The Fight For Abortion Access In Ohio Isn’t Over

COLUMBUS, OHIO - NOVEMBER 3: A close-up view of signage in support of Issue 1 is seen on November 3, 2023 in Columbus, Ohio. (Photo by Andrew Spear/Getty Images)
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While many in the state were still sweeping up the metaphorical confetti from a red-letter win on protecting abortion rights, Ohio Republicans immediately began insisting that the amendment’s passage was illegitimate. 

“This is foreign election interference, and it will not stand,” state Rep. Jennifer Gross (R-OH) fumed in a letter. 

“Issue 1 doesn’t repeal a single Ohio law, in fact, it doesn’t even mention one,” chimed in Rep. Bill Dean (R-OH).

The solution, from four House members including Gross and Dean, is to remove the judiciary’s jurisdiction over the amendment, which enshrined abortion rights in the state constitution, “to prevent mischief by pro-abortion courts with Issue 1.” 

“The Ohio legislature alone will consider what, if any, modifications to make to existing laws based on public hearings and input from legal experts on both sides,” they wrote. 

The notion was met with uproar from Democrats, dismissal from legal experts who see the gambit as blatantly unconstitutional and even eye-rolling from some top Republicans in the state.

“This is Schoolhouse Rock-type stuff. We need to make sure that we have the three branches of the government,” House Speaker Jason Stephens (R-OH) told Ohio reporters Tuesday. “The constitution is what we abide by.”

“Having thoroughly scoured the Constitution, I find no exception for matters in which the outcome of an election is contrary to the preferences of those in power,” Republican Attorney General David Yost tweeted Wednesday. 

“There’s 132 members of the General Assembly,” Gov. Mike DeWine (R) shrugged. “On any one given day, any one member might think something or say something and might even introduce a bill, but that doesn’t mean anything’s going to happen.”

Stephens, Yost and DeWine are likely speaking from more than just a diehard adherence to the state and U.S. constitutions; they’ve just come off a year of abortion-related shellackings in elections that garnered significant Democratic turnout and even some amount of aisle crossing from their Republican base. 

The jurisdiction stripping idea likely wouldn’t get far, even in the state’s conservative courts, and would likely fare even less well if the power centers of the Republican party consider it bad politics. 

“It’s such a gerrymandered legislature so they are in the habit of always getting their way, of not having to care what people think — that’s a hard habit for them to break,” Jessie Hill, associate dean and reproductive rights scholar at Case Western Reserve University School of Law, told TPM of the four House lawmakers. 

“The vast majority of Republican seats are specifically drawn for those candidates to never face or fear an election — they only fear a primary,” added state Rep. Bride Rose Sweeney (D-OH) to TPM. “It’s a race to the bottom in who can be more extreme, who can be more pro-life.”

Going at the amendment so directly is unlikely to work. It’s an amendment, not a statute, giving the legislature much less room to undermine it. And while the state Supreme Court is very far right — and the potential for monkey business should never be completely discounted — courts usually don’t like disempowering themselves.

Republican lawmakers have floated other ideas, including a 15-week abortion ban. That would be hard to defend in court, given AG Yost’s legal analysis of how the amendment would interact with laws in the state.  

“Ohio would no longer have the ability to limit abortions at any time before a fetus is viable. Viability is generally thought to be around 21 or 22 weeks,” he wrote. “Passage of Issue 1 would invalidate the Heartbeat Act, which restricts abortions (with health and other exceptions) after a fetal heartbeat is detected, which is usually at about six weeks.”

Hill suspects that, if legislators do act to try to neuter or weaken the amendment, they’ll do so in less obvious ways than bans and jurisdiction stripping. They could flip back in the anti-abortion movement playbook and try to implement the often technical restrictions that make access more difficult. 

“It’s almost like the post-Roe timeline is playing out at 10-times speed,” Hill said. “First they tried a constitutional amendment to do jurisdiction stripping, which they talked about after Roe in the ‘70s and ‘80s. Then they talked about passing bans anyway. Then they moved into health regulations.” 

Sweeney, who gained national attention for making public the Republican secretary of state’s suspiciously timed voter purge shortly before the abortion vote, is similarly concerned that ticky tacky restrictions are the big threat. 

“There are these other ways of putting in unnecessary restrictions that aren’t necessarily directly reflected in the amendment,” she said, naming multiple required visits to providers before treatment as an example. “That’s gonna be the real damage that I’m most afraid of.” 

The aftermath of the amendment — anti-abortion efforts to force through restrictions, and abortion rights efforts to strip the state of all the ones it has now — will play out in state court. There, the carefully calculated text of the amendment will battle against the predilection of far-right courts to abandon their textualism when it runs afoul of their partisan preferences. 

But as the Republican leaders made clear, relitigating the amendment in big, showy ways is nothing short of a political anvil for the party that so dependably loses on the subject. Sen. Sherrod Brown (D-OH), up for a bloody reelection battle in 2024, would likely be the greatest beneficiary of such protracted resistance. 

“If they want to light their money on fire and put red meat for Democrats on the ballot next year, far be it from any of us to stop them,” Hill chuckled.  

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