Where The Midterms Could Most Affect Abortion Access
On Friday, the Supreme Court overturned Roe v. Wade, leaving it up to individual states to decide whether abortion is legal within their borders. As of 5 p.m. Eastern on Tuesday, nine states have already banned or restricted the procedure, and by the end of July, at least another six will have joined them. But the post-Roe landscape could change even more dramatically after the 2022 midterm elections — especially in states where control of state government is on the line and where the future of abortion policy is up in the air.
We’ve identified seven states where the results of the midterms could decide whether abortion is protected or banned. Here are the relevant races in those states as well as how abortion policy could change following each possible electoral outcome.
The first state where abortion will be on the ballot in 2022 is Kansas. Its state Supreme Court has previously ruled that the state constitution implicitly protects abortion rights, but that could change when Kansans head to the ballot box on Aug. 2 to vote on a state constitutional amendment that says that the Kansas Constitution does not protect abortion rights and explicitly gives the Republican-controlled state legislature the authority to legislate on the issue.
This is something Republicans in the state have long pushed for, and this specific measure was on the ballot well in advance of the decision in Dobbs v. Jackson Women’s Health Organization. We haven’t seen any public polls on the referendum, but if it passes, Kansas’s gubernatorial election could determine the future of abortion rights in the state. Democratic Gov. Laura Kelly is up for reelection and, given Kansas’s deep-red hue, faces a challenging race against likely Republican candidate Attorney General Derek Schmidt. If Schmidt defeats Kelly, Republicans will have no remaining obstacles to banning or restricting abortion in the state.
Even if Kelly doesn’t lose, however, Republicans could still ban or restrict abortion as long as they retain their veto-proof supermajorities in both chambers of the legislature. Right now, Republicans have 28 of the 40 seats1 in the Kansas state Senate (a supermajority is 27) and 86 of the 125 seats in the state House of Representatives (a supermajority is 84).
Control of the governorship could also determine the future of abortion rights in Pennsylvania. Abortion is currently legal in Pennsylvania until the 24th week of pregnancy (after which there are very few exemptions), and it’s likely to stay that way at least through the midterms. However, abortion isn’t legally protected in the state, and over the years, Republican lawmakers have passed numerous restrictions chipping away access, including counseling requirements and a 24-hour waiting period.
Democratic Gov. Tom Wolf has vetoed multiple laws that would have made it harder to get an abortion, including a 2019 bill that would have banned abortion after a Down syndrome diagnosis. But Wolf is term-limited, and if Republican gubernatorial nominee Doug Mastriano, a state senator, becomes Pennsylvania’s next governor, he has indicated he would support a total ban on abortion, with no exceptions for the life of the mother. However, election handicappers believe that the race leans toward Democratic candidate Josh Shapiro, the state’s attorney general, who has vowed to veto any bill restricting abortion.
But even if Shapiro wins the governorship, it’s unlikely that Democrats would be able to enshrine abortion protections into state law. Thanks to redistricting, the state House is competitive this year, but the state Senate is likely out of reach for Democrats. Therefore, the only party with a realistic shot at taking full control of Pennsylvania state government — and passing its preferred abortion policy — is the Republican Party.
Starting in September, abortion in Arizona will be restricted to 15 weeks, except in the event of life-threatening medical emergencies. But it’s possible that Arizona’s legal framework could become even more restrictive in the post-Dobbs world. When passing the 15-week ban on abortion into law, GOP legislators decided not to repeal a 1901 law that criminalizes abortion, raising the possibility that the older, more restrictive rule could come into effect. Republican Gov. Doug Ducey and Republican Attorney General Mark Brnovich have said Arizona will follow the recently established 15-week ban, which means that any further changes to the state’s legal code will likely depend on which party controls the state government after the 2022 election (although court decisions could also determine which law has primacy).
On the election front, Ducey is term-limited, so Arizona’s next governor will be decided in what is shaping up to be a toss-up contest between Democratic Secretary of State Katie Hobbs and the winner of the GOP primary, likely either former newscaster Kari Lake or state Board of Regents member Karrin Taylor Robson. Both Republicans could back stricter abortion laws, too. Following the Dobbs decision, Lake said that as governor she would “sign bills to protect life when they land on my desk,” while Robson said she’d work to continue Arizona’s “tradition as one of the strongest pro-Life states in the nation.”
The gubernatorial race will ultimately be key, too, in determining whether Arizona’s state government is divided or under one party’s control. That’s because while Republicans hold very narrow majorities in both the state Senate and House, the new legislative map is marginally more GOP-leaning than the current one, meaning there’s a good chance Republicans retain their edge.
Since the Dobbs decision, Wisconsin clinics have been proceeding as if abortion is now illegal in the state based on an 1849 law banning the procedure, except to save the life of the mother. However, state Attorney General Josh Kaul, a Democrat, has said he won’t enforce the ban, and Democratic Gov. Tony Evers promised to pardon any doctors convicted of performing an abortion. In fact, on Tuesday, Evers and Kaul announced a legal challenge to the 1849 ban. (Evers has also said he is considering executive action that would limit local prosecutors’ ability to enforce the law.)
But Kaul and Evers could both lose reelection in 2022. Evers’s loss would be especially consequential: Not only might doctors once again face jail time for performing abortions if the 1849 ban is determined to be operative, but also, if it is not, a Republican governor could join forces with the Republican-led legislature to pass a modern abortion ban. The opposite situation — Democrats winning the legislature and working with Evers to enact new abortion protections — is pretty much off the table, though. Wisconsin’s state-legislative maps are heavily biased toward the GOP, so Democrats do not have a realistic shot at winning either chamber.
The political consequences of overturning Roe v. Wade
Abortion is still legal in North Carolina, though the Supreme Court’s decision could pave the way for the courts to reinstate the state’s 20-week abortion ban, which was ruled unconstitutional in 2019. But state Senate President Phil Berger and state House Speaker Tim Moore — both Republicans — have said they will not pass any new abortion-related laws this year.
That’s because the governor of North Carolina, Roy Cooper, is a Democrat and can veto anything the Republican legislature passes. And unfortunately for Republicans, Cooper isn’t on the ballot in 2022 — his term doesn’t end until January 2025.
However, Republicans are hoping to win three-fifths majorities in this year’s state-legislative elections, which would allow them to override Cooper’s vetoes. They’ve also explicitly said they hope to use such supermajorities to pass “pro-life protections” starting in January. And they may very well get the votes they need. Republicans currently have 28 out of 50 seats in the Senate (two shy of a veto-proof majority) and 69 out of 120 in the House (three shy of a veto-proof majority). Moreover, a recent Cygnal poll found that 51 percent of North Carolina likely voters would vote for a Republican legislative candidate, while only 39 percent would vote for a Democratic one. If that comes to pass, it probably would indeed result in Republicans winning enough seats to unilaterally pass new anti-abortion legislation.
If Republicans do win veto-proof majorities and pass new restrictions, one last 2022 campaign could loom large: the race for two seats on the North Carolina Supreme Court. Democrats currently have a 4-3 majority on the court, and if they hold onto that, they could strike down either the 20-week ban or future abortion restrictions passed by the legislature on the grounds that they violate the state constitution. But if Republicans flip at least one of those seats, the court would be much more likely to uphold them.
In Michigan, the future of abortion is complicated because it doesn’t just hinge on what happens in the midterms. First, the courts may decide the future of abortion in the state. There is currently a 1931 state law on the books that bans abortion, except when the mother’s life is in danger. That law, though, is not currently in effect because of a preliminary injunction issued by a Michigan Court of Claims judge in response to a lawsuit from Planned Parenthood against the old statute. But Michigan’s Supreme Court could soon issue an opinion on the constitutionality of abortion, either through that case or one brought by Democratic Gov. Gretchen Whitmer. In April, the governor asked the state’s high court to issue a ruling on whether the 1931 law is legal under the state constitution, and after Dobbs, Whitmer reiterated her call for a ruling.
But if the courts don’t issue a ruling soon, it’s possible voters will decide first via a ballot initiative. Abortion-rights supporters have been campaigning for a proposed ballot measure to codify the right to an abortion in Michigan’s constitution. And if the measure qualifies for the November ballot — we won’t know until July — polls suggest it could pass.
In May, a Glengariff Group/Detroit Regional Chamber poll found 59 percent of registered voters supported a constitutional amendment making abortion legal in Michigan, compared with 28 percent who opposed it. Similarly, an early June survey by Public Policy Polling on behalf of Progress Michigan found 54 percent supported overturning the 1931 law to keep abortion legal in Michigan, while 30 percent opposed doing so. However, a potential referendum could still end up being competitive. Votes on ballot measures are sometimes unexpectedly close in cases where public opinion surveys suggest that views are lopsidedly in favor of one position.
But if that referendum does not make the ballot — or fails — and the courts still haven’t weighed in, any future abortion legislation will rest on which party controls the governor’s mansion and the state legislature. The most likely outcome is that the government is divided, with Democrats controlling the governorship and Republicans holding onto the state Senate and House, but the possibility that Republicans — or Democrats — sweep can’t be ruled out. And, of course, if Republicans wind up in control of Michigan at all levels of government, abortion rights would likely be curtailed because every notable Republican gubernatorial contender is against them.
Unlike many of its Southern neighbors, Georgia didn’t have a law in place that automatically banned abortion if Roe were overturned. The state also also didn’t have an unenforced abortion ban on the books. It does, however, have a ban on abortion after six weeks of pregnancy that’s been tied up in the courts since it was passed in 2019. That law could go into effect as soon as the 11th U.S. Circuit Court of Appeals frees it from legal purgatory — which could happen very soon.
Heading into the midterm election, the question now is whether Democrat Stacey Abrams can defeat Republican Gov. Brian Kemp in their rematch, since Republicans are very likely to retain solid majorities in the state Senate and House. Polls show that Abrams is an underdog, but in theory, an Abrams victory would put a veto in place to halt any GOP attempt to create an even stricter law. That said, it’s not clear that, if Kemp were to win, an all-out prohibition on abortion would be likely. Back in 2019, there wasn’t sufficient support in the legislature for even more aggressive legislation, and Kemp has said his goal is to fully implement the measures contained within the six-week ban.
These seven states are where the midterm elections could most impact the future of abortion rights. However, they are not the only states where shifts in the electoral mood could affect abortion access. Most notably, Democrats have full control of government in Maine, but a GOP sweep is not out of the question there, possibly presenting conservatives with an opportunity to roll back the state’s law permitting abortions until around 24 weeks. On the flip side, even if Republicans sweep into power in Nevada, abortion access would likely not change there because a 1990 referendum established the right to an abortion within 24 weeks, and it would take another referendum to undo this. But more generally, remember that the fight over abortion access will extend well beyond the 2022 election.