In the 14 months since the U.S. Supreme Court gutted abortion access in Dobbs v. Jackson Women’s Health Organization by overturning Roe v. Wade, one thing has become clear: The Supreme Court was out of step with a strong majority of Americans who believe that abortion should be legal in all or most cases and are willing to fight to reassert their rights. And nowhere is this more evident than recent state ballot initiatives regarding abortion.
In 2022, six states supported abortion rights on the ballot—a direct rejection of the Supreme Court’s overreach in Dobbs. In California and Michigan, nearly 67 percent and 57 percent of voters approved a constitutional provision to reproductive freedom, including abortion. Additionally, in Vermont, almost 77 percent of voters supported a constitutional provision to protect personal reproductive autonomy. Likewise, in 2022, Kansas and Kentucky voters rejected amendments to exclude abortion rights from their state constitutions, and Montana voters rejected a measure designed to confuse the public about abortion and disrupt medical professionals’ care of their patients.
In November 2023, Ohio voters will have the chance to follow suit, and enshrine reproductive rights—including abortion rights—in their state constitution. However, abortion opponents have set their sights on an August special election, focused on a provision that would make it more difficult for Ohioans to amend their state constitution.
The abortion rights ballot initiative would codify access to abortion in Ohio’s state constitution
As of publication, abortion in Ohio is legal up until 22 weeks of pregnancy. However, hours after Roe was overturned in June 2022, Ohio began to enforce a 2019 ban on abortion after six weeks, before many women even know they are pregnant. The six-week ban includes an exception for the life of the mother but does not include exceptions for rape or incest.
In September 2022, the ban was temporarily blocked, and in October 2022, the Hamilton County Court of Common Pleas blocked the ban indefinitely while litigation proceeded. In December, an appeals court allowed the decision to halt the law to stand for now.
In February 2023, Ohio Physicians for Reproductive Rights and Ohioans for Reproductive Freedom submitted to the state’s attorney general ballot language for a constitutional amendment that would protect abortion access. In part, the amendment states:
[E]very individual has a right to make and carry out one’s own reproductive decisions, including but not limited to decisions on: contraception; fertility treatment; continuing one’s own pregnancy; miscarriage care; and abortion.
The amendment also says that the state cannot interfere with these rights unless it is “using the least restrictive means to advance the individual’s health.” In addition, the amendment clarifies that abortion may be prohibited after fetal viability as long as it doesn’t interfere with a patient’s life or health.
Support for abortion is high in Ohio. In 2022, a poll by AP VoteCast found that 59 percent of Ohio voters wanted abortion to generally be legal. Support for Ohio’s ballot initiative to protect abortion access is also comparable. According to a USA Today Network/Suffolk University survey of likely voters in Ohio conducted in July 2023, 58 percent of likely voters in Ohio support the amendment and 32 percent do not. Notably, supporters included one-third of Republican voters and 85 percent of independent women. In addition, in order to place the amendment on the ballot, supporters gathered more than 495,000 valid signatures.
Opponents of abortion see the August special election as a way to prevent passage of the amendment to enshrine reproductive rights
Despite widespread support for abortion access in Ohio, prominent abortion opponents in the state have made it clear that they hope the results of the August 8 special election will make it more difficult to protect access to abortion.
Earlier this year, the state legislature passed a resolution to place a measure on the state’s August special election ballot that would require 60 percent voter support—a level just slightly higher than most polls show the abortion rights amendment commanding—to amend the state’s constitution, as opposed to the simple majority that is the current standard.
Many of those who support raising the threshold needed to pass a constitutional amendment have explicitly linked this threshold issue to abortion. For example, in March 2023, Ohio Senate President Matt Huffman (R) claimed that it was worth spending $20 million on the August special election to address abortion.
Huffman’s current position in support of August special elections, in fact, contradicts his previous actions: In 2022, Huffman and other state legislators voted for a law to largely eliminate August special elections, which was signed by the governor in January. In May, individual Ohio voters and One Person One Vote, a coalition representing Ohio voters, filed a lawsuit alleging that August’s special election conflicts with that law, but in June, the Ohio Supreme Court allowed the election to proceed.
Abortion opponents in other states have also attempted to circumvent democratic norms in an effort to interfere with abortion rights. For instance, in April 2023, Missouri Attorney General Andrew Bailey (R) attempted to hold up the state’s abortion rights ballot measure by refusing to sign off on the state auditor’s cost estimate for the constitutional amendment. While the auditor estimated that it would cost the state at least $51,000 per year, Attorney General Bailey falsely $51 billion. The ACLU of Missouri filed a lawsuit in May, and in July, the Missouri Supreme Court ruled that Bailey used “misleading” and “incorrect” statements to delay the process. The court subsequently allowed the ballot initiative to move forward to the next step in the process.
Ohio won’t be the last state to employ ballot initiatives to try to protect abortion
Following the examples of California, Michigan, and Vermont, advocates have turned to ballot initiatives to protect abortion access in other states across the country. These efforts reflect the power of ordinary citizens to make their voices heard through a democratic process, even when the Supreme Court denies the recognition of such protections.
For example, in November 2024, voters in both Maryland and New York will weigh in on constitutional amendments to protect reproductive rights, including abortion. In Maryland, the proposed constitutional amendment would ensure that every person has a “fundamental right to reproductive freedom, including but not limited to the ability to make and effectuate decisions to prevent, continue, or end one’s own pregnancy.” In New York, the language is even more expansive and would prohibit the denial of rights based on an individual’s “ethnicity, national origin, age, and disability,” as well as their “sex, including sexual orientation, gender identity, gender expression, pregnancy, pregnancy outcomes, and reproductive healthcare and autonomy.”
In addition to New York and Maryland, ballot initiatives to protect abortion are underway in states such as Florida, Missouri, Nebraska, Nevada, Oregon, and South Dakota. Advocates are also considering ballot initiatives to protect abortion access in states including Arizona, Arkansas, Montana, North Dakota, and Oklahoma. At the same time, amendments to restrict access to abortion are making their way through the ballot initiative process in states such as Colorado, Iowa, and Pennsylvania.
Conclusion
Given the plethora of abortion restrictions across the country, amending state constitutions through ballot initiatives have proven to be an effective way to protect abortion access in the aftermath of the Dobbs decision. The Ohio special election, however, may make it more difficult for voters to enshrine protections into their state constitution.