Voters wait in line at a polling station in Columbus, Ohio, on November 7, 2023 (OSV News photo/Megan Jelinger, Reuters).

On November 7, 2023, Ohio voters amended their state constitution to include a broad right to abortion. The vote was decisive: 57 percent of the population cast their ballots in favor of the amendment, while only 43 percent voted against it.

What precipitated this lopsided outcome in this increasingly red state in the American heartland? The initial response of pro-life activists points to a mismatch of power. They note (correctly) that they were outspent. They argue (less correctly) that the messaging of their pro-choice opponents was more manipulative than their own. Later, as the scale of the defeat sinks in, many pro-life activists will blame the voters themselves for their underlying moral depravity. Indeed, that blame game has already begun.

But these responses ignore the elephant in the room. Pro-lifers lost this battle over a year ago, on the day when a ten-year-old rape victim was denied an abortion in her home state of Ohio, forcing her and her family to travel across state lines to obtain the procedure in Indianapolis. Before the pro-life movement begins excoriating voters in Kentucky, Michigan, and Ohio as turncoats and libertines, it is worth considering the events of eighteen months ago in more detail. It is also worth examining their considerable implications for sound moral and legal judgment.

The young girl in question was raped in May 2022, when she was nine years old. She sought an abortion in Ohio in late June, just days after the Supreme Court handed down Dobbs v. Jackson Women’s Health Organization, which returned the abortion question to the states. But it was already too late. Dobbs had reanimated the strict anti-abortion law that Ohio had passed in 2019, which outlawed the procedure after the detection of a fetal heartbeat (about six weeks, before many women know they are pregnant) and made no exceptions for rape and incest. The young girl was six weeks and three days pregnant. Evidently unable to qualify for one of the law’s narrow medical exceptions, she obtained an abortion from a physician in Indianapolis on the last day of June.

The initial response to the story by conservative media was brutally dismissive. Pundits, including in the Wall Street Journal and on Fox News, questioned the authenticity of the account. Even months later, the head of Cincinnati Right to Life was still arguing that although “a pregnancy might have been difficult on a ten-year-old body, a woman’s body is designed to carry life.” Area politicians, including those responsible for enforcing the law of the land, were equally cavalier. David Yost, the Ohio attorney general, initially called the story a “fabrication.” Todd Rokita, the attorney general of Indiana, harassed the Indianapolis doctor who performed the abortion after she reported it as required by state law. He accused her of “using a ten-year-old girl—a child rape victim’s personal trauma—to push her political ideology.” The doctor’s apparent offense: speaking publicly about the physical and emotional trauma that carrying a baby to term would inflict upon an adolescent rape victim.

Now, moderate pro-life activists might argue in response that “hard cases make bad law.” Some might contend that if it had been properly interpreted, Ohio’s heartbeat law would have permitted the abortion in this case, given the likely threat that continuing a pregnancy would pose to the little girl’s physical health. In fact, Yost himself later made this argument.

Pro-lifers lost this battle over a year ago, on the day when a ten-year-old rape victim was denied an abortion in her home state of Ohio.

But in my view, both these objections miss the point. They also miss the reason so many people voted to install protection for abortion in Ohio’s state constitution. The key to understanding this comes from virtue theory, not the realm of principle or policy. Even non-lawyers intuitively know that law as a living system of governance is not simply a matter of the text on the page of the lawbook. It is also a matter of the persons who defend, interpret, and apply that text. For the legal system to work well, such persons have to possess certain virtues, including prudence, justice, and compassion. After this case, many people simply don’t trust that lawmakers and pro-life activists actually possess those virtues. And this lack of trust has significant jurisprudential consequences.

We judge whether people have the moral capacity to handle difficult cases by first assessing how they handle easy ones. And for most people, allowing this little girl to obtain an abortion is an easy case. If politicians do not see that forcing her to continue this pregnancy is morally outrageous, how can they be trusted to approach more difficult cases with prudence? If applicable laws, and those who interpret them, do not clearly allow this abortion, how can they be relied upon to deal justly in other cases? And if pro-life activists are patently indifferent to the well-being of a ten-year-old rape victim, then how can anyone view their slogan “Protect Women Ohio” as anything but a cynical ploy?

How, then, do people respond when they don’t trust their lawmakers or the activists that purport to influence law on their behalf? There are two fundamental responses. First, they take as many decisions as possible away from those they deem untrustworthy, placing them in the hands of those they think will deal more appropriately with relevant moral complexities. In this case, voters overwhelmingly indicated that they trusted doctors and pregnant women more than politicians.

Second, they operate out of fear, not hope. When people lack basic trust, they pass laws that protect themselves from the abuses they most dread. In this case, wary of pro-life deception and legislative chicanery, the voters of Ohio placed nearly all abortion decisions beyond legislative interference. It is very true that the constitutional amendment that Ohioans passed gives broad and blunt protection to abortion. I suspect that many people who voted for it had significant misgivings about its breadth. But the only thing they feared more than passing the amendment was not passing it.

Some pro-life activists will try to dismiss these concerns as rooted in an objectionable moral relativism. These activists may claim that “yes” voters wrongly believe that everyone makes a decision about abortion that is “right for them.” But this is to fatally misunderstand what happened in Ohio, Kentucky, and other Midwestern states. In my view, many of these voters were not saying that there is no objective moral truth to be grasped about abortion decisions. Instead, they judged their politicians and pro-life activists too callous to help the rest of us find that truth.

Several years ago in Ireland, a young woman named Savita Halappanavar died after Irish doctors refused to perform an emergency abortion to treat her for sepsis while her unborn baby still had a heartbeat. Savita’s death convinced many Irish voters that the country’s legal regime banning almost all abortions was practically heartless, even if it was theoretically compassionate to mother and baby alike. They accordingly amended the Irish constitution to allow for legal abortion. I believe that the Ohio child rape case had the same effect on American sensibilities. For voters in several purple and red states, it was a preview of a post-Roe dystopia. No doubt some of these voters still consider themselves pro-life. No doubt many still care about unborn life. Nonetheless, they decided they wanted no part of this anti-abortion regime’s macabre cruelty.

Cathleen Kaveny teaches law and theology at Boston College.

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Published in the December 2023 issue: View Contents
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