Another red state sends a pro-abortion rights signal for 2024

On Tuesday, Ohio voters handed the state’s Republican legislature, and its Issue 1, a stinging defeat. By an overwhelming margin, they followed a 2022 pro-abortion rights trend set by voters in other states, including red ones like Kansas, Kentucky and Montana.

They also sent a 2024 message for national politicians.

Following the Supreme Court’s June 2022 decision overturning Roe v. Wade, voters in the three Republican-majority states named above — like voters in Democratic-majority Vermont, Michigan and California — stood up for their right to be free of government attempts to enter family homes and end women’s bodily freedom. More on that in a moment.

In Ohio, Issue 1 was an anti-abortion wolf in constitutional process clothing. Everyone knew the Ohio legislators’ cynical anti-choice motive animating the measure. They were changing the rules for amending the state’s constitution in an attempt to accomplish their aims by stealth.

Fervent GOP opponents of abortion rights sponsored Issue 1 to raise the threshold on citizens’ ability to establish those rights through the ballot box. If voters had approved it, Issue 1 would have raised the minimum required to adopt new constitutional provisions by popular vote, like one set for abortion rights in November, from a simple majority to 60 percent of voters. The current requirement, 50 percent plus one vote, has been in place since 1912.

In May, the legislators set Issue 1 for an August vote — even though they were violating their own ban on August special elections, enacted just months earlier on the sensible premise that such elections were “anti-democratic” because they typically drew low voter turnout. There hasn’t been an August special election in Ohio for 97 years.

The conservative legislators’ hypocritical reversal for yesterday’s vote was a tipoff to an unsavory agenda. They wanted to ride a Trojan horse past the wall of voter support for reproductive freedom. The legislators knew back in May that signature-petitions were circulating for a citizen-sponsored initiative to add abortion rights to the state constitution. In late July, that measure qualified for the November 2023 ballot.

If adopted, the proposed constitutional provision would end the six-week abortion ban enacted by legislators last year, hours after Roe v. Wade was overturned. That ban, by the way, has been in limbo since October, when a court blocked it. A vote in November adopting a constitutional amendment to override the legislature’s ban would presumably moot the case, restoring abortion rights.

It’s little surprise that the legislators’ attempt via Issue 1 to keep depriving Ohioans of those rights just crashed and burned.

It didn’t have to be this way. If Issue 1’s proponents had been backing a defensible, general notion that amending the state constitution should require more than a 50 percent vote, they could have waited until November. Having Issue 1 on the same ballot as the abortion-protection measure would not have affected it.

Then they could have advanced in a principled way the precept that a 60 percent threshold for initiatives changing the constitution would protect minority rights from a future majority’s attempt to remove them.

Instead, showing their true colors, the pro–Issue 1 forces took the opposite approach. They spent $5.5 million on demagogic statewide radio and TV ads that shamelessly claimed that the November measure to put abortion rights on the ballot would allow transgender minors to receive gender-affirming care without parental consent.

Ohio voters saw through the attempt to manipulate them. The effort to wrap popular abortion rights in the mantle of anti-trans fear failed miserably.

There’s an undeniable national trend here. Last year, voters in Kansas and Kentucky sided with abortion rights on measures seeking to amend their constitutions. Voters in South Dakota and Arkansas turned down measures just like Ohio’s Issue 1 that targeted citizen-initiatives to amend state constitutions. In Montana’s last year, voters rejected a so-called “born alive” measure that would have compelled doctors to provide medical care to infants born so prematurely that they have no chance for healthy survival.

The message for 2024 is clear for each party. Republicans wanting to win in a general election might carefully reconsider pursuing an all-out anti-abortion agenda. Democrats will likely amplify their commitment to protecting individuals’ rights to make their own family decisions.

Those rights are on a winning streak in states red and blue. In the 2024 general election, that trend looks to continue.

Dennis Aftergut is a former federal prosecutor and civil litigator, currently of counsel to Lawyers Defending American Democracy.

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