Chapter 7 Case Study: Ohio, Dueling Ballot Measures, and Abortion Rights

In June 2022, the US Supreme Court overruled almost fifty years of precedent in Dobbs v. Jackson Women’s Health Organization by overturning Roe v. Wade, which protected a woman’s right to an abortion. As a result of this historic reversal, states acted quickly to implement their own abortion policies.

As expected given the significant disagreement between the two parties on this issue, states have opted to pursue different directions. In the ensuing two years, fourteen states implemented total bans, while nine states enshrined and protected abortion rights in their state constitutions. The remaining twenty-seven states have some sort of restrictions or bans in place.^[1] However, states that rely purely on representative democracy are producing policies very differently than states that afford their citizens the opportunity to participate in direct democracy.

In 2022, six states had ballot initiatives to address abortion rights. All six states affirmed the pro-choice position. California, Michigan, and Vermont protected abortion rights. Voters in Republican-leaning Kansas, Kentucky, and Montana rejected further restricting abortion rights. In 2023, Ohio became the seventh state to feature a ballot measure on the topic—but the Ohio state legislature sought to make it more difficult for their voters.^[2]

During the 2023 legislative session, the Republican-controlled Ohio General Assembly introduced a legislative referendum to place Issue 1 on the ballot in a special election on August 8. Special elections, historically, have much lower rates of voter participation than general elections, which occur in November. Issue 1 proposed to do three things: (1) increase the requirements it takes to pass a constitutional amendment from a majority to 60 percent, (2) double the signature requirements for a measure to get on the ballot from half (44) to all (88) of Ohio counties, and (3) remove the opportunities for citizens to correct or add additional signatures during the “cure” period. These proposed revisions would make initiatives more costly and less available as a tool for Ohio citizens (excluding well-funded special interest groups). In spite of significant controversy and outside spending, 57 percent of Ohio voters rejected Issue 1.^[3]

Why did the Ohio legislature want to make it harder for citizens to utilize direct democracy in their states? Well, because come that November, voters were going to consider a citizen initiative to amend the state constitution, also confusingly called Issue 1. This ballot measure would amend the constitution to allow citizens the right to “make and carry out [their] own reproductive decisions, including but not limited to decisions about abortion, contraception, fertility treatment, miscarriage care, and continuing pregnancy.” It overwhelmingly passed with 57 percent of the vote—becoming the seventh state to protect abortion rights after the Dobbs ruling.^[4]

Ohio voters would not have been able to protect abortion rights if the legislative referendum to raise the threshold to 60 percent would have passed. It took a herculean effort and a significant amount of organization and activism to protect the initiative. Ohio is not alone in attempting to diminish citizens’ ability to utilize direct democracy. Many states are engaging in “direct democracy backsliding,” attempting to roll back and make participatory institutions like the initiative, referendum, and recall harder for citizens to utilize.^[5]

More than half of the states give citizens the ability to directly place a measure on the ballot. The other states rely solely on their state legislature for representation. Abortion rights continue to remain at the forefront of the tension between states. In the 2024 election, at least seven states and perhaps as many as eleven will have abortion on the ballot.^[6]

Critical Thinking Questions

How might representation work differently in states with direct democracy compared to states without direct democracy?

How difficult should the process be for citizens to utilize the initiative, referendum, or recall?

What consequences might there be if rights significantly vary from state to state?