Constitutional Scholar Draws Lessons From Abortion Referenda Defeats

Paul Linton said pro-lifers need to reckon with the lingering effects of 50 years of abortion on demand, which led to a vast change in thinking in the American populace.

California, Michigan and Vermont enshrined abortion into their state constitutions on Nov. 8.
California, Michigan and Vermont enshrined abortion into their state constitutions on Nov. 8. (photo: Public domain)

Catholics need to learn lessons from the approval of three amendments Nov. 8 enshrining abortion into their state constitutions, said Paul Benjamin Linton, an Illinois attorney who is an expert in state constitutional law with respect to abortion.

Linton, author of Abortion Under State Constitutions (third edition, Carolina Academic Press), the leading study on how abortion has been treated at the state constitutional level, drew three conclusions from the outcome in California, Michigan and Vermont: Pro-lifers need to study who voted for the amendments and why they did; reckon with the “misleading” characterizations of the amendments; and keep an eye on how state processes can be used to reproduce similar results in the future.

Linton pointed out that approval of those amendments was the “first time” that Americans at the state level voted freely to define abortion as a constitutional right. In the cases of California and Vermont, their impact was limited because “the supreme courts of both states — Vermont in a confusing 1972 ruling and California in a series of decisions beginning in 1969 — had recognized abortion as a state constitutional right.”

Michigan, however, involved a complete turnaround. Linton told the Register, “In Michigan, the adoption of Proposal 3 effectively overturned 50 years of legislation regulating abortion in the state, as well as Michigan’s pre-Roe law prohibiting abortion except to save the life of the mother.” In all three cases, he said adoption of constitutional amendments rather than simple laws “forecloses any opportunity, no matter how remote, to overturn previous decisions” through the court system. Writing abortion into state constitutions attempts to rule out any future political debate on the issue.

Noting the vast changes that have taken place in American thinking after 50 years of abortion on demand under Roe v. Wade, Linton warned pro-lifers to reckon with its ongoing effects. Michigan had voted in November 1972 — three months before Roe — to reject legalized abortion. Four months after Dobbs, it voted for it.

“American legal and social culture is vastly different now than it was 50 years ago, before the Supreme Court legalized abortion, and so is the electorate that approved Michigan’s Proposal 3,” he said, adding a warning against drawing the conclusion that the pro-life platform is not a winning issue.

“To provide some perspective and balance,” he said, “it should be noted that every pro-life governor up for election this year (12, in all) was reelected, and most of them had signed very good bills prohibiting abortion.” That included Ohio’s Mike DeWine, Georgia’s Brian Kemp, Florida’s Ron DeSantis and Texas’ Greg Abbott.

Besides studying the demographics of the recent votes, Linton added two other caveats about how the referenda were promoted and future referenda.

Although their advocates framed the referenda as “codifying Roe,” they arguably went far beyond the Supreme Court’s decision. The amendments tended to define viability — the point a child can survive independently of its mother — much more narrowly than Roe, while defining threats to a mother’s “health” much more broadly.

“In other words,” Linton said, “the authority given states to prohibit post-viability abortions under these ballot measures is more illusory than real.”

He also noted that the amendments will strike down regulations that the Supreme Court upheld prior to Roe, like banning public monies being used for abortion, parental-notification requirements, short waiting periods to ensure a woman’s informed consent or regulations of clinics. The amendments would also strike down regulations that could be possible in a post-Dobbs environment, like spousal consent. The amendments’ language (at least the language in some of them) are all also both sweeping and ambiguous enough to spill over into other areas, such as enabling a minor to obtain “genital surgery” without parental consent or notification or even possibly to overturn laws regulating “consensual sex” involving minors.

Linton cautioned against future efforts to replicate the outcomes of November 2022. More liberal or swing states may be tempted to follow the state constitutional amendment rather than statutory “codification” of Roe to achieve broader, long-term pro-abortion victories that would be harder to reverse. An effort is afoot in the Virginia Legislature, for example, to adopt an amendment in time for state legislative elections next November.

“Because most state constitutional amendments require approval (sometimes multiple times) by the legislature and a public referendum, pro-lifers need to pay attention to state legislative races,” Linton told the Register. In states where legislatures are more pro-life, pro-abortion advocates may seize state “initiative and referendum” processes to put questions directly on the ballot, circumventing the legislature.

“Approximately one-third of the states have a ‘citizen initiative’ mechanism by which the citizens of the state may, by petition, place state constitutional amendments on the ballot,” Linton noted, adding that process can go both ways: “Several states that have enacted abortion prohibitions fall into this category.”

Such efforts, however, need to be carefully prepared for after an honest assessment of a given state’s political climate.

Thousands of pro-life demonstrators participate in the annual March for Life near the US Capitol in Washington, DC, on January 20, 2023.

Marching Forward

A NOTE FROM THE PUBLISHER: In the post-Roe era, there is a great need to coordinate and enhance our pro-life efforts at the national level and state level in order to convert hearts and minds to the pro-life cause.