Isabel Sperber

Abstract

When the Supreme Court eliminated a federal constitutional right to abortion in Dobbs v. Jackson, it relied in significant part on the notion that abortion is an issue best left to the political process. Abortion has since become a main character in the national political conversation, with state legislatures around the United States embracing a wave of abortion-related legislation. The shifting landscape of abortion rights is not limited to the legislative process; voters are increasingly relying on state constitutional amendments to replace the protections previously provided by the federal Constitution. Political actors point to these amendments, typically enacted through a form of direct democracy, as the Court’s democracy premise in action. But democracy is notoriously imperfect at reflecting the will of the majority. Although it is true that voters in some states are voting directly on the abortion issue, millions of others are not—blocked by legal impossibility, legislative hostility, or some combination thereof. Drawing on opinion polling about abortion rights and unpacking the legal and political barriers to state constitutional amendments, this Note explores the extent to which those amendments offer a realistic political tool for voters to effectuate their abortion regulation preferences in the wake of Dobbs.

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