February 6, 2023

The political dynamics of the abortion landscape were, for decades, calcified. 

The well-organized and well-practiced anti-abortion lobby used the promise of abortion restrictions — and threat of broad access to the procedure — to drive like-minded voters to turn out. Republican politicians, increasingly exclusively, signed their names to both substantive and messaging bills alike, often able to fly the flag without dealing with the consequences while Roe was still the law of the land. 

Since the Dobbs leak in May of last year and the official decision in June, those dynamics have been upended. 

States have turned into battlegrounds for abortion rights, particularly those where the threat of losing access completely looms large. Perhaps nowhere is this clearer than Ohio, a state politically dominated by Republicans that’s holding on to abortion access by a thread. It’s also a place where a ban would seem all but inevitable — before the seismic shifts of the past few months.

The reality of the Court ripping back a 50-year-old constitutional right stunned and enraged the majority of Americans who support abortion access, and pushed them toward action. 

The emotional sea change became tangible in election results in Kansas last August, then a slate of other states in November, where expanded abortion access or new restrictions were on the ballot. From states as red as Kentucky to those as blue as California, voters consistently chose to vote for abortion protections, or at least against restrictions. 

“Political memory is typically quite short — a decision that came down in June affecting politics that noticeably in November really says something,” Jonathan Parent, an associate professor at Le Moyne College who specializes in state constitutions and reproductive rights, told TPM.

Not only have abortion supporting coalitions managed to harness the energy once nearly exclusively in the hands of the anti-abortion movement, but they’re even using the anti-abortion movement’s playbook to do it. From 1970 to 2022, 81 percent of ballot initiatives related to abortion were put forth by anti-abortion groups. 

“If anything, what we used to see were ballot amendments designed to restrict abortion rights,” Jessie Hill, associate dean and professor at Case Western Reserve University School of Law, told TPM. “We’d see them every so often in response to state Supreme Courts expanding or upholding abortion rights before Dobbs.”

Abortion rights groups in states of all political stripes are now trying to emulate the success of Kansas, Kentucky, California, Vermont and Michigan by getting ballot initiatives before voters that would amend state constitutions to enshrine abortion rights. 

In states under one-party Republican rule, often locked in by years of successful gerrymanders, their constitutions are the last remaining avenue to secure abortion access. 

This post-Dobbs power struggle is playing out in many of the 17 states that allow citizens, not just lawmakers, to initiate ballot proposals to amend their constitutions. 

In Ohio — a state where Republicans have successfully gerrymandered their way to supermajorities in both chambers, control the governor’s mansion and have a state Supreme Court that got more conservative in the 2022 elections — a constitutional amendment is likely the only way to preserve abortion rights long term. 

The Court 

Two efforts have already sprung up in Ohio to get an initiative on an upcoming ballot: Protect Choice Ohio, formed by Ohio Physicians for Reproductive Rights to get a vote in 2023, and Ohioans for Reproductive Freedom, a coalition of more established groups including Planned Parenthood and the ACLU’s Ohio branch. The latter group, Deputy Director of Pro-Choice Ohio Jaime Miracle told TPM, has not yet decided whether to launch its effort for 2023 or 2024. 

“I don’t know about what they’re doing, but we’re in an all-hands-on-deck situation,” she said of the other group, adding: “This is not something we’ll get multiple chances at — we’re gonna partner with everybody in state to win this and do it in whatever way makes the most sense and has the greatest chance of success.” 

The abortion landscape in the state got more dire after the 2022 midterms when Republicans swept the three state Supreme Court races. All three — one of whom is Ohio Gov. Mike DeWine’s (R) son — had filled out a Cincinnati Right to Life survey during their campaigns in which they said that they did not believe that the U.S. Constitution included a right to abortion and agreed with the statement that “an unborn child is biologically human at every stage of his or her biological development, beginning at fertilization.” 

And Chief Justice Maureen O’Connor, a swing vote Republican who often joined the Democrats in big decisions, was age-limited out of running again and left the bench. DeWine appointed Hamilton County Prosecutor Joe Deters, who Ohio Democrats denounced as a “partisan hack,” to finish the rest of Justice Sharon Kennedy’s term; Kennedy had moved up to fill O’Connor’s role as chief justice.

“It doesn’t look good on the state Supreme Court,” Miracle said. “It could mean that the six week ban will come back into effect in Ohio.” 

The ban, currently tangled up in litigation, is expected to wend its way to the state’s high court early this year. 

The Legislature

Meanwhile, state Republicans have their fingers in the wind too — and don’t like what they’re picking up. Towards the end of last year, state Rep. Brian Stewart (R) introduced a measure to raise the threshold for citizen-introduced ballot initiatives to 60 percent to pass. Interestingly, he did not feel the need to also up the lawmaker-introduced threshold from a simple majority. 

“It’s just so cynical because of course, for decades, folks opposed abortion saying ‘just let the will of the people decide,’” Hill said. “Now, it turns out they don’t really want democracy to decide.” 

In a last-ditch effort to get Republicans on board with the threshold change during the lame duck session, Stewart sent out a letter to his colleagues. 

“After decades of Republicans’ work to make Ohio a pro-life state, the Left intends to write abortion on demand into Ohio’s constitution,” he wrote. “If they succeed, all the work accomplished by multiple Republican majorities will be undone, and we will return to 19,000+ babies being aborted each and every year.”  

The effort did not muster enough support then, though Stewart promised to resurrect it in the new year. Despite the Republican supermajorities, the measure’s fate is more in doubt now, after Rep. Jason Stephens (R) won the House speakership in a huge upset to the GOP conference’s locked-in favorite, having recruited the votes of the chamber’s Democrats along with a couple dozen moderate Republicans to win the gavel. 

Stephens was reportedly not in favor of the threshold raising measure during the lame duck, though he did not respond to TPM’s inquiries about whether he intends to bring it to a vote. Stewart, furious at the coup, responded “yep” to a Tweet musing that Stephens may have promised to kill the legislation in exchange for the Democrats’ votes.   

That difficulty to the abortion rights coalitions in Ohio may be averted in the short-term, though Republicans in many other states are pushing their own restrictions, from raising the vote threshold like Ohio to prohibiting signature collection at certain sites.

“It has the same feel and flavor as gerrymandering efforts going on in various states for a number of years,” Parent said. “It’s an effort by conservative lawmakers and activists to make change more difficult, to ensure minority rule.” 

And still, the Ohioians aren’t sleeping easy. There are many steps in the process to get an initiative on the ballot, and Republicans hold nearly all of the offices involved. 

“We saw the same kind of thing in Michigan, where the language failed to get approved for a long time,” Miracle said, alluding to the state board of canvassers’ partisan deadlock on approving the initiative, which forced the abortion rights coalition to appeal to the Michigan Supreme Court. “We could see very similar things in Ohio.” 

Miracle said that the group is still working on the text of the initiative. In other red states, supporters of abortion rights have seen success framing the issue as one of privacy, opposing government intervention into personal medical decisions, an idea with conservative appeal when applied to realms outside of reproductive health. 

The hill is steep for the Ohio groups supporting abortion access despite the recent success of other initiatives. Even if the coalitions manage to collect enough signatures, get their initiative by multiple antagonistic Republican officials and win at the ballot box, there could still be future obstacles. 

“Conservative state courts tend to find a way around constitutional amendments,” Hill said. “Look at what happened in Ohio with the amendment to the state constitution for redistricting — the legislature basically ignored it and the state Supreme Court was ineffectual.” 

“That’ll be the next set of questions,” she added. “Will it be enough?”

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