A majority of Ohio voters support the right to an abortion. The Ohio Legislature — gerrymandered into an seemingly perpetual Republican majority — does not. In many states, this would be the end of the story, but in Ohio voters have the power to act directly on the state constitution at the ballot box. With a simple majority, they can protect abortion rights from a Legislature that has no interest in honoring the views of most Ohioans on this particular issue.
Eager to pursue their unpopular agenda — and uninterested in trying to persuade Ohio voters of the wisdom of their views — Republican lawmakers tried to change the rules. Last week, in what its Republican sponsors hoped would be a low-turnout election, Ohioans voted on a ballot initiative that would have raised the threshold for change to the state constitution from a simple majority to a supermajority. They defeated the measure, clearing the path for a November vote on the future of abortion rights in the state.
In his opinion for the court in Dobbs, Justice Samuel Alito cast the decision to overturn Roe and Casey as a victory for democracy. “It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives,” he wrote. Reproductive rights, Alito continued, quoting Justice Antonin Scalia’s 1992 dissent in Casey, are “to be resolved like most important questions in our democracy: by citizens trying to persuade one another and then voting.”
Citizens can persuade each other, and they can vote. But our political system is not designed to turn the aggregate preferences of a majority into direct political power. (If that were true, neither Alito nor his Republican colleagues, save for Clarence Thomas, would be on the Supreme Court.) More important, Alito’s vision of voting and representation only works if that legislative majority, whoever it represents, is interested in fair play.
But as the Ohio example illustrates, the assault on bodily autonomy often includes, even rests on, an assault on other rights and privileges. In Idaho, to give another example, the No Public Funds for Abortion Act, which passed before Dobbs was decided, would punish state employees with the termination of employment, require restitution of public funds and possible prison time for counseling in favor of an abortion or referring someone to an abortion clinic. Other legislatures, such as those in Texas and South Carolina, have pushed similar restrictions on speech in pursuit of near total abortion bans in their states.