[ Ohio has Republicans in control of all three branches of
government, but the state’s voters still managed to approve a ballot
initiative on reproductive rights.]
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REPUBLICAN COURTS COULD SABOTAGE THE OHIO ABORTION VOTE
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Mary Ziegler
November 9, 2023
Slate
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_ Ohio has Republicans in control of all three branches of
government, but the state’s voters still managed to approve a ballot
initiative on reproductive rights. _
, MEGAN JELINGER/AFP via Getty Images
After Ohio voted to enshrine reproductive care access in the state’s
constitution on Tuesday, abortion rights supporters are now a perfect
7-for-7 in ballot initiative fights since the Supreme Court overturned
_Roe v. Wade_ last year_. _Ohio has Republicans in control of all
three branches of government, but the state’s voters still managed
to approve a ballot initiative on reproductive rights
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Meanwhile, abortion helped propel state lawmakers in Virginia to
control of both chambers of the state Legislature
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fueled the reelection of Democratic Gov. Andy Beshear in Kentucky
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Memes and tweets have circulated saying that if abortion were on the
ballot in 2024 instead of Joe Biden, the race would be a done deal.
The depth of voter support for abortion rights is impressive, but
celebrations of the success of abortion rights ballot initiatives
overlook the next step in the conflict over reproductive rights: the
war over the state Supreme Court judges charged with interpreting new
constitutional amendments.
Consider how state judges could make a difference in the real-world
impact of Issue 1, the measure just passed in Ohio. The success of
that ballot measure seems to require strict scrutiny of any
restriction on “an individual right to one’s own reproductive
medical treatment,” including to make decisions on abortion,
contraception, fertility treatment, and miscarriage care, before
viability—and allows access for when a patient’s health or life is
threatened thereafter
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In theory, Ohio might have a hard time justifying many of its current
restrictions—and outright abortion ban at six weeks—under Issue 1.
But the people ultimately interpreting the new constitutional
amendment are the judges of the Ohio Supreme Court. Republicans swept
three open races for that court last year, giving conservatives a
4–3 edge on the court
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When there is any ambiguity at all, expect Ohio’s court to resolve
it in favor of abortion opponents—and to sign off on restrictions
that seem to conflict with the language voters endorsed. Voters’
only recourse at that point will be to support Democrats when three
Supreme Court seats with expiring terms—two currently held by
Democratic judges and one by a Republican judge—are on the ballot
next year
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In Florida, the state where the next blockbuster fight on abortion is
set to unfold, things are even trickier, as the conservative state
Supreme Court may stop voters from having a say in the first place. To
date, Floridians Protecting Freedom, a reproductive rights group, is
on track to collect the required 800,000 signatures needed before
February to get an abortion rights ballot initiative before voters
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and polling suggests that even with Florida’s 60 percent threshold
for ballot measures, the effort stands a real chance of success
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But perhaps not in the state Supreme Court—which has five judges
hand-picked by Gov. Ron DeSantis
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the architect of the state’s six-week abortion ban. Attorney General
Ashley Moody has asked the court—which seems set to overturn a state
precedent recognizing state constitutional rights to abortion—to
stop the ballot initiative in its tracks
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Florida law requires that the state Supreme Court ensure that ballot
initiatives are clear and limited to a single subject
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Moody insists that the proposed ballot initiative fails this test
because doctors will abuse the definition of viability to allow
abortion on demand—and that the meaning of “health” of the
patient is unclear and could include mental health or emotional
preferences for abortion. Similar misinformation failed to sway Ohio
voters in the fight over Issue 1, but the Florida battle is different
because the target audience is the conservative judges of the state
Supreme Court. Even if the court angers voters, and if voters kick out
sitting judges in retention elections, the appointment of new state
Supreme Court judges is controlled almost entirely by the governor:
were voters to reject one of the court’s current members in a
retention election, DeSantis will get to pick again from another list
compiled by a judicial nominating commission. That means the next real
hope Florida voters will have on the judicial question will come in
the 2026 governor’s race.
Elsewhere, state Supreme Court judges have been and will be crucial in
the abortion battles that are still playing out. On Tuesday,
Pennsylvania voters chose Dan McCaffery, an abortion rights supporter,
for an open seat on the state’s Supreme Court, giving Democrats a
5–2 edge in a year where the court is considering the
constitutionality of limits on abortion funding
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In Wisconsin, Janet Protasiewicz handily won a race for the Wisconsin
Supreme Court earlier this year
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thanks in part to making her position on abortion very clear. Last
month, the Republicans that dominate the state’s heavily
gerrymandered state Legislature at least temporarily backed off of a
threat
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to impeach Protasiewicz, but the danger still looms. Another election
will be held in 2025 that will decide the scales of power on that
court.
State judges across the country will be a crucial issue in 2024, with
33 states electing judges, and roughly a quarter of all state high
court judges on the ballot
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Some of these races could dismantle existing state protections. In
Montana, for example, where state precedent has protected abortion
rights since 1998, state court elections might change the balance of
power
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The same is true of Kentucky, a state with a pending constitutional
challenge to the state’s abortion ban, where one of the court’s
four conservatives is retiring
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And two of the states with the most consequential recent ballot
initiatives, Michigan and Ohio, have key races to come. In Michigan,
where Democrats hold a 4–3 edge, a Republican sweep of the state’s
two high court elections could mean control of the court
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Iowa, another state with abortion before the court, has a closely
divided court—and one of Kim Reynolds’ nominees is on the ballot
for retention
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Historically, state Supreme Court elections have not been high-profile
affairs. Retention elections seemed automatic for incumbent judges.
Partisan identity often trumped much else in states that leaned red or
blue. Recent races, like Wisconsin’s, have broken this pattern, with
record-breaking amounts of money funneled into state Supreme Court
elections.
But 2024 races might be different because voters will be deciding on
key up-ballot races on everything from control of Congress to the
White House, and partisan identity may drive choices down the ballot,
too.
That means that wins like Ohio’s Issue 1 are just the first round in
conflicts about what state constitutions mean when it comes to
reproductive rights. And if abortion rights supporters are complacent,
state constitutional protections won’t mean much for long.
* abortion rights
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* Ohio
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