Ohio’s Issue 1 and the Future of Constitutional Abortion Access

By: Eliana Aemro Selassie

Edited by: Jared Fischer and Angie Chung

On Tuesday, November 7, Ohio residents voted to adopt abortion access into the state’s constitution. The ballot measure, referred to as Issue 1, has been a contentious topic in Ohio state politics since the reversal of Roe v. Wade in June of 2022. The decision was particularly impactful given that Ohio is considered a conservative state. [1] The overturning of the landmark Supreme Court decision came as a result of the Dobbs v. Jackson Women’s Health Organization ruling. [2] The Dobbs ruling granted states greater autonomy over abortion laws, prompting  many liberal states to work to protect abortion access while an increasing number of conservative states are seeking to restrict it . Abortion is currently outlawed in 14 states, leaving pro-abortion activists and politicians looking for ways to protect abortion access as abortion laws have since emerged as the responsibility of state governments. [3] The results of Ohio’s Issue 1 vote provide insight into the nature of constitutional abortion post-Roe v. Wade and the importance of state legislation to protect abortion access.

The outcome of Issue 1 in Ohio is part of a growing phenomenon across the United States where abortion access is being adopted into state constitutions. The overturning of Roe v. Wade has left states with greater control over abortion laws, pushing many state governments to turn to ballot measures like Issue 1 in Ohio to better understand voters’ stances on abortion. The Ohio decision passed by a vote of 57% in favor and 43% against; this signifies that abortion will be considered a state constitutional right in Ohio, making abortion access protected under Ohio state law and granting greater freedom to Ohio residents to access abortion. [4] State constitutions can play a fundamental role in determining the rights of individuals at the state level and can be adeptly amended to enshrine new rights, making them an ideal tool to further protect abortion access after the reversal of Roe v. Wade. 

Several other states have acted to adopt abortion rights into their state constitutions, particularly in liberal states that have moved swiftly to protect abortion rights. Since the reversal of Roe v. Wade, residents have voted in favor of protecting abortion access on all the occasions where abortion has appeared on ballots. [5] Among the six other states that have held votes on whether to enshrine abortion access into state constitutions, all ended favorably to defend abortion access. This was seen in states such as California, Michigan, and Vermont, which passed constitutional amendments in favor of abortion access in 2022. [6] In addition to liberal states, conservative states have also rejected efforts to restrict abortion access, for instance in Kansas and Kentucky. Kansas residents voted against an amendment to the state’s constitution stating that there “was no right to an abortion” in Kansas. [7] Kansas was the first state to have a vote on abortion access since the Dobbs decision, where 59% voted against the amendment and 41% voted in favor. The Kansas decision was particularly pivotal given the state’s majority conservative population. During the 2020 presidential election, Biden only won five of the 105 counties in Kansas;  however, in the recent abortion vote, abortion rights won 19 of the 105 counties in the state. [8] Similarly, in Kentucky, voters rejected a constitutional amendment to permanently ban abortion in December of 2022. They opposed the addition of this amendment because that would allow for trigger laws––implemented immediately after the reversal of Roe v. Wade––to take effect and be protected under the state’s constitution. [9] These votes further indicate how state constitutions can uphold abortion access, even in conservative states, and the influential nature of constitutional amendments. 

Nonetheless, enshrining abortion access into state constitutions still poses a number of challenges, particularly in conservative states. In February 2023, the Kentucky Supreme Court voted in favor of maintaining the state’s strict abortion laws, restricting abortion access almost entirely. This decision came despite voters standing against the restrictive abortion bans, which have now gone into effect against voters’ wishes. [9] The efforts of voters to support abortion access in the state have now been largely ignored by the Kentucky government, illustrating the challenges of effectively implementing abortion rights into state constitutions. Similarly, the recent Ohio decision has faced criticism and efforts to thwart the amendments to the state’s constitution. Ohio lawmakers are working to rid state judges of their ability to interpret the new abortion rights amendment just after the vote in favor of enshrining abortion access. Republican state representatives Jennifer Gross, Bill Dean, Melanie Miller, and Beth Lear are pushing to “remove jurisdiction from the judiciary” in a new anti-abortion initiative. This means the issue will fall onto the Ohio legislature to modify existing laws while taking public hearings and legal input into account. [4] Therefore, there are still a growing number of challenges to constitutionally protected abortion that may arise, particularly in conservative states where the governments may oppose the opinions of voters on abortion issues.

Enshrining abortion access into state constitutions provides states with a medium to effectively protect abortion rights. The consistent success of abortion ballot measures across the nation illustrates the power of individual states to protect abortion access. Furthermore, the autonomy of states over their constitutions provides them with greater decision-making power to solidify abortion as a constitutional right for state residents. These efforts will likely continue to be met by substantial opposition among conservative lawmakers. However, constitutional abortion access can act as a new avenue to protect abortion rights and provide greater hope for abortion rights activists after the tumultuous outcomes of the Dobbs decision. This is particularly significant as a growing number of Democratic representatives and senators in Congress are moving to codify abortion access into federal law but face backlash from their Republican counterparts, implying that protecting abortion access at the state level is an important first step [10]. In the post-Roe v. Wade era, preserving abortion access under state constitutions will likely be a new pathway that residents can employ to ensure their opinions on abortion access are dutifully heard, as well as a strategy legislators can use to protect abortion access under state law.

Notes:

1. Maher, Kris, and Jon Kamp. 2023. “Ohio Voters Enshrine Abortion Access in State Constitution.” The Wall Street Journal. https://www.wsj.com/politics/elections/election-day-ballots-ohio-abortion-maine-texas-colorado-d9922480. 

2. Dobbs v. Jackson Women's Health Organization." Oyez. Accessed November 14, 2023. https://www.oyez.org/cases/2021/19-1392. 

3. “Interactive Map: US Abortion Policies and Access After Roe.” 2023. Interactive Map: US Abortion Policies and Access After Roe | Guttmacher Institute. https://states.guttmacher.org/policies/florida/abortion-statistics.  

4. Hendrickson, Samantha. 2023. “Republican faction seeks to keep courts from interpreting Ohio's new abortion rights amendment.” AP News. https://apnews.com/article/ohio-abortion-overthrow-judicial-powers-77a68c1e6ee6fc79462f6aaf4ea1a323. 

5. Bentahar, Lyna, and David Leonhardt. 2023. “Abortion Access Keeps Winning Elections.” The New York Times. https://www.nytimes.com/2023/05/11/briefing/abortion-access-ballots-us-elections.html. 

6. Lerer, Lisa, and Kate Zernike. 2023. “Issue 1: Why Ohio’s Abortion Ballot Question Is Confusing Voters.” The New York Times. https://www.nytimes.com/2023/11/02/us/abortion-ballot-ohio-vote.html.  

7. Lysen, Dylan, Laura Ziegler, and Blaise Mesa. 2022. “Results: Kansas voters decide 'no' on the abortion amendment : Live Coverage: 2022 Primaries.” NPR. https://www.npr.org/sections/2022-live-primary-election-race-results/2022/08/02/1115317596/kansas-voters-abortion-legal-reject-constitutional-amendment.  

8. Ewall, Sarah. 2022. “How the anti-abortion amendment was defeated in Kansas.” CBS News. https://www.cbsnews.com/news/kansas-abortion-vote-results-how-amendment-was-defeated/.  

9. McCammon, Sarah. 2023. “Kentucky's Supreme Court keeps abortion bans in place.” NPR. https://www.npr.org/2023/02/16/1156192879/abortion-kentucky-supreme-court-bans-roe-dobbs.  

10. Adler, Libby, Martha Davis, and Wendy Permet. n.d. “Codifying Roe: here are the constitutional challenges a federal law legalizing abortion may face, experts say.” College of Social Sciences and Humanities. Accessed November 14, 2023. https://cssh.northeastern.edu/codifying-roe-here-are-the-constitutional-challenges-a-federal-law-legalizing-abortion-may-face-experts-say/.  

Bibliography:

Adler, Libby, Martha Davis, and Wendy Permet. n.d. “Codifying Roe: here are the constitutional challenges a federal law legalizing abortion may face, experts say.” College of Social Sciences and Humanities. Accessed November 14, 2023. https://cssh.northeastern.edu/codifying-roe-here-are-the-constitutional-challenges-a-federal-law-legalizing-abortion-may-face-experts-say/. 

Bentahar, Lyna, and David Leonhardt. 2023. “Abortion Access Keeps Winning Elections.” The New York Times. https://www.nytimes.com/2023/05/11/briefing/abortion-access-ballots-us-elections.html. 

Ewall, Sarah. 2022. “How the anti-abortion amendment was defeated in Kansas.” CBS News. https://www.cbsnews.com/news/kansas-abortion-vote-results-how-amendment-was-defeated/.  

Hendrickson, Samantha. 2023. “Republican faction seeks to keep courts from interpreting Ohio's new abortion rights amendment.” AP News. https://apnews.com/article/ohio-abortion-overthrow-judicial-powers-77a68c1e6ee6fc79462f6aaf4ea1a323.

Lerer, Lisa, and Kate Zernike. 2023. “Issue 1: Why Ohio’s Abortion Ballot Question Is Confusing Voters.” The New York Times. https://www.nytimes.com/2023/11/02/us/abortion-ballot-ohio-vote.html.  

Lysen, Dylan, Laura Ziegler, and Blaise Mesa. 2022. “Results: Kansas voters decide 'no' on the abortion amendment : Live Coverage: 2022 Primaries.” NPR. 

Maher, Kris, and Jon Kamp. 2023. “Ohio Voters Enshrine Abortion Access in State Constitution.” The Wall Street Journal. https://www.wsj.com/politics/elections/election-day-ballots-ohio-abortion-maine-texas-colorado-d9922480. 

McCammon, Sarah. 2023. “Kentucky's Supreme Court keeps abortion bans in place.” NPR. https://www.npr.org/2023/02/16/1156192879/abortion-kentucky-supreme-court-bans-roe-dobbs.  

"Dobbs v. Jackson Women's Health Organization." Oyez. Accessed November 14, 2023. https://www.oyez.org/cases/2021/19-1392. 

“Interactive Map: US Abortion Policies and Access After Roe.” 2023. Interactive Map: US Abortion Policies and Access After Roe | Guttmacher Institute. https://states.guttmacher.org/policies/florida/abortion-statistics.