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Two states passed abortion amendments to their constitutions. What does that mean?

CNN logo CNN 11/8/2018 By Jessica Ravitz, CNN
© Photo Illustration/Gwendolyn Sung/CNN

A battle over abortion bills in the United States played out in voting booths Tuesday, with Alabama and West Virginia passing constitutional amendments that would restrict abortion access and Oregon handily voting to protect it.

What these amendments tangibly mean, now or after they're signed, is debatable, given the federal protection of Roe v. Wade. But they are, at a minimum, signs of what's to come should the landmark Supreme Court case get overturned.

"In a world after Roe, the voters will finally get to decide what abortion policy they support," said anti-abortion activist Kristan Hawkins, president of Students for Life of America, in a written statement. "In this election, we saw people getting ready for the day in which Roe becomes a footnote in history."

What the laws say

Alabama's Amendment 2, which passed with 61% of votes, amends the state's Constitution "to declare and otherwise affirm that it is the public policy of the state to recognize and support the sanctity of unborn life and the rights of unborn children ... and to provide that the constitution of this state does not protect the right to abortion or require the funding of abortion."

West Virginia's Amendment 1, which passed more narrowly with 52% of votes, states that "Nothing in this Constitution secures or protects a right to abortion or requires the funding of abortion."

Oregonians shot down Measure 106, which would have prohibited the use of public funds to pay for abortions except in cases in which there's a federal requirement or when the procedure is deemed "medically necessary." Only 37% of voters voted for the measure, while 63% came out in opposition.

What advocates say

Anti-abortion activists were quick to applaud voters who came out against abortion and using taxpayer dollars -- like Medicaid -- to pay for abortions.

"West Virginians value life and reject abortion on demand," said Marjorie Dannenfelser, president of Susan B. Anthony List, a national anti-abortion group that launched a campaign to support the state's measure. "Amendment 1 could spare the lives of 1,500 unborn West Virginians every year."

Although the West Virginia amendment "won't have an immediate impact," Julie Warden, a spokeswoman for the Vote No campaign, warned in an emailed statement that "it is ominous for low-income women who already face insurmountable barriers to healthcare."

She added that options are being considered "to ensure every West Virginian can get safe abortion care," no matter the amount they earn.

The Alabama amendment too "has no immediate effect," said Kelly Krause, spokeswoman for the legal advocacy group Center for Reproductive Rights, but "it sets the stage for Alabama to criminalize abortion without exception should Roe be overturned. By giving the same rights to a fetus as a person, this measure could have far-reaching consequences for contraception and in-vitro-fertilization as well. For example, emergency contraception like Plan B could be banned and couples undergoing fertility treatments could be forced to pay for the upkeep of their frozen embryos forever."

Dr. Brandi Shah, a family medicine physician in Alabama who's on the faculty of Physicians for Reproductive Health, called the amendments "back door bans against abortion" and warned what this could mean in if the protection of Roe v. Wade is lost.

"In Alabama, at a state level, a person's right to health care -- in this case abortion -- has been lost," she said in a written statement. "The right to make life-changing decisions about pregnancy has been taken away from pregnant people even in extenuating cases of rape, incest, or risk to the life of a woman."

The passage of the two measures left Dr. Willie Parker, an ob/gyn, abortion provider and board chair of Physicians for Reproductive Health, "heartbroken for my patients and the people of Alabama and West Virginia."

"Abortion is health care, health care is a right," he said in a news release, "and a right is not a right if every patient can't afford to access it."

Beyond the bills

The hot-button issue of abortion extended beyond ballot measures; it helped drive support and interpretation of candidates. In this regard, both sides of the debate chose to declare victory.

A representative from Americans United for Life pointed in a statement to election results in three states -- North Dakota, Missouri and Indiana -- as a positive sign.

"Voters swept Democratic senators out of office who voted against pro-life Justice [Brett] Kavanaugh," said Steven Aden, the anti-abortion group's chief legal officer and general counsel. "The net result is now a strong pro-life majority in the Senate," which he hopes will lead to the confirmation of more anti-abortion federal judges and the passage of bills like the Pain-Capable Unborn Child Protection Act, which would ban late-term abortions nationwide.

But Planned Parenthood declared Tuesday's election results "a huge victory for reproductive health and rights" in a news release. "Voters around the country flipped the U.S. House of Representatives to a pro-reproductive health majority, and key reproductive health champions were elected statewide," including the governors-elect in Michigan, Kansas and New Mexico.

Newly elected officials in the mix means both sides are preparing for what's to come.

Those on the anti-abortion side vow that they will not be complacent, especially as they "face the reality of a now pro-abortion led House of Representatives that is determined to thwart President Trump's pro-life policy agenda," said Dannenfelser, of the Susan B. Anthony List.

And an abortion rights voting project, even as it celebrates its "prochoice champions," sums up the new reality its side is facing. It's a reality in which state amendments, like the ones passed in Alabama and West Virginia, could change the battlefield.

"Next year we know that the Supreme Court will likely overturn Roe v. Wade," #VoteProChoice said in a statement. "America's nationwide prochoice majority sent a clear message that we will not give up our reproductive freedom."

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