This commentary is by Felicia Kornbluh, a University of Vermont professor of history and of gender, sexuality, and women’s studies.
The impressive victory for reproductive rights Nov. 7 in Ohio demonstrates the strong majority support for abortion in a post-Roe world. It makes Ohio the third state to follow Vermont in seeking to rewrite its constitution to preserve reproductive rights, or, as we called it here with Proposition 5 (now Article 22 of our state constitution), “reproductive liberty.”
This win underlines the power of the issue of abortion access even in states that have voted recently for Republicans — as Ohioans did when they cast ballots for their governor, Mike DeWine, in 2022 (62.5%, according to The New York Times). Ohio voted more narrowly for the writer J.D. Vance in 2022 over Democrat Tim Ryan, and for former President Trump in 2016 and 2020. Since 2011, the state has been ruled by Republicans in both legislative houses as well as in the executive mansion.
In Vermont, reproductive liberty won in every single town. In Ohio, a Republican-leaning state delivered an incontrovertible majority in favor of reproductive rights. This is the latest evidence that bypassing state legislatures that are tilted against abortion rights with direct-to-the-people referendums is a winning strategy for preserving or enhancing reproductive freedom.
But the Ohio case, even more than what happened here in Vermont, also indicates that state-by-state battles are wearying, expensive, and perhaps unsustainable. We need a national solution to preserving our reproductive rights — both because they are human rights that deserve constitutional and legislative endorsement and because it is the will of the majority of people in the United States that these rights be preserved.
As a historian and gender studies scholar who studies reproductive rights and justice, I see the situation as a nuanced one. Victories like Vermont’s and the one in Ohio are inspiring moments of democratic self-expression. At the same time, they are part of a seemingly endless game of whack-a-mole that advocates for reproductive rights have been forced to play for years.
This game-playing started well before the Supreme Court overturned Roe v. Wade and has only gotten more intense since then.
What Ohioans did Nov. 7 was to rewrite their state constitution. The reproductive rights plank is known as Issue 1. It establishes a state constitutional right to “make and carry out one’s own reproductive decisions.” That encompasses choosing abortion, utilizing contraception, or seeking any other kind of reproductive health care.
This new constitutional language allows the state government to forbid abortion after so-called “fetal viability,” the point in a pregnancy at which medical science largely concurs in thinking the fetus could survive outside the uterus with available medical intervention. However, it also says that the state may not forbid access to abortion even at this point if the procedure is “necessary to protect the pregnant patient’s life or health.”
If the ballot measure had failed, then a state law, which is currently enjoined (not allowed to go into effect) by the state’s Supreme Court, that bans abortion at about six weeks would almost certainly have gone into effect. That law includes no exceptions for rape, incest, or grave problems with the pregnancy.
Ohio is the first Republican-leaning state to have changed its state constitution to protect access to abortion. It is the fourth state that has passed a constitutional measure in favor of abortion rights and the seventh state to have changed abortion law by means of a statewide referendum (in addition to the states that changed their constitutions, three others used referendums to protect abortion access in other ways, most famously when Republican-leaning Kansas used this tool to prevent an anti-abortion constitutional amendment from going forward).
There is good news here: The Ohio results prove that there is majority support for abortion rights and that the referendum can be a tool for that majority to express itself even against a legislature and executive who don’t act in a way that matches its views. The outcome of this election is particularly remarkable because the anti-abortion forces and Republicans in state governmental power did everything they could to rig the system.
In August of this year, they forced a vote on whether to raise the threshold for something to pass in a referendum from a simple majority to 60%. Despite the fact that the vote was in the summer, when most people aren’t thinking about politics, the effort lost by 14 points.
The anti-abortion forces’ last Hail Mary pass to defeat majority sentiment involved spreading mis- and disinformation about the initiative and even paraphrasing the language of the amendment in misleading terms on the ballots voters received.
Victories for reproductive rights like the ones in Vermont and Ohio resemble the victories state-level advocates won in the 1960s and 1970s as public opinion was changing from majority opposition to legal abortion access to majority support and state legislatures were slow to reflect that change in the majority’s preferences. In the years before Roe v. Wade, feminists and their allies used every strategy and resource available to them — from mass organizing and demonstrations, to legislative lobbying and pressuring elected officials in their home districts, to pressuring medical, public health, and legal leaders to change their expert opinions on the wisdom of legalizing abortion. They won reforms that loosened access to abortion in 13 states and that made it mostly accessible in an additional four states.
New York state was the location of the biggest and most high-profile win. It reflected the rising power of the joined movements for women’s civil rights and women’s liberation, as well as the active engagement of so-called “Reform” Democrats like the Black Harlem Democrat Assemblyman Percy Sutton and the Austrian Jewish refugee Assemblyman Franz Leichter, who worked to pull their political party to the pro-civil rights left. As a result of their efforts, by July 1970, almost three years before Roe, New Yorkers and all people who could get to New York from anywhere in the world were able to access safe, legal, and somewhat affordable abortion care through the 24th week of a pregnancy.
But side by side with the good news is some bad news. State campaigns like Ohio’s are exhausting in terms of human energy and people-hours. They are egregiously expensive, a drain on the resources of wealthy individuals and donors who might otherwise devote their dollars to nonprofits that provide essential services and do transformative advocacy to advance human rights — as opposed to trying to prevent backtracking on those rights. Ohioans for Reproductive Rights, the umbrella organization representing the pro-Issue 1 side, reported spending $26 million since Labor Day alone. Imagine what anti-hunger charities or anti-poverty lobbyists could do in our state with $26 million!
It is hard to believe that this level of spending and popular effort is sustainable.
Another big piece of bad news lies in the fact that the tool advocates here and in Ohio were able to use is not available to everyone. Only 26 states allow popular referendums of the kind voters approved in Ohio. And several of the states that don’t — including Texas, Louisiana, and Alabama — are ones with the most restrictive abortion laws.
History and our present reality teach us two things:
First, we need governments that fully represent people’s ideas and preferences. The majority support that developed in the late 1970s for at least some legal access to abortion has not changed since that time. Since 1975, significant majorities of the U.S. population have reported believing that abortion should be legal under all or some circumstances — and the portion of our population that says it should be legal under any circumstances was the highest on record in a Gallup poll taken in May of this year. State legislatures that are gerrymandered to tilt toward populations that are religiously conservative, and on average older and more likely to be white — and away from populations that are younger, nonwhite, and religiously and socially liberal — deny the people’s will. This is not a tolerable situation in our democracy.
Second, what we really need is a national solution. Roe v. Wade was that kind of solution, a remedy to what were already, in the early 1970s, becoming fractious and consuming battles over abortion in the states. In those years, anti-abortion legislators began to use every parliamentary device they could to advance their agenda, and officials of conservative religious organizations, such as lobbyists for the Catholic hierarchy, threatened legislators with their political careers if they voted their consciences or in line with their constituents’ majority preferences on this issue.
Since the current Supreme Court is unlikely to reverse itself in the near term, then we need another national solution. One of these is the Women’s Health Protection Act, legislation that was introduced in March in the U.S. House of Representatives, with 208 original co-sponsors. In both 2021 and 2022, when the House was under Democratic control, it passed that one legislative chamber. But it failed in the tightly divided Senate, unable to gain the 60 votes needed to avoid a filibuster.
Congress has the power to make exhausting and expensive state abortion battles a thing of the past. What is it waiting for?
Edited for length.
