Voters in Tennessee, North Dakota and Colorado will consider sweeping ballot measures on Tuesday that would eliminate the right to abortion under their state constitutions and, in some cases, criminalize the procedure.
The Tennessee measure, known as Amendment 1, would declare that Tennessee's constitution does not protect women's right to have to an abortion, even in cases of rape. The measure would effectively overrule a 2000 Tennessee Supreme Court decision that struck down a 36-hour mandatory waiting period before abortion, citing women's right to privacy under the state constitution.
“Nothing in this Constitution secures or protects a right to abortion or requires the funding of an abortion," the measure says. "The people retain the right through their elected state representatives and state senators to enact, amend, or repeal statutes regarding abortion, including, but not limited to, circumstances of pregnancy resulting from rape or incest or when necessary to save the life of the mother."
Tennessee already has several abortion restrictions on the books, including a requirement that doctors have admitting privileges at a local hospital. But the amendment would open the door for lawmakers to pass new anti-abortion laws without having to worry about being blocked by the courts.
"What this does is open the floodgates for more and more extraordinary restrictions," said Jennifer Dalven, director of the Reproductive Freedom Project at the American Civil Liberties Union. "One could not look to the Tennessee constitution for any legal protection."
The Yes on 1 campaign, run by Tennessee Right to Life, did not immediately respond to a request for comment. But the campaign's website says the measure would make the constitution "neutral on the question of abortion" and put "regulation of abortion back into the hands of the people through their elected representatives."
"Abortion would not be banned," the website adds, because the U.S. Supreme Court decided in Roe v. Wade that women have a right to legal abortion until the fetus is viable, around 22 to 24 weeks. But Roe v. Wade has not stopped other states from passing bans on abortions earlier than 22 weeks, in addition to other restrictions that shut down abortion clinics and make it nearly impossible for women to access the procedure.
"They want Tennessee to look more like Texas," Dalven said of the amendment's supporters.
The measure has a good chance of passing. Recent polling shows that more Tennessee voters support the measure than oppose it, although it's still too close to call.
Meanwhile, voters in North Dakota and Colorado are considering fetal personhood measures, which would grant legal personhood rights to zygotes from the moment of fertilization. In addition to completely banning abortion without exceptions, the measures could ban some forms of birth control that anti-abortion activists claim work by preventing a fertilized egg from implanting into the uterus.
Colorado voters have rejected personhood measures before, so abortion opponents found a new way this year to frame the question. Amendment 67 would include fetuses in the definition of "human" and "child" under the state's criminal code.
"Shall there be an amendment to the Colorado constitution protecting pregnant women and unborn children by defining 'person' and 'child' in the Colorado criminal code and the Colorado wrongful death act to include unborn human beings?" the question asks.
Supporters of the initiative have tied the measure to the story of a pregnant woman who was struck by a drunk driver in 2008, claiming that this amendment would make the crime a fetal homicide. Opponents argue that the measure would also criminalize pregnant women, making abortion a first-degree murder under state law.
"They've changed the personhood amendment around because they've lost big the last two times they tried," Dalven said. "Voters clearly said they don't want this, so they're trying to be more misleading and sneaky about it."
North Dakota's personhood measure is a more straightforward ban on abortion, and out of the three measures, it is the most likely to pass. Measure 1 would "create and enact a new section to Article I of the North Dakota Constitution stating, 'The inalienable right to life of every human being at any stage of development must be recognized and protected.'"
If passed, it would be the most extreme anti-abortion measure in the country. Dalven said she's confident that if people understood the implications of it, they would not support it.
"A straight-up abortion ban is something we feel really strongly that the people would reject," she said. "The people have made it clear time and time again that they don't want politicians making this decision for women and families."
Anti-abortion activists supporting the measure claim their intent is not to ban abortion. "The intent is to protect laws that are on the books already," said Janne Myrdal, chair of ND Choose Life. The opposition is blatantly lying and trying to put fear in peoples' minds."