This article first appeared on Houston Landing and is republished here under a Creative Commons license.
In the two years since the Supreme Court overturned Roe v. Wade, state constitutional amendments have been at the primary electoral battleground in the fight over abortion access across the country.
That battleground does not exist in Texas.
As many as 19 states have voted or will vote this year on constitutional amendments that enshrine a right to an abortion in their state constitution. Many of the votes were launched through citizen-led petition drives that serve as an avenue to exercise political power in states where the government is controlled by anti-abortion advocates, like Texas.
But Texas voters do not have that option. The state’s constitution requires that amendments be initiated by the legislature, which is controlled by Republican lawmakers who passed a near-total ban on abortion in 2021.
In the meantime, some Texas women must carry their medically complex pregnancies to term under the new law, prompting lawsuits that have reached the state Supreme Court. The plaintiffs allege that the law is unconstitutional and vague, putting women’s lives at risk and harming their mental health.
If Texas legislators put the issue to voters, polling shows the vote could be tight. A February University of Texas/Texas Politics Project poll of 1,200 registered voters found 45 percent of respondents support making the state’s abortion laws less strict, while 48 percent said they either support leaving the laws alone or making them stricter.
“We would love to have the opportunity to prove to the country that Texans overwhelmingly support abortion access,” said Caroline Duble, the political director at abortion-rights group Avow Texas. “I think a ballot measure with that question would absolutely come back in our favor.”
There are 26 states that allow citizen initiatives, nine of which may have an amendment regarding abortion on their 2024 ballot. Two states, Ohio and Michigan, have already overturned abortion bans through citizen-initiated referendums.
Abortion rights advocates have prevailed in all six of the state constitutional amendment elections on the question of abortion since Roe v. Wade was overturned.
Thanks to Texas’ 1876 constitution and a 1914 vote, Texans do not have the ability to initiate constitutional referendums. That power is reserved for the legislative branch, where two-thirds of the House of Representatives and Senate must approve of an amendment appearing before voters on the ballot.
The Texas constitution was drafted during the post-Civil War reconstruction era, at a time when white, property-owning Texans were working to regain political control from a Union-appointed provisional government in a state where minorities recently gained the right to vote, said Nancy Beck Young, a history professor at the University of Houston.
“They tried to write a constitution that no minority faction could come and have more power than the state government, and a citizen-initiated referendum can come out of someone out of favor with the Texas government,” Beck Young said.
The Texas “Progressive Era” of the early 1900s saw a series of efforts to establish forms of direct democracy in Texas as the women’s suffrage movement was in full swing around the nation.
In 1911, voters adopted a “home rule” amendment that allowed residents of cities larger than 5,000 to adopt their own form of government. Today, hundreds of cities in Texas allow for petition and referendum at the local level, including Houston.
The legislature voted to pose the question of whether citizen-initiated referendums should be allowed in the state in 1913.
Only 109,000 people participated in the election the following year, and the measure was defeated by fewer than 4,000 votes. That was the last time the question of citizen-initiated referendums was posed to Texas voters, and there has been little discussion of another attempt in the 110 years since.
“When the state is asked to vote on institutional changes, they almost always say no,” said Brandon Rottinghaus, a political science professor at UH. “I think part of it is people just don’t know what the results would be and how things change, so they’re fearful enough to vote things down.”
Legislators have floated the possibility without much success.
State Sen. Nathan Johnson, D-Dallas, filed a joint resolution during the 2023 legislative session that would have created a system for citizen-initiated referendums. The bill died in a Senate committee without a hearing.
“It was an aspirational bill,” Johnson said. “I did not think it would get passed, but I thought it was an important conversation to have … to highlight the disconnect between the legislature and the public on several fundamental issues.”
All four of the resolutions filed since 2000 to grant Texans the power of referendum failed to advance from committee, according to legislative records.
Recent attempts to pass the legislation have been undertaken by Democrats, who have not controlled either chamber since Republicans retook power in the House in 2002.
Jane Nelson, Texas’ secretary of state and a former longtime Republican state senator, filed a referendum resolution three times during the 1990s, when Democrats controlled the legislature for a couple of years and the state saw divided government for the remainder of the decade.
All three of her proposals barely moved. In the meantime, Nelson chaired an interim committee in 1996 that studied the issue of referendums across the country and provided recommendations about how it could be implemented in Texas, according to a Senate committee report.
Citizen-initiated referendums are primarily a tool of the political party out of power, Rottinghaus said.
Today, Democrats believe the conservative legislature’s policies are out of step with the will of most Texans, making the idea of citizen-initiated referendums appealing, Rottinghaus said. The opposite can be true if Republicans lose control of state government, he added.
Texas Alliance for Life Executive Director Joe Pojman said his organization does not support Texans gaining the ability to initiate constitutional referendums. He argued the legislature, where the anti-abortion movement has had success in gaining political clout, is the best avenue for debating sensitive issues.
Pojman also argued out-of-state money influenced voters in states that recently enshrined abortion rights through constitutional referendums — and he worries that could happen in Texas.
“It’s a delicate issue,” Pojman said. “Education by 30-second ads on both sides doesn’t lend itself to a well-informed electorate.”
In a moment of intense polarization between the two parties, Johnson said he thinks there is an opportunity to see some movement on the issue.
“When things get tight, that’s when the opportunity exists,” Johnson said. “Somebody is going to be fearful that there will be a legislature that is not responsive to what they believe is right. In this case, it’s Democrats.”
Without the ability to initiate a referendum, abortion rights advocates in Texas have few options, Rottinghaus said.
“It’s largely settled,” Rottinghaus said. “The courts have given Texas the green light to restrict abortion in almost every way. You’ve got Republicans who control all the levers of government, so that’s a non-starter.”
Texas Alliance for to Life primarily is focused on lobbying for funding to support women dealing with an unexpected pregnancy and campaigning to maintain its grip on power in the state, Pojman said.
Texas abortion-rights advocates are focused on pushing local initiatives to fund contraception and out-of-state abortion travel while they work on the tougher task of winning back control of Texas’ government, Duble said.
“There’s the short term, which is helping people right now who need an abortion in Texas, and there’s the long term, which is creating the conditions to elect pro-abortion leadership and roll back every anti-abortion law on the books,” Duble said.
Editor's Note: An earlier version of this story misidentified an anti-abortion group. The story has been updated to reflect that Joe Pojman is executive director of Texas Alliance for Life.