Ohio pro-lifers are working to get out the “yes” vote ahead of a special referendum August 8 on requirements for amending the State Constitution.

The Buckeye State is one of those states that, in the heyday of early 20^th century Progressivism, adopted “initiative and referendum.”  Initiative and referendum (I &R) allows voters to propose laws directly, bypassing the state legislature.  A specified number of voters must sign a petition proposing such a law, which is then submitted to voters directly at the next election.

I&R advanced in the early 1900s because voters in many states believed their state legislatures were under the influence of special influences (usually railroads and oil), so I&R enabled voters to propose reforms that might otherwise face legislative logjams.  In the early 20^th century, for example, U.S. Senators were still elected by legislatures, not the people, and few (as well as the interests controlling them) wanted to cede that power.  I&R afforded a way to circumvent such barriers.

Pro-abortion groups in Ohio submitted signatures to place a “Right to Reproductive Freedom” amendment to the state Constitution on the November 7 ballot.  The Ohio Secretary of State on July 25 certified the initiative for inclusion on the ballot.  The amendment would guarantee abortion-on-demand throughout pregnancy.  Although it pays lip service to “viability,” it leaves its definition up to the physician and incorporates a “health” exception waiving that limit.

Currently, changes to the Ohio state Constitution can be proposed through I&R and approved by an absolute simple majority (50% + 1) of voters.  Pro-lifers are launching a rearguard action.  They have placed an I&R referendum on a special vote August 8 which would require Constitutional amendments to win 60% (3/5ths of voters) approval to enter into force.  It would also require signatures to come from all 88 Ohio counties, not just 44 of them (which favors urban-driven amendments).  If the August 8 referendum passes, the November abortion referendum would be subject to the higher threshold.

Pro-lifers are engaged in practical politics.  Ohio is a pro-life state, so an abortion referendum would likely not attain 60% voter support.  In those states where abortion referenda took place in 2022, that level of support was reached only in deeply blue states: Vermont (76-24%) and California (67-33%).

Margins in pro-life states were much slimmer, e.g., neighboring Michigan wrote abortion-on-demand into its state constitution 56-44%, according to Ballotpedia data.  Kentucky’s effort to state its constitution does not guarantee abortion split 48-52% against.  Even Kansas, where a failed August 2022 referendum to write no guarantee of abortion into its state constitution was touted as a tidal change for pro-abortionists, the pro-abortion side did not pass the 60% threshold.  (It garnered 58%).

Pro-abortionists are calling for a “no” vote on the August 8 referendum by claiming it “takes away from democracy” and “changes the rules.”  The same people had no hesitation, however, claiming that technical rules on I&R amendments (e.g., that an amendment can only cover one subject, whereas their proposed amendment also guarantees protections of artificial reproduction, such as surrogacy and in vitro fertilization).  Their technical objections, therefore, are selective.

There is a principled reason for voting “yes” August 8, even apart from its practical impact on the abortion amendment.  Constitutions are the fundamental law of any jurisdiction.  They establish the baselines for what is and is not permitted in that state.  Because, as Justice Oliver Wendell Holmes once wrote, constitutions are made “for people of fundamentally differing views,” they should reflect a broad and enduring consensus on a particular issue.  Because of their permanence, it is wrong to base constitutional changes on momentary majorities.

That’s why the federal Constitution cannot be changed by simple majorities. The most common way of amending the U.S. Constitution requires approval by two-thirds of both houses of Congress (290 of 435 representatives, 67 of 100 senators) and ratification by three-quarters of the states (38 states, or a minimum of 75 legislative houses).  Because changes are intended to be permanent, the Constitution envisions a process that tests the depth and endurance of what might otherwise be a transitory view.

The same is true in most states.  In most states, changes to state constitutions usually require passage by two consecutive sessions of the legislature (often with an election required to intervene between them) and often further submission and approval by voters in a referendum.  Ohio’s procedure, allowing a bare numerical majority (even if it is not a majority of all the qualified voters in the state) to enact changes to its constitution, is thus an outlier.

That’s not to say pro-abortionists don’t see advantages.  In an off-year like 2023, the ability of out-of-state groups to pour money into local elections is magnified: that was apparent in this spring’s supreme court election in Wisconsin.  With a relatively low threshold required to lock abortion into a state constitution, Ohio provides tempting pickings, especially as a precedent for pushing across the Midwest.  And pro-abortionists know that stopping them by raising the bar for approval of a Constitutional amendment via an I&R run in August faces the challenge of turnout in the middle of the summer, when nobody expects an election.  This argument is technical and legal, even if its outcome will have very practical consequences for the unborn.  It doesn’t lend itself to a quick soundbite.  Ohio pro-lifers have their work cut out for them.

To be sure, they’re working at it, especially at county fairs and other summer events where the word can be spread.  Early voting is underway.  Pro-lifers need to spread the word: get out and vote “yes” August 8.