May 30, 2018

When It Comes to Reproductive Rights, Ohio Is No Purple State

B. Jessie Hill Associate Dean for Academic Affairs and Judge Ben C. Green Professor of Law, Case Western Reserve University School of Law

Ohio has enacted an extraordinary number of new restrictions on reproductive rights since 2010. It is second in the country—behind Texas—in the rate of abortion clinic closings, having gone from sixteen to eight in just seven years. Ohio was the first state to pass restrictions on medication-only abortion back in 2004, and it is one of the first states to have adopted a restriction on abortion following a diagnosis of fetal Down syndrome. (The former law was made irrelevant by a change in federal law, and the latter was recently found unconstitutional by a federal court.) Ohio’s most recently introduced abortion restriction, H.B. 565, would outlaw all abortions without exception and, by making abortion equivalent to murder, it would subject women and doctors who participate in this extremely common, safe, and constitutionally-protected health-care procedure to possible life imprisonment or even the death penalty.

When did Ohio become such a radical anti-abortion state, and why? Have Ohioans shifted politically to the right in recent years? This seems unlikely. Nationwide, support for abortion rights is as high as it has ever been, and the available Ohio poll numbers are not noticeably skewed toward the anti-abortion side.

Rather, as a recent article explains, gerrymandering and an aggressive legislative strategy by anti-abortion activists have resulted in a legislature that is far out of step with typical Ohioans. There is also ample evidence that anti-abortion activists are calling the shots at all levels of government in Ohio: Mike Gonidakis, the president of Ohio Right to Life, serves on the state medical board, and at least one news story suggests that the anti-abortion organization has been a moving force behind the drafting of new abortion restrictions.

Still, it’s natural to wonder why the Ohio General Assembly insists on adopting laws that are both blatantly unconstitutional and clearly out of step with the political sentiments of average Ohioans. The answer is that anti-abortion legislators are playing both a long game and a short game. The short game centers on political gain. There is very little cost, but a huge political benefit, for a politician who votes to pass an abortion ban that he knows will be struck down by the courts. Passing the law makes his most fervent anti-abortion constituents happy, as it demonstrates support for ending abortion in the state. At the same time, the legislator is never forced to actually live with the consequences of the law: most such laws (like the “heartbeat” abortion bans that have been attempted in various states) will get challenged before they go into effect and immediately blocked by the courts. It’s a win-win for Republican legislators trying to please hard-core antiabortion constituents while surviving politically in a purple state.

The long game is overruling Roe v. Wade. Anti-choice Ohio politicians realize that they may lose at first in the lower courts but hope that they will ultimately get in front of the Supreme Court with The Case That Overturns Roe. This will achieve their long-running goal of removing protected status for abortion rights and returning the power to states to decide whether, and under what conditions, to permit abortions.

In the view of many abortion opponents, Roe v. Wade was not only a morally incorrect decision, but a shameless usurpation of power by the Supreme Court. Emboldened by President Trump’s appointment of Neil Gorsuch to the U.S. Supreme Court, as well as by the likelihood that Trump will have the opportunity to appoint another justice in the near future, they seek to finally set right this perceived constitutional wrong. Indeed, other states besides Ohio are passing similar laws, each hoping to be the first to the Supreme Court in the next landmark abortion case. For instance, Indiana has also passed a ban on abortions based on fetal anomaly, which has recently been struck down by the courts, and Utah is currently considering one. In another setback, the U.S. Supreme Court recently paved the way for restrictions on medication-induced abortions in Arkansas that could lead to the closing of two of the state's three abortion clinics. The Supreme Court already rejected a similar restrictive bill in Whole Woman’s Health, yet this decision will allow the Eighth Circuit to ignore the precedent set by this case.

There is an irony here, though. Anti-abortion activists seek to correct an imagined harm to democracy through anti-democratic means. They seek to eliminate the right to abortion entirely, although a clear majority of the population approves of safe and affordable access. They ask the Supreme Court to return control over abortion to the states, where heavily gerrymandered Republican majorities enact policies that are out of step with the views of most Americans. And while waiting for Roe to be overruled, they rely on unelected federal judges to provide them with political cover for enacting radical policies that will never go into effect. Ohio, and other purple states, deserve better.

B. Jessie Hill is Associate Dean for Academic Affairs and Judge Ben C. Green Professor of Law at Case Western Reserve University School of Law.

Equality and Liberty, Reproductive Rights