Introduction

On July 20, 2026, the Department of Homeland Security (DHS) published a final rule that largely rescinded 2022 Biden-era public charge regulations. The new rule gives immigration officials broad discretion to decide whether to deny a green card to someone applying for Lawful Permanent Resident (LPR or “green card”) status because they are likely to become a “public charge.” The new rule provided limited details in place of the prior regulations, suggesting in the preamble that DHS would provide additional information through sub-regulatory guidance. On August 18, 2026, U.S. Citizenship and Immigration Services (USCIS) issued accompanying Policy Manual guidance on how officers should make public charge determinations under the new rule. The rule took effect on September 18, 2026. This issue brief discusses the sub-regulatory guidance issued by USCIS to guide public charge determinations under the new rule and implications for immigrant families’ access to health coverage and care.

The 2026 final rule removed the 2022 regulatory definitions and the determination framework for determining whether someone is a public charge without replacing them. The updated sub-regulatory guidance also does not provide a specific definition of who may be considered a public charge and does not provide an exhaustive list of benefits that would count towards public charge determinations, granting immigration officers significant authority in making such determinations. The lack of an exhaustive list of benefits that may be considered when making public charge determinations will likely result in increased confusion and fear among immigrant families that may limit their participation in public programs that help pay for health care, food, and housing, including among citizen children in these families. The lack of details in the guidance also increases uncertainty and challenges for those serving immigrant families to advise on the potential implications of participating in specific programs.

Overview of the 2026 Public Charge Rule

Under longstanding immigration policy, federal officials can deny a green card or entry into the U.S. to someone they determine is likely at any time to become a public charge. By statute, officers must at a minimum consider age; health; family status; assets, resources, and financial status; and education and skills. Some groups, such as refugees and asylees, are exempt from public charge determinations. Under 2022 regulations consistent with longstanding guidance, a public charge was defined as someone likely to become primarily dependent on the government, as shown by use of cash assistance for income maintenance or long-term institutionalization at government expense. The regulations excluded noncash programs, including Medicaid (except for long-term institutionalization) and the Children’s Health Insurance Program (CHIP), and prohibited consideration of family members’ use of programs from determinations.

On July 20, 2026, DHS published a final rule largely rescinding the 2022 Biden-era public charge regulations governing determinations for individuals seeking adjustment to LPR status. The 2026 final rule removes the 2022 definitions and the determination framework without replacing them, giving officers broad discretion and moving away from the “primary dependence” standard. DHS received over 8,800 comments in response to the proposed rule and acknowledged that most opposed the rule but finalized it as proposed. DHS stated that USCIS would issue nonbinding sub-regulatory guidance that would provide additional information to guide determinations. The rule took effect September 18, 2026. While the same statutory grounds apply to individuals seeking entry into the U.S., those public charge determinations are generally made by consular officers at the U.S. Department of State (DOS) for visa applicants or by U.S Customs and Border Protection for applicants seeking admission at a port of entry. According to media reports, in November 2025, DOS issued new guidance directing visa officers to consider a wide range of health conditions when making public charge determinations for visa applicants seeking entry into the U.S.

Overview of Public Charge Guidance

On August 18, 2026, USCIS released updated Policy Manual guidance (Volume 8, Part G) to direct how officers make public charge determinations under the new rule. The guidance supersedes prior guidance, including the 1999 Interim Field Guidance that was largely consistent with the Biden-era regulations and governs USCIS adjustment of status adjudications only (not determinations by U.S. Customs and Border Protection, DOS, or immigration courts). Unlike a statute or regulation, this policy guidance can be revised or rescinded without formal rulemaking or a notice and comment period.

The guidance reaffirms statutory requirements related to public charge, including exemptions for certain groups and that determinations are based on a totality of circumstances, which must include consideration of certain factors. As specified in statute, groups exempt from public charge determinations include refugees and asylees, special immigrant juveniles, Violence Against Women Act (VAWA) self-petitioners, T and U visa holders, certain Cuban and Haitian entrants, and Afghan and Iraqi special immigrants. The guidance reaffirms the statutory requirement that public charge decisions will be made based on a “totality of circumstances,” meaning that any one factor, including benefit use, does not determine whether someone is a public charge. It also identifies the minimum statutorily required factors officers must consider in making determinations, including age; health (including disability); family status; assets, resources, and financial status; and education and skills.

The guidance does not define who may be considered a public charge and does not provide an exhaustive list of benefits that would count towards public charge determinations; instead, it indicates officials may consider receipt of any means-tested benefits. The guidance does not define a “public charge.” Instead, it indicates that immigration officers should assess whether the individual is, “likely at any time to depend on means-tested public benefits.” The guidance also does not provide a definition or list of means-tested benefits that immigration officers may consider when making public charge determinations. Instead, it describes means-tested benefits generally as those for which eligibility is based on income or assets falling below a threshold and that are provided by government agencies or funds. Examples include, but are not limited to, government-funded health coverage such as Medicaid or CHIP; food assistance such as the Supplemental Nutrition Assistance Program (SNAP) or the Special Supplemental Nutrition Program for Women, Infants, and Children (WIC); public or assisted housing; postsecondary financial aid; and cash assistance from any federal, state, Tribal, territorial, or local government. It specifies that benefits for which eligibility is based on payments into the system, such as Social Security, Medicare, and unemployment insurance, are not considered means-tested and therefore not subject to public charge. The rule’s preamble suggests that universal programs will not be considered, indicating, for example, that school meals available to all students in a school (through community eligibility or statewide programs) should not be considered. Illustrative case studies in the guidance also make a distinction between receipt of school lunches as part of a universal school lunch program and receipt of school lunches due to an applicant’s income falling below a certain threshold, suggesting that officers should consider “the nature of the free school lunch program.” Illustrative case studies discussed in the guidance also suggest that officers should not consider benefits use in isolation when making public charge determinations and instead take into account an individual’s totality of circumstances, as statutorily required.

Unlike prior regulations and guidance, the 2026 rule and guidance state that family members’ receipt of benefits may be considered when making public charge determinations in specific circumstances. The 2026 guidance states that USCIS will not attribute to the applicant benefits received by relatives, including children, or received on behalf of others. However, when making public charge determinations, officers may consider benefits received by family members the applicant is legally obligated to support when eligibility was based on the applicant’s income falling below a threshold. It is unclear from the guidance how officers would consider benefits used by family members, including U.S. citizen children. The application form for adjustment to LPR status (Form I-485) only asks about the applicant’s own benefit use. However, officials could potentially ask about this information during an interview process.  

The guidance clarifies that the rule will only apply to applications submitted and benefits used on or after its effective date of September 18, 2026. For benefits received before September 18, 2026, officers will consider only cash assistance for income maintenance and long-term institutionalization at government expense, consistent with the 2022 public charge final rule. For benefits received on or after September 18, 2026, officers may consider receipt of any means-tested benefit. Per the final rule, benefits approved for a period extending past the effective date will be considered unless the applicant shows they disenrolled or withdrew. However, the guidance does not clarify what evidence applicants must provide to show they disenrolled from benefits before September 18, 2026, or how benefit agencies will help with those requests.

The guidance also does not detail how USCIS will conduct oversight and quality reviews or how the new public charge rule could interact with other policies. In the final rule,USCIS stated that it will “provide guidance and training to officers” and apply “general quality control processes.” However, the guidance does not detail what these processes are and how they will be carried out. In addition, the guidance does not address how public charge determinations interact with other policies that may heighten fears among immigrant families, such as the Centers for Medicare and Medicaid Services’ (CMS) sharing of noncitizen Medicaid enrollee data with Immigration and Customs Enforcement (ICE), which DHS deemed out of scope, or separate State Department public charge standards for visa applicants.

Looking Ahead

While the public charge guidance provides more detail than the rule, it leaves several key details unspecified and grants substantial discretion to individual officers, leaving immigrant families without clear information. Families will likely experience increased confusion and fear due to a lack of clear information about what benefits may be considered. As a result, many may avoid participating in programs, with effects extending beyond those directly affected by the rule, including citizen children. Previous KFF analysis found that if the final rule leads to disenrollment rates ranging from 10% to 30% as suggested by past experience, about 1.4 million to 4.1 million people living in a household with a noncitizen could disenroll from Medicaid and CHIP, including about 560,000 to 1.7 million citizen children. Among the nearly 1.7 million eligible but uninsured people in these households, between about 166,000 and 498,000 could forgo enrolling, including over 60,000 to more than 181,000 citizen children.

Providers and organizations working directly with immigrant families will likely also face increased confusion and challenges due to the guidance’s lack of clarity. Immigrant-serving organizations, health care providers, benefits navigators, and legal service providers may find it challenging to advise families about which programs could affect their green card applications. Providers may also face increased strains serving immigrant families if they are less likely to participate in assistance programs and more are uninsured.

DHS acknowledges that the new rule could lead to adverse health and economic impacts but maintains that these impacts are outweighed by the rule’s self-sufficiency goals. DHS estimates a $13.05 billion annual reduction in federal and state transfer payments due to disenrollment or forgone enrollment in programs including Medicaid, CHIP, WIC, SNAP, Temporary Assistance for Needy Families, Supplemental Security Income, and Federal Rental Assistance. DHS also acknowledges the rule may lead to worse health outcomes, increased emergency room use, higher prevalence of communicable disease, increases in uncompensated care, and reduced revenues for health care providers.

Section 1115 Medicaid demonstration waivers offer states an avenue to test new approaches in Medicaid that differ from what is required by federal statute, if [in the Health and Human Services (HHS) Secretary’s view] the approach is likely to “promote the objectives of the Medicaid program.” Nearly all states have at least one active Section 1115 waiver and some states have multiple 1115 waivers. Under long-standing policy and practice, Section 1115 demonstration waivers were required to be “budget neutral” to the federal government over the course of the waiver, meaning federal costs under the waiver could not exceed what they would have been for the state without the waiver. Using 1115 waivers has allowed states to generate “savings” that can be reinvested (under the waiver) to support new initiatives (e.g. coverage expansions, new benefits etc.).

The 2025 reconciliation law, signed by President Trump on July 4, 2025, codified budget neutrality in federal statute (for the first time) and added a requirement that the Centers for Medicare and Medicaid Services (CMS) Chief Actuary certify 1115 waivers are budget neutral before approval. In June 2026, CMS released initial guidance on CMS’ interpretation of the new statutory provision and updated budget neutrality policy guidance that will be implemented through forthcoming rulemaking (expected in early 2027). Overall, the new guidance makes significant changes to how CMS will assess budget neutrality and may reduce state flexibility to pursue certain 1115 initiatives. This policy guidance follows administrative action to phase out or rescind certain Biden-era waiver policies (related to health-related social needs services (HRSN), continuous eligibility policies, workforce initiatives, and certain waiver financing tools).  

 In August 2026, Arkansas announced that CMS will not be approving the state’s request to renew its “ARHOME” waiver (set to expire at the end of 2026) due to the new budget neutrality rules. Under the waiver, Arkansas enrolled its Medicaid expansion population directly into ACA Marketplace plans. The state is seeking a temporary two-year extension to provide time to develop a new solution (delivery system) and transition plan. In addition, while additional guidance will be forthcoming (including clarification on how states may be able to fund infrastructure costs under new budget neutrality rules), CMS approved five state waivers that support community reentry for people who are incarcerated in late September 2026 (D.C., Louisiana, Maine, Minnesota, and Nevada).

This brief discusses key policy changes included in the June 2026 CMS budget neutrality guidance and identifies open questions involving how the policy changes may be further clarified in the forthcoming rule and how the changes may impact states with existing 1115 waivers or states interested in applying for new demonstration waivers.

Key takeaways include:

• The new guidance outlines major shifts in policy and aims to reduce federal 1115 waiver expenditures. Key changes include a more rigorous prospective determination of budget neutrality, new rules involving “hypothetical” expenditures that may require states to demonstrate “savings” for more initiatives, the inclusion of administrative costs in budget neutrality calculations, and limits to budget neutrality savings.
• Forthcoming rules (expected in early 2027) may include further guidance and clarification for states. Key areas where additional clarification and information may be needed include financial impact analysis methodology expectations, monitoring requirements, evaluation and renewal standards, and financial risk clarification.
• CMS’s response to waivers up for renewal (in 2026 and early 2027) may provide insights involving how the new rules will be applied and how states may adapt to changing policies. States may have difficulty gaining approval for HRSN services, delivery system reforms, certain “home- and community-based services” (HCBS) 1115 initiatives, and/or uncompensated care pool financing under the new rule, if these services or initiatives newly require offsetting savings or states are constrained by new rules involving the accrual and rollover of waiver “savings.”

How has waiver budget neutrality historically been assessed?

Under long-standing policy and practice, Section 1115 waivers were required to be “budget neutral” to the federal government over the course of the waiver (usually 5 years). Section 1115 waiver budget neutrality meant that federal spending under a waiver could not exceed the projected costs without the waiver. Budget neutrality calculations and the use of any budget neutrality “savings” have been negotiated between states, CMS, and the Office of Management and Budget (OMB). At a high level, the budget neutrality process has included the following:

• Setting expenditure limits. A “without waiver” baseline was established (when a waiver was approved by CMS) that acted as a limit on total demonstration spending. Typically, budget neutrality calculations were determined on a per enrollee basis, putting states at risk for the costs per individual but not for the number of individuals enrolled.
• Excluding hypothetical expenditures. Costs for some populations and/or services, referred to as “hypothetical,” were excluded from budget neutrality calculations if they were similar to populations or services that could have been covered without the 1115 waiver, generally meaning states did not need offsetting savings to pay for these expenditures.¹
• Assessing budget neutrality, including identifying savings. While the “without waiver” baseline was compared to projected “with waiver” spending (using state data to generate aggregate spending projections) prior to approval, budget neutrality was formally assessed at the end of the demonstration period. If a state exceeded the “without waiver” limit, it was required to pay back any federal spending above the limit. If demonstration spending was below the limit, a state accumulated budget neutrality “savings” that could be used to fund the federal share of costs not otherwise allowed (in future demonstrations).

Because Section 1115 budget neutrality has not been defined in federal statute or regulations, CMS agency policy and guidance to states has changed over time. For example, the first Trump administration made changes to 1115 waiver budget neutrality policy in 2018 (e.g. changing the rules for calculating the “without waiver” baseline) that limited the amount of federal funds that could be used for waiver spending. The Biden administration later made changes that aimed to provide greater flexibility for states to design and implement 1115 demonstration programs, including health-related social needs (HRSN) initiatives.

The U.S. Government Accountability Office (GAO) has raised concerns involving CMS’s budget neutrality policy. Specifically,GAO has raised concerns related to transparency and accountability in the 1115 waiver approval process, the methods used to calculate spending baselines (“with” and “without” waiver) and waiver “savings,” and the monitoring of federal spending under 1115 waivers. Most recently, a 2025 GAO report raised concerns about HRSN services and reentry services, approved under 1115 waiver authority as “hypothetical” expenditures (that do not require offsetting savings). After the 2025 GAO report was released, the Republican Chairman of the House Committee on Energy and Commerce called for “stronger oversight” of 1115 waiver demonstrations.  

What budget neutrality changes will go into effect in January 2027?

In June 2026, CMS released initial guidance outlining a new approach to budget neutrality policy that will be effective January 1, 2027. The 2025 reconciliation law codified budget neutrality in federal statute for the first time and added a requirement that the CMS Chief Actuary certify 1115 waivers are budget neutral prior to approval. The new guidance indicates states will need to perform an “actuarial, economic, statistical, or other comparable rigorous analysis of the projected financial impacts of individual demonstration activities” before a waiver can be approved. In the guidance, CMS says it aims to reduce state reliance on Section 1115 authority, directing states to use alternative authorities (e.g. state plan authority, 1915 authority) where possible. While budget neutrality policy changes will be implemented formally through CMS rulemaking (expected in early 2027), the new policies described in the guidance letter will take effect on January 1, 2027, even if a final rule is not released by then.

The new guidance outlines major shifts in policy, beyond the codification of the longstanding budget neutrality policy, and aims to reduce federal 1115 waiver expenditures. Key changes to budget neutrality policy described in the June 2026 guidance letter are included below:

• Replacing expenditure limits assessed at the end of the demonstration with a more rigorous prospective analysis of financial impacts. Instead of setting expenditure limits (based on state data/aggregate projections) and formally assessing budget neutrality after the demonstration period ends, the CMS Chief Actuary will determine whether a demonstration is budget neutral (and approvable) at application based on an actuarial, economic, or statistical analysis of projected financial impacts of individual demonstration activities. These rigorous prospective analyses may limit waiver approvals. Activities will be classified as either “1115-only” (subject to budget neutrality calculations) or “Medicaid Authorizable Populations and Services” (or “MAPS”) (considered to have a net financial impact of zero, because they are activities the state could have implemented through state plan or other authority).
• New rules for “hypothetical” expenditures. The guidance replaces the concept of “hypothetical” expenditures with a new “Medicaid Authorizable Populations and Services” (“MAPS”) policy. Under the new “MAPS” policy, to be excluded from the budget neutrality calculation, both the service and the population receiving the service must be coverable under a different Medicaid authority. This stricter standard may result in the recategorization of certain activities currently considered “hypothetical” (e.g. some home- and community-based services (HCBS), HRSN, infrastructure costs) as “1115-only,” which will require states to find savings offsets.²
• Inclusion of administrative costs. Budget neutrality calculations will consider the administrative costs associated with the activity, which have historically been excluded.
• Limits to budget neutrality savings. Under the new approach, savings may be more difficult to generate, and rollover savings will be limited. Currently, states can accrue savings if their actual spending stays below the projected (“without waiver”) spending baseline and may use the savings for multiple future demonstration periods. Under the new approach, savings will be tied to actuarial determinations of savings potential and may only be used in the period they are accrued or the demonstration period that immediately follows. In its June 2026 slide deck, CMS indicated managed care will not be able to generate budget neutrality savings. (States have used savings from Medicaid managed care in the past to offset other waiver costs.)

Obtaining approval for Section 1115 waivers takes time—new requirements add complexity and may further lengthen the approval process. There has been significant variation in the length of time it takes to get final approval of a waiver. NAMD has noted the typical negotiation/approval timeframe ranges from 6 months to 2 years. Under new requirements, states will need to conduct rigorous analyses of expected cost impacts and provide significant implementation details prior to approval (currently, states often submit these implementation details and protocols after gaining approval). Due to these budget neutrality policy changes, CMS recently rescinded guidance allowing certain renewals to be done via a “fast-track” process. The fast-track process was introduced in 2015, offering states requesting straightforward renewals (i.e. with few to no changes) a standard template and expedited review/approval time (often used for less complex / narrow waivers, like family planning-only waivers).

What are key 1115 areas to watch for clarification or additional guidance?

The June 2026 guidance indicates CMS intends to formally implement budget neutrality policy changes through rulemaking (although the new policies will take effect on January 1, 2027, even if a final rule is not released by then).

Key areas to watch for additional clarification in the proposed rule include:

• Financial impact analysis methodology. While CMS notes it will give states flexibility to determine the form of analysis used to estimate/project financial impacts of demonstration activities (e.g. actuarial, statistical, economic), additional clarification involving the standards the Chief Actuary will use to evaluate financial impacts is likely needed. States may also need additional guidance on how to estimate/project waiver-specific administrative costs, as well as the expected standards for determining indirect impacts and utilization shifts at the activity level.
• Monitoring information. In its June 2026 guidance, CMS noted states would be expected to monitor key indicators (e.g. program outcomes and expenditures) and to manage demonstrations within “to be defined” CMS guardrails. States would need to complete “corrective actions” if expenditures deviate “substantially” from initial projections. It remains unclear how CMS will define “substantial” deviations or what types of corrective actions may be imposed.
• Evaluation and renewal standards. CMS intends to propose revised evaluation expectations for demonstrations that are meeting evaluation goals, to ensure “sustained achievement in outcomes.”
• Financial risk clarification. The current guidance also notes that while analysis should generally be done on a per-member per-month basis, enrollee count estimates should also be included to generate aggregate impacts. The new rule may also provide clarity on whether (and when) states would be exposed to financial risk if they experience enrollment or utilization shifts beyond projected levels.

CMS’s budget neutrality and related waiver policies are likely to reduce state flexibility to pursue 1115 waivers generally and certain initiatives specifically. Specifically, states may have difficulty gaining approval for HRSN services, delivery system reforms, certain HCBS initiatives, and/or uncompensated care pool financing under the new rules, if these services or initiatives require offsetting savings (that were not previously required) or states are constrained by new rules involving the accrual and rollover of waiver “savings.” Once an activity is labeled “1115-only,” the state must prove net savings to pay for it. Finding savings to “pay for” these services may be harder, as CMS is limiting rollovers and including administrative costs in the budget neutrality calculation. Additionally, certain programs currently “deemed budget neutral,” like coverage of traditional healing practices (for American Indian and Alaska Native people), would need to be classified as “MAPS” or 1115-only activities, which may require states to offset those costs (if determined 1115-only). While CMS recently approved two new traditional healing waivers (Maine and Utah), it did not indicate how these waivers would be treated in the future under the new budget neutrality rules. CMS has already indicated that it will not approve Arkansas’s request to renew its “ARHOME” waiver under new budget neutrality rules (which provides coverage to Medicaid expansion adults through Marketplace plans). The state is seeking a temporary two-year extension to develop a new delivery system.

Many states have obtained approval for IMD (Institutions for Mental Disease) services and/or reentry services under 1115 authority, which will not require cost offsets under the new guidance. The new guidance specifies that expenditures that could be made under state plan or other authority but for the site of service (e.g. IMDs, in carceral settings) will be considered “MAPS” expenditures that would not require offsets. However, infrastructure funds used to support the implementation of reentry waivers will no longer be considered “hypothetical” (or “MAPS”). (CMS notes additional reentry guidance is forthcoming.) The Trump administration recently approved five new state reentry waivers; in these approvals, CMS indicated it does not anticipate approving infrastructure expenditures and will instead work with states on potential pathways for administrative claiming to support implementation cost.

Future waiver activity, including CMS approvals and state requests, will provide greater insight into how the new budget neutrality rules will be applied and how states may adapt to changing federal 1115 priorities and budget neutrality policy.

• Waivers expiring in 2026 & 2027 (Table 1). States with waivers expiring soon (27 waivers are due to expire by the end of 2027) may have already started the renewal process or submitted requests to CMS (that are currently pending) and may need to make changes based on the new budget neutrality policy. For some states with waivers expiring before the end of the year, CMS may choose to approve certain demonstration activities under the current methodology, while continuing negotiation of other requests into 2027 when new rules apply.³
• Amendment requests for ongoing waivers. The guidance indicates mid-demonstration amendment requests would trigger full waiver review using the new budget neutrality rules and require certification from the Chief Actuary. This requirement may make states with waiver expiration dates further out reticent to pursue mid-demonstration amendments or reconsider currently pending amendment requests.
• Transition initiatives to other Medicaid authorities. States may choose to transition provisions currently authorized under 1115 to State Plan or other federal Medicaid authorities. This may have implications for states, including finding the administrative capacity to reorganize longstanding programs—at a time state resources are particularly stretched, implementing the 2025 reconciliation law provisions.

1. Although hypothetical expenditures were usually subject to separate spending limits / caps. ↩︎
2. In addition, certain 1115 expenditures (e.g. traditional health care practices, out-of-state former foster care youth coverage) that were previously “deemed” budget neutral now must be classified (as “MAPS” or “1115-only”), which may require states to offset those costs with savings if they are determined to be “1115-only.” ↩︎
3. For example, in recent renewal approvals in D.C. and Maine, CMS approved reentry demonstrations but said it would continue to work with the states on the details of pending SDOH requests. ↩︎

Since the Supreme Court’s 2022 Dobbs ruling, state ballot initiatives have become a powerful tool used by advocates on both sides hoping to either protect or limit abortion access in their state. Successful ballot initiatives that enact state constitutional amendments provide stronger legal authority to either protect or restrict abortion than laws enacted by the legislature or state Supreme Court rulings. Since 2022, twelve states have passed ballot initiatives, usually, but not exclusively, to protect abortion rights in their state. Once again, this November, four states (Table 1) will have abortion-related measures for their voters to consider. Abortion rights advocates in Nevada and Virginia have placed a constitutional amendment protecting the right to abortion on the November ballot. The Missouri legislature has placed an initiative on the ballot to repeal a state constitutional amendment protecting the right to abortion approved by voters in 2024. In addition, voters in Idaho will decide on a state statute that would guarantee a right to abortion until fetal viability or after fetal viability when the patient experiences a medical emergency. This issue brief reviews the abortion-related initiatives on the ballot in November 2026 and examines how these measures may impact abortion access in the state. 

Ballot Initiatives Seeking to Protect Abortion Rights

Virginia

Virginia is currently the only state in the South that does not ban the provision of abortion or impose an early gestational limit, currently allowing abortion until the third trimester. Unless the litigation, described below, challenging the placement of the ballot measure succeeds, voters in Virginia will decide whether to enshrine these abortion protections into the state constitution in November. On February 6, 2026, Governor Spanberger signed a bill, placing the Right to Reproductive Freedom Amendment on the ballot, after the legislature passed it in two successive sessions, as is required by state law. However, on March 3, 2026, Charla Bansley, the District 3 Supervisor for the Bedford County Board of Supervisors, filed a lawsuit seeking to block the placement of the measure on the November ballot. Ms. Bansley alleges state election officials failed to distribute the constitutional amendment to circuit clerks in all counties, as required by state law, before certifying the abortion measure for the ballot.

On July 24, 2026, a district court judge issued an order dismissing Bansley’s lawsuit with prejudice because she failed to establish that she had standing to bring the lawsuit, and the operative law that Bansley attempted to rely on to challenge the ballot language had been repealed. On September 12, 2026, the Virginia Court of Appeals heard an appeal to Bansley’s lawsuit, challenging the ballot initiative placement on the November 2026 ballot. The Virginia Court of Appeals denied Bansley’s petition to bypass appellate review and go directly to the Virginia Supreme Court. Bansley’s opening brief is due October 19, 2026.

A separate lawsuit challenging the Right to Reproductive Freedom Amendment was filed on April 30, 2026, by two medical advocacy groups and by Meagan Kade, a member of the Bluefield town council. The Plaintiffs argue that the language of the ballot initiative does not accurately convey the legal impact of the new constitutional amendment to voters. Additionally, they make the same argument as Bansley that the amendment was not properly circulated. A hearing was held in June 2026. The case is still unresolved, and early voting for Virginia began on September 18, 2026.

The Right to Reproductive Freedom Amendment would amend the state constitution to guarantee a fundamental right to abortion until the third trimester, as well as contraception and fertility care. The Amendment would allow the Commonwealth of Virginia to regulate abortion in the third trimester; however, abortion cannot be prohibited if the pregnant person’s life or physical or mental health is at risk, or if the fetus is not viable. If passed, the Amendment will provide durable protection for abortion rights in the state’s constitution by ensuring that changes in the composition of the legislature or the courts in the Commonwealth do not impede access to abortion care.

Nevada

Nevada law requires citizen-initiated ballot initiatives amending the state’s constitution to pass in two successive general elections. Therefore, Nevadans will vote for the second time on the Reproductive Rights Amendment initially approved by voters in 2024. If passed, the Reproductive Rights Amendment will, “guarantee a right to all individuals to abortion performed or administered by a qualified health care practitioner until fetal viability or when needed to protect the life or health of the pregnant patient, without interference from the state or its political subdivisions.” 

Abortion is currently legal in Nevada until 24 weeks gestation. In 1990, voters passed as a “statute affirmation” which upheld the existing law, NRS 442.250, which legalized abortion until 24 weeks, and prohibited the state legislature from amending or repealing the law unless it was placed on the ballot. In 2019, Nevada enacted the Trust Nevada Women Act, which decriminalized medication abortion and removed informed consent laws. The Reproductive Rights Amendment would protect the individuals’ right to abortion beyond the existing law by limiting state interference. While passage of the Reproductive Rights Amendment would provide the strongest protection against efforts to limit reproductive rights by the legislature or courts, any effort to change the gestational limit for abortion in Nevada would have to be approved by a direct vote of state residents, not by the legislature. 

If the Reproductive Rights Amendment passes, abortion rights advocates are likely to bring a new challenge to Nevada’s parental notification for minors law, contending it is not permissible under the new constitutional amendment. If successful, this challenge would allow minors to consent for their own abortions. Last year, a lower court lifted a 1985 injunction blocking the notification law and reinstated the parental notification requirement. Planned Parenthood Mar Monte, the affiliate that operates the Nevada Planned Parenthood clinics, challenged the lower court's order, and the Nevada Supreme Court preliminarily enjoined the law.

Idaho

Idaho has among the most restrictive abortion laws in the nation. Abortion rights advocates are seeking to reverse these restrictions by trying to get a new law approved, the Reproductive Freedom and Privacy Act, which will change the legality of abortion in the state. Idaho is currently enforcing a total ban on the provision of abortion, with exceptions only to prevent the death of the pregnant person or in the first trimester for reported cases of rape or incest. The Reproductive Freedom and Privacy Act would create a state law giving people the right to make decisions about their own reproductive health care, including abortion up to fetal viability, and after fetal viability if the patient is experiencing a medical emergency, miscarriage care, prenatal, pregnancy, and postpartum care, contraception, and fertility treatment. However, the initiative faced considerable barriers to getting on the ballot. In Idaho, a citizen-initiated ballot initiative can only be placed on the ballot if the petitioner gathers signatures from 6% of the registered voters in the last election in 18 of the state’s 35 legislative districts and submits these signatures by May 1 of the election year. The signatures must then be verified by the county clerks and submitted to the secretary of state for certification. Idahoans United for Women and Families, a nonprofit group that advocates for comprehensive reproductive health care in the state, is organizing the 2026 ballot initiative. On July 13, 2026, the Idaho Secretary of State announced that Idahoans United for Women and Families had collected enough valid signatures for the initiative to qualify for the November 2026 ballot.

In addition to facing barriers to collecting signatures, Idahoans United has also filed multiple lawsuits against the attorney general’s office regarding the ballot language. In January 2025, the group sued the attorney general’s office, arguing that the financial impact statement and the short title of the ballot initiative contained biased language. On June 16, 2025, the Idaho Supreme Court agreed and ordered the attorney general to draft a new financial statement and short title. 

On August 27, 2026, Idahoans United for Women and Families filed another lawsuit against the Secretary of State and the Attorney General of Idaho, alleging that the drafted ballot language did not contain a clear and concise statement on the effect of a “YES” or “NO” vote. The original “NO” statement, as written by the Secretary of State and Attorney General, provided: "A NO vote would make no change to Idaho’s current law, which protects the life of the unborn while allowing abortion in reported cases of rape or incest, or when necessary to protect the life of the mother. Idahoans United alleged that the “NO” statement, as written, mischaracterized Idaho’s current abortion law, leading voters to believe that Idaho law “allow[s] abortion . . . when necessary to protect the life of the mother,” when the current law only allows abortions to prevent the death of a pregnant person, and used inaccurate and argumentative language such as “protects the life of the unborn.”

Additionally, Idahoans United argued that the “YES” statement similarly violated Idaho law because it was not a clear and concise statement that describes the legal effect of a “YES” vote. The original “YES” statement provided: “A YES vote would establish reproductive rights, including a right to abortion before a fetus's ability to survive and after a fetus's ability to survive in cases of a medical emergency, and provide liability protections for healthcare providers.” Idahoans United argued that the “YES” statement description of fetal viability could confuse voters because if the statement continued on the ballot as written, it would describe the same point in pregnancy (viability) four different ways: in the initiative text, in the short title, in the long title, and in the “YES” statement.

On September 4, 2026, the Idaho Supreme Court ordered the Secretary of State and the Attorney General to rewrite the ballot language after finding the original version failed to comply with state law by not clearly and concisely stating the effects of “YES” and “NO” votes.

If passed, the Reproductive Freedom and Privacy Act could expand access to abortion in Idaho. However, the Act would still face challenges after the election because Idaho allows its legislature to amend or repeal a citizen-initiated statute without restrictions. There are numerous examples where the legislature has reversed or amended the will of the electorate. In 2002, the Idaho legislature repealed citizen-initiated statutes that sought to place term-limits on elected officials. In 2019, the Idaho legislature amended a citizen-initiated statute that expanded Medicaid eligibility.

Ballot Initiatives Seeking to Curtail Abortion Rights 

Missouri 

In 2026, voters in Missouri will again be asked to decide the legal status of abortion in their state, but this time to reverse a recently approved constitutional amendment. In 2024, Missouri voters approved Amendment 3, the Right to Reproductive Freedom Amendment, which amended the state’s constitution to guarantee a right to abortion until fetal viability. Before Amendment 3 was passed, Missouri banned the provision of abortion with exceptions only to avert the death of the pregnant person or to avert a serious risk of substantial and irreversible physical impairment of a major bodily function of the pregnant person. After Amendment 3 passed, Planned Parenthood, one of the abortion providers in the state, filed a lawsuit challenging not only the state’s total abortion restriction, but also a series of regulations on facilities and clinicians providing abortions. These restrictions included a 72-hour waiting period between an initial appointment and when an abortion could be performed, and abortion specific informed consent requirements. In June 2026, the court permanently struck down some regulations on facilities and clinicians providing abortions; however, some regulations remain. The litigation is ongoing and is currently at the Missouri Supreme Court. The state's total abortion restriction had already been struck down.

State legislators who oppose abortion rights have drafted a new ballot initiative that seeks to repeal Amendment 3. The 2026 ballot initiative, also known as Amendment 3, would ban the provision of abortion except in cases of medical emergencies, fatal fetal anomalies, or pregnancies 12 weeks or less gestation that are a result of rape or incest. The initiative includes a parental or guardian consent requirement for minors except in medical emergencies and prohibits state funding of abortions in most circumstances. The ballot initiative explicitly allows the legislature to regulate abortion provision, facilities, and providers including, “requiring physicians providing abortion care to have admitting privileges at a nearby hospital; laws requiring facilities where abortions are performed or induced to be licensed and inspected for clean and safe conditions and adequate instruments to treat any emergencies arising from an abortion procedure; laws requiring physicians to perform a sufficient examination of the woman to determine the unborn child's gestational age and any preexisting medical conditions that may influence the procedure; and laws requiring ultrasounds to be performed only by physicians or licensed medical technicians.” In addition, the initiative includes a ban on gender affirming care for minors. 

The 2026 ballot initiative has faced legal scrutiny. On July 2, 2025, the ACLU of Missouri filed a lawsuit against the secretary of state, alleging that the language for the 2026 ballot initiative was intentionally misleading, contained an inaccurate summary, and is unconstitutional because it included more than one subject. The ACLU argued that the language of the ballot initiative failed to properly inform voters that a “yes” vote would lead to a repeal of reproductive rights protections that passed in 2024. The ACLU also contended that the subject of the ballot initiative is related to “reproductive health care,” but includes topics unrelated to reproductive health, including a ban on gender-affirming care for minors. On July 4, 2025, the Missouri Western District Court of Appeals ruled that the language of the 2026 ballot initiative failed to inform voters that the initiative would repeal and replace the 2024 Right to Reproductive Freedom Amendment, and certified new ballot language for the 2026 ballot initiative. The language certified by the court will appear on the November 3, 2026, ballot. This is the first time voters could decide to repeal a state constitutional amendment protecting abortion. Passage of the 2026 ballot initiative would ban the provision of abortion in Missouri and prevent minors from accessing gender affirming care. 

Some Abortion Restrictions Remain in Place After Voters Pass Constitutional Amendments

Voters in Arizona, Ohio, and Missouri passed state constitutional amendments establishing the right to abortion in recent elections. After abortion advocates challenged existing state restrictions on the provision of abortion under the new constitutional amendments, courts have blocked the pre-existing state abortion restrictions. However, legal challenges to existing abortion restrictions such as waiting periods and telemedicine restrictions, have taken longer as courts have not uniformly blocked these provisions. 

On November 5, 2024, Arizona voters passed Proposition 139, a ballot initiative that amended the state constitution to guarantee a right to abortion until fetal viability. The amendment also allows abortions after fetal viability if the physician providing the abortion determines that the abortion is necessary to protect the life or physical or mental health of the pregnant person. After this constitutional amendment became effective in December 2024, advocates filed legal challenges to block Arizona’s 15-week ban on the provision of abortion and other abortion restrictions. In March 2025, a court ruled Arizona’s 15-week ban was unconstitutional under the new amendment. In February 2026, an Arizona state court ruling blocked several abortion restrictions, including: (1) a ban on abortion based on fetal diagnoses; (2) a 24-hour waiting period and (3) a prohibition on telemedicine for abortion care due to new protections granted in the state’s constitutional amendment. However, Republican state legislators who have intervened in the lawsuit may appeal this decision. The Democratic Arizona Attorney General declined to defend the laws on behalf of the state, and therefore it is unlikely the state will appeal. 

There are, however, still abortion restrictions in effect in Arizona, including a ban on state funds for abortion (which affects Medicaid), a parental consent requirement for minors seeking abortions, and a law that bars medical professionals other than doctors from providing abortions. In February 2026, the ACLU of Arizona filed a lawsuit on behalf of advanced practice clinicians, contending the physician-only law violates the constitutional amendment protecting abortion. 

On November 7, 2023, Ohio voters passed Issue 1, a ballot initiative that amended the state constitution to guarantee every individual has the right to make their own reproductive decisions, including contraception, fertility treatment, continuing a pregnancy, miscarriage care, and abortion care. The amendment also allows the state to prohibit abortion after fetal viability; however, an abortion cannot be prohibited after viability if it is necessary to protect the life or health of the pregnant person. After the passage of Issue 1, advocates cited the new amendment in legal challenges to the state’s 6-week ban on the provision of abortion as well as the many other abortion restrictions. In October 2024, the Hamilton County Court of Common Pleas issued a permanent injunction blocking Ohio’s 6-week abortion ban from taking effect, marking the first permanent injunction based on Ohio’s Reproductive Freedom Amendment. Courts have blocked many of the other abortion restrictions as well. One provision that was challenged, but is still in effect, is a requirement for providers to document the reason for an abortion, but this provision does not impact patients’ access to abortion care. Ohio law still requires parental consent for minors seeking abortions and blocks public funding for abortions. 

As was discussed earlier, Missouri voters approved Amendment 3, the Right to Reproductive Freedom Amendment, in 2024, which guarantees a right to make and carry out decisions about all matters relating to reproductive health care, including: prenatal care, childbirth, postpartum care, birth control, abortion care, miscarriage care, and respectful birthing conditions. The amendment also allows the government to regulate abortion after fetal viability; however, it prevents the government from restricting abortion after fetal viability if the abortion is necessary to protect the life, physical or mental health of the pregnant person. After the passage of Amendment 3, a court blocked the state’s ban on the provision of abortion, as well as most of the restrictions, including a 72-hour waiting period and abortion specific informed consent requirements. However, the litigation is ongoing and is currently at the Missouri Supreme Court.  

Options for Future Citizen-Referred Ballot Measures Are Limited

Citizens are allowed to propose a constitutional amendment for the ballot in 17 states. There are only two states, Arkansas and Oklahoma, with current bans on the provision of abortion which allow for citizen-initiated constitutional amendments and have yet to vote on an abortion measure (Figure 1). There were efforts in Arkansas (where there is a near-total ban on the provision of abortion) to get an initiative on the ballot, but the Arkansas Secretary of State rejected the petition for the initiative because the signatures were not properly gathered, and thus the initiative did not make it to the ballot. The Arkansas Supreme Court upheld this decision. 

Oklahoma has a total ban on the provision of abortion, with an exception only to save the life of the pregnant person, and classifies performing an abortion as a felony. A citizen-led effort to put a state constitutional amendment that would have added an “individual right to reproductive freedom” on the ballot was withdrawn in December 2022, before signature gathering began.

In 2024, in Florida, Nebraska, and South Dakota, abortion rights amendments failed to garner sufficient votes for passage. In Nebraska, voters approved a competing measure to ban the provision of abortion after the first trimester. In South Dakota, the measure failed to pass, only garnering 41% of the votes. In Florida, the initiative received 57% approval. However, state law requires 60% approval for a constitutional amendment. As the popular vote fell just 3 percentage points short of approval, abortion rights supporters in Florida may try again in a future election to reverse the 6-week ban on the provision of abortion. 

Conversely, in states with current abortion protections without a constitutional amendment protecting abortion, only three states (Illinois, Massachusetts, Oregon) have a process for citizen-initiated constitutional amendments. However, in today’s political climate, it is unlikely that new citizen initiatives will be brought to the electorate to weaken existing abortion protections.