The 1988 abortion referenda: Lessons for the future. (Special Report).(effect of Webster v. Reproductive Health Services on proliferation of pro-life and pro-choice ballot referendum in the late 1980 and early 1990s)

In the wake of the U.S. Supreme Court's recent decision in Webster v. Reproductive Health Services, (1) which gave states greater authority to regulate abortion, both prochoice and right-to-life activists in several states are advocating referenda on abortion. In Oregon, for example, a right-wing group called the Oregon Citizens' Alliance has already begun collecting signatures favoring a proposed amendment to the state constitution that would ban all abortions except in cases of rape, incest or threat to the woman's life. They must collect 84,770 signatures by July 6,1990, to get the measure on the November 1990 ballot.

By contrast, the Coalition for Choice in Massachusetts has proposed a constitutional amendment that would guarantee a woman the right to obtain an abortion during the first 24 weeks of pregnancy under any circumstances, and in the last trimester if it is necessary to protect her life or health or if the pregnancy resulted from rape or incest. It would also guarantee Medicaid funding of abortions for low-income women. However, the earliest this measure could appear on the ballot is 1992-only after it has received 50 votes in two successive years from the state legislature sitting in a special constitutional convention. To send the proposed amendment to the legislature, supporters must collect the signatures of 50,525 registered voters by November 22,1989.

Seventeen states, (*) including Massachusetts and Oregon, permit such voter initiatives to amend the state constitution. Fifteen of these states, plus six others and the District of Columbia, allow voters to enact legislation directly through ballot initiatives. (+) In addition, 24 states (++) and the District of Columbia allow citizens to initiate a referendum on a law passed by the state legislature. The number of signatures required for a proposal to qualify for the ballot varies, but most often it is a percentage of the votes cast in the previous gubernatorial election. Citizen-sponsored initiatives on abortion have been common in recent years, although up to now they have primarily involved the narrow issue of whether the state should pay for abortions for poor women, and until 1988, were initiated exclusively by right-to-life groups.

Since 1978, nine statewide antifunding measures have been placed before the voters; four of these proposals also authorized the legislature to prohibit abortion if Roe v. Wade (2) is ever reversed, and three of the four took the additional step of establishing special constitutional rights for the fetus. Two of these antiabortion referenda have passed: In 1984, 50.4 percent of voters in Colorado approved an amendment to the state constitution eliminating abortion funding except when the woman's life is endangered; in 1988, by a vote of 51 percent to 49 percent, Arkansas voters passed a constitutional amendment that prohibits abortion funding (ss) and also declares that "the policy of Arkansas is to protect the life of every unborn child from conception until birth, to the extent permitted by the Federal Constitution." (3)

Seeking to restore abortion funding in Colorado and Michigan (where the legislature had prohibited abortion funding except to save the woman's life in 1987), (**) prochoice advocates initiated their first referenda since Roe v. Wade (++) in 1988. Both proposals were defeated, 60-40 percent in Colorado and 57-43 percent in Michigan.

The 1988 referenda defeats were widely viewed as a serious setback for supporters of abortion rights. They also generated considerable concern within the prochoice community that the defeats would add fuel to the movement to use referenda to end funding in other states that have paid for the abortions of Medicaid recipients since the 1977 cutoff of federal Medicaid funds for most abortions. As a result of the Webster decision, however, it now appears that some prochoice supporters advocate use of the referendum process, and that the focus of future referenda will be broadened to encompass the more basic question of whether abortion should remain legal and, if so, under what circumstances.

At first glance, such a change would appear to be an advantage for the prochoice movement, since a woman's basic right to abortion has always enjoyed more public support than has abortion funding. Recent polls have found, for example, that while only 40 percent of the public thinks Medicaid should pay for abortions, (4) most Americans support legal abortion. (5) This dichotomy was clear in Colorado shortly after the election: Sixty-four percent of registered voters polled in April 1989 said they supported Roe v. Wade and 65 percent said they would support an amendment to the state constitution guaranteeing women the right to abortion, (6) yet a few months earlier, 60 percent had opposed the referendum restoring abortion funding.