The 2024 election will see more states grapple with ballot initiatives that would expand access to abortion, but a look back at how activists crafted the language of the ones that already passed could shed light on what voters can expect if they approve similarly worded measures next year.

In the 18 months since the Supreme Court overturned Roe v. Wade, advocates of legal abortion have found success promoting ballot initiatives in states to expand abortion and skirt laws passed by state legislatures limiting the procedure.

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While they are marketed by proponents as measures to ensure "reproductive freedom" and for "keeping government out of decisions between a woman and her doctor," the language of many initiatives could open the door to much more.

This year's most prominent initiative appeared on the ballot in Ohio, where voters enshrined legal access to abortion into the state's constitution. While opponents of the measure sounded the alarm about the language of the initiative prior to Election Day, arguing it included no age limitations and could permit gender transitions for minors, proponents brushed those claims aside.

Now, however, legislators in the Buckeye State are relying on the wording of the initiative in their efforts to pass laws that go beyond adult abortion access.

Despite losses in 2022 and 2023 on legal abortion amendments, groups such as SBA Pro-Life America are heading into 2024 with proof that their warnings about language are true, Katie Daniel, the group's state policy director, told the Washington Examiner.

"Unfortunately, we now have some examples that we can point to," she said. "Take them seriously when they [say] they want anything and everything."

"Reproductive healthcare" and "reproductive freedom"

These terms are used often in ballot initiatives as catch-all phrases to include surgical abortion and chemical abortion, as well as transgender surgeries and drugs.

Ohio's amendment uses the phrases "reproductive freedom" and "reproductive decisions," which are "including but not limited to" abortion. Those phrases leave the door open to interpretation as potentially legalizing any medical treatment regarding reproductive systems.

"NARAL, one of the preeminent abortion groups in our country, recently changed its name and mission statement to include 'gender-affirming care,'" Daniel said, noting that the group rebranded earlier this year to Reproductive Freedom for All. "When they throw around phrases like reproductive health, you should believe that if they're reorienting."

In Ohio, after the passage of its abortion ballot initiative in November, legislators recently introduced a bill defining "reproductive health care" to include "gender-affirming care" and "the intended or actual initiation or termination of a pregnancy," among other things.

"They waited until after the voters got to create in their mind what they thought health care might mean," Daniel continued, explaining that those phrases are easily interpreted in a legal context to mean something wholly apart from what an average voter might think, especially given the fact that the proponents of legal abortion and a large portion of the media had vehemently denied that an amendment sold as abortion-focused could be used as the basis for liberal laws in other areas.

Arkansas, a state poised to place a similar initiative on its ballot in 2024, appears to have caught the push for permissive wording before it could appear in law. State Attorney General Tim Griffin rejected the proposed wording of the ballot last month, saying it was "tinged with partisan coloring and misleading" because the proposal "is solely related to abortion, not 'reproductive healthcare' generally."

"Health"

Many voters have heard about the commonly cited abortion "exception" that lawmakers in both parties have pushed to allow the procedure, regardless of existing restrictions, if the life of the mother is at risk. But supporters of legal abortion have increasingly included "health" in proposals in order to open the door to new "exceptions" that might allow a variety of non-life-threatening and even temporary diagnoses to justify abortion.

For example, Ohio's initiative notes that "abortion may be prohibited after fetal viability. But in no case may such an abortion be prohibited if in the professional judgment of the pregnant patient's treating physician it is necessary to protect the pregnant patient's life or health." (Emphasis added).

The amendment was written that way because it allows for anyone to get an abortion at any stage in pregnancy for any reason, so long as a doctor signs off on the procedure, Daniel claimed, adding that this method of leaving room for the approval of abortions beyond the scope of statutory limitations is nothing new.

In Roe's companion case in 1973, Doe v. Bolton, the Supreme Court explained that the term "health" in this context could pertain to a variety of factors, including "physical, emotional, psychological, familial, and the woman's age."

In Bolton, Justice William Douglas took the interpretation of the word "health" and explained how it can be used to justify abortion even further.

"The vicissitudes of life produce pregnancies which may be unwanted, or which may impair 'health' in the broad Vuitch sense of the term, or which may imperil the life of the mother, or which, in the full setting of the case, may create such suffering, dislocations, misery, or tragedy as to make an early abortion the only civilized step to take," he wrote in a concurrence, referencing another case that defined the word loosely.

"In the absence of the state giving us a definition, [health] means anything and everything," Daniel explained. Following the logic of Douglas, Daniel argued that a woman's stress level could be enough for a doctor to greenlight an abortion.

"The lawyers who crafted this are hoping that you think health means what you think it is, but then they're going to get some judges to interpret it to mean anything and everything," she said.

Vagueness

While terms such as "reproductive freedom" are inherently vague, the abortion ballot initiatives have also been written with important omissions, including age restrictions, in order to prevent parental consent laws for minors seeking abortions or gender transitions for children.

Ohio's measure is once again exemplary of what could come: It made no mention of age and used phrases such as "pregnant patient" and "individual" in place of words that could have limited its reach to adult women.

"When a ballot initiative is written to apply to 'individuals,' they're intentionally including children," Daniel said.

This topic surfaced earlier this month in South Dakota, another state poised to consider an abortion amendment in 2024, where supporters of legal abortion, including the American Civil Liberties Union and Planned Parenthood, have taken issue with the use of the word "women" because it "could give the Legislature the ability to exclude minors," Kim Floren, co-founder and director of the South Dakota Justice through Empowerment Network, said.

The groups in the Mount Rushmore State are actively campaigning against the initiative because of the more restrictive language.

Soon after Michigan passed a vaguely worded ballot initiative on abortion in 2022, legal abortion advocacy groups called for the end of parental consent laws in the state, with ACLU Michigan saying, "We must fulfill the promise of Proposal 3, which guarantees the constitutional right to abortion and all decisions related to reproductive health."

"If you say, 'woman,' that connotes an adult," Daniel added. "'Individual,' 'female,' 'pregnant person,' none of those connote any age, and we have to take that seriously."

"Healthcare professionals"

Another shift in language Daniel accused activists of making is the use of "healthcare professionals" instead of "doctor" or "physician."

While Ohio's initiative does reference a "treating physician," Daniel says a long-term strategy of the abortion industry has been to lower the standards by which a "healthcare professional" can be certified to perform the procedure.

According to Connecticut, 16 states currently allow nonphysician practitioners to perform both chemical and surgical abortions.

"The reality is, the vast majority of doctors don't perform abortions," Daniel said. "So, they've got to open that up to include other types of healthcare professionals so they can widen the pool of who might be doing them."

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"Their long-term goal is to have abortion pills over the counter. They have made no bones about that," Daniel concluded. "So, all of this loosening up — you used to need an OBGYN, and now, it's just a doctor — now, it's not even a doctor. It could be a nurse. Now, it doesn't even need to be a nurse. It's some guy selling pills on the internet."

In 2022 and 2023, ballot measures expanding abortion and "reproductive healthcare" were successful in California, Michigan, and Vermont. In 2024, activists are gearing up to put similar initiatives up for a vote in at least 11 more states: Arizona, Arkansas, Colorado, Florida, Maryland, Missouri, Montana, Nebraska, Nevada, New York, and South Dakota.