What the Democratic Tsunami in the Midterms Means for Abortion Rights

Jurisprudence Voters in Santa Monica, California, on Election Day. Apu Gomes/Getty Images Sign up for Executive Dysfunction, a weekly newsletter that highlights one under-the-radar story about how Trump is changing the law—or how the law is pushing back—and keeps you posted on the latest from Slate’s Jurisprudence team. The American abortion debate had gone relatively quiet before the midterms, even if that calm seems unlikely to last. A number of federal cases seek to impose new national limits on telemedicine abortion or take abortion pills off the market together. Other suits seek to establish that an obscure 19th-century law is actually a national ban on mailing or receiving any item intended or adapted for abortion. And a federal court is set to decide whether even after the end of Roe, the Constitution doesn’t offer women a right to an abortion even if they are going to die or suffer severe and permanent health damage if they continue a pregnancy. And with a historic blue wave reshaping Congress and potentially marking the end of the Trump era, new policy opportunities involving federal protection of reproductive rights may open up. Because of all that’s coming, it’s especially important to make sense of what the midterms can tell us about what Americans are thinking about abortion and reproductive health more broadly—and what the Trump administration is likely to make of those results. While measures protecting reproductive rights passed in three states—most strikingly, in Missouri—Idaho voters comfortably rejected a proposal to legalize abortion. Expect conservatives to point to that outcome in pushing the Trump administration to crack down on abortion in the president’s last two years in office. On a night when Republicans got shellacked in congressional elections, the Idaho result will embolden conservatives convinced that the president can use executive power to restrict abortion without future electoral fallout for the GOP, even as Democrats in Congress could take steps toward federal protection for reproductive rights. The Idaho result does not change the general trajectory of ballot-measure disputes since the Supreme Court overturned Roe v. Wade in 2022. All but a handful of these proposals have passed, with the exception of measures on the ballot in Idaho, Nebraska, and South Dakota. Only Idaho and South Dakota voted to preserve strict bans that criminalize virtually all abortions from the moment of fertilization. Tonight’s results crystallized that Americans still tend to favor reproductive rights when the issue is on the ballot. That was clear in exit polls showing a national electorate that said abortion should be legal in “most” or “all” cases by a whopping 63 percent. That view translated into tangible electoral results. Nevada passed Question 6, which establishes a right to abortion until fetal viability (and allows abortion thereafter subject to certain exceptions). While abortion was already broadly legal in the state, the measure will provide insurance that policy will not change should Republicans gain control of the state Legislature (a Republican—who lost on Tuesday—already serves as the state’s governor, even if he signed an executive order shielding doctors and other Nevadans from out-of-state criminal and civil consequences). The same is true of Virginia’s ballot measure, which protects reproductive rights. As recently as 2020, Republicans controlled the Virginia Legislature and governor’s mansion, and the state imposed a number of abortion regulations. Since then, Democrats have repealed those restrictions. The state’s new ballot measure will still make a difference, not only allowing plaintiffs to challenge the state’s remaining restrictions, such as limits on Medicaid reimbursement for abortion, but also ensuring that abortion remains legal in the state if Republicans regain control of state politics. Missouri’s Amendment 3 will be the most devastating for abortion foes. That state had voted to protect reproductive rights just two years ago, narrowly passing another ballot measure annoyingly also named Amendment 3. The state’s Republican Legislature, dissatisfied with this result, put a ballot measure of its own before voters. Champions of Amendment 3 first sought to confuse voters, making it sound as if Amendment 3 primarily permitted access to abortion in cases of severe threats to health or rape and incest if a patient reported her harm early in pregnancy. In reality, Amendment 3 constitutionally banned all other abortions from the moment an egg is fertilized—going further than many of the sweeping bans already on the books. Then, Republicans tried to strike a bargain with voters: accept an unpopular abortion proposal in order to entrench in law opposition to gender-affirming care for minors. Amendment 3 would also have constitutionalized such a prohibition, even though Missouri law already prohibited such care. None of this was enough. Missouri voters comfortably rejected Amendment 3. These results reflect the reality that abortion rights remain a winning issue for Democrats. And now that Democrats control both chambers of Congress, the party is in position to pass protections for reproductive rights and dare Trump to veto a popular bill. But the result in a fourth state could give conservatives a boost when lobbying the Trump administration and the 2028 candidates who are waiting in the wings. Idaho’s Proposition 1 would have established reproductive rights in a state with one of the nation’s harshest bans. Idaho’s exceptions are so narrow that the state’s ban has drawn multiple federal challenges, one under the federal Emergency Medical Treatment and Labor Act and a second under the federal Constitution, with Dr. Stacy Seyb, the plaintiff, arguing that even after Dobbs, the Constitution protects a right to life- or health-saving care. Idahoans seemed supportive of the measure until Idaho Attorney General Raúl Labrador issued an opinion last summer establishing that churches could legally fund ballot-measure campaigns without disclosing their donors as long as they used their general funds to do so. The Church of Jesus Christ of Latter-day Saints, to which a significant number of Idahoans belong, responded by issuing a letter read in individual congregations condemning Proposition 1. The church then contributed $1 million to a super PAC opposed to Proposition 1. The move seems to have worked: Approximately 55 percent of Idahoans are on track to reject the ballot measure. The midterm results are hardly a windfall for the anti-abortion movement. Idaho is one of the nation’s most conservative states. Ballot measures in general have been a bloodbath for abortion opponents. On top of it all, the elections of Democrats to surprise governorship and attorney general positions in red states where those positions had been on the front line of enforcing abortion bans—including in Texas—will have potentially significant effects on the future of those bans in those states. Nevertheless, the result in Idaho will prove to be a powerful talking point for abortion opponents pressuring the Trump administration to use executive power to limit abortion access in the president’s remaining time in office. Given what has happened since the fall of Roe, it is all but impossible to argue that focusing on abortion helps conservative candidates. But conservatives have begun to argue that voters simply are not concerned about abortion. The midterm results could be read to support this hypothesis: Abortion was not front and center in midterm races. A blue tsunami swept the House and Senate, but in the same election, voters in a major contest in Idaho rejected protections for reproductive rights. Abortion foes will point to this result in convincing the president that he can deliver for his base with no consequences for his legacy or the future of his party. Reading the results in this way is a mistake. Voters were not focused on abortion because there has been no major news on the subject in months—and all by design. Republicans chose to postpone action on the issue until after the midterms concluded. And Idaho, one of the nation’s reddest states, is hardly a bellwether for attitudes about reproductive rights nationwide. All of this means that Idaho’s ballot result is likely an outlier in a ruby-red state. For Republicans, however, Tuesday’s result may be the perfect excuse for an abortion crackdown they had planned all along. And even with Democrats in control of both houses of Congress, there is plenty of damage Donald Trump and the judges he has put in place could do to reproductive rights. Abortion Democrats Donald Trump Jurisprudence Texas Judiciary