Ballot Measure Attacks in Florida & Nebraska

7.2.24

Click to skip ahead: In Watching Wisconsin, the state Supreme Court is taking up two big deal abortion cases. Ballot Measure Updates has a deep dive on Arkansas and Florida, and news from Arizona and Nebraska. In the States, news from Texas, Kansas, Texas and more. In the Nation, expert voices on SCOTUS’ EMTALA ruling. In 2024 news, Trump’s potential VP picks are selling out their values. Finally, in What Conservatives Are Saying, a note on ‘health care providers.’

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Watching Wisconsin

Here we go, Wisconsin! The state Supreme Court has agreed to hear two cases that could end up protecting abortion rights in the state. Both suits challenge an 1849 law that Republicans say bans abortion in the state. These rulings will be a very big deal, so let’s go through a bit of a refresher. (You can also click here for more in-depth background.)

After Roe was overturned, a Wisconsin law from 1849 was being treated as a total abortion ban, preventing doctors from providing care. But last summer, a judge ruled that the law isn’t actually an abortion ban at all—but “a feticide statute only.” (Meaning it only applies to an attack on a pregnant person that ends the pregnancy, not abortion.) That ruling opened the door for Planned Parenthood clinics to provide care again, even though anti-abortion groups claimed the law remained in effect as a total ban.

That leads us back to the two legal challenges the state Supreme Court just agreed to hear. One challenge was brought by Democratic Attorney General Josh Kaul, the other was filed by Planned Parenthood of Wisconsin. Kaul’s suit argues (correctly) that the law from 1849—brought before women had the right to vote—is too old to enforce, and that it’s trumped by an 1985 law permitting abortions. Planned Parenthood of Wisconsin is asking the state Supreme Court rule that the 1849 law is unconstitutional, arguing that protections for “life, liberty and the pursuit of happiness” in the state constitution include abortion rights.

Here’s the best part: The Wisconsin Supreme Court is now under liberal control because of abortion rights. The issue drove voters out to support newly-appointed Justice Janet Protasiewicz, who changed the makeup of the Court. That means abortion rights activists have a very good chance of winning.

All of which is to say, it’s really nice to bring you some good news every once in a while!

Ballot Measure Updates

There is a lot in ballot measure news today, so settle in. First up is Arkansas, where pro-choice advocates need over 8,000 more signatures before Friday in order to get abortion on the November ballot. (If you live in the state and want to sign, click here.)

The amendment, which would protect abortion rights until 18 weeks of pregnancy, as been the source of some controversy. Some abortion rights groups have declined to support the campaign from Arkansans for Limited Government, saying it’s too restrictive.

Sarah Standiford, national campaigns director for Planned Parenthood Action Fund told The Washington Post that the measure “is not strong enough and expansive enough to deliver the access it should.” The New York Times reports that some Arkansas voters also wish the measure was stronger. One woman who signed the petition said, “I wish it went farther, [but] it’s a good step toward change.”

Initiative organizers, however, say that they’re pushing for a measure they think will win. And while groups like Planned Parenthood and the ACLU want to wait a few years to build more support on the ground for a better amendment, Arkansans for Limited Government told USA Today last month that Republicans are already trying to make it harder to introduce and pass ballot measures. They’re afraid if they wait, it will never happen.

Here’s why Arkansas is so important: Anti-abortion groups have already lost every time abortion has been on the ballot since Roe was overturned, but to lose in a red state like Arkansas would be a particularly difficult blow. Republican state Sen. Kim Hammer tells the Times, “It would be a jewel in their crown for them to take Arkansas out.”

Finally, there’s always something that makes me cry when I’m writing this newsletter and today this was it: Remember Chelsea Stovall? I wrote about her story in 2022; because of Arkansas’ abortion ban, she had to leave the state to end a nonviable pregnancy. Two years later, I still think about this interview with her:

“Our baby was wanted and loved…[S]he wasn't going to make it but I should be able to say goodbye to her where I want to. I should have my doctor who delivered my other two babies, be able to deliver my third baby.”

Chelsea also said that she didn’t think she’d have any more children, “because I know once I get pregnant, I stop mattering.”

Well, now Chelsea and her husband, who used to think of himself as ‘pro-life’, are out there collecting signatures to get the Arkansas amendment on the November ballot. Watching them talk so passionately about abortion rights two years later—seeing how deeply this experience impacted them—was both incredibly touching and heart-breaking.

Next up is Florida, where Republicans are trying to pull the same trick the Missouri GOP did with their pro-choice amendment: They’re claiming that restoring abortion rights would cost the state untold amounts of money.

Essentially, Florida requires that a financial impact statement be included on ballot initiatives, in order to give voters a sense of what the potential cost to the state might be. But the panel that drafted the statement for Amendment 4 did so before Florida’s 6-week ban went into effect—at a time when it was unclear if there would be a 15-week ban, 6-week ban, or any ban at all. And so the panel wrote that they couldn’t come up with a firm number because there were too many different potential outcomes.

After being sued by Floridians Protecting Freedom, the group behind Amendment 4, the panel is now being forced by a judge to revise and update that financial impact statement. The problem is that the panel is chock full of assholes: Chris Spencer, for example, was appointed by Gov. Ron DeSantis, and Rachel Greszler works with the ultra-conservative Heritage Foundation. So you can imagine what they’re saying about the supposed ‘cost’ of restoring abortion rights.

Greszler claims that abortion being legal would reduce state revenue because fewer people would live in Florida, and Spencer argues that Amendment 4 would lead to all sorts of litigation on abortion laws that would cost the state:

“We have plenty of contract service, outside counsels, for all of our state agencies, and we know that they don’t do this for free…It’s hard to say how much that cost will be. It can be in the hundreds of thousands for basic cases that I’ve dealt with. It can be millions for protracted cases…”

Panelists also heard from an attorney for the anti-abortion powerhouse Susan B. Anthony Pro-Life America who claimed that outside counsel costs could run up to $5 million a year for 30 years.

This is very similar to what anti-abortion groups and lawmakers tried to pull in Missouri: There, Attorney General Andrew Bailey held up the signature-gathering process by refusing to sign off a cost estimate for the state’s pro-choice measure. He argued restoring abortion rights would cost Missouri billions of dollars rather than the $51,000 listed by the state auditor. Why make such a claim? Well, because that number goes on the ballot summary that voters see.

Even after the state Supreme Court forced Bailey to sign off on the accurate cost estimate, he said that if the amendment passed he’d refuse to do his job —which meant the state would have to hire its own counsel. He estimated that would cost Missouri $21 million, a number he wanted included on (you guessed it!) the ballot summary.

We know the truth: abortion access is good for the economy. As one analysis of Amendment 4 showed, forced childbirth is more likely to put women and children in poverty, and abortion bans cost the state money in subsidized health and child care programs. If Amendment 4 passed, there would also be reduced law enforcement costs because criminalization of abortion wouldn’t be necessary.

If this all sounds complicated, that’s very much the point. As Anna Hochkammer of the Florida Women’s Freedom Coalition told POLITICO, “They try and make these processes as expensive and complicated as possible, and this is another example of that tactic.”

Meanwhile, the pro-choice amendment effort in Nebraska is coming up against pretty dirty anti-abortion tricks.You all know I’ve been raising the alarm about fake ‘pro-choice’ ballot measures since April: Essentially, Republicans know that voters overwhelmingly want abortion to be legal; so in states where abortion is on the ballot, conservative lawmakers and organizations are creating their own feminist-sounding ballot measures to trick voters. It’s a way to drive support away from legitimate amendments and to mislead voters into enshrining abortion restrictions.

In Nebraska, anti-abortion groups launched a fake amendment called Protect Women and Children which would codify the state’s 12-week abortion ban. It is not a coincidence that they chose a name that sounds very similar to the group organizing a legitimate abortion rights ballot measure, Protect Our Rights.

Now, dozens of voters are complaining to the Secretary of State’s office that they were misled about what they were signing. Tea Rohrberg tells the Associated Press, for example, that a man asked her if she wanted to sign a “pro-choice petition.” Later she found out that it was the Protect Women and Children anti-abortion measure:

She told him she wanted to cross her name off the petition. He told her he’d cross it off later, she said. “I was like, ‘No, I just want my name off it.’ Then he said, ‘Well then just vote no later,’” she said.

I’ve said it before and I’ll say it a million times over: Anti-abortion activists and lawmakers do not care what voters want. They are well-aware that Nebraskans want abortion to be legal, so they’re going out of their way to trick people into voting for a ban they don’t support.

Let’s end on some good news: I told you Monday that Arizona abortion rights activists had collected more than twice the number of signatures needed to get abortion on the ballot this November. Well, today they officially turned those signatures in!

Arizona for Abortion Access submitted over 823k signatures, the most turned in for a citizen-led initiative in the state’s history. Election officials have until the August 22nd to verify the signatures and turn their results over to the Arizona secretary of state’s office. Huge congrats to the activists who worked so hard to make this happen.

In the States

New abortion restrictions have gone into effect in Kansas, despite vetos from Democratic Gov. Laura Kelly. You may recall that Kelly was overridden by the Republican-led legislature, which allowed the two new restrictions to pass. One makes ‘coerced’ abortion a felony—a law so broad that divorcing someone could be seen as ‘financial coercion.’ The other is legislation I’ve been warning about: it would mandate abortion providers ask patients invasive questions and then report those answers to the state.

The New Hampshire GOP is claiming that abortion isn’t in danger in the state, and that Democrats are spreading misinformation and scare tactics. This has become the go-to message for Republicans in pro-choice states: pretend that just because abortion is legal, that it’s safe. Do they not realize that’s exactly what they said about Roe?

Finally, the editorial board at The Houston Chronicle points out that for women in Texas, the Supreme Court’s decision on EMTALA was not a victory. They write that tens of thousands of women have had to leave Texas for abortion care, some with life- and health-threatening conditions:

“Women are suffering. Culture war politics are putting their lives, their health and their fertility at risk. And for now, the high court seems just fine with that. Conservative justices appear content to take the easy, technical, incremental route that staves off controversy but also prolongs harm to women and their families as extremist anti-abortion states push boundaries into unconscionable territory.”

Quick hits:

• Idaho OBGYNs say the Supreme Court’s decision hasn’t offered them any real clarity about when they can legally provide care;

• The Guardian on the three South Carolina Republican women who were ousted as state Senators after blocking an abortion ban;

• Finally, here’s some coverage of the reproductive rights summit I spoke at recently in Wyoming, and a reminder to support Chelsea’s Fund.

In the Nation

In the wake of the Supreme Court decision on EMTALA, the Biden administration has sent letters to hospitals reminding them of their legal duty to provide emergency abortion care. The letters, sent from Health and Human Services Secretary Xavier Becerra and Centers for Medicare and Medicaid Services Director Chiquita Brooks-LaSure, say, “No pregnant woman or her family should have to even begin to worry that she could be denied the treatment she needs to stabilize her emergency medical condition in the emergency room.”

Speaking of SCOTUS’ EMTALA decision: You should always read Linda Greenhouse at The New York Times. She writes today that the Supreme Court’s dismissal of the EMTALA-abortion case points to some serious tensions and dysfunction among the Justices. Greenhouse goes all in on Justice Samuel Alito in particular, whose passages on the case, she writes, “are close to unhinged,” and whose interpretation of the law around protections for ‘unborn children’ “defies context to the point of gaslighting.” Whew.

Greenhouse also points to this important piece at Slate from Reva B. Siegel and Mary Ziegler. The law professors write that Alito’s reading of EMTALA “demonstrates a kind of fetal personhood that renders invisible the personhood of the pregnant patient.”

I recommend reading both pieces, because they paint a scary but vital-to-know picture of what the Court will do next on abortion. With emergency abortion, for example, Seigel and Ziegler show how the conservative Justices are honing in on the lie that mandating emergency care will allow for ‘abortion on demand.’ It’s all so twisted, I know—but we have to make sure we know exactly what they’re up to.

Quick hits:

• The 19th takes us inside the fight over military abortion access;

• The Wall Street Journal about the men fighting for abortion rights;

• NPR on how OBGYNs are handling increased requests for sterilization;

• And Teen Vogue on what it’s like to fight for abortion rights from a red state.

2024

What a piece of garbage: North Dakota Gov. Doug Burgum is changing his tune on abortion in order to be a more attractive vice presidential contender for Donald Trump. Burgum has admitted in the past, “America was an unsafe place for women before Roe v. Wade.”

At a 2016 gubernatorial campaign event, he said, “When you outlaw the ability to terminate pregnancies and make it illegal, it just makes it unsafe for some of the most vulnerable people in the world.”

But when Kristen Welker of “Meet the Press” asked Burgum this week whether the end of Roe made the country unsafe for women, the Republican was unequivocal: “No, it’s not.”

The North Dakota governor said that he’s “evolved” on the issue, and that he’s now “aligned” with Trump—saying abortion should be “left to the states.” The cowardice is astounding.

What Conservatives Are Saying

Remember DeSantis-appointee Chris Spencer, who is working on the financial impact statement for the Florida ballot measure? Check this out from the Florida Phoenix:

“Spencer also took issue with the term ‘health care provider,’ stating multiple times during the meeting that speech pathologists or dental hygienists could perform abortions because the amendment doesn’t define who qualifies.”

This is something anti-abortion activists in multiple states have glommed onto as an opportunity to spread misinformation. Several proposed abortion rights amendments use ‘health care provider’ instead of ‘doctor’ to ensure that folks like nurse practitioners and physician assistants will be able to provide abortions. But conservatives claim that the language would allow pretty much anyone—even tattoo artists!—to perform abortions.

I’ve heard from multiple pro-choice activists, all from different states, that this is becoming a growing messaging trend. So definitely something to keep an eye on.