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This week, Ohio voters went to the polls to decide whether to make it harder to amend the state's constitution by ballot initiative. Republicans are pushing to raise the threshold for success initiatives to 60 percent—and to require those seeking to change the state constitution to gather signatures from every county in the state. The 60 percent threshold is no coincidence: although abortion-rights supporters have won all six of the ballot initiative fights waged so far, they have failed to clear that threshold in any of the purple or red states to hold a vote.
Anyone near a television in Ohio has seen that this is a proxy fight about abortion. It's also a reminder of how much struggles over reproduction have been process as much as substance: about who decides—courts, lawmakers, or even regular voters. The lesson of this history is that voters don't like ceding power—and allowing voters themselves to make a call may offer a better chance of deescalating conflicts over abortion.
In the past, judges and legislators have often shared power over reproductive decisions—and often at the expense of patients. Until the mid-19th century, historians generally agree that abortion remained unregulated until quickening, the point at which fetal movement can be detected. But then legislators intervened in the second half of the nineteenth century, criminalizing abortion throughout pregnancy and carving out narrow exceptions for patients at risk of death. Even then, judges were part of the picture: called in when a patient died, or on the rare occasion that a prosecutor pursued charges, to decide whether an abortion qualified as legal.
Then in the 1960s, some state lawmakers changed their criminal abortion laws, adopting narrow exceptions for rape, incest, and certain fetal abnormalities and health threats. But social movements also turned to the courts. Abortion-rights supporters argued that state restrictions and bans violated the Constitution—and that patients themselves were the ones who should make decisions about abortion. Antiabortion groups argued that judges should settle the matter too: unborn children were rights-holding persons—and liberal abortion laws were unconstitutional. Roe v. Wade broke what had become a political stalemate in favor of abortion rights. Starting in the 1980s, conservatives presented Roe as an act of raw judicial power: an act that took lawmakers and voters off the field.
But the picture was more complicated: legislators continued pushing incremental restrictions, limiting access to abortion and successfully pressing the Supreme Court to shift its interpretation of Roe. Roe—at least as a symbol—was and remained popular, even as Americans supported some restrictions on abortion. That's because Roe represented the idea of individuals making their own decisions, with less interference from politicians or judges.
The reality was that lawmakers continued to test the limits on restrictions, and judges weighed in on their constitutionality. But many voters liked the idea of making their own decisions—so much so that both social movements reframed their messages. While antiabortion forces claimed that Roe took the issue out of voters' hands and imposed a judicial fiat, abortion-rights supporters stressed that pro-life politicians wanted to tell families what to do in the most intimate aspects of their lives.
Since the Supreme Court reversed Roe, even if states generally do not authorize the punishment of women, patients have no constitutional protection from the consequences of criminal laws. But in some instances, ballot initiatives have created an alternative: voters making their own decisions.
It was logical to expect conservative voters to prefer abortion bans and score victories in red states with ballot fights, but the opposite has been true. This has raised an intriguing possibility: voters may not care about abortion enough to set aside their partisan preferences and vote for an opposing party's candidate, but given a clean shot at weighing in on abortion, a majority in conservative states may defend abortion rights. That's what the past six ballot initiatives have suggested, with victories for abortion rights in states like Kansas, Kentucky, and Montana.
The United States is and has remained uniquely polarized around the abortion issue, and that stems partly from the disconnect between voters' preferences and policy on the ground. Poll after poll documents that voters favor some restrictions but believe abortion to be a right and want it to be legal, especially early in pregnancy. But historically, politicians have not honored the wishes of regular voters, catering instead to those at the extremes, the only ones thought to actually choose a candidate based on abortion.
That's why it matters in the long term if gambits like Ohio's fail. It's not just because direct democracy has value, even when Republicans don't like the results it generates. It's also because it offers a better chance of closing the gap between what Americans think about reproductive rights and what the law actually says.
Americans were happier when the Supreme Court still recognized abortion as a constitutional right. New constitutional protections are not coming any time soon, at least not at the federal level. But in the meantime, if voters are the ones who shape their own policies, the conflict over reproductive rights just might be a little less bitter.
Mary Ziegler is an expert on the law, history, and politics of reproduction, health care, and conservatism in the United States from 1945 to the present. She is a 2023 Guggenheim fellow and one of the world's leading historians of the U.S. abortion debate.
The views expressed in this article are the writer's own.
