Ohio Passes Constitutional Right to Abortion

• Republicans tried everything they could to derail the initiative. Voters approved it anyway.

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Ohio voters have approved Issue 1, amending their state constitution to enshrine the right to abortion—and proving, ahead of 2024, that support for abortion rights remains a compelling force among voters.

The success of the measure, which was passing 58-42 as of 9 p.m. Tuesday night, is an encouraging sign for similar initiatives being prepared for next year’s election in places like Arizona, Florida, and Missouri. It’s a rebuke of the Republican state leaders who have spent much of the last year going to extraordinary lengths to prevent the abortion-rights amendment from passing. And it’s a warning to Republican officials attempting similar moves elsewhere. 

But most of all, it’s a win for pregnant people in Ohio. The new constitutional amendment will protect access to abortion until the point in pregnancy when a doctor determines that the fetus could likely survive outside the patient’s body—usually around 24 weeks into pregnancy, barring any anomalies. It also will allow for later abortions when necessary to protect the patient’s life or health. And it will set a high legal bar for how the government can regulate abortion.

The amendment also protects the right to make one’s own decisions about birth control and fertility treatments, as well as miscarriage care, which has been deeply disrupted over the last year and half—a side effect of Supreme Court overturning Roe, paralyzing doctors, and calling once-routine treatments into question. Its most immediate consequence is to protect abortion services in Ohio at a time when they were under grave threat: A decision is imminent from the conservative-leaning state Supreme Court on whether to allow a 6-week abortion ban to resume effect. The infamous law, passed in anticipation of the end of Roe, had prevented a 10-year-old rape survivor from getting an abortion in-state before a judge put it on hold last fall. Now, with the constitution amended, litigation against the 6-week ban has a clear path to victory in the courts, regardless of the state Supreme Court’s impending decision.

On the surface, the amendment in Ohio might have seemed destined for success. Last year, following the fall of Roe, California, Michigan, and Vermont all voted to enshrine abortion rights in their state constitutions. People in the conservative states of Kansas, Kentucky, and Montana likewise rejected the anti-abortion ballot initiatives put in front of them. Meanwhile, voters have turned out decisively for candidates who made abortion rights a signature issue, such as Wisconsin Supreme Court Justice Janet Protasiewicz, whose special election in April shattered turnout records and swung that court’s majority from conservative to liberal.

Yet like anyone else watching these results over the last year and a half, the Republican officials who lead Ohio’s state government could spot a pattern. So, faced a ballot initiative from their own citizens, they pulled out all the stops to interfere with the vote and flood the electorate with misinformation.

Against this backdrop, the success of Issue 1 on Tuesday is even more significant. For anyone playing catch-up, here’s a brief recap of everything state GOP officials have done to interfere with the vote on the abortion-rights constitutional amendment:

Forcing a vote on their own ballot measure

First, Republicans in the state legislators created their own ballot initiative designed to make it nigh-impossible to pass any future ballot initiative in Ohio. That initiative, confusingly also known as Issue 1, would have raised the vote threshold to pass a ballot measure from 50 percent to a 60 percent supermajority. (Conveniently, the abortion rights initiative had been polling just below 60 percent.) And it would have required organizers to gather signatures from 5 percent of voters in each of the state’s 88 counties, rather than the current 44, in order to qualify their initiative for the ballot—an extremely difficult task.

Frank LaRose, the Republican secretary of state who is challenging Democratic Sen. Sherrod Brown in 2024, spent months insisting that this previous Issue 1 was about stopping interference from “out-of-state special interests.” (Ironically, the campaign for the measure was largely funded by an out-of-state billionaire, Richard Uihlein, known for supporting election denialism.) But in May, LaRose admitted to supporters that the measure was “100% about keeping a radical pro-abortion amendment out of our constitution.” Meanwhile, the Republican legislators reversed some of their own legislation to make sure their ballot initiative went before voters this summer, so it would have a chance to kick in before the vote on the abortion amendment.

Yet the $18 million special election was for naught. Voters soundly defeated the measure in August.

Rewriting the ballot language

LaRose and the Ohio Ballot Board weren’t done, however. In late August, the board voted 3-2 to put a summary of the abortion amendment on the ballot, rather than the full text. The summary, crafted by LaRose’s office, took some liberties with the content of the amendment, according to the Ohio Capital Journal. For one thing, it replaced the medical term “fetus” with “unborn child.” It also failed to mention that the amendment would protect access to contraception, fertility treatments, and miscarriage care.

After proponents of the initiative challenged the summary language, the state Supreme Court kept in place much of LaRose’s wording but ordered the ballot board to rewrite a section that suggested “citizens of the state,” rather than the state government, would be limited from passing laws to restrict abortion access. “The ballot language’s use of the term ‘citizens of the State’ would mislead voters by suggesting that the amendment would limit the rights of individual citizens to oppose abortion,” Republican Justice Pat Fischer wrote in the majority argument.

Filing Hail-Mary lawsuits

Anti-abortion activists have repeatedly tried to get the courts to block the abortion-rights initiative from proceeding. In one unsuccessful case, Cincinnati Right to Life argued that the initiative should be split up into two separate questions—one about abortion, and one about other reproductive healthcare decisions—which would have forced the initiative’s organizers back to the drawing board and required them to re-gather signatures. 

Then, in July, a former Republican legislator filed another a lawsuit against the Ohio Ballot Board and the abortion-rights amendment’s proponents. Former state Rep. Thomas Brinkman challenged the validity of the petition voters signed to get the amendment on the ballot, claiming it broke election law by not including the text of the all the statutes that would be repealed if the amendment were to pass. But the Ohio Supreme Court threw out Brinkman’s lawsuit two weeks after he filed it, concluding his argument was based on a grammatical misreading of what the election law required.

Purging voters

Election officials are required to routinely remove inactive voters from their rolls, and in June of this year, LaRose sent a memo setting the schedule for the maintenance. He directed county elections boards not to remove any voters before the August election on the threshold for passing ballot initiative—the one LaRose himself championed. But then, he said, registrations should be cancelled in September, prior to the vote on the abortion-rights amendment. According to an NBC local affiliate, by September 29, 26,666 unresponsive voters had been removed from voting rolls ahead of the November elections—about 1 in 6 of whom were from Democratic-leaning Franklin County, where the city of Columbus is located. Voters only had 11 days to re-register in time to vote in the November election. 

Citing federal law that requires ongoing maintenance of voter rolls, Paul Disantis, the chief legal counsel for LaRose’s office, wrote that it was “ridiculous” to claim the purge was politically motivated but did not address the convenience of the purge’s timing for his boss.

Spreading misinformation

According to the Associated Press, inflammatory rhetoric and false claims about the ballot initiative have been flowing freely from the website of the Ohio Senate, which is controlled by Republicans. Posts on the blog falsely claimed Issue 1 would allow “the dismemberment of fully conscious children” and establish “abortion on demand for all nine months.” And because the information is on a .gov website, it’s heavily favored in Google searches for information on Issue 1, the AP reported. (Republican state Sen. Michele Reynolds fired back in another blog post, calling the AP article about the Senate blog “fake news.”)

The Ohio GOP isn’t alone. As abortion-rights ballot initiatives proliferate across the country, Republican state officials have been getting crafty—inflating cost estimates for an abortion-rights amendment in Missouri into the billions, for example, and filing a lawsuit in Florida arguing that the amendment proposed there is impermissibly vague, because “fetal viability” isn’t a clear-cut line. Will they take a hint from the result in Ohio? It remains to be seen. 

“What we expect to continue to see is that because they know that they can’t win on the merits of the issue, anti-abortion politicians are going to continue to try to change the rules and bend the democratic processes to try to push through their agenda,” says Ryan Stitzlein, vice president of political and government relations for Reproductive Freedom for All. “Because they can’t get through any other way.”

Abby Vesoulis contributed reporting.