Opinion: A crushing loss for Republicans on abortion rights

Editor’s Note: Mary Ziegler (@maryrziegler) is the Martin Luther King Professor of Law at UC Davis. She is the author of “Dollars for Life: The Antiabortion Movement and the Fall of the Republican Establishment” and “Roe: The History of a National Obsession.” The views expressed in this commentary are her own. Read more opinion on CNN.

Issue 1 was a trial balloon for the anti-abortion movement, not just in Ohio, but nationwide. If Republicans couldn’t win on abortion, the theory went, they could change the rules to require Democrats to win supermajority support to change state constitutions — a tall order in a country as polarized as this one, and all the more so in conservative states.

Voters’ rejection of Issue 1 will give Republicans in other states second thoughts — especially since similar efforts to make it harder to get issues from medical marijuana to Medicaid expansion on the ballot have also tended to backfire.

On Tuesday, Ohio voters went to the polls to weigh in on abortion, even if it didn’t seem that way. On the surface, the state’s Issue 1 appeared to be a vote on procedure: whether to raise the threshold for state constitutional amendments to a supermajority of 60% (and require that a certain percent of signatures for state ballot initiatives be gathered from different counties).

But anyone paying attention knows that Ohio’s vote was a major proxy battle in the nation’s war on abortion, perhaps the most consequential to date. The Issue 1 vote may well be the biggest victory for abortion rights in the states since the Supreme Court overturned Roe last year. 

There were six previous ballot initiative fights in other states before this one, all of them directly on abortion. And while abortion rights initiatives passed in conservative states before, they asked voters less direct questions: whether they wanted to preserve a status quo created by a state supreme court protecting abortion rights, or allow the state supreme court to decide the question — rather than declaring that the state constitution did not protect abortion.

In a perennial battleground state, Michigan voters, by contrast, actually embraced abortion rights in last year’s midterms. With Issue 1 out of the way, it seems more likely that Ohio voters will do the same, and that’s no small thing.

In recent years, Ohio has been anything but a swing state, with Republicans consistently scoring wins at the state and federal level. Now, Ohio voters have overwhelmingly rejected Issue 1. And with that off the table, abortion rights supporters seem set up for an even bigger win in the state in later this fall.

This vote underscores just how potent abortion rights can be as an issue heading into the 2024 presidential election. The outcome in Ohio reinforces what the latest CNN poll shows: A record low of just 16% of voters don’t see abortion as a major issue.

If anything, the poll shows a slight uptick in the importance of the abortion issue to voters since the Supreme Court reversed Roe v. Wade, a change that seems likely to help Democrats. Liberals are 14 percentage points more likely than conservatives to treat a candidate’s position on abortion as a litmus test, up from a four-point difference last January.

But there are clear obstacles for Democrats to translate popular support for abortion rights into wins on Election Day.

First, there are the structural disadvantages consistently plaguing the party. The Senate is structured to overrepresent small states where Republicans have an advantage. And another is that Republicans have an edge in the Electoral College — so much so that one team of economists estimated that Republicans would win one of six presidential races where they lost the popular vote.

Democrats have to consistently translate support for abortion rights into votes for candidates, not just ballot measures. CNN’s recent poll found a high level of frustration among pro-choice voters with current party leadership. Nearly 80% of those who disapproved of the Supreme Court’s decision to reverse Roe felt that politicians at the federal level weren’t doing enough to protect abortion access (the figure at the state level, 60%, was also strikingly high).

Simply invoking support for Roe — or promising to pass a federal law, like the Women’s Health Protection Act, to codify protection for abortion, may not be enough to motivate voters to turn out for Democrats. It’s one thing to turn voters out for abortion when a single initiative will decide a great deal about access in a state. It’s another to be motivated to vote for a candidate when it’s unclear what kind of tangible difference they could make, and there are other issues at play.

That means Democrats have to think hard about how to message the abortion issue. That will require focus not just on what Democrats would like to do in an ideal world — steps that are unlikely to work given the Senate map in 2024 favors the GOP and the structural disadvantages the party faces.

It will require Democrats to lay out what Republican control could mean for abortion access — federally and in the states. Republican presidential nominees are asked consistently about whether they support a national ban at 15 weeks, six weeks or even earlier in pregnancy. But none of those bans are likely to pass.

Democrats should press them on more practical questions. Anti-abortion activists claim that the Comstock Act, a 19th century anti-vice law, is a de facto national ban on abortion. That’s because the statute, they say, prohibits the mailing of any item intended, designed or adapted for abortion. No clinic makes their own pills or surgical tools — every abortion in the US relies on some item put in the mail, and that’s why the Comstock Act, or at least abortion foes’ interpretation of it, could pose such a threat.

Democrats should ask GOP hopefuls and congressional candidates whether they would enforce the Comstock Act and how — and should make clear that Democrats might stand a better chance at repealing Comstock than they do at passing robust protections for abortion rights.

Democrats can warn about how access to the abortion pill mifepristone might change if a Republican president reshaped the US Food and Drug Administration. Republican attorneys general are backing a suit seeking to remove mifepristone from the market. They can also remind voters that a Republican might adopt the suggestion of some anti-abortion groups to sign an executive order recognizing limited forms of fetal personhood.

Progressives believe that Democrats could do more on abortion, and they aren’t wrong. But political caution and possible losses in court make big, bold steps unlikely in the near term —and even potentially less likely to work.

Still, the Ohio vote is a reminder that Democrats can do a lot with the abortion issue if they play their cards right: Even if Democrats can’t get rid of Dobbs, the ruling that overturned abortion rights, in the near term, they can remind America’s pro-choice majority just how much worse things can get.

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