Get ready for the next iteration of the abortion fight: state constitutions. After the U.S. Supreme Court overturned Roe v. Wade last summer, states have control over how much – or little – they want to regulate the procedure.
And those battles have played out in legislatures around the country, with red states putting strict limits in place and blue states maintaining wide access to abortion. That’s what was supposed to happen after abortion no longer was protected as a federal constitutional right.
While Democrats in Congress are turning to desperate, long-shot measures like reviving the Equal Rights Amendment to preserve abortion access, abortion rights activists are gearing up for a new line of attack – one that could sidestep Republican legislatures and governors.
They plan to take the issue directly to voters.
That fight began last year, with three states – Michigan, California and Vermont – becoming the first in the country to pass constitutional amendments protecting the right to abortion.
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And in November, Ohio is expected to have a similar amendment on its ballot. Supporters of the amendment turned in this month what they say are more than enough valid signatures to get the measure on the ballot.
Expect both abortion foes and champions to keep a close eye on the proposal’s success or failure, as it could be a blueprint for a much bigger round of amendments in 2024 and beyond.
Lessons from Michigan
Groups that favor abortion access such as Planned Parenthood and the ACLU, which backed the successful constitutional amendment in Michigan, are hopeful they can achieve the same outcome in Ohio. There was never really a question that liberal states like Vermont and California would pass their measures; it was less certain in Michigan.
Some unique elements were at play in the Great Lakes State. For one, after Roe was overturned, the then Republican-led legislature opted to let a decades-old abortion law that banned nearly all abortions take effect. And they made no effort to offer alternatives.
That made voters much more receptive to the amendment, which had fairly innocuous-sounding language that advocates claimed would restore provisions of Roe to Michigan. The reality, however, is that the amendment went much further than that, opening the door to strip existing provisions such as requiring parental consent for minors.
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The amendment also drove Democratic turnout last November, and Michigan voters solidly passed the measure, along with a full Democratic takeover of state government – for the first time in 40 years.
What’s happening in Ohio is a little different. The state has an abortion law on the books that bans abortions once a fetal heartbeat is detected, usually around six weeks. That law hasn’t taken effect yet because it’s still tied up in the courts.
Ohio is much more of a red state than Michigan, too, with a Republican governor and legislature. That’s why if the amendment passes, Ohio could be a model for efforts in other red states. A similar measure is already planned in Florida for 2024.
Ohio amendment is vague, on purpose
The proposed measure would add language to the Ohio Constitution explicitly guaranteeing the right of every individual “to make and carry out one’s own reproductive decisions.” Although it allows for prohibitions on abortion after viability, there are broad exceptions to protect the “patient’s life or health.”
Opponents of the proposal say it’s the vagueness of the language that is most concerning to them, and they believe it could strip parents’ rights for consent of a minor’s abortion or even gender reassignment surgery. Those were many of the concerns anti-abortion advocates had about Michigan’s proposal.
“The amendment was intentionally written using this extremely broad language,” says Amy Natoce, press secretary for Protect Women Ohio, the group seeking to block the amendment’s passage. “It says it would protect an individual’s reproductive decisions. So nowhere in the amendment do we see the word ‘adult.’ The word ‘woman’ doesn’t appear anywhere; there’s no mention of age restrictions.”
Given the ACLU’s history of fighting parental consent, Natoce is worried about how this language could be interpreted, if passed.
The Republican-controlled Ohio Legislature is pushing back against the amendment with a special election in August that seeks to raise the threshold for passing constitutional amendments.
That could make it more challenging to pass the amendment come November. Yet it ultimately will be up to Ohioans to decide how far they want to go to allow for abortions and “reproductive care” in their state.
Ingrid Jacques is a columnist at USA TODAY. Contact her at ijacques@usatoday.com or on Twitter: @Ingrid_Jacques
