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Guest Essay

By Melissa Murray and Kate Shaw

Ms. Murray is a law professor at New York University. Ms. Shaw is a contributing Opinion writer.

An unusual special election that lawmakers have scheduled in Ohio for Tuesday may tell us a great deal about this moment in American politics after Roe v. Wade.

In Dobbs v. Jackson Women’s Health Organization, the Supreme Court justified its decision overruling Roe with an appeal to democracy. In the Dobbs majority opinion, Justice Samuel Alito wrote that the conclusion in Roe that the Constitution protected the right to abortion had stripped the American people of “the power to address a question of profound moral and social importance.” On this logic, the Dobbs decision merely corrected an egregious error, returning the power to regulate abortion “to the people and their elected representatives.”

Despite this paean to democracy, in the past year, elected officials in a number of states have demonstrated a disturbing hostility toward democracy when it is used to protect abortion rights and reproductive freedom. In that time, more than a dozen states have banned abortion, through the enforcement of pre-Roe abortion bans or the enactment of new ones. In other states, abortion access has been severely limited.

But one important countervailing trend in the post-Dobbs era has been the use of direct democracy to protect abortion rights. The mechanisms of direct democracy — referendums, initiatives, ballot questions and the like — allow voters to register their preferences directly, bypassing elected officials and other intermediaries.

These vehicles have proved remarkably effective. Since the fall of Roe, every time Americans have gone to the polls to vote directly on matters of abortion, they have voted to protect reproductive rights, expanding protections for abortion access and rejecting efforts to roll back access to abortion.

Perhaps that is why many Republican officials — many who once celebrated Dobbs and the prospect of democratic deliberation — are now laboring mightily to restrict access to direct democracy.

Supporters of reproductive freedom across the country must continue to flock to the polls to defeat efforts to throttle democratic processes where they are being used to limit democratic deliberation on abortion.

Nowhere is this imperative more pressing than in Ohio, where one of the most brazen attempts of this kind is underway. There, elected officials are seeking to erect obstacles to amending the state Constitution, almost certainly to prevent Ohio voters from enshrining reproductive freedom in that state’s charter.

This effort, if successful, would mark a sea change in Ohio. Since 1912, the state’s Constitution has allowed citizens to place a constitutional amendment directly on the ballot by gathering signatures totaling at least 10 percent of votes cast in the most recent election for governor (along with county requirements and other provisions). After a proposed amendment is on the ballot, a simple majority is all that is required to amend the state Constitution. Ohio lawmakers want to raise that threshold to 60 percent.

The circumstances that led to this August election are highly unusual — and make plain Ohio lawmakers’ fears that under the current system, voters are likely to amend the state Constitution to protect abortion rights. Last December, the Ohio Legislature voted to abolish most August special elections on the grounds that their notoriously low turnouts are, as the secretary of state put it, “bad news for the civic health of our state.”

Despite these concerns, in May 2023, the G.O.P. majority in Ohio’s gerrymandered legislature passed a resolution providing for an August election in order to have voters decide whether it should be more difficult to amend the state’s constitution, including by raising the threshold to 60 percent.

The abrupt about-face on August elections and rush to put this issue to Ohio voters was almost certainly a reaction to a separate effort, led by voters, to put on the ballot in November a proposed amendment that would enshrine in the Ohio Constitution protections for abortion rights and reproductive freedom. The proposed amendment has secured the necessary signatures to be voted on in November, and polling suggests that well over 50 percent of Ohioans support the measure.

The legislative push to raise the threshold — which came about after a lobbying campaign funded in part by the billionaire donor Richard Uihlein, who has supported similar efforts in other states — seems plainly designed to thwart the effort to guarantee abortion rights in Ohio’s Constitution.

Ohio is not the only state to concoct such schemes. In Arkansas this March, the legislature substantially increased the number of counties from which signatures must be collected to qualify an initiative for the ballot — a move that was widely regarded as a hedge against efforts aimed at expanding reproductive rights in the state.

Similarly, Republican lawmakers in Missouri, North Dakota and Mississippi have gone to great lengths to try to twist and reshape the rules around state voter initiatives, in each instance apparently to limit voters’ ability to directly register their preferences on abortion and reproductive rights.

Viewed together, these efforts paint a disturbing portrait of Republican officials who are afraid of their constituents when it comes to abortion and who are taking increasingly aggressive steps to prevent voters from making their voices heard.

Recent polling suggests that Ohio voters are on track to reject the ballot measure. But the episode should serve as a reminder that despite the Supreme Court’s claim that Dobbs merely returned the question of abortion to the states, for opponents of abortion, allowing the residents of each state to decide this issue for themselves was never the goal, at least not in the long term.

Instead, the long-term goal is to prohibit abortion as widely and as completely as possible. That’s the reason some states have refused to include exceptions for rape or incest in their post-Dobbs abortion laws, despite broad popular support for such exceptions. It’s why some states are seeking to penalize aiding travel to other states to obtain abortions and to end access to medication abortion throughout the country.

Direct democracy is by no means a panacea. But it is an important mechanism for preserving a role for the people. That’s especially true at this moment, with grossly gerrymandered legislatures passing draconian bans that endanger women’s health and freedom — and with threats to democracy extending well beyond the topic of abortion.

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Melissa Murray is a law professor at New York University and a host of “Strict Scrutiny.”

Kate Shaw is a contributing Opinion writer, a professor of law at Cardozo Law School and a host of the Supreme Court podcast “Strict Scrutiny.” She served as a law clerk to Justice John Paul Stevens and Judge Richard Posner.

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