It’s Better Than Nothing. But It’s Worse Than Roe . Are We Ready for Bad Abortion Laws Pushed With Good Intentions?
In November, a political group in Arkansas announced it was pursuing a 2024 ballot measure to put a right to abortion in the state constitution. If successful, it would be a huge deal in a state with a total abortion ban.
But there’s one big catch: The proposal would offer less protection than Americans had before Roe v. Wade was overturned, because it would codify abortion only through 18 weeks of pregnancy, with limited exceptions. The previous standard had been about 24 weeks.
The move immediately drew criticism online, but established reproductive rights groups have yet to criticize it publicly because, frankly, it’s complicated. There’s been a lot of spirited debate in the reproductive rights movement about a related quandary: Should states looking to get abortion rights into their constitutions do so according to the previous standard of allowing abortion access until “viability,” the point when a fetus could technically survive outside of the uterus, which is typically 24 weeks? Or—because the past few decades have shown that 24 weeks is a flawed, arbitrary line—should reproductive rights advocates working at the state level be pushing for unfettered abortion access instead?
So this proposal out of Arkansas—which would enshrine weaker rights than the ones lost in 2022—came as a big surprise and, to some working in the movement, it was a cowardly choice. It was better than what Arkansas residents had at the moment, sure. But was endorsing it its own kind of defeat?
The proposal came from the democracy nonprofit For AR People, which formed a ballot question committee called Arkansans for Limited Government, or AFLG. Gennie Diaz, the group’s executive director, said the organization jumped into action after it saw internal polling that showed 51 percent of Arkansas supported a limited right to abortion. Diaz said the poll, which she could not share publicly, showed that “61 percent of Arkansans either think that abortion should be legal in some circumstances, or that’s just none of the government’s business.”
Diaz said the nonprofit chose to advocate for abortions up to 18 weeks instead of until viability because it wanted to speak to those 51 to 61 percent of Arkansans. And that particular gestation marker of 18 weeks, which she said was a “reasonable, sensible cutoff,” had polling support, whereas people didn’t know what viability meant. “When you get to a specific week, people go, ‘I know what that means.’ [They] can say ‘yeah, that’s appropriate up until this point in time,’ ” Diaz said. “After that [they say], ‘Hmm, I don’t feel good about that.’ ”
AFLG’s messaging on this ballot initiative is about preventing government involvement in medical decisions, yet their proposal would very clearly allow the state to ban abortion after 18 weeks. When pressed about the apparent contradiction here, Diaz said, “It’s threading the needle with Arkansas voters on what they view as limited government.” She said: “It’s not meant to be a parlor trick,” but rather an invitation for people who consider themselves pro-life to support the measure so it can pass. “Honestly, it’s not palatable to either end of the spectrum, and that’s intentional,” she said.
Still, some pollsters think that AFLG is jumping to conclusions about how voters really feel about abortion.
Tresa Undem, the co-founder of PerryUndem, a nonpartisan polling firm, has been tracking opinion on abortion for 20 years. She said that most abortion polling is notoriously one-dimensional, often asking voters to give a thumbs-up or thumbs-down to proposed restrictions with few follow-up questions (or open-ended prompts) that reveal any nuance. So, it gives her pause that a democracy group that doesn’t specifically have experience with polling on abortion is choosing ballot language based on what it believes is public sentiment. “If you’re basing your assumptions on these really one-dimensional questions, you could be getting it wrong,” she said.
Undem suggested a poll structure to really robustly test the proposition that 18 weeks is the best path forward. (It would be a big sample where a third of the group gets a question that asks whether they would support an expansive, no-restriction ballot measure; a third gets asked whether they would support a viability restriction; and a third gets asked if they would support abortion up to 18 weeks.) “In the post-Dobbs world, I just think anyone who’s working on this issue needs to really be careful about assumptions,” Undem said. “People can die.”
Plus, wherever abortion has been on the ballot in the U.S. since the fall of Roe, it has won.
The Supreme Court added fetal viability as a permissible marker in abortion regulation in its 1992 decision Planned Parenthood v. Casey, which modified Roe.
In Casey, the court ruled that states had an interest in protecting “potential life” and could restrict abortion before viability as long as the restrictions didn’t unduly burden abortion seekers. It also ruled that states could ban abortion after viability, too. What went unsaid is that protection for “potential life” necessarily meant removing rights for pregnant people. Viability is different for every pregnancy, and some pregnancies will never be viable.
Casey ushered in a wave of restrictions, including waiting periods, insurance coverage bans, and clinic shutdown laws, that made it harder and harder for people to get care as soon as they needed it. The longer it takes for a pregnant person to coordinate travel and child care (and pull together the money for those costs and the abortion), the further along the pregnancy gets, and the more the costs of the procedure multiply—which can add even more delays. Bans at the viability cutoff harm people struggling to make ends meet, in addition to those who discover their pregnancies late or who get devastating diagnoses in the second and third trimesters.
The current ban on abortions in Arkansas, which took effect the day of the Dobbs ruling in 2022, is extreme, with only a narrow exception to save the life of the pregnant person. Earlier this year, Democratic lawmakers in the state tried to add exceptions for incest, health of the pregnant woman, and fatal fetal anomaly, but the bills didn’t even make it out of House committees. To AFLG, the group trying to push through a right to abortion up to 18 weeks, this shows how anti-abortion the state is, and why pursuing protections through viability is off the table. (The Arkansas Legislature is among the most gerrymandered in the U.S.)
Because of the harm the state’s residents are experiencing now, Diaz said the group felt an obligation to pursue what they think could win, and what they thought most Arkansans would consider reasonable.
Erika Christensen of Patient Forward, a group that advocates for expansive abortion protections, said the idea that banning abortion at a specific week is reasonable “is willfully ignorant.”
She noted that abortion bans at any gestation are dangerous for pregnant people. She herself had to travel to Colorado in 2016 to get an abortion at 32 weeks due to a fetal diagnosis because New York had a criminal ban post-viability. Plus, abortion bans at specific weeks not only create stigma and harm people’s health, they allow the state to surveil and prosecute all pregnancy outcomes—not just abortion. (Look no further than an Ohio woman who was charged with abuse of a corpse after experiencing a stillbirth at home.) Christensen said the Arkansas proposal would “ensure the most under-resourced and over-policed members of their communities bear the brunt of their political cowardice.”
In other words, though AFLG is messaging their ballot measure with language about keeping the government out of health care, their proposal actually permits a ban—with an arbitrary cutoff date. (And if AFLG was hoping the 18-week limit would counter or prevent bad-faith arguments from the other side of the political aisle, it didn’t work: The day the proposal was announced, Arkansas Right to Life smeared it as permitting the procedure “up to the moment of birth.”)
Roe and Casey put viability into federal law, and after those rulings were overturned, Christensen said there was a window to keep viability out of state constitutions. “Instead, states have been tripping over themselves to put it back in,” she said. This is what happened in Ohio, Christensen explained, because Issue 1, which passed this past November, only codifies abortion through viability. “After Issue 1, everyone said, ‘Yay, now the government is going to stay out of pregnancy and abortion.’ No, ma’am. You just enshrined the state’s right to stay in pregnancy,” she said. “You put it in your state constitution.” She said groups claimed they had to write a compromise policy in order to eke out a win in Ohio, but then they won handily, by 13 points.
Worse, introducing what are essentially abortion bans after viability cedes moral ground to anti-abortion forces who exploit the discomfort that mainstream Democrats have with abortions later in pregnancy. You can see it in the policy pushed by Susan B. Anthony Pro-Life America: A ban after 15 weeks, which they say is supported by polling. A test run in Virginia, shepherded by Gov. Glenn Youngkin and boosted by SBA, failed spectacularly. But that doesn’t mean they’ll stop trying.
A growing body of data suggests that, to counter these attacks, pro-choice groups should embrace a message and ethic of actual zero government involvement in abortion. That is: No bans, at any point. Undem did a national experiment this summer, testing different ballot measure language to see if voters were more likely to support a proposal that included viability over one that didn’t. Going in, the pollster didn’t think it would make much of a difference—but voters preferred the expansive measure by 15 points. “I was kind of blown away, frankly,” she said. And in open-ended responses from people who weren’t sure if they’d vote for the viability measure, she saw the same comment over and over: The government shouldn’t be involved in these decisions. In other words, those voters didn’t support a viability measure because it wasn’t pro-choice enough. “That’s a pretty new sentiment,” she said, adding that Gallup data also shows growing support for abortion at any point in pregnancy. “I think Dobbs is having a huge impact.”
It may take longer for Dobbs to have as big of an impact in states as red as Arkansas. Other reproductive rights groups have seen the same private polling AFLG cited showing the strongest support for 18 weeks (which was conducted in spring 2023), and they may have decided not to draw up their own ballot measure because they’re waiting for public sentiment to change.
States typically have one shot at a constitutional amendment of this kind, and if polling for a ballot measure doesn’t look promising, it’s an opportunity to do more organizing and deep canvassing to work on changing public sentiment in advance of the next election cycle. It can be especially challenging to get the necessary signatures and raise enough money to support the effort overall if it’s just one advocacy group going it alone, versus the coalitions of organizations that succeeded in protecting abortion rights in Kansas, Michigan, and Ohio. Those groups typically included the local affiliates of Planned Parenthood and the American Civil Liberties Union, and other reproductive rights organizations like abortion funds.
The AFLG website makes a point of saying the group is not working with Planned Parenthood, and Diaz said they’re not working with the ACLU of Arkansas. They’re not supported, publicly, by any abortion providers or OB-GYNs. (The chair of AFLG is a radiation oncologist, and the group’s treasurer is a medical malpractice attorney; Diaz said that while there are abortion providers and OB-GYNs who weighed in on the effort, they’re not willing to publicly attach their names for fear of professional retribution.)
One abortion fund, Arkansas Abortion Support Network, said in a statement that it hesitates to support the AFLG measure because, as the treasurer and co-founder Karen Musick put it, the group is not “able to support any arbitrary timeline for limits” on abortion. And Musick said this was despite the fact that anything better than a total ban—even a six-week limit—would help residents, and the work of the fund.
“Our group has just been interested citizens,” Diaz, of AFLG, said. “It’s pretty scrappy. And I think we’re proud of that.” It’s admirable that people want to help change the status quo, but even she noted that AFLG faces steep obstacles. “When the language is approved and we move into the signature phase, and then—prayers up—campaign phase, we are going to need substantial resources,” she said, acknowledging that the group would need to raise tens of millions of dollars. “We’re committed to being scrappy, and I hope that, at one point, we can become a little bit more polished and substantially supported.”
But ballot measures aren’t efforts to undertake on a hope and a prayer. After all, Undem said, “people’s lives are on the line.”
