Abortion Rights Ballot Measures Pass in Seven States

Quick Hits

• Voters in Arizona, Colorado, Maryland, Missouri, Montana, New York, and Nevada supported ballot measures to add the right to abortion into the state constitution.
• Ballot measures to expand abortion access failed in Florida, Nebraska, and South Dakota.
• Legal challenges are expected regarding the ballot measure process, parental consent requirements, and other abortion limits in certain states.

On November 5, 2024, voters in Arizona, Colorado, Maryland, Missouri, Montana, New York, and Nevada approved ballot measures to amend the state constitutions to establish that individuals have a right to abortion under state law.

In Colorado, Maryland, New York, and Nevada, abortion was already protected under state law, so the ballot measures did not change what employers and health insurers will need to do to comply with the law. However, the ballot measures enshrined the right to abortion in those state constitutions, so it will be harder for future lawmakers to revoke these protections in the future.

The successful ballot measures could still face legal challenges that could leave the law unsettled for months or longer.

In Florida, a ban on abortions after six weeks of gestation will remain in place. South Dakota has retained its ban on all abortions except to preserve the life of the pregnant person.

In general, though the law remains unsettled, employers with self-insured health plans governed by the Employee Retirement Income Security Act of 1974 (ERISA) do not have to comply with state-level abortion laws insofar as those laws “relate to” ERISA-governed plans because ERISA preempts these laws. However, employers with fully insured plans or plans that are not governed by ERISA must adhere to state laws in most circumstances.

Arizona

Arizona’s measure permits abortions before fetal viability, defined as the point when there is a significant chance the fetus will survive outside of the uterus without extraordinary medical measures. It also grants the right to an abortion after fetal viability in order to protect the life, physical health, or mental health of the pregnant person. It prevents the state legislature from passing laws to penalize an individual who helps someone get an abortion.

Previously, Arizona banned abortion after fifteen weeks of gestation.

Colorado

Colorado’s measure prevents state or local government from impeding a person’s right to obtain an abortion. It permits abortion coverage in health plans and overturns an older state rule that banned the use of public funds to pay for abortions.

Maryland

Maryland’s measure states every person “has the fundamental right to reproductive freedom, including but not limited to the ability to make and effectuate decisions to prevent, continue, or end one’s pregnancy. The state may not, directly or indirectly, deny, burden, or abridge the right unless justified by a compelling state interest achieved by the least restrictive means.”

Missouri

Missouri’s measure establishes “a constitutional right to make decisions about reproductive health care, including abortion and contraceptives, with any governmental interference of that right presumed invalid.” It permits abortion to be restricted or banned after fetal viability except when necessary to protect the life or health of the pregnant person. It bars the government from discriminating against people for providing or obtaining reproductive healthcare.

Montana

Montana’s measure affirms that “there is a right to make and carry out decisions about one’s own pregnancy, including the right to abortion.” It allows the state to restrict abortion after fetal viability except when the procedure is necessary to protect the life or health of the pregnant person. It prohibits the state from penalizing, prosecuting, or taking any adverse action against a person because of their pregnancy outcomes or because they helped another person obtain an abortion.

Nebraska

The Cornhusker State had two conflicting ballot measures on abortion this year.

Voters approved a measure to amend the state constitution to prohibit abortions after the first trimester (meaning twelve weeks into the pregnancy). It provides an exception in cases of medical emergencies, sexual assault, or incest.

Voters rejected a measure that would have amended the state constitution to permit abortion up until fetal viability or after viability when necessary to protect the life or health of the pregnant person.

New York

New York’s measure protects against discrimination related to pregnancy, pregnancy outcomes, and reproductive healthcare decisions. It bars the state government from discriminating based on a person’s ethnicity, national origin, age, disability, sexual orientation, gender identity, or gender expression.

Nevada

Nevada’s measure establishes a fundamental right to abortion up until fetal viability or after viability when necessary to protect the life or health of the pregnant person. That right “shall not be denied, burdened, or infringed upon unless justified by a compelling state interest that is achieved by the least restrictive means,” the measure states.

Background on State Abortion Laws

In June 2022, the Supreme Court of the United States’ decision in Dobbs v. Jackson Women’s Health Organization[FS1]  overturned Roe v. Wade, permitting every state to pass its own laws providing abortion restrictions or protections.

Subsequently, thirteen states adopted total bans on abortion, and twenty-eight states passed abortion restrictions based on gestational duration. In some states, legal challenges to abortion bans are still pending.

In 2022 and 2023, voters in California, Michigan, Ohio, and Vermont approved ballot measures to protect the right to abortion in the state constitutions. Voters in Kansas and Kentucky rejected ballot measures that would have established that the state constitution does not protect a right to abortion.

Next Steps

Employers may wish to review their insurance coverage with regard to abortion medications, abortion procedures, and travel benefits for employees or dependents who travel to another state for an abortion. Coverage for these medical services may reduce employer costs related to pregnancy, miscarriage, and childbirth, and may facilitate the provision of medical care for employees adversely impacted by the changes in state law since the overturning of Roe v. Wade.

Additionally, employers may wish to train managers to comply with the Pregnancy Discrimination Act and Title VII of the Civil Rights Act of 1964, which bar employers from discriminating against an employee for having or considering having an abortion.

The election’s impact on federal law and regulations related to reproductive healthcare and its coverage remains uncertain.

Ogletree Deakins will continue to monitor developments and will provide updates on the Employee Benefits and Executive Compensation and State Developments blogs as new information becomes available.

Jeremy W. Hays is Of Counsel in Ogletree Deakins’ Dallas office.

Stephen A. Riga is Of Counsel in Ogletree Deakins’ Minneapolis and Indianapolis offices.

This article was co-authored by Leah J. Shepherd, who is a writer in Ogletree Deakins’ Washington, D.C., office.

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