The Labor and Delivery of Reproductive Justice for Workers: The Post-Dobbs Workforce Reproductive injustice affects who can get work, who can go to work, and who can stay at work.
It is October 2022. A human resources worker in Arizona is deciding which candidate will best fit the middle-management position that just opened at a bath products company. They look at the files in front of them. One is a profile of a slightly more qualified woman of color who is single and age thirty. One is a profile of a slightly less qualified white man, age forty-five, who has a wife and two teenage children. Though there are a hundred levels of unconscious bias at play in this scenario, the argument the human resources worker makes to their department head is that they cannot possibly know whether the woman will get pregnant — by her own choice or not. She carries the liability of potential leaves and inconsistency. The woman candidate could not make any promises to the contrary in her interview. As bitter as that might have tasted, those promises were impossible to make. She knows that she could be assaulted and impregnated. And she knows that if she doesn’t realize that she is pregnant within a narrow timeframe1 — because she is reckoning with trauma and working at her job — carrying her forced pregnancy to term will not be her choice.2 It will be a government mandate.3
On June 24, 2022, the Supreme Court in Dobbs v. Jackson Women’s Health Organization4 held that the Constitution of the United States does not confer a right to abortion.5 Never before had the Court revoked a right so fundamental to people’s lives.6 The opinion, authored by Justice Alito, argued that the right was not “deeply rooted in this Nation’s history and traditions” and thus should be at the discretion of individual states.7 A variegation at this scale creates a dearth of abortion access in half the country.8 By August 2022, “1 in 3 American women ha[d] already lost abortion access.”9 By the end of 2022, most abortions were banned in at least thirteen states.10 Dobbs entrenches and exacerbates the oppressions that exclude reproductive subjects from the job market. Corporate action has been sought as a solution, but workers with reproductive needs must be protected by the state. Section A of this Chapter examines how reproductive health care access affects who can enter the workforce. Section B lays out the potential corporate solutions that employers have offered and argues that they are stopgap measures and do not offer a true protection of reproductive freedom. Section C argues that solutions must come from the states and local governments, examining a familiar history of federal antidiscrimination law alongside an unfamiliar contemporary surge of support for pro-choice, direct-democracy measures as roadmaps for potential solutions.
A. Who Gets Hired? And Who Doesn’t Get Fired?
Access to abortion, contraception, and reproductive care affects who works. A dearth of abortion access disproportionately affects people of color and gender minorities (a term this Chapter uses to refer specifically to non-cis women who can get pregnant).11 Black, Brown, and Indigenous communities deal with higher rates of unintended pregnancy due to a lack of access to contraception and sex education; higher rates of forced pregnancy have been and will be imposed on racially marginalized people.12 Trans*, nonbinary, and gender-nonconforming people who can become pregnant face intersecting barriers to health care that are compounded by a dearth of access to reproductive care.13 People who are already marginalized across multiple axes face compounding oppressions that limit their economic mobility. Workers who are active contributors to reproductive care — or who facilitate access to such care through advocacy or funding — face compounding conflicts and barriers to work in a post-Dobbs labor landscape.
1. Disproportionate Exclusion of People of Color. — Restricting access to abortion will disproportionately affect people of color. Due to discrimination against pregnant workers14 and the negative impacts of forced births on socioeconomic outcomes and career prospects,15 people of color will be disproportionately excluded from the workforce. Many states that have passed outright or extreme bans on abortion are in the South, where nearly half of the country’s Black population lives.16 The South has a disproportionately high percentage of the Black17 and Latinx18 populations, despite being the regional home to less than forty percent of the total U.S. population.19 A lack of access also unduly burdens poor people, who cannot afford to cross state lines or access nonsurgical abortion pills and whose employment is less likely to provide opportunities for leave.20 Abortion access as an economic justice issue runs together with racial justice questions. Black and Brown people are 1.8 and 1.5 times more likely than white people to be in poverty, respectively.21 The average abortion patient already has one or more children, is in their late twenties, is low income, is unmarried, is in the first six weeks of their pregnancy, and is having their first abortion.22 The later the abortion happens in a pregnancy, the more it costs.23 The further one must travel, the more it costs.24 The more complicated the procedure, the more it costs.25 The more legal barriers there are (that is, the potential for patients or providers to be sued or arrested), the more it costs.26 All of these factors mean that carrying a (safe) pregnancy is expensive, and, for many, unaffordable.27 In the United States, maternal morbidity is off par with other developed countries,28 costing society billions of dollars.29 In another aspect of reproductive injustice intersecting inextricably with racial injustice, maternal mortality30 and injury31 rates are extremely high for Black, Brown, and Indigenous people who can get pregnant. Even if a person can stay at work while pregnant, facing one of the most traumatic health outcomes of one’s life can take an immense toll on one’s overall life and ability to work because of the lingering effects from the intense physical pain.32 A forced pregnancy is not only the imposition of grave violations of bodily autonomy and dignity, but also a massive economic burden33 — especially considering how the capacity to be pregnant can affect even prospective employment. In hiring for nontemporary positions, even the vaguest impression that a worker may be “vulnerable” to pregnancy can affect a decision at the outset. There is an implicit bias about “hyperfertility”34 in Brown and Black women that has been cultivated over centuries, stemming from a history of reproductive oppression and the use of Brown and Black bodies to reproduce a workforce that upheld racialized capitalism.35 Without the possibility of abortion, and with limitations on contraception on the horizon, this implicit bias concerning fertility cannot be overridden by promises or reassurance from Brown and Black individuals in job interviews.36
Due to gaps in the scope and enforceability of federal laws protecting pregnant people, pregnant workers are often discriminated against in the workplace and in hiring decisions. This fact reflects the acute need for choice about when one becomes pregnant, as well as for broader enforceable protections for pregnant people. The protections of the Pregnancy Discrimination Act of 197837 (PDA), designed to prevent employer discrimination on the basis of pregnancy, do not require accommodations that are not provided to workers with different disability-based needs38: workers from Oregon to South Carolina report being assigned tasks that they are physically hindered from doing (such as standing constantly or heavy lifting), then being suspended without pay when they cannot perform them.39 In spite of the legal obligations of employers, there is no enforcement unless overburdened pregnant workers expend time and money on a civil suit. After requesting medical accommodations during a high-risk pregnancy, one worker was explicitly told, contrary to the law of the land: “You don’t get special treatment just for being pregnant.”40 Many workers are not legally trained and would not recognize this for the blatant lie that it is.
Twenty-three percent of parents report that they have “considered leaving a job because of discrimination or lack of reasonable accommodations during a pregnancy.”41 For several decades, the limited rules of the PDA were the only federal antidiscrimination and accommodation protections available to pregnant workers.42 The PDA applies only to employers with fifteen or more employees,43 and even in larger workplaces, it has often proven insufficient.44 Asking for a stool, to lift less weight, to cut delivery routes, or to have access to water or a bathroom must be justified by pointing to analogous accommodations provided for nonpregnant workers.45 This limits pregnant workers’ potential accommodations and also disincentivizes employers from offering any minor or major accommodations at all for any worker with a disability that is not mandated by law.
The negative effects resulting from avoiding compliance with these laws are especially severe for minimum-wage and temporary workers. Many of the jobs that hire on a temporally limited basis — such as secretaries, flight attendants, and clerical assistants — predominantly hire young women.46 Among employed women, sixty percent of Latinx and fifty-four percent of Black women work in service or sales/office occupations, sectors that are more likely to retain minimum wage and temporary workers.47 Nearly half of all women in the growing technology sector are on fixed-term contracts.48 These contracts increase an overall sense of job insecurity, especially for women.49 They make it easier to not renew a contract when a person becomes pregnant. They put pressure on family planning for workers who do wish to renew a contract.
Studies report stark differences in socioeconomic outcomes between women in the United States who received the abortion they sought and those who were denied access.50 Women who were denied abortions due to state restrictions (such as gestational limits) had higher odds of poverty six months after denial than those who were able to access the necessary care.51 The same study measured long-term effects, finding that women denied abortions were also more likely to remain in subjective poverty and to receive public assistance for five years after being denied care.52 Extending the analysis beyond poverty, women who were denied abortions were also more likely to experience multiple years of “economic hardship and insecurity.”53
Access to abortion also affects workers’ planning in a statistically significant way by enabling long-term educational and employment planning; by contrast, a lack of access abrogates even imagined possibilities.54 In a study of the one-year plans of women seeking abortions, ensuring access to abortion enabled the women to articulate and execute their plans.55 A positive future outlook and implementation of educational, employment, and residential plans were more feasible for women who were able to attain the abortion they sought than those who were not.56 In a world where abortion will be significantly harder to access, regardless of a continued need for the procedure, these statistics merit close attention, especially when considering who will lose access most immediately. Some of the Black, Brown, and Indigenous people who will be affected in these ways are gender minorities, another compounding axis of identity-based marginalization that has restricted access to employment opportunities.
2. Disproportionate Exclusion of Gender Minorities. — A combination of gender and economic marginalization already places trans* and nonbinary workers in a difficult position when seeking jobs.57 Antidiscrimination law lags with regard to gender minorities, especially trans* and nonbinary workers.58 The law too often fails to protect trans* folks who suffer aggressions and lack of opportunities at work.59 Now, for gender minorities who can get pregnant, a post-Dobbs landscape exacerbates exclusion from work. Further, lack of access to gender-affirming care, along with lack of abortion access, is another affront to bodily autonomy, gender definition, and long-term life planning for gender minorities. From the legislature or the bench, attacks on gender-affirming care tend to coincide, precede, or immediately follow restrictions on abortion access.60 Coalitions that engage in legal battles for gender equity often overlap directly with alliances for reproductive rights.61
B. Employer Action as a Stopgap Measure
1. The Pro-Choice Corporation? — In the weeks following Dobbs, some abortion providers closed up shop. Some refused to shutter their windows or doors. Some lawyers critiqued the interpretive methods and political origins of Justice Alito’s majority opinion in Dobbs.62 Others marked the Court’s aggressive disregard for its own legitimacy and for stare decisis, calling out the active harms of the decisions (and of the entire Term), especially to marginalized peoples.63 Activists raised their voices and fists in the streets64 or went underground, considering ways to provide nonsurgical abortions65 or to move people in need of health care across state lines.66 Into the breach also came an unexpected ally: several prominent corporations who pledged to offer employees seeking to terminate pregnancies a few thousand dollars in abortion-related travel assistance.67
Corporate employers providing abortion-travel funds are making transparent the complex legal and financial navigation necessary to access reproductive care. What do the evolving promises of companies mean for the workers who will receive those benefits, and for the folks who provide the services that they will seek out? At the level of economic common sense, why would employers provide these benefits? Because unwanted, unplanned pregnancies are bad for business.
In addition to bodily indignity and psychological harms, people subjected to forced pregnancies must take leave and alter their work in ways that they did not plan for. Economic burdens fall on not just the state but also employers wishing to retain their workforce. Someone who has a child at a time when they did not intend could end up embarking on an entirely different career path — or an entirely different timeline.68 A famous (or infamous, depending on one’s political perspective) 2021 New York Times Magazine essay, The Abortion I Didn’t Have, was subtitled: “I never thought about ending my pregnancy. Instead, at 19, I erased the future I had imagined for myself.”69 The sheer possibility of so many unpredictable contingencies discourages employers from hiring people who can get pregnant.
This section will explore the incentives for companies to retain their employees with the capacity to get pregnant. The contemporary corporate landscape is marked by (1) antidiscrimination law, (2) research on the economic upside of diverse cohorts of employees,70 and (3) broad social pressure to hire a gender-diverse body of workers.71 Companies that assume that gender-diverse employees will exercise whatever reproductive choice is available to them are developing burgeoning abortion-travel policies to expand the range of choices for employees they hope to retain. These policies are severely limited to corporations that are highly visible and rely on a broad consumer base.72 This is where social consumer pressure and peer pressure from other corporations work. However, these benefits may be limited to only those persons who work for companies that are attending to public image, reading management consultant research, and hiring “top talent” from elite colleges and graduate schools (over seventy million American workers have a high school diploma but not a bachelor’s degree, and thus are rarely considered for many in-demand jobs in management, technology, and health care73).
2. What Is Owed to Workers Who Can Become Pregnant? — Antidiscrimination law suggests a corporate responsibility to workers who can become pregnant. The late Justice Ginsburg raised several early employment antidiscrimination cases to fame, including Frontiero v. Richardson74 and Weinberger v. Wiesenfield,75 in which she argued on behalf of women and men that gender should not be a determinant in the denial of employment-related benefits.76 Section C discusses the evolution of antidiscrimination law to identify lessons for reproductive concerns. The statutes that make up this body of law include the Fair Labor Standards Act of 1938,77 the Equal Pay Act of 1963,78 Title VII of the Civil Rights Act of 1964,79 the Family and Medical Leave Act,80 the PDA, the Affordable Care Act81 (ACA), and the Americans with Disabilities Act82 (ADA). This legal infrastructure weighs on corporations that, where possible, have incentives to continue to hire and retain gender-diverse workers (including cis women and gender minorities).
Further, the benefits of gender-diverse cohorts and culturally and ethnically diverse cohorts of employees have been touted in recent years.83 Diversity research has been growing in the last decade, with robust numbers that illustrate how multi-identity teams directly lead to better business outcomes.84 Despite the proven benefits of gender inclusivity in the workplace, massive barriers existed even before the looming threats to broad reproductive freedom. In 2015, McKinsey identified several important factors contributing to the lack of women in leadership in industry and the much lower pay brackets of gender minorities in the workforce: “blocked economic potential” (such as denied leadership opportunities and assignments), “time spent in unpaid care work,” fewer (and now diminishing) legal rights, “political underrepresentation,” and “violence against women.”85 The playing field has never been level for all gender minorities; race,86 sexuality, and disability are vital factors in determining access to opportunities.87 Increasing public awareness of these inequities is one factor driving greater social pressure to hire and retain a gender-diverse body of workers.88
Broad social pressure on companies (stemming from robust new Environmental, Social, and Governance (ESG) policies, shareholder activism, and socially conscious purchasing by consumers) encourages employer support for workers who can become pregnant. Post-Dobbs, several companies have announced abortion-travel policies with a few thousand dollars in funding.89 By all indications, companies will continue to institute similar policies and “benefits” for employees where possible.90 Enabling employees to end unwanted pregnancies can be framed as an ESG matter — signaling virtue to workers and clients — and promotes more efficient and successful business.91 The field of ESG is a developing realm of business pressures. “The idea is that investors should evaluate firms based not just on their commercial performance but also on their environmental and social record and their governance, typically using numerical scores.”92 Investors use these scores to screen investments based on the policies that the corporations put in place — often around climate change or social justice concerns.93 Shareholder pressure has become a prominent avenue for pushing for reproductive rights. Spending proposals and plans for political involvement in reproductive rights have entered corporate boardrooms.94 The rhetoric around corporate social responsibility evolves every day that more consumers trust corporations in ways that exceed their trust in the media and government, and every day that corporations are pushed to be “proactive” with social policy, as opposed to reactive.95 Socially conscious consumers assert that they will be putting their money where their mouths are. This type of spending can influence how companies operate: many depend on clients who purchase according to the principle that one should buy only from companies that do good.96
How will the inability to get an abortion affect whether women and gender-marginalized people will be able to find jobs? The unspoken pregnancy question has always existed: “Will this person get pregnant, thereby inconveniencing me and prompting a need to reshuffle?” But now it becomes an omnipresent threat: “Even if this person doesn’t seem to be planning to conceive, they could become pregnant by sheer virtue of having a uterus.” Due to social pressures, business benefits, and antidiscrimination law, companies cannot afford not to provide an abundance of reproductive health care options. But as a society, the United States cannot afford to rely primarily on corporate action as a solution for workers.
3. Antichoice Legislators at Loggerheads with Big Business. — These corporate allocations have prompted a strong reaction from antichoice legislators. Fourteen state-level Texas lawmakers sent a letter to Lyft in May 2022 in response to their abortion-travel policy: “The state of Texas will take swift and decisive action if you do not immediately rescind your recently announced policy to pay for the travel expenses of women who abort their unborn children.”97 The letter details potential mechanisms to punish corporate abortion-travel policies, including: (1) permitting Texan shareholders to sue executives of publicly traded companies that pay for abortion care and (2) allowing county district attorneys to pursue charges for abortion “crimes” anywhere in the state.98
Federal antiabortion legislators are aiming to prevent existing corporate benefits from extending to pro-choice ESG policies. On May 3, 2022, following the actions of several companies in response to the leak of the Dobbs opinion, Senator Marco Rubio introduced a bill called the No Tax Breaks for Radical Corporate Activism Act.99 The bill would amend the tax code provisions on deductible employee travel100 to prohibit employers from deducting expenses related to their employees’ abortion-travel costs (and costs of employees’ families’ gender-affirming care).101
4. Anticontraception Corporations: Forced Pregnancy Is Bad for Business — But Some Businesses Do Not Mind. — Abortion care and funding is a new frontier for corporations. However, the ACA insurance mandate for contraceptive coverage has long been contested — largely by companies who wish to eliminate it. In 2014, the Court held in Burwell v. Hobby Lobby Stores, Inc.102 that for-profit corporations did not have to provide plans that included contraception if they contradicted employers’ religious beliefs (this exemption already existed for religious organizations and nonprofits).103 Several companies at that time openly announced that they did not wish to provide birth control.104 The government continues to address this issue in the administration of insurers’ plans. The ACA mandate has been the bulwark against this particular encroachment on workers’ rights to health care, protecting the structure of these plans themselves by insisting that contraception be a part of covered goods.105
Post-Dobbs, the Biden Administration’s Secretaries of the Department of Health and Human Services, the Department of Labor, and the Department of the Treasury prioritized protecting access to contraception as part of the ACA mandate.106 Their joint statement asserted that contraception was essential health care and warned insurers against noncompliance.107 These explicit directions to insurers help to protect against potential protestations of uncertainty. Keeping protections of health services clear and widely encompassing is the necessary work of the state.
5. Corporate Care Packages Are Not the Answer. — The simultaneous burgeoning corporate threat to contraception and pledging of abortion-related travel funding illustrate the variegation of help and options in the world of employers and insurers. Access to abortion should not depend on which corporation someone works for. Americans cannot rely on corporations to do the work of providing workarounds and options for reproductive care.108
Corporations have multiple competing incentives in these situations. Social pressure to provide abortion operates only on a subset of employers. Some employers are explicitly antichoice.109 Within businesses that do provide benefits, the benefits are not distributed equally. Marginalized, low-income groups are more likely to lack access (or face challenges taking advantage of benefits even if offered).110 Some employers may view this decision largely in economic terms (for example, as weighing the risk of employee departures and consumer losses against the litigation risk of providing abortion benefits), and that calculus can change,111 especially with recent antichoice laws that mobilize citizen vigilantes.112
The state, by contrast, is perceived to be driven by a more singular set of incentives: to protect individuals citizens’ bodies, rights, and property. At the state level, protecting rights to sexual and reproductive care can be achieved with referenda and state constitutional amendments and protections. At the federal level, such protections come from federal legislation and agency enforcement.
C. The Necessity of State Protections and Rights
Government-provided protections begin with the overarching question of access. A state or federal government ensuring broad access to reproductive care is the quickest and most direct path to a more level playing field in the context of employment. In the immediate aftermath of Dobbs, ballot referenda and state constitutional amendments are the main prospects for this development.113 Since the imperfect Roe decision, federal constitutional arguments have been raised to suggest that Equal Protection or the Thirteenth Amendment could serve as more capacious bases for reproductive rights;114 however, these positions are out of vogue given the current direction of a virulently antichoice Supreme Court115 and federal judiciary.116
1. Lessons from the Road: The Evolution of Anti–Gender Discrimination Employment Law. — As abortion access and gender equity are inextricably linked, the evolution of anti–gender discrimination employment law can offer helpful insights for understanding the future of reproductive justice. It takes multiple courses of legislation, litigation, and administrative enforcement for workforce participation to meaningfully improve. A multipronged, state-led campaign inevitably impacts governance at the individual employer level. In contrast, an employer taking individual steps to secure their workforce can deleteriously absolve the state of its vital role in taking protective action.
Employment antidiscrimination laws for women became a cause célèbre in part because of the work of the late Justice Ginsburg.117 Antidiscrimination opinions have not, however, been limited to the Court’s “liberal” Justices. When the Bostock v. Clayton County118 opinion, authored by Justice Gorsuch and holding that Title VII prohibits employment discrimination based on sexual orientation or gender identity,119 hit the news, antidiscrimination law suddenly came under public (and nonlegal) scrutiny, garnering attention beyond the advocacy organizations that had been waging the fight for decades.120 Though some scholars raised concerns about how nonbinary, gender-nonconforming, and bisexual folks, as well as other gender or sexual minorities, were cut out of the conversation,121 many communities celebrated the opinion as a step in the right direction. Preceding recent antidiscrimination fervor came Myra Bradwell’s fight for her right to be a lawyer,122 Pauli Murray’s intersectional claims on the rights of people of color and women to freely seek and find work,123 and Justice Ginsburg’s benefits cases on behalf of men,124 which established women’s rights to be breadwinners and economically whole.125 There are a number of antidiscrimination laws that built a rickety infrastructure for defending narrow causes rooted in gender and/or the capacity to get pregnant.126 The Fair Labor Standards Act of 1938 set a minimum wage;127 as more women work minimum wage jobs than men,128 every increase in the minimum wage129 has a gendered effect. While the Equal Pay Act of 1963 illegalized explicit pay differences on the basis of sex,130 the dramatic pay gap persists.131 Title VII of the Civil Rights Act of 1964 is likely the most central of the statutory protections for women in the workplace and has been read to include proscriptions on discrimination regarding gender stereotyping and gay and lesbian relationships.132 The Family and Medical Leave Act and the PDA are often considered the most central to reproductive freedoms in the workplace, perhaps simply because the names call to mind the capacity to get pregnant. In practice, the ACA133 and ADA134 also do immense work to protect those freedoms on a broader scale. All these laws encourage corporations to, where possible, continue to hire and retain gender-diverse workers (including cis women and gender minorities). The upshot is that a broad legislative package with specific enforcement mechanisms is key to protecting reproductive rights. Following Title VII, between 1966 and 2013, women’s workforce participation rate increased from 31.5% to 48.7%.135 These results are primarily because Title VII was not toothless — Congress encouraged regular and effective action on discrimination claims by creating the robustly funded Equal Employment Opportunity Commission (EEOC) “to enforce Title VII and eliminate unlawful employment discrimination.”136 Without the EEOC, even tracking these indicators of minority participation in the workforce would be infeasible.137
2. Solutions on the Table: Rights-Protective Direct Democracy Could Offer Workers Necessary Reproductive Justice. — Though gerrymandering and voter suppression preempt many promises of democratic recourse for reproductive rights through the traditional voter mechanisms,138 the 2022 midterm elections evinced mass political support for reproductive rights. Following a rights-supportive Kansas referendum in August 2022, five states introduced ballot measures designed to enshrine reproductive protections in their state constitutions or to definitively restrict abortion rights. Those protecting reproductive rights passed; those that were devised to restrict those rights were struck down.
The process of leveraging ballot measures for progressive goals appeared to reinvigorate the popular voice at a time when representative democracy was faltering. Historically, legal scholars have argued that ballot measures are underscrutinized by courts and that this form of direct democracy can result in the suppression of political speech and an imbalance in electoral outcomes in particular cases.139 In the homophobic social climate of 1974–2012, anti-gay ballot measures regularly resulted in anti-gay outcomes at the ballot box.140 The homophobic “tyranny of the majority” that advocates identified in these measures resounded through the LGBTQ+ community and left lasting negative psychological effects on individuals (even when anti-gay measures failed).141 Indeed, as Professor Barbara Gamble writes, the question that “persistently haunts the use of direct democracy” is majoritarian tyranny.142 Historians have pointed out that civil rights initiatives are often profoundly vulnerable at the ballot box,143 but 2022 evinced something unique and nigh unprecedented in the realm of direct democracy.
On August 2, 2022, Kansas — the first state to vote on the right to abortion since the Court’s overturning of Roe on June 24, 2022 — became the first win for abortion rights at the ballot box.144 The ballot asked voters whether to remove state constitutional protections for abortion145 — a provision upheld by the Kansas Supreme Court in 2019.146 In the end, voters refused to remove the protections.147
Amidst interjurisdictional challenges148 and the threat of criminalization,149 the Kansas referendum was the beginning of a wave of prochoice referenda votes in Montana, Kentucky, Michigan, California, and Vermont in November 2022. In Montana, voters rejected LR-131, an abortion measure that would have imposed criminal penalties on health care providers.150 If adopted, the measure would have required doctors to treat any fetus that presented breath or muscle movement after being extracted, including as part of an abortion procedure.151 Health care providers feared this would “compel [them] to intervene in futile and tragic circumstances, taking a dying infant away from their parents . . . in their final moments of life.”152 A violation would constitute a felony with a sentence of up to twenty years in state prison or a fine of up to $50,000.153 Crucial to the rejection of the referendum was the Montanan medical community — physicians, nurses, and community health workers — who helped to dispel misconceptions about “medically inaccurate and misguided legislation.”154
In Kentucky, voters rejected Amendment 2 to the state constitution, a proposal that would have constitutionalized an antiabortion state politic.155 The amendment proposed: “To protect human life, nothing in this Constitution shall be construed to secure or protect a right to abortion or require the funding of abortion.”156 Kentucky already has a law banning most abortions at any stage of pregnancy,157 as well as another law that bans any abortion after six weeks of pregnancy.158 Both have been challenged in lawsuits but have been authorized as enforceable in the interim.159 In a state with extreme restrictions, the amendment’s rejection stemmed the tide of further constrictive bans; it demonstrated popular will for ongoing engagement in the battle for reproductive rights.
In Michigan, voters passed Proposal 3, enshrining abortion rights at the constitutional level.160 Article 1, section 28 of the Michigan Constitution now establishes, among other things, an individual’s right to “reproductive freedom, which entails the right to make and effectuate decisions about all matters relating to pregnancy.”161 The amendment will also prevent an obsolete 1931 abortion ban that criminalizes abortion without exceptions for rape or incest from going into effect.162 Abortion advocates had been planning for this fight for years before Roe was overturned.163 The geographic centrality of Michigan made this fight even more essential. The state is surrounded by Wisconsin, Ohio, and Indiana; Michigan providers are often the default abortion providers for patients in those states who cannot receive care in those states. Organizers submitted over 750,000 signatures — over 300,000 more than the necessary 425,000 — to put Proposal 3 on the ballot.164 The success of such ballot initiatives165 preserved a measure of voter control over reproductive policy, upholding a rights-based status quo.
During the 2022 midterms, California voters passed Proposition 1, which enshrined abortion rights in the state constitution.166 While other states contend with looming closures of last clinics167 or “pill fairies” crossing the border,168 a broader reproductive justice framework might be a workable experiment in states where the popular voices of voters and legislators are as impassioned as those in California appear to be.
Voters in Vermont’s midterms passed Proposal 5, which amended the constitution to protect rights to pregnancy, abortion, and birth control.169 The adopted amendment, article 22, reflects concern for the needs of people who can become pregnant.170 The Vermont legislature first proposed this liberty-protective amendment in 2019,171 years before Dobbs, seeing the end of Roe on the horizon.
In some ways, the evolution of these victories through direct democracy is a confounding phenomenon. In the last few decades of the twentieth century, voters approved over seventy-five percent of citizen initiatives that restricted civil rights in housing and public accommodations for racial minorities, school desegregation, gay rights, English-language laws, and AIDS policies.172 Considering only about thirty percent of all initiatives and popular referenda pass overall, this rate is shockingly high.173 For years, critical race theorists had expressed concerns about the danger of direct democracy for minority rights. Professor Derrick Bell wrote that “direct democracy, carried out in the privacy of the voting booth, has diminished the ability of minority groups to participate in the democratic process.”174 In the late 1970s, Bell noted that referenda “enable . . . voters’ racial beliefs and fears to be recorded and tabulated in their pure form,” facilitating “bias, discrimination, and prejudice.”175 Minority rights and individual liberties are threatened by “a device that aggregates without filtering.”176
The question of abortion is freighted with questions of racial, social, and class status. Voters of different social identities reacted differently to the possibility of abortion bans, perhaps because these are laws that address a marginalized population — but not one that is a numerical minority — or because the laws took the shape of revoking an existing right. In an exceptional turn of populism in this intersectional question, putting it to “the people” offered a rare win for people of color, people living below the poverty line, and gender and sexual minorities.
At the federal level, organizers have advocated for the Pregnant Workers Fairness Act,177 which passed both the House and Senate in December 2022.178 Analogous state-level legislation was introduced in New York in 2012.179 Thirty states and the District of Columbia have added further protections, twenty-three of which have been passed in the last decade.180 However, state-level advocacy is the priority for immediate action. A newborn chimera of rights-protecting direct democracy offers vital potential solutions.
For the sake of a well-functioning society that includes people of all genders and reproductive capacities, the United States must force courts and legislatures to face litigation and policy proposals that challenge the most restrictive or criminalizing provisions aimed at reproductive justice workers. The linkages between various segments of the working population who are able to get pregnant align with the concerns of people marginalized by race, gender, and other identity factors as they seek economic opportunities. If state action is deficient, the image of the situation unfolding is bleak: Lawyers with binders of ever-changing laws attempt research at the same time as doctors hesitate to treat a hemorrhaging patient. Criminal punishments for reproductive care apply not just to providers, but also to pregnant people181 and those who assist them.182 Prosecutions and complaints come from both the state and private citizens.183 Advocates must fight for protections that are broader than the punishments newly available under a contemporary legal regime shaped by Dobbs.