ballot issues would drive voter interest in the other races on the ballot, including the presidential race.” But, in fact, “the presence of the ballot initiative gave some subset of women a permission structure that allowed them to go into the ballot booth and vote their interest on reproductive rights, and then pivot to support their economic interest which they believed would be vindicated by Donald Trump.” Id.
[60]. As one activist I spoke to put it, ballot elections are “not a strategy, but a tactic.” Online Interview with D, supra note 19.
[61]. An additional problem is that there are very few ban states remaining whose constitutions authorize change through citizen-initiated amendments. See Mabel Felix, Laurie Sobel & Alina Salganicoff, What’s Next for State Abortion Ballot Initiatives?, KFF (Dec. 18, 2024), https://www.kff.org/policy-watch/whats-next-for-state-abortion-ballot-initiatives/ [https://perma.cc/Z2NR-MDPW] (noting that only two further states with abortion bans authorize citizen initiatives in their state constitutions).
[62]. A 2023 study by the polling firm PerryUndem found not only that there was greater support for a proposed state constitutional amendment that did not contain a viability limit than for an otherwise identical amendment that did (in the aggregate and across all political and demographic segments of those polled), see PerryUndem, supra note 19, at 6–11, but also that when those assessing an amendment with a viability limit were provided with more information about viability, support for that limit among pro-choice voters dropped further. Id. at 12–14. PerryUndem traces this response on the part of many who support abortion to a growing concern about any state involvement in reproductive choices. Id. at 15–19.
[63]. Online Interview with F, supra note 26.
[64]. Although as Mary Ziegler observes, fetal anomaly cases have already helped some voters understand the facts surrounding late abortion. See Ezra Klein Show, supra note 40. By emphasizing the temporal element, these cases may underscore the complexity of a diagnosis of fetal anomaly while also reminding voters of why viability limits may be exclusionary. For an example of a later term abortion narrative that specifically highlighted the temporal element, see Jia Tolentino, Interview with a Woman Who Recently Had an Abortion at 32 Weeks, Jezebel (June 15, 2016), https://www.jezebel.com/interview-with-a-woman-who-recently-had-an-abortion-at-1781972395 [https://perma.cc/MZM7-DKUR].
[65]. Online Interview with D, supra note 19.
[66]. Project 2025 contains a chilling preview of this strategy. See Mandate for Leadership: The Conservative Promise 451 (Paul Dans & Steven Groves eds., 2023), https://static.project2025.org/2025_MandateForLeadership_FULL.pdf [https://perma.cc/A7TB-JDVT] (providing the introduction of the chapter on the reorganization of the Department of Health and Human Services).
[67]. See Shefali Luthra, How Abortion Rights Groups Are Preparing for the Next Trump Administration, 19th (Nov. 21, 2024), https://19thnews.org/2024/11/abortion-rights-second-trump-administration/ [https://perma.cc/K36V-CK6Q] (indicating that there are only a handful of remaining states that can use ballot elections to produce changes in abortion access).
[68]. See Máiréad Enright, Kathryn McNeilly & Fiona de Londras, Abortion Activism, Legal Change, and Taking Feminist Law Work Seriously, 71 N. Ir. Legal Q. OA7, OA13 (2020). In addition, Repeal in Ireland stimulated a campaign in Northern Ireland, which was subject to a distinct legal framework but involved many earlier participants. Id.
[69]. Id. at OA12.
[70]. See id. at OA14–32.
[71]. Id. at OA14.
[72]. See id. at OA19–25.
[73]. See id. at OA25–26, 28–30.
[74]. See id. at OA27.
[75]. This critique emerged in the period immediately before and after Dobbs. See, e.g., The Ezra Klein Show, Michelle Goldberg Grapples with Feminism after Roe, N.Y. Times Op. (July 8, 2022), https://www.nytimes.com/2022/07/08/opinion/ezra-klein-podcast-michelle-goldberg.html [https://perma.cc/C5ND-295C].
[76]. For a keen analysis of the trajectory of the #MeToo movement, highlighting its racial exclusivity and its legal emphasis, see Jamillah Bowman Williams, Maximizing #MeToo: Intersectionality & the Movement, 62 B.C. L. Rev. 1797, 1841–56 (2021).
[77]. For an excellent discussion of this pattern in the domestic violence field, see Aya Gruber, The Feminist War on Crime 41–66 (2020).
[78]. Cf. Alexandra Brodsky, The Law on Trial, Drift (Jan. 31, 2022), https://www.thedriftmag.com/the-law-on-trial/ [https://perma.cc/NJ22-TM5H] (describing Roe as capstone of an era in which “feminist history . . . has been dominated by lawyers and laws . . . .”).
[79]. See Bridging Divides Initiative, Issue Brief: Understanding Emerging Trends in Protests and Political Violence Around Abortion and Reproductive Rights, Princeton Univ. (July 2022), https://bridgingdivides.princeton.edu/updates/2022/issue-brief-understanding-emerging-trends-protests-and-political-violence-around-abortion [https://perma.cc/T37A-BHB6] (reporting no “night of rage” and 3,071 post-Dobbs protest events nationwide, of which only 43 percent were pro-abortion).
[80]. See Online Interview with F, supra note 26 (describing the Ohio ballot campaign’s collaboration with reproductive justice organizations, which subsequently led the campaign’s field operation, strengthening Ohio’s ballot effort).
[81]. See Abortion Just. Now, supra note 20, at Part II.
[82]. The latter has been a common “ask” of reproductive justice organizations when they form coalitions with other groups. See, e.g., Interview with H, in St. Louis, Mo. (July 2023); Interview with E, supra note 20. Such coalition building may prove more challenging after the 2024 election, considering many White women may have supported abortion access, but a majority also supported Donald Trump over Kamala Harris. Some Black female commentators have expressed frustration with this latest failure of solidarity by White women. As one commentator noted:
Some of the brutal disappointment from the election results comes from hoping that things would finally be different and the majority of White women would stand in solidarity with Black women to vote against a man who has been accused of sexual assault. But there’s a long history of White women disappointing Black women, so it’s more of the same.
Michelle Duster, The Presidential Election Proved Black People (Especially Women) Need to Take Care of Ourselves, Rebellious Mag. (Nov. 12, 2024), https://rebelliousmagazine.com/the-presidential-election-proved-black-people-especially-women-need-to-take-care-of-ourselves/ [https://perma.cc/QBD3-RJ8B]. See also Yael Halon, Joy Reid Says Black Women No Longer Interested in ‘Saving America’ After Betrayal by White Female Voters, Fox News (Nov. 11, 2024), https://www.foxnews.com/media/joy-reid-says-black-women-no-longer-interested-saving-america-after-betrayal-white-female-voters [https://perma.cc/LTJ6-YKLU] (detailing how an MSNBC commentator expressed frustration with White women, who failed in their “second [electoral] opportunity . . . to change the way that they interact with the patriarchy” and “vote[d] more party line, or more on race than on gender . . . .”).
[83]. Joseph Phelan, Purvi & Chuck: Community Lawyering, Convergence Mag. (June 1, 2010), https://convergencemag.com/articles/purvi-amp-chuck-community-lawyering/ [https://perma.cc/9YC6-PQEG] (involving the Community Justice Project’s Charles Elsesser and Purvi Shah’s discussion on community lawyering with Florida Legal Services in Miami). There are, of course, many different approaches to community lawyering, as represented in a growing literature. Among those that I have found useful in introducing students to this approach include: Id.; Amna A. Akbar, Law’s Exposure: The Movement and the Legal Academy, 65 J. Legal Educ. 352 (2015); Michael Grinthal, Power With: Practice Models for Social Justice Lawyering, 15 U. Pa. J.L. & Soc. Change 25 (2011). Some reproductive justice lawyers, for example, have pursued this goal by providing legal advising and representation to doulas, midwives, and the organizations that mobilize and represent them.
[84]. One of the organizations that led the Missouri ballot campaign has begun to pivot toward “power building” strategies that aim to equip volunteers who participated in that campaign for a longer-term effort. The experience of one organizer suggests that the path will be fruitful but not always smooth. See Interview with L, in Kansas City, MO (Sept. 2024) (describing the effort, and noting the response of some White women: “I already have power”).
[85]. See, e.g., Mark Joseph Stern, The Next Trump Administration’s Crackdown on Abortion Will Be Swift, Brutal, and Nationwide, Slate (Nov. 6, 2024), https://slate.com/news-and-politics/2024/11/trump-second-term-abortion-agenda-blue-state-crackdown.html [https://perma.cc/9R6M-SPS8]; Luthra, supra note 67. See also Julie Rovner, Leaving Abortion to the States: A Broken Trump Campaign Promise, KFF Health News (Feb. 7, 2025), https://kffhealthnews.org/news/article/the-week-in-brief-trump-abortion-states [https://perma.cc/U6NH-2DDA] (describing Trump’s executive orders implementing the “Mexico City Policy” as barring international funding to “organizations that ’perform or actively promote’ abortion” and a domestic counterpart “seeking to end ‘the forced used of Federal taxpayer dollars to fund or promote elective abortion’”).
