Abortion & Democracy in Ohio

My family and I moved to Ohio toward the beginning of the summer. We weren’t in our new house even a week before friendly neighbors began talking to us about politics. (No religion or money yet!) Our suburban Cleveland street is lined with plastic lawn signs urging residents to “Vote No on Issue 1” and to “Sign Our Petition.” We soon learned that there would be a special election on Issue 1 on August 8. That election will decide whether to amend the amendment process itself in the Ohio state constitution. The petition the lawn signs urged us to sign is the work of a coalition called #ProtectChoiceOhio and also has to do with a proposed amendment to the state constitution. In the end, it gathered nearly twice the number of required signatures, and it was announced on July 25 that “The Right to Reproductive Freedom with Protections for Health and Safety” will be included on the November ballot. Among other provisions, it protects the right to abortion until “fetal viability,” defined as when “the fetus has a significant likelihood of survival outside the uterus with reasonable measures.”

It shouldn’t be a surprise that the proposal to amend the amendment process is linked to the amendment to protect the right to abortion. Since 1912, the Ohio constitution has allowed citizens to bypass lawmakers and refer laws and constitutional amendments directly to voters. In these referenda, a majority vote suffices to pass both laws and constitutional amendments. The amendment to change the amendment process, which originated with lawmakers, would raise the threshold for amendments to 60 percent, and require that a percentage of signatures in support of so-called citizen-initiated amendments be gathered from every county in the state. If the proposal to amend the amendment process passes, passage of the amendment to protect the right to abortion would become less likely. A 2022 Suffolk University/Cincinnati Enquirer poll found that 53 percent of Ohioans likely to vote in the midterm elections wanted to protect abortion rights. A 2022 Baldwin University poll found that 59.1 percent of respondents would support a constitutional amendment to make abortion a fundamental right in the state. And a Suffolk University/USA Today poll conducted between July 9 and 12 estimates that 58 percent of registered voters back the amendment that will be on the November ballot. Ohio’s Secretary of State, Frank LaRose, who is running for the Republican nomination to challenge U.S. Senator Sherrod Brown in 2024, recently acknowledged that the Issue 1 amendment “is 100 percent about keeping a radical pro-abortion amendment out of our constitution.” Ohio Right to Life and Focus on the Family have cast the referendum in similar terms.

Abortion is currently legal in Ohio up to nearly twenty-two weeks of pregnancy, but that’s only because a 2019 bill passed by the Republican-controlled legislature and signed into law by Republican governor Mike DeWine was blocked in 2022 by a state judge on the grounds that it violates the Ohio constitution. The 2019 law makes it a felony to perform an abortion once a fetal heartbeat is detectable in the fifth or sixth week of gestation. The law admits an exception in cases of medical emergency, but not in cases of rape or incest. In January, the state attorney general appealed the judge’s injunction to the Ohio Supreme Court, which has agreed to review it.

The thought has occurred to me: life seemed simpler in Pennsylvania, where we last lived, though that state has also had its tussles, recently about alleged Covid overreach. In any case, politics in Ohio are much more interesting than I had expected. What’s a voter like me to do?

To be clear about where I’m coming from: I oppose protecting a right to abortion until fetal viability. In my judgment, a fetus has morally significant interests well before that stage. (I explained why in this 2013 article.) So, I will vote No in the November referendum. The August special election is trickier. Though its timing does seem to be all about abortion, it’s telling that supporters of Issue 1 include the Ohio Chamber of Commerce, the Ohio Hotel and Lodging Association, the Ohio Restaurant Association, and the Buckeye Firearms Association—groups more concerned with the prospect of citizen initiatives raising the minimum wage or regulating guns than with abortion. Both sides decry the influence of special interests, especially from out of state. Supporters of Issue 1 argue that a constitution should be hard to amend, just as the federal constitution has proven to be. Opponents argue that raising the threshold to 60 percent would enshrine minority rule.

Catholic moral theology has several tools for thinking about puzzling cases like this. One that’s often invoked is the concept of cooperation with evil, but I think it’s a mistake to apply that concept here. Imagine a voter wondering whether voting No on Issue 1—that is, against raising the threshold to 60 percent—would make her complicit with abortion if the November referendum went on to pass with, say, 55 percent of the vote. Or imagine a voter wondering whether voting Yes would make him complicit with perpetuating Ohio’s inadequate minimum wage, now $10.10 per hour, if lawmakers don’t raise it and a narrow majority of citizens can’t. Neither voter has any reason to worry. A vote against Issue 1 does not make one morally responsible for a later effort to amend the state constitution, nor does a vote in favor of Issue 1 make one responsible for the failure of any such initiative. It may be for this reason that the Catholic bishops of Ohio stated that they “do not have a position on Issue 1 as it does not have moral content.” That’s an odd formulation, and perhaps overstated: surely there are important goods at stake in the August special election—above all, the ability of citizens to govern themselves through an appropriate democratic process. But the bishops are surely right that voting No on Issue 1 cannot make one responsible for the success of any ballot initiative to enshrine the right to abortion in the state constitution. Of course, someone might vote No with the intention of making the passage of the abortion-rights amendment more likely, but one can also vote No with other intentions—because, for example, one believes that, as a matter of democratic principle, majorities should prevail. Someone who votes No isn’t cooperating even indirectly with the passage of the abortion-rights amendment for the plain reason that doing the first thing isn’t part of doing the second. In short, the concept of cooperation with evil doesn’t fit this dilemma, and one shouldn’t try to force it to fit.

Another tool in the Catholic moral tradition is double-effect reasoning, which applies when an action that one is considering for a morally permissible reason will likely have a secondary effect that is morally problematic. This concept does seem to help with Issue 1. Imagine that a voter intends to vote No on Issue 1 on the grounds that, for the well-being of a polity, a state constitution shouldn’t be effectively unamendable, as the historian Jill Lepore has recently argued with respect to the U.S. Constitution. The voter foresees that voting No might also make the passage of the abortion-rights amendment in November more likely, but that is not the reason she is voting No; on the contrary, she would rather that her vote did not have that secondary effect. In this framework, a further question for this voter to consider is whether there is a favorable proportion between the good she intends to secure and the bad she foresees as a secondary effect. In other words, is the good important enough to make it reasonable to accept the bad? But it’s important here to be clear on just what the bad is. If Issue 1 fails, a right to abortion until fetal viability wouldn’t be a given; at most, Issue 1’s failure would make such a right more likely. The focus would then turn to persuading voters about the November amendment’s merits.

The deployment of Issue 1 in the abortion culture wars makes it difficult to think straight about the value of preserving citizens’ power under the 1912 state constitution, which was an achievement of the Progressive Era in U.S. politics. Perhaps that is intentional. Alas, the more I’ve learned about recent trends in Ohio politics, the more warranted public distrust appears. According to Gov. DeWine, protecting a right to abortion until fetal viability is too extreme for most Ohio citizens, but so is the so-called heartbeat bill that he nonetheless signed into law in 2019. Neither is acceptable to the average Ohio voter; both invite discord and instability.

A larger question raised by the deployment of Issue 1 is whether, or how much, it matters to get the right outcome through the right means. Concretely, is the democratic principle of majority rule valuable in itself, or only instrumentally? Can it be jettisoned whenever we object to where it’s headed? Before Vatican II, the Church traditionally held that “error has no rights.” It was to be tolerated when Catholics had no other choice, but squelched the moment they had the power to do so. In part thanks to John Courtney Murray, the Council nudged the Church toward an appreciation of democratic rights and procedures. It seems that one lesson from Ohio, once the quintessential bellwether state, is that, after Dobbs, a commitment to democratic procedure is also on the ballot. If January 6 taught that lesson with a hammer, Issue 1 teaches it with a forked tongue.