Election Night Preview: Abortion Edition

The Tuesday elections that matter most.

This was originally part of my Election Night Preview: 2024 Edition, but it got long, so I split it off. I expect to publish Election Night Preview: 2024 Edition on Sunday or, more likely, Monday. New readers not previously aware of my position on abortion might want to read this old footnote first.

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Forget the stupid presidency. It’s just a big dumb house and a nuclear arsenal. I’d prefer not to give the nuclear codes to idiots, but that ship has sailed, and it doesn’t cut to the heart of who we are as a people.

On Tuesday, Americans in ten states will enter the ballot box to answer a simple yes-or-no question: “Should it be legal to kill more children?”¹

Americans are, for the most part, going to answer this question wrong.

In their defense, most civilizations throughout history have answered this question wrong. Infanticide is a common feature in most civilizations, as is abortion. This was changed in the West by Christianity’s insistence that every human being has intrinsic, not merely instrumental, value that led to legal ideas like “equal rights” and “human dignity” and “women and children and olds and cripples are actual people that you actually have to care for.” If Christianity continues to recede, then, we can reasonably expect these ideas to recede with it, and to find ourselves gradually in a colder world.²

This is not the only reason the pro-abortion ballot amendments find themselves on a glide path this fall. The pro-abortion movement is extremely well-funded by powerful interests,³ and it receives heavy anti-aircraft coverage from traditional media, who routinely just lie about the effects⁴ of these measures. They often pretend that notional limits on viability in the amendment texts will have any legal effect, and spread false stories about women dying because anti-abortion laws don’t allow treatment for ectopic pregnancy. (All anti-abortion laws in the United States do allow such treatment.)

This makes it difficult for voters to make an informed decision. U.S. voters overwhelmingly oppose late-term abortion, and they are broadly hostile to elective abortion… but, if the pro-abortion side controls the narrative—and they do—those aren’t the stories in voters’ minds when they vote.

This also makes it difficult to write about. I can suck down presidential polls for hours, but I can’t even type “Florida Amendment 4 poll” into StartPage without my throat constricting a little. That’s one reason why I’ve written a lot about the presidential race and very little about the abortion races.⁵

The election is Tuesday, though, so it’s time for me to get a grip. Let’s survey the abortion battlefields.

Blue States

For these reasons, pro-abortion measures are nearly certain to pass in the blue states that are voting: Maryland (leading 69-21), New York (69-22), and Nevada⁶ (75-21). I can’t find any polling on Colorado’s combined measure to both constitutionalize abortion-on-demand and make it taxpayer-funded. My assumption is that it will pass easily, but I have it on good authority that at least some anti-abortion orgs thought it could be fought, at least earlier this year. (Whether they have done so, I don’t know.)

Arizona

Once-red Arizona is also a write-off, and I have it on good authority that many anti-abortion orgs wrote it off months ago. Arizona’s Republican Party is in the middle of a prolonged attempt at suicide—to own the libs, I suppose—and our side has been completely unable to catch a break. The state courts (correctly) re-imposed its pre-Roe criminal prohibition of abortion early this year, but a criminal prohibition on abortion without exceptions for rape and incest is not politically viable in a purple-red state in 2024. The Arizona legislature repealed and replaced the law with a 15-week ban, but against strong opposition by most of the GOP caucus, which does not exactly win voter confidence that they can trust the GOP caucus. By the time the 15-week ban was in place, the damage was probably already done.

There would be a sort of noble heroism to going down to electoral disaster in defense of rape babies (the least popular children in the country)… but the AZ-GOP also went full Trump in John McCain’s home state, nominated the ludicrously unpopular Kari Lake to run and lose for a second time, and got no favors from Donald Trump, whose only role in the controversy has been to criticize the pro-lifers for being too “restrictive.” A perfect storm.

Anyway, Arizona Prop 139 leads 57-33. Although the “No” side of a ballot measure tends to gain in the final days of an election (due to status quo bias), it would need both a hugely successful final week and a large polling error to wrestle support back under 50%.

The Red States

More alarming by far for the fetal-rights movement is how pro-abortion amendments are performing in several red states, even two years after Dobbs, even where Republican officials have been able to use some modicum of their official power to counteract false media narratives.

Montana

In Montana, Amendment 128 had a comfortable 60-25 lead two weeks ago—even though the same poll shows voters support restricting abortion in at least some circumstances by a margin of 62-36! Yet they are voting for an amendment to prevent that!

They have no reason to do so! Abortion is already barely restricted in Montana, because Montana courts have struck down even modest regulations like parental notification and requiring abortions be performed by physicians!

Augh! Voters, man!

Missouri

In Missouri, Amendment 3 is closer than in Montana, but still leading 52-34. That’s a little hopeful, since “No” tends to get most of the gains at the end of a campaign, and the amendment requires 50% “Yes” to pass. In theory, then, if Amendment 3 lost just 3 points of support (and all undecideds went to “No”), the measure would fail. However, that would be a huge uphill push to get there, and Amendment 3 has to be deemed quite likely to pass.

One challenge is that Missouri law currently has no rape/incest exceptions. This leaves voters forced to choose between unlimited abortion on demand throughout pregnancy, or strict protections for the unborn, even those conceived in rape. There’s a correct answer there, but voters are not yet ready to make it, even in red Missouri. A close margin here would be encouraging.

Florida

In Florida, Gov. Ron DeSantis, who should be the Republican nominee, has pulled out all the stops in fighting the dishonest anti-fetal Amendment 4 campaign. He has staked a lot of effort and a lot of political capital on preserving Florida’s heartbeat-protection law (which kicks in at around six weeks’ gestational age, when only about 70% of mothers have realized that they’re now mothers). He’s had zero help from President Trump, also a Florida resident, who flounced into the state and said he hates the heartbeat law, then (with about fifty anti-abortion orgs holding a gun to his head) said he’d vote against the amendment… but that he still hates the heartbeat law. God damn it, Republican Party primary voters.

Anyway, Amendment 4 has been heavily polled, and support mostly lands in the 52%-58% points range, right around where Ohio’s abortion amendment polled last fall. (Ohio’s amendment then passed with 56.7%.) America’s best national pollster,⁷ NYT/Siena, found especially soft support: 46-38 on October 6. Overall, this is a decent result for a swing state (a lot better than Arizona or Nevada!), but Amendment 4 is still likely to get a majority.

On the other hand, it is not likely to pass. Florida requires 60% voter support to pass a constitutional amendment. Florida Amendment 4 certainly could hit the 60% threshold and pass (which would be shattering for a bunch of reasons), but it is currently the underdog.

Winning on a technicality would, of course, be a win for unborn children in Florida and throughout the entire South. As a referendum skeptic, I’ve thought for a very long time that 60% thresholds (or higher) are a good idea. However, winning like this would not be a clear model that could easily be copied to other states. Also, it probably would not do much to blunt the efforts of pro-abortion campaigners elsewhere.

South Dakota

The single most anxiety-inducing election in the country, is in South Dakota. Like Missouri, South Dakota has no rape or incest exceptions in its abortion law. Unlike in every other state we’ve looked at, however, pro-life groups and officials have apparently had big success persuading voters. In May, the pro-abortion amendment, Amendment G, polled at 53-35. This week, one poll shows it up by just 3, while another shows it down by 3. Both polls show it below the 50% threshold needed to pass. This is a tossup, but Team Fetal Rights holds the better cards.

A win here would be tremendous, too. It would be the first time since Dobbs that a ballot measure was not only defeated, but defeated by a majority vote. I know that it’s deep-red South Dakota, not exactly a mind-blowing triumph, but, right now, it’s not clear fetal rights can win anywhere. Proving we can win somewhere is a necessary start.

Remember: gay marriage lost even in California, back at the beginning. If we can win, on a straight majority vote, to preserve a law that protects all South Dakotan children (even rape babies), that’s a beachhead. That’s a big win.

On the other hand, if we lose, abortion-on-demand in one of the four (?) most pro-unborn states in the country.

Good gracious watching this one could kill me.

Nebraska

I left Nebraska for last because it’s complicated. Nebraska has two abortion amendments on the ballot this fall, and they contradict one another. You should see this for yourself.

Nebraska law currently allows abortions up to 12 weeks, with rape and incest exceptions after. Like most moderately pro-life states, Nebraska also has a variety of abortion regulations, like a law that minors need the consent of one parent and notification to the other. It is likely these regulations do more to protect unborn children than the actual abortion ban. (After all, the vast majority of abortions are procured before 12 weeks.)

Initiative Measure 439 is the standard pro-abortion amendment: it guarantees abortion on demand up to “viability,” but “viability” is not determined by science or the ability of the fetus to survive outside the womb but by the decision of the abortionist. As we know from Colorado abortionist Walter Hern, abortionists don’t consider a fetus “viable” until the mother wants her. Moreover, the “fundamental right” language means that passing Initiative 439 would strike down not just the state’s second-trimester ban, but also every other regulation on abortion (such as parental notification & consent). There are no surprises here. With minor variations, this is the playbook the pro-abortion movement is running in every state.

Initiative Measure 434, however, is the first pro-fetus amendment on any ballot that we’ve looked at. Measure 434 would grant second- and third-trimester children a constitutional right to protection from abortion, with exceptions for medical emergency, rape, and incest. This would effectively confirm and constitutionalize Nebraska’s current law.

Either measure passes if it receives 50% support. If both pass, the measure with the most votes wins—unless the governor of Nebraska deems that they are not in conflict, and rules that both can go into effect. (That approach would be legally fraught, but, since Nebraska governor Jim Pillen is a Republican, he will likely attempt it if Measure 439 beats Measure 434. A Democratic governor would likely do the reverse.)

Based on everything we’ve ever known about public opinion on abortion, Measure 434 should pass. Voters do not like abortion bans and they do not like abortion-on-demand. They like middle grounds, and a late-term abortion ban with exceptions after and regulations before is, in theory, exactly what voters want, especially in a red state. If 434 does not pass, we’ve been betrayed not just by the voters, but by decades of polling about the voters.

I’ve only found one poll of the Nebraska initiative. In that poll, from early October (so things may have changed a lot since then), the pro-abortion amendment, Initiative 439, was narrowly ahead, 44-40. Meanwhile, the anti-abortion amendment, Initiative 434, was also narrowly ahead, by a slightly wider margin: 46-41. Both results are within the margin of error, and both fall short of the necessary majority mere weeks before the election. I rate them both a coin toss to pass—but then, if they do both pass, it’s another coin toss which one gets the most votes. Anti-aborts shouldn’t rest for a moment in Nebraska, but they once again have the better cards in their hand.

If the notion of competing ballot amendments succeeds in Nebraska, it’s an approach pro-lifers can take in other states in future cycles. Referenda are mostly stupid and should be very difficult; longtime De Civ readers know that I’ve long believed complex policy questions shouldn’t be settled by undecided voters who were swayed by a 30-second TV spot dripping in sentimentalism and lies—not even when the lies favor my side. However, if the pro-choicers can phrase their extreme positions in a way that appeals to a majority of referendum voters, well… two can play that game. Moderate anti-abortion policies (like those in Nebraska Initiative 434) are actually popular, too, which helps move the ball down the field. But let’s not count our strategy chickens before the vote hatches, or something.

The Final Scorecard

Safe Pro-Abortion

• Maryland

• New York

• Nevada

Likely Pro-Abortion

• Arizona

• Missouri

• Montana

• Colorado (probably actually safe but we have no polls to confirm)

Tossup

• South Dakota

Lean Pro-Unborn

• Florida

• Nebraska

My hope, then, is that the good guys (and gals) will win three of these. That would be tremendous. It would go a long way toward restoring hope to a movement that has had very little these past twelve months—and toward blunting the Democrats’ belief that they can use abortion as a reliable wedge issue in every single election. However, winning all three is not likely. Even if tossup South Dakota comes up our way, we could easily win South Dakota and lose Florida or Nebraska or both.

The modal outcome, then, is probably that we win two of them, which would still help a lot. Winning just one would be disappointing but still shows we can win somewhere.

Losing every single referendum, however, is a real possibility. None of the anti-abortion campaigns are safely in the lead. A systemic polling error that undercounts progressives nationwide could very easily put all three out of reach. I put the odds of outright losing all three referenda at about 30%. I’m trying to talk myself down to 25%, and I can’t.

If that happens, though, somebody make a wellness check at my home, because I will not be okay. Lots of people would die as a direct result of these measures. Moreover, if the pro-choice movement triumphs everywhere, even in deep-red South Dakota, every single time abortion is placed on the ballot, the Republican Party will have every incentive to cut the pro-life movement loose once and for all. It will become difficult to defend even moderate anti-abortion laws as “the will of the people,” no matter how many polls show the people support it, because we will have lost every single time the people showed up to actually vote.⁸

At some abstract intellectual level, I can accept the fact that, in a fallen world, a de-Christianizing society is bound to become more callous and more violent toward the most innocent. In the concrete, though, I am in no way prepared for the beloved people of my beloved country to lead the way into darkness.

Hopefully, though I won’t have to accept that. Odds are, we win one or two of these. For the religious readers: Monday and Tuesday are good days for prayer and fasting.

This is why re-paganization soon comes after infants and the sick elderly, too.

Monday: FINALLY, the General Election preview I keep promising!

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1. Not a direct quote.

2. My mother teaches ethics to nursing students. If you think the horrors of Canada’s MAID program aren’t happening here, you’re wrong.

3. Remember Dworkin:

A lotta people will throw a lotta money at an issue to keep it this way.

4. I have a forthcoming piece about media “fact-checkers,” who, during the presidential and vice-presidential debates this year, told national audiences that Minnesota’s recent abortion legislation does not allow the killing of unwanted children after they are born. (This was because Vance and Trump both pointed out, correctly, that the legislation does allow such killing.) Those “fact checks” were lies, and multilayered lies at that, and some of them were clearly deliberate lies.

I’ve had to keep it in draft until after the election, though, because the draft is—if you can believe it, coming from me—too angry to publish. Even I have a line, it turns out.

5. The other reason is that it seems as though everything that can be said, has been. There’s only so many ways to say, “These are babies, obviously. Don’t kill babies, obviously.” An election between a killer and an insurrectionist presents a fascinating moral dilemma. The only interesting thing about this moral dilemma is how it can be possible for so many people to be so wrong—which is why I read so much about Germany 1933-1945 and the United States 1820-1865.

6. Nevada is considered a battleground in national races (president, U.S. Senate) but has generally gone blue, often by pretty convincing margins, and its state legislature is teetering on the brink of a Democratic supermajority.

7. NYT/Siena is America’s best national pollster, but is not the best pollster in the nation. That distinction (currently) belongs to J. Ann Selzer of the Des Moines Register, who has built a well-deserved record for publishing apparent outliers that later turned out to be exactly right. However, Selzer only polls Iowa. One of the secrets of her success is that she only polls one state that she knows really well, instead of trying to poll every state. For this reason, she is not a national pollster, just a nationally-respected state pollster. I’ll be writing about her in my General Election Preview, after her final poll publishes.

UPDATE: …and, wow, while I’ve been typing the rest of this article, Selzer’s poll has come out, and it might just be the most shocking poll I have ever seen in my entire life: Iowa Harris+3.

I don’t really give much of a crap about the presidential race, but I am gravely concerned about her finding that Whites are turning Democrat while non-Whites are turning Republican, and what that finding could mean for abortion ballot measures in overwhelmingly White South Dakota and Nebraska. I am especially concerned about this finding because Iowa recently reinstated a heartbeat law (called by its detractors a “six-week ban”). If Iowa has lurched left, and this turns out to be because of abortion, that bodes very ill for Tuesday.

8. A small flicker of hope if that happens: the gay marriage people lost every single ballot measure in 2004. Eleven years later, they were the law of the land. The problem is that they had all the institutions on their side, changing minds with everything from Will and Grace to special school curricula. Polls changed quickly on gay marriage as a result. They were already changing by 2004.

We, by contrast, have all the institutions against us, and abortion opinion was therefore largely static for the fifty years leading up to Dobbs. It’s by no means clear how we could follow the path of the gay-rights movement under those circumstances.