Here’s a conundrum for you: 30 percent of our fellow Americans believe abortion should be legal in all circumstances. Add in “most” circumstances, and the number goes to 63 percent. (I know, not great, but at least it’s a majority.) Only nine percent believe abortion should be illegal in all circumstances, per a recent poll of 20k+ Americans by The 19th News.
So how is it that a majority of American women of child-bearing age — 58 percent, according to the Guttmacher Institute — now live in states “hostile” or “extremely hostile” to abortion rights? (For purposes of this article, I use “women” to include “anyone capable of pregnancy.”) In a nation where abortion was legal for half a century, how is it that over 8 million women of childbearing age now live in one of the 14 states that ban abortion completely?
One obvious answer, of course, dates to June 24, 2022, when the US Supreme Court threw women under the bus and overturned Roe v. Wade. Abortion, a constitutional right for 50 years, was now a matter for “the people’s representatives,” according to Justice Samuel Alito. Safeguarding the fundamental human right to healthcare and bodily autonomy was now up to the states.
Another answer dates to June 27, 2019, when the US Supreme Court threw democracy under the bus and ruled that courts had no role in settling disputes over partisan gerrymandering. “For the first time ever,” according to dissenting Justice Elena Kagan, the Court was refusing to “remedy a constitutional violation because it thinks the task beyond judicial capabilities.” Safeguarding the fundamental American right to equal representation was now up to the states.
NB: “Gerrymandering,” a funny word with very un-funny consequences, refers to the practice of drawing legislative maps to favor one party or class of people over another, usually by “packing” (concentrating as many of the opposing party’s supporters into as few districts as possible) or “cracking” (diluting opposing supporters’ votes by spreading them among several districts). Partisan gerrymandering enables the majority political party to consolidate disproportionate power that does not reflect or represent constituent demographics, after which said party can ram through unpopular policies, voters’ wishes be damned.
See where this is going?
Case Study: Ohio
… where both abortion and gerrymandering have made national news. Things to know about Ohio, other than its renowned Cincinnati Chili:
The Supreme Court
Ohio’s seven Supreme Court Justices are elected by voters. Elections were non-partisan until 2021, when GOP lawmakers changed the law (soon after Republicans lost three of four Supreme Court judicial seats, coincidentally enough); now, prospective Justices run according to party affiliation. Current makeup: 4 Republican, 3 Democrat.
The State Government
Way to go, O-hi-o! You’ve made the top-11 list of the nation’s Most Gerrymandered States, according to the World Population Review.
The state GOP has worked hard to maintain solid trifecta control over the House, Senate, and Governorship since 2011. Most recently, state legislators submitted post-2020-census redrawn maps that were challenged in court by voters’-rights organizations as “extreme partisan gerrymanders that favored Republicans in violation of the state constitution” (this per the superb Democracy Docket).
In the first months of 2022, the legislature proceeded to submit five — five! — separate new maps, all of which were struck down by the OH Supreme Court as unconstitutional partisan gerrymanders. The seven appointed members of the GOP-majority Ohio Redistricting Commission (yes, ORC) also failed to submit workable maps, leaving Ohioans to vote on unconstitutional maps in the November 2022 midterms.
Sixth Time Is The Charm?
In September 2023, the ORC adopted legislators’ sixth set of legislative maps, which were immediately called out by election experts as… illegally partisan gerrymandered. The long-suffering plaintiffs asked the OH Supreme Court for permission to file objections, whereupon the Republican Secretary of State and allies filed motions asking the Court to dismiss the lawsuits, and — the cherry on the top — to void the Court’s own five previous decisions. The Court’s 4–3 Republican majority granted the state officials’ motion to dismiss, although not the voidance (there are some bridges still too far, thank goodness).
An effort is underway to gather enough signatures to get a voter-approved constitutional amendment on the 2024 ballot, which would void the maps and create an independent, citizen-led redistricting commission. If it fails, OH voters are stuck with the current maps until 2031.
So What Does Gerrymandering Mean for Women’s Health?
Nothing good. Ohio abortion law was already far from perfect — patients must make two trips, for example, one for in-person counseling and another 24+ hours later for the procedure, while numerous unnecessary Targeted Restrictions on Abortion Providers (TRAP) laws hinder providers at every turn — but at least abortion was legal in the state up to 22 weeks. That changed in 2019, when the GOP legislature and Governor pushed through a six-week ban, with no exceptions for rape or incest (not that any woman seeking an abortion should be subjected to a hierarchy of need, but, good god). The ban was tied up in court until June 24, 2022, when SCOTUS overturned Roe, at which point the ban became law, and *poof*, just like that, the majority of women seeking autonomy over their own bodies were out of luck.
Eighty-two days later, a judge issued a preliminary injunction on the ban. Abortion was now… legal? Maybe? For how long? Did women have control over their own reproductive organs or not? This level of uncertainty being unsustainable in the long run for women, doctors, and other humans, an effort began to get an amendment onto the upcoming November 2023 ballot that would enshrine the right to abortion in the state constitution.
In response, Republican Secretary of State Frank LaRose and State Representative Brian Stewart unveiled the “Ohio Constitution Protection Amendment,” which would raise the amendment-passing threshold from 50 percent to 60 percent, and raise minimum signature requirements to encompass all 88 counties instead of the established 44.
While the timing of this amendment might appear suspicious to the untrained eye, LaRose swore otherwise: the amendment was “designed to help protect the Ohio Constitution from continued abuse by special interests and out-of-state activists,” he assured voters. “There’s no time like the present to make a good government improvement to our state system here in Ohio.”
Except that he was caught several months later at a public event admitting that, actually, yes, the amendment was “100 percent about keeping a radical pro-abortion amendment out of our constitution.” His similarly logorrheic co-sponsor complained to House colleagues that, unless the amendment threshold were raised, “liberals” would gain the power to draw legislative districts, “affecting not only the Ohio legislature, but control of the United States House of Representatives as well.” (“And gerrymandering is our prerogative, dammit!” he might have added.)
Failing to obtain enough legislative votes, supporters missed the May 2023 primary deadline for getting the amendment onto the ballot. Normally, that would be the end of it for the year, but GOP lawmakers proposed a special election for the issue. The only problem: lawmakers had passed a law outlawing such elections just months earlier.
Awkward… but nothing a little magical thinking couldn’t solve.
“Yeah, the legislature has the constitutional authority to create an election day,” fantasized then-House Speaker Jason Stephens.
Er, nope: according to Steven Steinglass, Dean Emeritus of Cleveland State University’s Cleveland-Marshall College of Law, and a foremost expert on the Ohio Constitution, “the Ohio Supreme Court said, and I quote, the statute law of the state can neither be repealed nor amended by a joint resolution of the General Assembly.”
Details, details. Lawmakers forged ahead nonetheless and scheduled an (illegal) special August election, counting on the historically low voter turnout that had prompted them to eliminate special August elections in the first place. The move was challenged in court, but in yet another 4–3 decision, the OH Supreme Court allowed the scheduling — essentially blessing the legislature’s decision to break its own, newly-passed law.
While this travesty was unfolding, abortion advocates, medical professionals, and other people who cared about women had gathered enough signatures to get their own constitutional amendment, aka Issue 1, onto the November 2023 ballot. While approving most of the amendment, the OH Ballot Board ordered the language on the actual ballot to be changed from “fetus” to “unborn child,” a clear effort to pave the way toward fetal “legal personhood”; once again, the OH Supreme Court upheld the change.
Fortunately, an army of activists hit the ground to educate voters about the August power-grab, er, election (let’s hear it for grassroots organizations on the ground! And for concerned citizens across the country, who wrote postcards reminding Ohioans to vote! And for voters themselves!). The GOP’s plan to capitalize on August apathy backfired, and on August 8, 2023, OH voters defeated the proposed amendment 57 percent to 43 percent.
Three months later, by the same resounding 57 percent, voters approved Issue 1, aka “The Right to Reproductive Freedom with Protections for Health and Safety.” The amendment provides critical constitutional protection to both women and doctors, stating, “Every individual has a right to make and carry out one’s own reproductive decisions, including but not limited to decisions on: 1. contraception; 2. fertility treatment; 3. continuing one’s own pregnancy; 4. miscarriage care; and; 5. abortion.” Abortion cannot be prohibited “if in the professional judgment of the pregnant patient’s treating physician it is necessary to protect the pregnant patient’s life or health.”
The people have spoken!
You knew that was coming, right? Yes, but GOP legislators didn’t like what they heard, so they set out to silence constituents by other means. Following the election, 27 state legislators signed a press release condemning the “vague, intentionally deceptive language of Issue 1” and vowing to do “everything in our power to prevent our laws from being removed” (huh?). The OH State Senate President and his far-right GOP allies floated a potential 15-week abortion ban.
It was only a matter of time before someone proposed a straight-up legislative coup, and GOP State Representative Jennifer Gross stepped up to the challenge, separation of powers be damned. Blaming “foreign election interference” for Issue 1’s success, Gross has introduced the “Issue 1 Implementation Act,” which stipulates, “The Ohio General Assembly shall have exclusive authority over implementing Ohio Issue 1… All jurisdiction is hereby withdrawn from and denied to the Courts,” with any judge hearing cases regarding Issue 1 subject to impeachment and prosecution for a misdemeanor. In other words, judges would be jailed for enforcing what is now a constitutional right in the state.
You know who else will be in jail with them, besides doctors, people of color, and other miscreants? Women. Right now, a grand jury is deciding whether an Ohio woman who miscarried a nonviable fetus in her bathroom should face criminal charges. If so, she could face up to a year in prison.
Short of civil rebellion (and that’s another article), our best shot at restoring sanity is to VOTE THE BASTARDS OUT. Assuming *weak laugh* we still have a democracy in which to vote, even the most power-mad party will begin to crack under an influx of sane, humane, brave legislators. This means SUPPORTING great candidates at all levels, established and upcoming, up-ticket and down; EDUCATING voters about the candidates, issues, and ballot measures; and GETTING VOTERS TO THE POLLS, so they can vote all the way up and down the ballot… three things Sister District Project does really well.
It’s 2024, not 1924. Happy, fierce, progressive New Year.
– Juliet Eastland
Sister District Project MA&RI gives the lowdown on why state-level races are so vital to the nation’s health. SDP helps top-notch Democratic candidates win strategically important state elections across the country, and works to expand civic engagement. Originally published here.