Preet Bharara:

From CAFE and the Vox Media Podcast Network this is Stay Tuned In Brief. I’m Preet Bharara. Last week millions of voters headed to the polls to decide our next president, but that wasn’t the only important decision to be made. This year abortion rights measures were on the ballot in 10 different states. Seven of them voted to preserve or expand abortion rights in some way. Joining me to discuss is Kate Shaw. Professor Shaw is a constitutional law professor at the University of Pennsylvania Carey Law School and a co-host of the podcast Strict Scrutiny. She breaks down the various ballot measures and what the results mean for the future of abortion access in a second Trump presidency. Kate, welcome back to the show.

Kate Shaw:

Preet, thanks for having me.

Preet Bharara:

So a lot went on this past week. There was, obviously, the federal election. And a lot of ink has been spilled and a lot of discussion has been had. A little bit less on the radar I feel were these 10 measures. Could you first of all explain to folks why there’s this movement to have measures on ballots in states? Is this a direct result of the Dobbs decision that overturned Roe v. Wade?

Kate Shaw:

It is a direct result of Dobbs that it’s been on the ballot in so many places. And some states did put questions about abortion on the ballot prior to Dobbs. But when Roe v. Wade was the law of the land, the Constitution imposed protections, and states couldn’t put a measure on the ballot and have it enforced if it was going to conflict with what the Supreme Court had said about the constitutional protection for abortion. So when Dobbs was decided in 2022, the Constitution, according to a majority of the Supreme Court, no longer had anything to say about abortion and so states had free rein to regulate abortion, to protect it, to restrict it, to ban it outright. And a lot of states responded pretty quickly. So you actually had a number of states in the immediate wake of Dobbs put abortion on the ballot either to restrict it or to protect it.

And actually, abortion rights fared incredibly well on the ballot in the aftermath of Dobbs. So in states like Kansas where there were elections pretty soon after Dobbs, a lot of people were surprised. There was actually a measure to restrict abortion rights and it failed in Kansas so abortion access won. Ohio also in an off-cycle election had a ballot measure that actually was successful in enshrining protections for abortion in the Ohio Constitution. Then, of course, in the midterm elections, four different states voted to enshrine abortion protections in their constitution. This is something that had happened previously in the post-Dobbs era. The 10 states that had abortion questions on the ballot in last week’s election, obviously, were a high watermark in terms of how much activity there was in ballot initiatives on abortion-related questions.

Preet Bharara:

And in all 10 states was the presentation of the question on the ballot by people who were in favor of expanding abortion rights or was it … Were there any in the opposite direction?

Kate Shaw:

Just Nebraska which had actually two competing initiatives, one to prohibit and one to protect abortion. And the prohibit won and the protect lost. So that was one of the losses for abortion access on a night that was actually very favorable to abortion rights but not in necessarily a uniform way that the pre-Tuesday night results had looked on abortion.

Preet Bharara:

This is sort of a politics question. Does anything strike you about how some of these abortion ballot questions turned out in states that otherwise went for Trump? Are people separating those things out in their minds?

Kate Shaw:

Well, it’s really striking. So just a couple of examples. So first, take Florida. So more than 57% of Floridians voted to adopt Amendment Four which would’ve added abortion protections to the Florida constitution up to the point of fetal viability. So very expansive protections in a state that has virtually no access to abortion right now. 57% of Floridians wanted to add robust protections to the Florida Constitution. Now it turns out that wasn’t enough because in Florida it takes 60% to add protections or to add an amendment to the Florida Constitution. And that’s an outlier, most states don’t have such a high threshold. So Florida didn’t successfully protect abortion access. But I do think there is something really expressively important about 57% of voters choosing to adopt the amendment in a state where Trump won 56% of the vote. So you had to have voters who wished both to protect abortion access and to return Donald Trump to the White House. And so that was striking.

And maybe one more example which is Missouri. In some ways this is the most striking example. Missouri is a state that had a total abortion ban without a rape exception. So one of the most restrictive abortion regimes in the country. And voters in that state voted to amend the state constitution, again, to add protection for abortion up to the point of fetal viability, essentially restoring Roe v. Wade in the state of Missouri. And that’s a state that Trump won by 18 points.

Preet Bharara:

Yeah, so I’m going to need you to explain that. I need you to explain that, Kate.

Kate Shaw:

Josh Hawley was re-elected by 15 points. I mean, I would like to explain it. I can’t pretend to totally understand, or at all to understand what was in the minds of people.

Preet Bharara:

In Missouri, for example, was there a difference in the get out the vote in how the campaigning was done on the ballot question versus for the candidates? Is there just a big disconnect? Do people carve out their views on reproductive rights separate from their otherwise potentially fairly conservative views?

Kate Shaw:

In terms of the mobilization and targeting strategies, I just think somebody on the ground in Missouri would have to answer that and I don’t know so I’m really just speculating,

Preet Bharara:

You got to find that person.

Kate Shaw:

I think it’d be a really illuminating conversation. So Trump in the weeks closest to the election really retreated from some of his more extreme positions on abortion and seemed to basically double down on the view. The states can decide we’re not going to ban abortion federally. I mean, he hedged on that question a lot but that was what he said most frequently closest to the election, “The states will be able to decide.” And I think it is entirely possible that voters in Missouri basically said, “Well, so they’re not going to pass a federal abortion ban. We do actually think that people should be left alone to make their own medical decisions. And Donald Trump’s not going to interfere with that so we can protect abortion.” And by the way, Missouri actually also voted in a different ballot initiative to increase the state minimum wage. But we like a lot of what Donald Trump is selling on, I don’t know, the economy. And so we’re going to cast those two facially pretty inconsistent votes.

But one thing I just think is really important to say about both Missouri, and Florida, and all these states where people may have been operating on the assumption that we’re not worried about what Donald Trump or Republican Congress might do on abortion because it’s protected here. There just is a fundamental failure, I think, to grasp that … Now, they may be making a predictive judgment about what’s likely to happen. But if they’re wrong and a Republican Congress or just a Republican … White House and Department of Justice try to either, through legislation or just enforcement, ban abortion federally, a state protection won’t do anything because that’s federal supremacy. Federal law is supreme and it supersedes state law to the contrary. If there’s a ban that Congress passes, state law won’t save you. I worry that people did not grasp that.

Preet Bharara:

Do conservatives always believe that federal law is supreme? Is that always true in the abortion context? You’re a constitutional law professor, how does that play out in different contexts?

Kate Shaw:

I mean, I think that there’s been an interesting valence flip or … And we’re probably going to see much more of it which is that traditionally, historically federalism, the sort of autonomy of states to make a lot of decisions for themselves, is a value that conservatives and Republicans have touted more than liberals and Democrats. And I think that’s not been universally true. But in the last 30, 40 years of our politics that’s basically the valence. And I do think that during the first Trump administration and I’m sure during the second Trump administration, we have seen this real resurgence of progressive or liberal federalism. This idea of protecting domains or pockets of state sovereignty to decide legal questions differently from the federal government to create pockets of resistance. I don’t think there’s an absolute answer to sort of who owns good faith arguments about the prerogative and authority of states to make decisions for themselves.

But I do think that the Supreme Court, which in our system does have the final word on questions of constitutional meaning that the rule has traditionally been federal law, is supreme and state law to the contrary or in conflict with federal law is superseded. And, of course, where there’s a real conflict, what kind of conflict exists? Sometimes it might be in the eye of the beholder. So I think lawyers can make all kinds of arguments that state law does survive, even potentially inconsistent federal law, in all directions. So I think there’s not an absolute and for all time answer to the question of sort of who’s in … On what side of that debate?

Preet Bharara:

I want to stick with Missouri for a second so we understand the consequences and the durability of that ballot measure. In Missouri did they amend the constitution of the state or something else?

Kate Shaw:

Yeah, the state constitutional amendment.

Preet Bharara:

And as you said, that will not be a bulwark against infringement of that right if Congress passes a federal law. So even if the Constitution of the United States has nothing to say about it, a mere federal law would take precedence over a state constitution.

Kate Shaw:

Yeah. And it might seem like oh, that seems weird, a constitutional amendment in a state should … Somehow it seems more powerful than a federal statute which isn’t in the Constitution. But federal law is supreme over state law and state law could mean state statute or state constitutional language or state supreme court opinion.

Preet Bharara:

I just want to make sure people understand that.

Kate Shaw:

Because in Missouri the amendment that they adopted protects abortion to the point of fetal viability. And if Congress wanted to pass a law that imposed a nationwide ban on abortion after 16 weeks or 12 weeks or something like that, that would control over the more expansive protections in Missouri.

Preet Bharara:

So for all intents and purposes when it comes to reproductive rights and the right to abortion specifically, does Missouri have the same rights for its citizens as a state like New York now?

Kate Shaw:

I mean, yeah. Essentially, yes. New York has also now adopted more expansive equal protection provision that is-

Preet Bharara:

Yeah, that passed too.

Kate Shaw:

Access to abortion. That passed too. And New York was one of the states where … It wasn’t like this radical shift in law, we already had pretty robust statutory protections, this was just constitutionalizing this broad sex equality in New York. And Maryland and a few other states already had statutory protections but this was just about entrenching more robust protections in the state constitution. I mean, I think it’s pretty wild that a state as conservative as Missouri … Again, 18 points for Donald Trump. Has protections that are as comprehensive, at least as to abortion. And maybe wouldn’t extend to other things, surrogacy, contraception, other kinds of reproductive rights, and justice questions that might be encompassed within the broader New York equal protection language. But yeah, on abortion pretty comparable.

Preet Bharara:

In Missouri, was it like Florida where they required at 60%-

Kate Shaw:

No.

Preet Bharara:

Vote. A simple majority can amend the Constitution in Missouri?

Kate Shaw:

A simple majority. Now, not every state has the ability to amend the Constitution by ballot initiative so it’s about half of the states in some ways. I think it’s 49 states that legislature can propose and the public ratifies essentially a constitution.

Preet Bharara:

It’s a lot harder, as you know better than anyone around as a constitutional law professor, to amend the US constitution. It takes a little bit more than 50% of the public.

Kate Shaw:

Article Five of the federal constitution that is about the constitutional amendment process is … Has been described as creating essentially the most difficult constitution to amend in the world. That’s right, we have not amended the Constitution in any meaningful way in the lifetimes of many young Americans. The most recent constitutional amendment from ’91, I guess, is about constitutional salaries but there’s not … That’s not a particularly meaningful constitutional amendment. So it’s well over 40 years since we’ve done anything significant to amend the Constitution. And every state constitution is far more easily amendable than the US Constitution.

Preet Bharara:

Stay tuned for more discussion. We’ll be right back after a short break. So I want to talk about the durability of some of these measures. So in Missouri, given what you said about majority rule on amendment to the Constitution, does anything prevent another ballot measure going the other way in two years, or in four years, or in six years, or every two years?

Kate Shaw:

No, I don’t think so. There are certain cases-

Preet Bharara:

It’s pretty precarious.

Kate Shaw:

It is. Let me just say, I think that’s not true. I think with Missouri there’s no … States are and we should celebrate. There’s all kinds of distinct practices that states use when it comes to amending their constitution and everything else. And Nevada is one of the places where the right to abortion was adopted, where it was successful on the ballot but it has to pass in two successive elections before it actually becomes part of the Constitution. Nevada, it was a yes on abortion but it’s not law yet, it has to pass again. So some states build in these mechanisms for making extra sure through successive votes that people really do want to amend the Constitution. And it’s at least possible that there are states that repeal an amendment quickly or within some period of time, I just don’t know. But for the most part, yeah, there are not broad constraints on the ability to make those changes. There’s nothing that I’m aware of that would prevent states from moving in the other direction so I suppose it’s a possibility.

Preet Bharara:

Look, even the enshrined constitutional right to an abortion lasted only 50 years and was under attack for much of that half-century, right?

Kate Shaw:

Yeah.

Preet Bharara:

You mentioned a federal abortion ban a couple of times. It seems like Donald Trump saw the threat of that politically and electorally and has made statements saying he’s all about the states. Allies of his I think said, as recently as a few days ago, that Donald Trump does not support a federal abortion ban and would veto one if it came to his desk. I think that’s true, my staff and team will check. What should people make of those statements?

Kate Shaw:

First of all, I think those are opportunistic statements, right, in … On the eve of the election because it was pretty clear that a federal abortion ban would be very unpopular. So I think everyone should take with a grain of salt those kinds of pledges, at least for now. We do have a legislative filibuster and so that would need to overcome a filibuster in the Senate. Because while Republicans have taken the Senate they have not taken a filibuster-proof … They have not taken a 60 vote majority in the Senate. As we’re recording there’s still a couple of those races outstanding. There’s no world in which they have 60 votes so there’s that. And if it wasn’t a total ban but a restriction that had a number of weeks attached to it, I truly don’t know.

And I usually stay in the more legal lane but to sort of talk politically for a minute, I think that there was a big part of the sort of elite constituency and maybe also base that Trump was very concerned about when he was the President for the first time, really did care deeply about restricting and eliminating access to abortion. And that may still be true. He’s a lame duck, right, he’s not running for reelection again. So I’m just not sure that sort of attending to those constituencies is going to be front of mind in the same way so he may not feel the need to be as responsive. So I think that’s a possibility. I wouldn’t rule it out. And the other thing I think is really important to underscore, and this is something we’ve talked on my podcast about a good amount, a Trump White House, and Department of Justice, and FDA could do a lot to limit or eliminate access to abortion without any act of Congress.

Preet Bharara:

Right. Explain that. Yeah, explain that.

Kate Shaw:

So the 1873 Comstock Act, which people might’ve heard of, this Victorian era anti-vice law that has been dormant but is still on the books was never repealed, is something that a number of people around Trump have suggested will be enforced in a second Trump administration and enforced to target individuals who send abortion pills through the mails, maybe even who ship medical supplies for use in ordinary procedural. Not medication abortion but surgical or procedural abortions. So if you decided that the pills and devices used in abortions are essentially the kinds of immoral goods or devices that this, again, Victorian era statute prohibits sending through the mails, then they might try to target people. Again, physicians, providers, drug manufacturers under the Comstock Act. Now, let me be clear. I think the act and that enforcement is clearly unconstitutional but you’d have to bank on a majority of the Supreme Court agreeing with you. And the fact that that may be the ultimate result would not preclude they’re trying that enforcement in the short term. So that’s one no Congress needed route to creating-

Preet Bharara:

Right. And that’s an example where they don’t need to pass a law they would just rely on a not used dormant law called the Comstock Act. And that would require an initiative from the next justice department and that’s it, right?

Kate Shaw:

Yeah, I think it just depends a lot on who the Attorney General is. And then the other possibility is the FDA which back in 2001 approved this two-drug protocol, mifepristone-

Preet Bharara:

Mifepristone.

Kate Shaw:

And misoprostol, yeah, to end early pregnancies, and that has been the target of a lot of litigation in the last couple of years. The Supreme Court dismissed this challenge to recent regulations of mifepristone which relaxed these earlier restrictions on its prescription and use. And the court took this off-ramp so that case is now back in the lower courts. And that’s a challenge again to the current conditions under which mifepristone is available. But it’s not out of the realm of the possible that a Trump FDA could decide to revisit and potentially to reverse just the approval at all of mifepristone for ending early pregnancies. It would create a ban on access, again, at least through legal channels to mifepristone everywhere, including states like New York and now Missouri where abortion is legal. But if you can’t get the pills to end an early pregnancy there’s just … The most common method of ending pregnancy today is these abortion pills. And reversing their approval would, obviously, take that off the table.

Preet Bharara:

And so even if you’re a state like New York, for a long time, or a state like Missouri, going forward, you’re not necessarily protected.

Kate Shaw:

Exactly.

Preet Bharara:

Do you think that these 10 ballot measures will inspire other states to do the same? And are there particular states that you think are on the horizon for this activity?

Kate Shaw:

There are a handful of other states where there were efforts that state officials essentially interfered with to get these initiatives on the ballot. So maybe I should say at the outset, it’s not the case that you could do this in every state. So there are states like Wisconsin that just don’t really have much statewide direct democracy ballot initiatives, referendum, things like that. You can do these local advisory ballot initiatives but there just isn’t much that can be done at the state level. So unless and until states decide to change the way they can … Their citizens can access direct lawmaking, and that does sometimes happen, there’s a ceiling on how many states actually could put these questions before the voters. They haven’t yet done an abortion question but that could.

And the example that springs to mind right now is Arkansas where actually proponents of abortion access did this very successful signature drive. So the first step in every state, even though the process is really different everywhere … But in every state you have to gather a bunch of signatures on petitions that demonstrate that there’s interest in putting a question before the full voting public. And there are lots of rules regarding how many signatures and sometimes where the signatures come from. Not just how many but do they have to be distributed among the state in a certain way? Do you have to have representatives from every county? Things like that.

But in any event, in Arkansas, there was a legal challenge to the way that the abortion amendment proponents had gathered their signatures. And there was this trivial argument about a missing cover page that wasn’t filed with the final signatures even though there definitely were enough signatures. And it ended up resulting in a four-three decision by the Arkansas Supreme Court that the ballot initiative could not go before the voters this November. So that’s a state where I presume that the effort will start afresh at the next possible opportunity, and maybe Arkansas will also protect abortion rights. So there are definitely others on the horizon.

Preet Bharara:

Could you remind people, before I let you go, what the relationship is between the Dobbs decision, and these policy pronouncements, and these ballot initiatives, and the procedure known as IVF? Because I think it’s confusing to people. And there are folks who say, “Well, this is leading us down a path to potentially the banning of IVF that a lot of couples rely upon to have children.” And other people say that’s fearmongering. What’s true?

Kate Shaw:

The Supreme Court’s decision in Roe v. Wade in 1973, and then Planned Parenthood versus Casey which reaffirmed Roe in 1992 were on their face about abortion. But also, in their reasoning, we’re about protecting the zone of autonomy and privacy that individuals or couples have to make certain kinds of medical choices about child rearing, childbearing, and parenting. The Constitution, as read in those two earlier decisions, was understood to protect some of that. When Dobbs repudiated that core logic of Roe and Casey that basically said, “There’s a space that government can’t enter” when it comes, again, to these questions of pregnancy and childbearing. That I think for many people sent a very ominous signal about government’s ability to interfere with other kinds of related activities and rights.

And so again, even though nothing in Roe or Casey said the Constitution also protects your right to access in vitro fertilization, medical assistance becoming pregnant for individuals and couples who need some sort of assistance, the broad framework of those cases was understood to protect those practices. Just even from the very idea of passing a law that would restrict or ban IVF would’ve been unthinkable in a world where the logic of Roe and Casey were the law of the land. And so when you remove those cases, and the general understanding of the Constitution that they contain and reflect, I think that does open up a lot of questions about things like accessing IVF.

So the Alabama Supreme Court decision from last year that basically held that this wrongful death statute in Alabama also extended to the accidental destruction of embryos by this hospital clinic that performed and provided IVF services. That was a decision that I think just would’ve been unthinkable in a world where the federal constitution was understood to extend these protections that sort of limited the way both state statutes and state common law decisions could be understood essentially, in that case, to protect this or to extend these … This wrongful death statute to these fertilized embryos. I think you’re right to pose the question because there are these intervening steps that you have to sort of walk through before I think it’s really clear why IVF and a basic legal framework that was understood to protect access to IVF is just perilous in a post-Dobbs world. It doesn’t mean that Dobbs says IVF necessarily can be restricted or that itself somehow legally suspect. None of that I think is on the face of Dobbs.

But I think the deep logic of the opinion is correctly understood to at least raise questions about whether states could if they wanted to, make moves to endanger IVF. But that would require, I think, them to actually take steps. And so I think that’s where political mobilization, and I think even the signaling that these ballot initiatives reflect, are really important because I think they do tell lawmakers that the electorate … If the electorate in some of these deep red states is willing to protect abortion access in their state constitutions, you’d hope that legislators in those states would understand that IVF and restricting access to IVF is not something that they should even attempt if they want to align what they’re doing with the preferences of a polity.

Preet Bharara:

Before you go, Kate, what’s your assessment of how abortion rights, reproductive rights will evolve or devolve over the next four years of a Trump presidency?

Kate Shaw:

I think that there are glimmers of hope that the results of these ballot initiatives I think contain and I think everybody should seize on that. I think it’s, of course, understandable to really focus on what happened with the presidency out of this election. That’s why I’m really glad we’re having this conversation. There were a lot of things on the ballot, both state and local races but also these questions. One big takeaway is this is an American public that is going to be very, very skeptical about efforts to really restrict access to abortion. But affirmative protections cannot be created in every state because not every state has direct democracy on the ballot. I do think that we are going to be in a patchwork for now.

And sort of one big takeaway, I hope, that lawmakers see this expression of broad support for abortion access and pull back from some of the efforts we have started to see to do things like restrict access to interstate travel to access abortion care because that’s something I was and remain really worried about. But I would hope that this sends a strong signal that that’s not something that the public will tolerate.

Preet Bharara:

That’s a good note to end on. Kate Shaw, thanks for your time, thanks for your insight. Be well.

Kate Shaw:

Thank you for having me, Preet.

Preet Bharara:

For more analysis of legal and political issues making the headlines become a member of the CAFE Insider. Members get access to exclusive content including the weekly podcast I host with former U.S. Attorney Joyce Vance. Head to cafe.com/insider to sign up for a trial. That’s cafe.com/insider. If you like what we do rate and review the show on Apple Podcasts or wherever you listen. Every positive review helps new listeners find the show. Send me your questions about news, politics, and justice. Tweet them to me at Preet Bharara with the hashtag #AskPreet. You can also now reach me on threads. Or you can call and leave me a message at 669-247-7338. That’s 669-24-PREET. Or you can send an email to letters@cafe.com. Stay Tuned is presented by CAFE and the Vox Media Podcast Network. The executive producer is Tamara Sepper. The technical director is David Tatasciore. The deputy editor is Celine Rohr. The editorial producers are Noa Azulai and Jake Kaplan. The associate producer is Claudia Hernández. And the CAFE team is Matthew Billy, Nat Weiner, and Liana Greenway. Our music is by Andrew Dost. I’m your host, Preet Bharara. As always stay tuned.