How Republican Courts Could Sabotage The Ohio Abortion Vote And Future Ballot Measures

The depth of voter support for abortion rights is impressive, but celebrations of the success of abortion rights ballot initiatives overlook the next step

By Mary Ziegler, Slate

After Ohio voted to enshrine reproductive care access in the state’s constitution on Tuesday, abortion rights supporters are now a perfect 7-for-7 in ballot initiative fights since the Supreme Court overturned Roe v. Wade last year. Ohio has Republicans in control of all three branches of government, but the state’s voters still managed to approve a ballot initiative on reproductive rights. Meanwhile, abortion helped propel state lawmakers in Virginia to control of both chambers of the state Legislature—and fueled the reelection of Democratic Gov. Andy Beshear in Kentucky. Memes and tweets have circulated saying that if abortion were on the ballot in 2024 instead of Joe Biden, the race would be a done deal.

The depth of voter support for abortion rights is impressive, but celebrations of the success of abortion rights ballot initiatives overlook the next step in the conflict over reproductive rights: the war over the state Supreme Court judges charged with interpreting new constitutional amendments.

Consider how state judges could make a difference in the real-world impact of Issue 1, the measure just passed in Ohio. The success of that ballot measure seems to require strict scrutiny of any restriction on “an individual right to one’s own reproductive medical treatment,” including to make decisions on abortion, contraception, fertility treatment, and miscarriage care, before viability—and allows access for when a patient’s health or life is threatened thereafter. In theory, Ohio might have a hard time justifying many of its current restrictions—and outright abortion ban at six weeks—under Issue 1. But the people ultimately interpreting the new constitutional amendment are the judges of the Ohio Supreme Court.