Restore Roe or go further? Divisions threaten abortion rights ballot campaigns.

The abortion rights movement is split over how to restore access to the procedure as it prepares for a series of political fights across the country.

While a string of victories in red and purple states in the 2022 midterms convinced supporters that ballot initiatives are among their most powerful tools, internal divisions over what limits, if any, to keep on abortion is splitting the movement as efforts kick off in Missouri, Ohio, and South Dakota to put it to a popular vote this year and next.

The measures advancing in those states aim to restore the protections under Roe, which still allowed states to restrict abortions later in pregnancy, usually after the fetus could survive outside the womb. But some say undoing the Supreme Court’s June ruling isn’t enough, and want ballot measures that bar any restrictions on abortion.

“We would never advocate for a false or politically determined limit on abortion,” said Pamela Merritt, the Missouri-based executive director of Medical Students for Choice. “Viability is an arbitrary line. It’s a legacy of Roe that we don’t need to resurrect. And we know the language of viability can be manipulated by state legislatures, just as they are already trying to redefine what a child is or what rape is.”

The rift among progressives threatens to fracture the abortion-rights movement as it readies for costly ballot initiative fights that are likely to play central roles in coming state and federal elections.

In Missouri, the local Planned Parenthood affiliate recently quit the ballot effort because most of the nearly dozen versions activists submitted to state officials propose only protecting abortion access before the fetus is viable or until 24 weeks of pregnancy, while other versions would impose other restrictions, such as parental consent requirements.

“We have long said that Roe was never enough, especially for marginalized communities shouldering the hardest impact of abortion bans,” said Vanessa Wellbery, the vice president of policy and advocacy for Planned Parenthood of the St. Louis Region and Southwest Missouri. “We are deeply committed to rebuilding a system that ensures all people can access abortion and all providers can provide it without political or legislative interference.”

The ballot measures in Ohio and Nevada also only protect abortion until viability, while South Dakota’s would legalize the procedure through the second trimester.

Groups defending the viability limit argue that it is widely supported by voters and has the best chance of passing in conservative and swing states.

“Yes, Roe was always the floor. But right now Missouri is in the basement,” said Mallory Schwarz, executive director of Pro-Choice Missouri. “It’s not the end game. It’s the first step in a long term effort and process.”

They also note that the more moderate language is similar to what voters approved in Michigan in November, and protects the right to an abortion even after the fetus is viable if the pregnancy endangers the pregnant person’s life or their physical or mental health.

“People have asked, does this allow abortion on demand through all nine months of pregnancy for any reason? That answer is, no. It doesn’t,” said Kellie Copeland, an executive committee member of Ohioans for Reproductive Freedom, the statewide coalition supporting the ballot measure. “But it does allow for people to be able to get the care that they need.”

These divisions within the abortion-rights movement mirror those on the anti-abortion side as heated battles erupt in several states argue over whether to allow exceptions to abortion bans or hold firm to the view that abortion should be illegal no matter the circumstances that led to the pregnancy. On both sides, those pushing a compromise point to polling showing that voters overwhelmingly oppose complete bans on the procedure but support some limits — especially in conservative-leaning states.

“You’ve got to meet voters where they’re at,” said Mini Timmaraju, president of NARAL Pro-Choice America. “Look, we’re going to go for the most expansive, most broad access that we can get from these constitutional amendment efforts.”

‘A literal codification of Roe’

Interest in launching abortion-rights ballot initiatives exploded in the wake of the 2022 midterms, which saw progressives win each of the six state constitutional amendment fights related to abortion that went before voters that year — in California, Kansas, Kentucky, Michigan, Montana and Vermont.

In Ohio and South Dakota, advocates are gathering signatures to restore Roe’s protections for abortion prior to viability. In Missouri, the secretary of state’s office is reviewing 11 versions of the proposed ballot measure and will release summaries of each before canvassing can begin. In Nevada, lawmakers just launched an effort to get the measure on the ballot in 2026; it must twice pass the biennial legislature before going to a popular vote.

Democratic officials in Connecticut, Hawaii, Maryland and Washington state also proposed legislation this year to put abortion rights constitutional amendments before voters, but only Maryland’s legislature has approved the measure, teeing up a statewide popular vote in 2024.

Most involved in the efforts agree that eliminating all restrictions on abortion would be preferable, but cite in-state polling and research to argue that measures with the viability standard have the best chance of passing.

“We’re pushing a literal codification of Roe because that is what we think is palatable to the majority of citizens in South Dakota,” explained Adam Weiland, co-founder of Dakotans for Health, which is collecting signatures to make the procedure legal again. “Even if people in our state have more progressive views than expected when it comes to abortion, it’s still a conservative state and we need to be respectful of that. Most people are pretty comfortable with no government interference in the first trimester. But that support becomes more unstable the further along you get.”

A 2022 Pew Research poll of more than 10,000 people found that support for abortion waned as the pregnancy went along: Americans are twice as likely to support abortion than say it should be illegal at six weeks, roughly split on whether it should be legal at 14 weeks and about twice as likely to say it should be illegal than legal after 24 weeks.

Backers of the viability strategy also argue that a constitutional amendment with more specific language could make it harder for anti-abortion lawmakers to find a loophole in the future.

And because over 90 percent of U.S. abortions happen during the first trimester, they also argue that protecting abortions prior to viability — the standard held up for decades by Roe v. Wade and Planned Parenthood v. Casey — would provide broad relief from the near-total bans in place now in South Dakota, Missouri and elsewhere.

“We don’t want medically unnecessary restrictions on abortion, and maybe it’s not surprising that medical groups have to draw a line there. But as advocates, as grassroots organizers, we feel an urgency,” Schwarz said.

‘We have momentum on our side’

Adopting a viability limit, however, would mean agreeing that abortion can’t always be a unfettered choice between a patient and physician, a concession that is too much for some local and national groups, including the American College of Obstetricians and Gynecologists, Ultraviolet, All* Above All, Medical Students for Choice. These groups warn the ballot measures as written will permanently lock in limitations they consider dangerous — and they’re threatening to withhold their support unless changes are made.

"It cannot be left to any politician to decide when an obstetrician-gynecologist must stop providing evidence-based care, to determine when a doctor can save the life of a patient, or which patient has a greater need for abortion than any other,” said Jennifer Villavicencio, an OB-GYN and leader of American College of Obstetricians and Gynecologists.

Other abortion-rights organizations dispute the premise that a measure that goes beyond Roe would not pass in a red or purple state — pointing to polling showing high support for abortion rights and opposition to restrictions.

“We need to start from the most expansive and expansionist place possible and not go in with preconceived notions about what people will or will not support,” said Sonja Spoo, the director of political affairs for the abortion rights group UltraViolet. “The people putting forward these restrictions, they’re not doing it because of mal-intent. It’s based on their feeling of what they think can come to fruition. But we see that we have momentum on our side and that this is an opportunity for education and a culture shift rather than codifying bans.”

Supporters of the ballot measures argue that the proposals’ fetal viability language is broad enough to allow abortions in a range of different circumstances later in pregnancy and leaves the decision up to doctors. Under the proposals, for example, providers would be responsible for deciding whether a fetus is viable based on the facts of the case and whether there is a “significant likelihood” of the survival of the fetus without extraordinary medical measures.

“It's sticky to talk about, but it’s also something that we know gives voters assurance that what we’re talking about here is something they can understand and appreciate,” said Caroline Mello Roberson, southwest regional director for NARAL.

Yet some medical and abortion-rights advocacy groups argue the built-in flexibility is a mirage that would leave patients and providers vulnerable to prosecution.

“When you are practicing under an elected body that is so aggressive and the potential consequences for providers are a felony, time in jail, loss of license, etcetera, those ‘protections’ on paper don’t play out in reality,” said Colleen McNicholas, the head of ACOG’s Missouri chapter and the chief medical officer at Planned Parenthood of the St. Louis Region. “We already know that now. We have physicians right now who are afraid to provide completely legal care like miscarriage management or emergency contraction or ectopic care.”