Compliance Alert by: The Baldwin Regulatory Compliance Collaborative (BRCC)
Midterm Elections Result in Several State-level Modifications of Reproductive Rights and Women’s Health Access for Abortion-related Treatments and Services
While the state of the US economy was no doubt a significant voter priority for the 2022 midterm elections, a second issue was also front and center for voters this election cycle: that of reproductive rights connected to abortion-related treatments and services. On June 24, 2022, the US Supreme Court overturned the landmark case of Roe v. Wade, effectively reversing 49 years of Supreme Court precedent interpreting the United States Constitution as guaranteeing a federal right of access to an abortion. In overturning Roe v. Wade, the Court noted in its Dobbs v. Jackson Women’s Health Organization (“Dobbs”) opinion that the individual states, rather than the federal government, were the appropriate regulators of abortion, decidedly sending the issue of abortion access back to the individual state legislatures for regulation and enforcement. Consequently, many states have quickly worked to interpret existing state statutes related to abortion access and to codify new restrictions on abortion access, while other states have worked to enact new state-level entitlements and other legal protections related to abortion access.
As reported by Kaiser Family Foundation on November 9th, “Inflation and the economy proved the most important voting issue, cited as the motivation of 51% of voters in exit polls conducted by the Associated Press and analyzed by KFF pollsters. But abortion was the single-most important issue for a quarter of all voters, and for a third of women under age 50. Exit polls by NBC News placed the importance of abortion even higher, with 32% of voters saying inflation was their top voting issue and abortion ranking second at 27%.”
Voters in five US states contemplated abortion access in ballot measures during the 2022 midterm elections. The results of these ballot measures are summarized below:
| State | Summary of Proposed Initiative | Election Outcome |
| Michigan | Michigan voters contemplated a state constitutional amendment designed to guarantee reproductive freedom in the state. The approval of Michigan’s 2022 ballot initiative would effectively operate to prevent the enforcement of a 1931 state law that was designed to provide for a statewide ban on abortion-related treatments and services. | Approved |
| Kentucky | In Kentucky, voters contemplated adoption of a state constitutional amendment designed to clarify that the state constitution does not guarantee a right of access to abortion. If approved, this amendment would pre-empt any KY court from securing a right to abortion (in the absence of any federal laws), thereby making it more difficult for abortion rights advocates to continue challenging the state’s abortion bans. The proposed amendment did not include any explicit exceptions for abortion in cases of rape, incest, or health or life endangerment. In August 2022, Kansas voters rejected a similar ballot initiative, unexpectedly making Kansas the first state to vote on, and to reject, an abortion-related constitutional amendment denying a citizen the right to an abortion subsequent to the Supreme Court’s overturning of Roe v. Wade. | Defeated |
| Montana | Montana voters considered enactment of a ballot measure designed to guarantee a legal requirement that medical care be provided to any infant born alive, including subsequent to an attempted and failed abortion procedure. The Montana ballot measure would also operate to raise the prospect of criminal charges carrying up to 20 years in prison for healthcare providers unless they take “all medically appropriate and reasonable actions to preserve the life” of an infant born alive. | Defeated |
| California | In the recently self-declared reproductive rights safe haven of California, the state’s voters contemplated Proposition No. 1. Prop. 1 would enshrine access to legal abortion in the state’s constitution. Additionally, Prop. 1 also restates and would codify that the choice of whether to have an abortion, as well as to use or not use contraceptives, is guaranteed by the state’s constitution. Lastly, Prop. 1 would restate California’s guarantees related to personal privacy rights as to reproductive choices, effectively prohibiting the discovery or production of reproductive rights related medical information to in-state or out-of-state law enforcement authorities. | Approved |
| Vermont | Finally, in Vermont, voters contemplated a bill designed to enshrine a constitutional right of access to abortion-related treatments and services into the state’s constitution. Early polling suggested Vermont voters were largely expected to approve the measure after it passed both chambers of the state legislature with a two-thirds majority in the 2019-2020 and 2021-2021 legislative sessions, giving it the necessary votes to secure a spot on the ballot. | Approved |
The midterm elections were widely expected to favor Republicans, as is historically the case when a single party has dominated the presidency and both houses of Congress. Despite this historical trend, both parties are still coming to terms with the social and political ramifications of the Supreme Court’s new abortion access precedent in Dobbs. Even though votes from the election are still being tallied in several US jurisdictions, all indications are that Democrats have retained leadership of the US Senate, while Republicans are likely poised to take leadership of the House of Representatives, albeit with considerably less of a chamber majority than that which they anticipated.
Exit polling interviews conducted across the country appear to indicate that voters ranked the importance of access to abortion-related treatments and services at a level much higher than that which was expected, with the issue ultimately trailing a very close second place to the number one national voter priority of 2022: – the state of the US economy and the country’s current inflation. To be sure, the Democratic Party and abortion rights access advocacy groups poured unprecedented resources into the 2022 election cycle. Notably, abortion access was a central theme of this cycle, considering the ballot measures discussed above, as well as the issue’s direct implications for no less than six gubernatorial races and a huge swath of state-level judgeship races.
Stay tuned to the Baldwin Regulatory Compliance Collaborative for updates on these, as well as other important issues.
The Baldwin Regulatory Compliance Collaborative
This Legislative Update was prepared by the Baldwin Regulatory Compliance Collaborative (the “BRCC”), a partnership of compliance professionals offering client support and compliance solutions for the benefit of the Baldwin Risk Partners organization, which includes: Jason Sheffield, BRP National Director of Compliance; Richard Asensio, Burnham Benefits Insurance Services; Nicole L. Fender, the Capital Group; Bill Freeman, AHT Insurance; Stephanie Hall, RBA/TBA; Caitlin Hillenbrand, AHT Insurance; Paul Van Brunt, Baldwin Krystyn Sherman Partners (BKS); and Natashia Wright, Insgroup.
