There has been no Todd Akin in this election cycle – that is, there are no “gaffes” that have elucidated an extreme position in a particularly meme-friendly way the way the infamous “legitimate rape” comment did — only those same extreme positions cast in soothingly moderate language. But that doesn’t mean that women’s reproductive rights aren’t on the ballot across the country anyway, both implicitly and explicitly. Here’s a guide.
Ballot measures: Both Colorado and North Dakota have Personhood amendments — granting fertilized eggs, embryos and fetuses full citizenship rights — on the ballot in one form or another. As long as Roe v. Wade is the law of the land, a Personhood amendment can’t ban abortion, but there is no current constitutional protection for in-vitro fertilization processes or, for that matter, the IUD and the morning-after pill, which Personhood proponents believe to be abortion, among other contraceptives.
It’s Personhood’s third time on the ballot in Colorado, and it’s gotten savvier about its wording with Amendment 67. The question on the ballot is about “protecting pregnant women and unborn children by defining ‘person’ and ‘child’ in the Colorado criminal code and the Colorado wrongful death act to include unborn human beings.” Left unsaid: That pregnant women themselves could be prosecuted for endangering an embryo or fetus, or even for a suspect miscarriage.
In North Dakota, voters will vote on amending the constitution to include “the inalienable right to life of every human being at any stage of development must be recognized and protected.” Just what “at any stage of development” means has been hotly debated. Some critics contend that in addition to intending to ban abortion, it would also override advanced directives for end-of-life care, forcing the dying to stay on life support against their wishes. Polling conducted in late October found 45% of voters opposed the measure, with 16% undecided.
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Tennessee’s ballot measure sounds more obscure but is likely more immediately consequential. It seeks to override a 2000 Tennessee Supreme Court decision that read a strong privacy protection in the state constitution, safeguarding against abortion restrictions the legislature has long clamored to pass. There is some more confusing wording here: The amendment stipulates that the constitution doesn’t require “the funding of an abortion,” but Tennessee already has no Medicaid-funded abortions except in cases of rape and incest. It also mentions “circumstances of pregnancy resulting from rape or incest or when necessary to save the life of the mother” — but what it is actually saying is that these exceptions, popular with voters, won’t necessarily be included in any future law. Abortion opponents’ ads have focused on Tennessee as an “abortion destination” and “abortion tourism,” because Tennessee puts fewer burdens on women seeking abortions than other states — notably neighboring Mississippi, where there is only one clinic left. The recent polling on the amendment indicates that it’s too close to call.
Control of the U.S. Senate: If, as polls suggest, Republicans have a good night on Tuesday, it won’t mean too much for actual legislation in the short term, given that Obama has a veto pen for two more years. But it could have a sweeping impact on the federal courts, whose judges are confirmed by the Senate. These judges are usually the ones interpreting the hundreds of abortion restrictions passed by state legislatures — the judges who oversee Texas, for example, have said the state can do basically anything to stand in an abortion patient’s way, including shutting down dozens of clinics.
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University of Chicago law professor Geoffrey Stone estimates that as many 90 judicial appointments will open up in the next two years. “If the Republicans control the Senate,” he wrote, “you can be sure that many fewer Obama nominees will be confirmed, and that those who do win confirmation will be much less progressive than the judges this White House has managed to appoint in its first six years.”
Control of state legislatures: In 2010, Republicans capturing total control of state legislatures helped usher in a record number of restrictions on abortion. A few more closely-divided states are still within Republican sights for Tuesday, Kentucky, Iowa, and New Hampshire among them. Kentucky, where Republicans control the state Senate but not the House, is particularly vulnerable, because a veto from the governor, currently a Democrat, can be overridden by a simple majority.
Governor’s races: Wisconsin governor and presidential hopeful Scott Walker has tried to gloss over his stances and policy moves restricting women’s rights, including abortion access. He’s in a tight race against his pro-choice opponent, Mary Burke. In Colorado, Republican gubernatorial candidate Bob Beauprez has falsely claimed the IUD, a common form of birth control, is abortion. In Georgia, Governor Nathan Deal, who has signed several abortion restrictions into law, is defending his seat against pro-choice Jason Carter. In Pennsylvania, incumbent Governor Tom Corbett, who famously defended a forced-ultrasound-before-abortion law by saying women could just close their eyes, looks likely to fall to pro-choice Democrat Tom Wolf. If Martha Coakley loses her race for governor in Massachusetts, pro-choice voters can console themselves with the fact that Republican Charlie Baker splits with his party on the issue.
Irin Carmon