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Let the People Decide... [1]

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Date: 2022-11-15

Up until Roe was overturned and the 2022 election cycle was complete, conventional wisdom held that there is no hope of ever adding a protective abortion amendment to the Constitution of the United States (COTUS).

In the bittersweet 2022 election after glow, I think we have all the information we need to go for it.

Primer -Requirements to amend the constitution: 2/3rds of Congressional Representatives and 2/3rds of Senators must approve the amendment then 3/4ths of the states (that would be 38) must ratify it. Congress can dictate how the states ratify – by vote of the legislatures orby vote of a convention of delegates elected by voters in each state.

It will take a well-coordinated national effort. Here's what needs to happen as I see it.

First, members of Congress, Democrats and Republicans, need to be convinced that such an amendment would get ratified if sent to the states. Second, pro-choice forces must persuade enough Congressional Republicans to support such an amendment. Both of these must happen for any MOC to risk sticking her/his/their neck out on this question.

So, are there 38 states that would ratify? This breaks down into two sub-issues.

Sub-issue #1: are there 38 state legislatures that would ratify an abortion amendment.

No doubt about it, there are not.

The pesky issue of hostile state legislatures that are out of sync with their voters on the abortion issue is quite real. But it can be easily neutralized. The amendment will stipulate that ratification will be by state convention, which essentially means the people! The 21st amendment, that repealed prohibition, was ratified this way!! And Congress required ratification by conventions precisely because they knew that too many state legislatures were beholden to “dry” influences.

Which brings us to the second sub-issue: do enough voting age people in 38 states support abortion rights or believe the government should stay out of people's private lives?

We can't know for sure in advance, but the outcome of the 2022 abortion ballot initiatives, especially Kansas', Montana's and Kentucky's, certainly suggests there are enough supportive voters in many more states than we might have guessed before this election cycle.

So how do we strategically persuade enough Congressional Republicans to support sending a COTUS amendment to the states for ratification?? By beating them up in the 2024 (and, if need be, the 2026) elections using the issue of abortion. We need to once again tap into majority support for accessible abortion (or the red equivalent, keeping government out of our personal lives). And we can grease the election skids in 2024 with a pre-election vote in the Senate for the COTUS amendment! Get all those Senators on the record, especially the ones running in states where a ballot initiative will take place.

Put more succinctly, in 2024 we need to run abortion protective ballot initiatives in “high value” states ... and only in high value states.

High value states are those that meet as many of the following criteria as possible (in order of importance):

protection for abortion is needed in the state provide for ballot initiative via signature gathering (versus legislative referral) majority in the state want abortion to be accessible (or the government to leave us alone) senate race in 2024 governor race in 2024 important state in presidential elections ballot initiative could hurt incumbent Republican governors, senators/reps ballot initiative could help incumbent Democratic governors, senators/reps state has a law on the books for how to conduct an amendment ratification convention amendment ratification law allows for at-large voting for convention delegates (versus district-based voting).



Given this criteria, the high value states in 2024 will be Arizona, Florida, Ohio, Missouri, Montana and last, and possibly not worth the effort, Utah. Spread the word!!

Not only are these the high value states, but running ballot initiatives in any other states in 2024 would be a strategic mistake because they would siphon resources (aka money) away from these high value ballot drives. Ballot drives are costly and there's only so much money to go around. Without enough money, ballot initiatives are much more likely to fail in the red states. Such losses would not only not help women in those states but would drag down the COTUS amendment effort.

Notably, my cross-referencing analysis indicates that there will be no high value states in 2026. This doesn't mean there won't be ballot initiatives. It simply means that compared to 2024, 2026 ballot initiatives won't help much at all to get a COTUS amendment passed. Obviously, if ballot races happen and abortion rights win the day, women in those states will greatly benefit – if we have not already ratified a COTUS amendment! :)

Activists in at least two of the six high value states, Arizona and Florida, are already doing the groundwork!

One very key detail is what should these ballot initiatives actually say. This is a state-by-state question. There is no one right answer and the activists in each state are the best people to decide using modern tools for discerning what the most voters will support.

But, to create buzz, I would like to offer two alternatives for the COTUS amendment I'm suggesting we agitate for, which would be the 28th Amendment. To wit...

Option 1

"Because reproductive decisions are deeply personal and essential to life, liberty, and the pursuit of happiness, and individuals therefore need to be able to make these decisions for themselves without governmental interference, the rights of autonomy and privacy in all decisions of procreation are fundamental rights.

Neither Congress nor any state shall abridge or infringe upon these rights.

This article shall be inoperative unless it is ratified as an amendment to the Constitution by conventions in the several States within 8 years from the date of the submission to the States by Congress."

Many progressives may prefer this broadly worded option, but I am not convinced that there is enough red support for an amendment this broad (and I am convinced that we will need red support). Arguably, it goes further than Roe did – and will be attacked for that - and many “red” voters are not open to a “no limits” amendment. Also, without a “## weeks” limit on the right to an “any reason” abortion, this amendment is open to the Supreme Court trimming the right to have an abortion back to Roe's limits, or further, by deeming such limits to be a compelling interest of government. We all know there are states that will give SCOTUS the opportunity to so rule!

Option2

“Because reproductive decisions are deeply personal, essential to life, liberty, and the pursuit of happiness, and individuals therefore need to be able to make these decisions for themselves without governmental interference, the following are fundamental rights:

1.the right to privacy in matters of procreation.

2.the right of a pregnant individual to obtain a safe, medical abortion prior to the 24th week of pregnancy.

3.the right of a pregnant individual to obtain a safe, medical abortion at any point in a pregnancy if, in the opinion of the individual's own medical doctor, the pregnancy (a) endangers the life or good physical or mental health of the pregnant individual or (b) will not produce a viable baby.

4.the right to choose to use, or not use, safe birth control methods or medications.

5.the right to be free from discrimination in the public sphere based on one's reproductive choices.

Neither Congress nor any state shall abridge or infringe upon these rights.

This article shall be inoperative unless it is ratified as an amendment to the Constitution by conventions in the several States within 8 years from the date of the submission to the States by Congress."

This version of the amendment basically codifys Roe. It is intended to minimize the opportunity for creative interpretation by a hostile SC. Plain English, black and white rights. Hopefully viewed as a reasonable compromise that will corral red support. Hopefully hard to cynically attack.

Notice that both these options begin with the word “Because”. Including a rational clause in a US constitutional amendment would be a first. But the social sciences have revealed that providing a rationale for something is highly persuasive, because it is! :)

The Power of the Word "Because" to Get People to Do Stuff |Psychology Today

In summary, state ballot initiatives will be critically important in the years to come not only to further secure access to abortion in the states, but also to synergize with an effort to get a COTUS amendment sent to the states for ratification. We should not cede the national plane of the abortion debate to abortion opponents without a fight. There is a path to amending the COTUS to protect access to abortion and that path leverages state ballot initiatives, dare I say, bigly !

Related aside: The country has not ratified a COTUS amendment since the advent of social media. This is amazing to think about. There is no way anyone can be sure of how hard, or easy, amending the COTUS might be today because we have never tried to do so in the new, radically different, social environment we find ourselves in today. I'm willing to bet that the power of social media can be harnessed to ratify an amendment.

The first step down this path is to get one or more members of Congress to introduce an abortion amendment.

Toward this end, let's all write our congressional peeps (again and again) and advocate that they get a COTUS amendment introduced in the Senate and the House. And, keep an eye out for all the 2024 state ballot initiatives that take off so you can support them near and far!

My letters to Senators Gillibrand and Schumer and Representative Morelle are written. Gillibrand in particular seems like a perfect candidate to make this introduction in the Senate, perhaps in cahoots with Senators Warren, Murkowski and newly victorious Cortez-Masto. Or course, Nancy Pelosi is the perfect candidate in the House and could no doubt rally many excellent co-sponsors.

Am I crazy? What do we have to lose?

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