Abortion opponents in Ohio just suffered a major defeat at the polls when voters rejected Issue 1 on August 8.
It was a needless defeat that was entirely of their own making because abortion wasn’t even on the ballot. Instead, democracy was—and pro-lifers made the mistake of positioning themselves against one of the state’s longstanding democratic traditions.
Faced with the likely prospect that pro-choice activists in Ohio would use a ballot initiative to overturn the state’s six-week abortion ban and add a permanent protection of abortion rights to Ohio’s constitution, conservatives in the state who opposed abortion decided to make an end-run around their pro-choice opponents by making it far more difficult to pass a constitutional amendment of any type.
But in attempting this, they embraced an anti-democratic strategy that backfired on them and will probably do long-term damage to their cause.
Ever since 1912, Ohio has allowed a simple majority of voters to amend the state constitution through a ballot initiative. This has repeatedly allowed citizens to directly challenge and overturn unpopular acts of the state legislature. Ohioans have amended their state constitution more than 170 times.
Because of the unpopularity of Ohio’s six-week abortion ban, it seemed highly likely that a ballot initiative to reverse this law and allow unrestricted abortion up to the point of viability would pass. According to public opinion polls taken this summer, 58 percent of Ohio voters support the abortion rights ballot initiative. But, as some shrewd antiabortion strategists noted, the polls did not show that the abortion rights initiative had 60 percent support. What if the rules for constitutional amendments were changed to require a ballot initiative to receive at least 60 percent of the vote instead of a mere simple majority?
This was the thinking behind Issue 1, the measure that a conservative Republican state legislature decided to place on the ballot this month. If Issue 1 had passed, amending the Ohio constitution through the ballot box would have required a 60 percent majority.
It never seemed to occur to the Republican state legislators that if a majority of voters supported the abortion rights ballot initiative, it was highly unlikely that a majority of voters would cast their ballots in August in favor of a constitutional amendment proposal that was designed to prevent the abortion amendment they favored from passing in November. Convincing a majority of voters to voluntarily give up their right to pass constitutional amendments through a simple majority vote might be difficult under any circumstance, but to do so with the clear but unstated purpose of blocking another measure that the majority of Ohio voters favored made the challenge even greater.
Most likely, the legislators thought that if they scheduled the vote for August, a month when no statewide special election had been held in Ohio since 1926, they could guarantee a low turnout and could therefore quietly pass the measure while most voters were still enjoying the last few days of their summer vacation and were not paying much attention to political news.
But the strategy backfired. Issue 1 became a culture-war battleground, and donations from out of state began pouring into campaigns on both sides. What was supposed to be a sleepy election instead turned into a $22 million campaign contest that attracted national headlines. The long lines at the polls were more reminiscent of a heated presidential contest than an off-year local election.
In the end, Issue 1 was resoundingly defeated. The voters in Ohio made it clear that they do not want to lose their ability to amend their state constitution through a simple majority vote at the polls.
And now that the pro-life movement has cast its lot with a losing ballot initiative to restrict the voters’ power, it will be even more difficult for pro-lifers to present a credible case that they are not anti-democratic and that they want to play by the standard political rules. Rather than looking like principled defenders of the fundamental human rights of the unborn, they seem to be cynical political operatives who railed against the unfair, anti-democratic power of the Supreme Court when Roe v. Wade was in force but who are now working overtime to stop the will of the majority when it goes against their wishes.
What has happened in Ohio, of course, is only a reflection of a larger trend that was have seen since the Supreme Court overturned Roe v. Wade last year. After a few embarrassing defeats at the polls, pro-lifers fine-tuned a strategy of working through conservative state legislatures and sympathetic judges to pass restrictive abortion laws that were often significantly more stringent than a majority of voters in even some of the most conservative states really wanted. Ohio conservatives’ clumsy and ultimately unsuccessful attempt to prevent a majority of voters from adding a pro-choice amendment to the state’s constitution was only the latest manifestation of a generally anti-democratic trend in the pro-life movement during the past year.
Pro-lifers did not have to fall into this trap. Instead of positioning themselves as opponents of a century-old democratic tradition in Ohio, they could have found ways to negotiate with their opponents when they saw that the restrictive abortion laws that they favored did not have majority support.
Ohio voters are not intransigent opponents of the pro-life movement—or, at least, they were not until this past year. Before the Supreme Court overturned Roe v. Wade, the Ohio state government passed a series of laws that restricted abortion on the margins. In 2017, the state passed a twenty-week ban that did not arouse the ire of the state’s citizens. If pro-lifers in Ohio had continued to move gradually, while working hard to secure the support of a majority of their fellow citizens, they might have found ways to chip away at abortion and save a few more unborn lives.
But the state legislature probably got too far ahead of public opinion when it adopted a 6-week ban with no exceptions for rape and incest. A ban of this nature—or even a more stringent one—is admirable on the basis of principle. But if a majority of voters oppose such a measure, it can be imposed on an unwilling populace only through antidemocratic means. This was the dilemma that pro-lifers in the state faced. Rather than attempt to gain victories only through persuasion (as one would normally expect in a democracy), they tried to win by restricting the power of the vote—and this attempt failed spectacularly.
It would be nice if pro-lifers learned from this experience that they cannot gain lasting victories by blocking the political power of their opponents. Instead of concentrating on tactical strategies, they need to rediscover the tools of persuasion that are the only legitimate paths to political victory in a democratic society. A half century ago, before Roe v. Wade, the pro-life movement was an avid practitioner of democratic persuasion, but in recent years (and especially in recent months), it seems to have abandoned its earlier convictions.
Perhaps the Ohio vote on Issue 1 will serve as a useful reminder that no matter how noble the political cause, a campaign cannot win lasting victories by ignoring the will of a majority of voters. Ohio voters spoke up loudly in defense of democracy this week. Pro-lifers will never win if they continue to turn a deaf ear to those cries.
Daniel K. Williams is a historian working at Ashland University in Ashland, Ohio. The views expressed in this article do not necessarily reflect the views of his employer.
Excellent analysis, this.
Excellent, indeed.