Opinion

What ‘leave it to the states’ really means for abortion

Now comes Arkansas with more evidence that the “leave it to the states” argument is a crock: Red states don’t actually trust their own voters when it comes to abortion rights. And with good reason, considering the fate of abortion measures that have made it onto state ballots since the Supreme Court’s 2022 ruling eliminating constitutional protection for abortion rights.

Arkansas has one of the most draconian abortion laws in the nation. The state provides no exception to preserve maternal health, no exception for fetuses with fatal anomalies, no exception for pregnancies that result from rape or incest. The sole exception is to save the life of the woman in a medical emergency.

Arkansas is also one of the reddest states in the country, and polls show it’s one of a handful of states where only a minority of voters believe abortion should be legal in all or most circumstances. So maybe the state’s near-total ban is what its voters want.

Thanks to an especially tortured decision by the Arkansas Supreme Court, there’s no way of knowing — at least not in 2024. Last week, the state’s highest court, splitting 4-3, contorted statutory language and abandoned simple common sense to keep off the November ballot an initiative that would have amended the state constitution to allow abortion up to 20 weeks and create exceptions after that.

This matters, and not just to the citizens of Arkansas, because it demonstrates how the absence of federal constitutional or statutory protection for abortion has left women vulnerable to partisan state officials determined to restrict abortion rights and ideologically driven jurists enabling them.

What happened here — the lengths to which state officials went to keep the initiative off the ballot, and the complicity of the state’s highest court — is shocking. To qualify for the ballot under Arkansas law, backers had to collect 90,704 signatures, 10 percent of the votes cast in the 2022 governor’s race. Organizers submitted more than 101,000 signatures.

But in a letter last month to the group, Arkansans for Limited Government, Arkansas Secretary of State John Thurston said he wouldn’t certify the initiative to appear on the ballot because organizers had failed to submit one piece of paperwork required for signatures gathered by paid canvassers.

That meant, Thurston insisted, “it is my duty to reject your submission” — disqualifying not just the canvasser-gathered signatures but all of them. And, he said, even if he were to credit the signatures collected by volunteers, the group would have fallen 3,322 short of the requisite number.

The Arkansas Supreme Court largely agreed and said the abortion initiative therefore didn’t qualify for the November ballot.

So, did Arkansans for Limited Government mess up? Was this, as Gov. Sarah Huckabee Sanders (R) claimed on X, a situation in which “the far left pro-abortion crowd in Arkansas showed they are both immoral and incompetent”? Abortion rights supporters “have no one to blame but themselves,” said state Attorney General Tim Griffin.

Hardly. Arkansas law requires that groups using paid canvassers submit a signed statement indicating that the sponsor explained the legal requirements to each paid canvasser before the signatures were solicited. That’s a reasonable good-government measure.

But guess what? On June 27, Arkansans for Limited Government submitted the majority of its paid signatures — accompanied by an explanation statement. It filed additional signatures on June 29 and July 4, and on July 5 a formal petition to be on the ballot. Those came without an explanation statement, relying instead on the representation of Thurston’s assistant director of elections that it wasn’t necessary to include another explanation statement.

Nonetheless, Thurston refused to count even the signatures filed on June 27 — the ones with the explanation statement — and the state Supreme Court agreed. Why? I’m not making this up: The majority parsed what the meaning of “a” is. State law requires that the person filing the petition “shall also submit a statement” certifying that the paid canvassers were instructed on the legal requirements.

“The plain meaning of ‘a’ is settled,” Justice Rhonda K. Wood wrote for the majority. “It is one single statement at one specific point in time.”

In other words, as attorney Adam Unikowsky pointed out on Substack, if Arkansans for Limited Government had simply stapled a photocopy of its earlier explanation statement to the final petition, there would have been no problem.

Except … even that wasn’t necessary. The dissenting justices noted, correctly, that nothing in the Arkansas ballot initiative law requires the explanation statement to be filed at the time the petition is submitted. “On the contrary, this requirement was made up out of whole cloth by the [secretary of state] and inexplicably ratified by the majority of this court,” wrote Justice Karen R. Baker.

I could keep going about the multiple ways the law was twisted. And not just twisted but applied unevenly, giving more leeway to a ballot initiative sponsored by conservative groups.

Still, you get the point. Nothing was going to stop Thurston from seeking to keep the initiative off the November ballot. And nothing was going to stop the conservative majority — cemented when Sanders named a new justice last year — from abetting him.

“Why are [Thurston] and the majority determined to keep this particular vote from the people?” Baker asked. “The majority has succeeded in its efforts to change the law to deprive the voters of the opportunity to vote on this issue, which is not the proper role of this court.”

“Proud I helped build the first conservative Supreme Court majority in the history of Arkansas and today that court upheld the rule of law, and with it, the right to life,” Sanders boasted on X after the ruling.

Rule of law? No. This is the rule of ideologues. So much for letting the voters decide.