Ten states recently voted on abortion referenda: Arizona, Colorado, Florida, Maryland, Missouri, Montana, Nebraska, Nevada, New York, and South Dakota. Six referenda legalizing abortion-on-demand passed; three failed (Florida, Nebraska, South Dakota). One (Nevada) passed but cannot go into effect unless passed in a second referendum.

How shall we see the outcome? In the words of Charles Dickens, “It was the best of times, it was the worst of times…”

Dobbs did not ban abortion; it simply decided there was no federal right to abortion under the U.S. Constitution. But every state has its own state constitution. Paul Benjamin Linton, a Catholic attorney from Illinois, is the expert on state constitutional law. His book, Abortion Under State Constitutions, has gone through three editions, though it probably now needs a fourth. [To read more on this, see here.]

During the reign of Roe and Doe, abortionists didn’t really bother with state constitutional law because the abortion-on-demand-through-birth (due to Doe’s utterly elastic definition of ‘health”) interpretation of abortion rulings ensured that federal courts would largely deliver everything abortionists wanted. When they turned to the states, it was to try to get two things there what they could not get in federal court: government subsidy/payment for abortion and no parental consent/notification. On the former, the U.S. Supreme Court upheld the Hyde Amendment and thus cut off federal funding for abortion under Medicaid. Abortionists then fled to state supreme courts to discover “state’s rights” to publicly pay for abortions under state constitutions, something they pulled off in New Jersey. On the latter, while the federal courts never allowed parental consent laws absolutely to block a minor from obtaining an abortion (she always had to have a “bypass” to let a judge grant what parents would not), abortionists always wanted to keep even the knowledge (“notification”) of a minor’s abortion from parents. The federal courts were not willing to be rigidly prohibitive on that question, so abortionists tried to use state constitutions to enforce their notification bans. Finally, with the federal Equal Rights Amendment (ERA) dead since 1982, abortionists also tried to use state level ERAs to do what wasn’t possible at the federal level.

When Dobbs kicked abortion policy back to the states on the claim that there is no federal Constitutional right to abortion, state constitutions became all the more important. A number of states, especially in the Midwest and South, have initiative and referendum (I&R), a “reform” adopted during the early 20^th century Progressive era to allow citizens to propose laws to bypass state legislatures (which were alleged to be under the monopoly of various “Robber Barons” from the railroads, steel, and oil). Abortionists began in 2022 to use I&R to create state rights to abortion to replace the federal right vacated by Dobbs. Pro-abortion amendments were adopted in California, Kansas, Kentucky, Michigan, Ohio, and Vermont. Adoption of such amendments were especially shocking in previously pro-life Kansas and Kentucky in 2022 and pro-life Ohio in 2023. These amendments had appeal because they use state constitutions to straitjacket state legislators the way Roe previously did, i.e., to foreclose democratic regulation of abortion.

(Do notice that this question of “democratic regulation” cuts multiple ways. Back in the early 1990s, Mary Ann Glendon used her Abortion and Divorce in Western Law to argue that Roe remained unsettled because its on-demand parameters were not the product of democratic compromise, as in Europe, but of “raw judicial power” — quoting Justice Byron White — imposing them. While writing abortion into state constitutions is intended to short-circuit democracy by barring legislatures from future regulation of abortion, the fact that abortion-on-demand is adopted by popular democratic majorities is of far greater corruptive moral significance than the fiat of a few judges. And, as Pope Benedict XVI reminded the German Bundestag, there are just some questions that even a “democratic majority” cannot make right.)

So, what was great about November 5? Well, for the first time the pro-abortion juggernaut was stopped in three states. That’s significant. Nothing eviscerates your political standing than losing — and we stopped losing.

Kamala Harris and faux “Catholic” Joe Biden have done everything they can to ensconce abortion by executive fiat. Harris went to an abortion clinic (and had one set up at the Democratic National Committee). This was not just signaling support for abortion; it was a deliberate act to pretend abortion is just “health care” and presents no other issues than that — and, therefore, no reason to interfere with “bodily autonomy” and “privacy.”

South Dakota, Nebraska, and Florida managed to halt that narrative.

Yes, it’s a small victory, but victories count. One reason I&R abortion referenda succeeded is that Dobbs suddenly threw abortion policy back to the states and local/state organizations were unprepared (just as they were not prepared to fight in the U.S. Congress after working for years in state legislatures after Roe federalized abortion). Why does this victory count? Because it allows us to reopen the abortion debate. And we need to reopen that debate.

Post-Dobbs, the unborn child has been conspicuously absent from the abortion debate. Even pro-lifers primarily talked mostly about women. Some Republican legislators also used the opportunity to run away from speaking about preborn children. But the whole reason why abortion is not just a “medical procedure” like a tooth extraction is the question of the scientific and moral status of the unborn child. We need to talk about that! We need to showcase the humanity of the preborn child! That question cannot be sidelined or put on the back burner.

Post-November 5, we can begin to redefine that debate. True, the number of I&R states is running out, but there will be efforts in traditional state legislatures to enact pro-abortion legislation, e.g., Democrats already have a woman running for Virginia governor in 2025 in order to force a pro-abortion amendment into the Virginia Constitution.

The political blowout of Kamala Harris and Senate Democrats also ought to invite Democrats to reconsider where their party stands. Democrats have excommunicated pro-life candidates from their party (unlike bishops who fail to excommunicate pro-abortion candidates from the Church). For the good of Democrats and Republicans, it’s imperative that pro-lifers find a place in the Democratic party. They are going to be a minority treated like Pepe Le Pew the skunk. But, as Sen. Bernie Sanders noted when Nebraska debated allowing a pro-lifer to run on the Democratic line in that state, if you want to win you have to appeal to local voters, and local voters in Nebraska are not pro-abortion like local voters in Vermont. Let’s use this entrée.

(Let’s also use this opportunity to stave off the pro-euthanasia debate that Democrats are pushing in many states. West Virginia voters just adopted a referendum putting a ban on “physician-assisted suicide” into the state constitution. Let’s start using I&R for our purposes.)

Let’s also realize that, with the Biden-Harris Administration out, we can at least hope that Donald Trump, in the worst case, will leave abortion as a “state’s rights” issue and not use federal power to promote abortion, something our scandalous “Catholic” president and his vice president have done.

Finally, one wishes Catholic bishops read Mt 10:16. Jesus says Christians should be “cunning as serpents and innocent as doves.” The bishops apparently think they should be “cunning as pigeons and innocent as doves.”

The Florida abortion referendum failed because, although it passed the 50% “pro” line, constitutional amendments normally require super-majorities to enact. Constitutions are fundamental documents and should not be subject to easy change, like statutes. It’s why a Human Life Amendment never came out of Congress: we never had two-thirds of both houses at the same time to pass one. And Florida abortionists did not have the super-majority to enact Proposition 4. Babies will survive for now in Florida.

But let’s remember: Pro-lifers in Ohio tried to do the same thing prior to the November 2023 state constitutional amendment legalizing abortion. Pro-lifers used I&R to try to require referendum-initiated constitutional amendments to meet the same supermajority the Ohio Legislature would have to meet to pass an amendment. IF that supermajority was enacted in August 2023 — in a midsummer referendum when turnout is light and easier to win — Ohio would not have legalized abortion and the abortion juggernaut would have ended last year. But what happened was seven of eight (Toledo excepted) Catholic bishops in Ohio sat on their hands and declared “neutrality” on using smart politics to protect life. One really thinks Edmund Burke (to whom the quote is usually attributed) was thinking of them when, two centuries ago, he said “all that is needed for evil to triumph is for good men to do nothing.” Sitting in your rochets does not substitute for opening your mouths in cunning wisdom.

Let’s stop playing politics as if we just passed high school civics. Politics is a complex and coordinated business. If abortion is our “preeminent issue” because it is an “unspeakable crime” against God, let’s start acting like we mean it.