By Joelle Boxer
Dobbs “return[ed]” the authority to regulate abortion to “the people and their elected representatives.” The people of Ohio will act on that authority on November 7, demonstrating yet again the emerging role of referenda in American abortion law.
The referendum will determine if “The Right to Reproductive Freedom with Protections for Health and Safety Amendment,” or Issue 1, is added to the Ohio Constitution. It reads as follows: “Every 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 would establish a constitutional right to abortion before fetal viability (around 22-24 weeks gestation), and would include exceptions for later term abortions in instances where it is necessary to protect the pregnant person’s life or health.
The status of abortion law in Ohio impacts access to essential healthcare for more than 2.2 million people who can become pregnant. Ohio’s laws also impact the Midwest region, as Ohioan abortion providers can serve patients traveling from four bordering states with restrictions. Further, the use of the referendum device in Ohio will have implications around the country, informing activist strategy on both sides.
This article will describe the legal landscape leading up to the Ohio referendum and evaluate the strength of this form of direct democracy as a tool in reproductive rights activists’ toolbox.
What’s happening in Ohio?
The Ohio referendum occurs against the backdrop of significant legislative, judicial, and media attention to abortion in the state.
In April 2019, Ohio Governor Mike Dewine signed SB 23, the “Human Rights Protection Act,” into law. SB 23 outlawed abortion after the detection of a fetal heartbeat (approximately six weeks into pregnancy), without exceptions for rape or incest. The law was deemed unconstitutional in July 2019, but went into effect in June 2022 when Roe and Casey were overturned. It made national headlines in July 2022 when a local newspaper reported that a 10-year-old girl from Ohio, a rape survivor, was forced to travel to Indiana for abortion care because of SB 23 restrictions.
In September 2022, abortion providers challenged the law again under the state constitution, securing a preliminary injunction. The Supreme Court of Ohio heard arguments in the case last month regarding the state’s ability to appeal and the abortion providers’ ability to sue. If the Supreme Court sides with the state, SB 23 will come back into effect.
The referendum, however, could provide another answer to the constitutionality of abortion laws. The amendment’s path to the November ballot has not been simple. First, opponents of the amendment worked to make it harder to pass by proposing a change to the constitution that would require 60% voter approval for any future constitutional amendments. This failed in August 2023, with 57% of voters in opposition. Second, the Ohio Ballot Board adopted language for the November ballot that amendment supporters call “misleading.” For example:
- The ballot language only mentions abortion protections. The amendment language lists five express categories of reproductive decisions, one of which is abortion.
- The ballot language states the amendment “always allow[s] an unborn child to be aborted, at any stage of pregnancy, regardless of viability” if necessary to protect the pregnant person’s life or health. The amendment language states that abortion may not be prohibited if necessary to protect the pregnant person’s life or health.
- The ballot language uses the term “unborn child,” while the amendment language uses the term “fetus.”
Supporters petitioned the Supreme Court of Ohio last month to require the Ballot Board to put the actual amendment language in front of voters in November. The Supreme Court, however, largely preserved the ballot language.
In the meantime, campaigning continues. Supporters argue that government cannot make personal decisions for Ohioans. Opponents frame the issue as one of parental rights (though the term does not appear in the amendment). Millions of dollars have poured in, from Ohio and out-of-state, to fuel the debate.
What role can referenda play in abortion law?
The Ohio example illustrates the potential promises and perils of referenda in abortion law.
On the one hand, Issue 1 has a strong chance of success. Voters, through “off-the-charts” turnout, resoundingly defeated the August 2023 proposal to require 60% voter approval for future constitutional amendments. Thus, the threshold remains 50%, and polls show that 58% of likely November voters support Issue 1. Its passage would follow abortion rights wins through referenda in California, Michigan, Vermont, Kansas, Kentucky, and Montana in 2022 (where state constitutional rights were established in the former three and anti-abortion measures were defeated in the latter three). Referenda create democratic legitimacy for abortion law and foster public participation in local government decision-making. They have been used in constitutional democracies around the world to secure fundamental rights.
On the other hand, referenda are risky. The playbook of Issue 1 opponents in Ohio — scheduling an August special election (after previously eliminating August special elections), attempting to raise the bar for amendment, and even misstating the amendment in the ballot summary — show all that is up for grabs in a referendum fight. It remains to be seen whether the 58% of Ohioans in support of Issue 1 will see through the “always allow an unborn child to be aborted” ballot language. Concerns about voter turnout, voter education, voting restrictions, gerrymandering, and campaign financing are thus paramount. Further, referenda processes are not available in every state.
On the whole, I see referenda as a powerful tool in reproductive rights activists’ toolbox, in conjunction with voting rights protections and voter education efforts. Ohio is an important test case; Florida, Arizona, and Missouri may be next.
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