What a difference a year makes in the American debate on abortion.
In the summer of 2022, the U.S. Supreme Court issued its Dobbs ruling, ending the nearly half a century old precedent established by Roe v. Wade that protected a woman’s right to choose.
That ruling empowered states to establish their own laws on the matter. Many did. None were faster than Indiana. Dobbs was issued on June 24, 2022, and 42 days later Indiana passed a near total abortion ban.
Every other state in the region is now moving in the opposite direction.
Michigan started it. Immediately after the Dobbs ruling, two things happened to Indiana’s north. First, a court blocked that state’s 1931 abortion law which became effective briefly last summer. Next, more than 750,000 voters signed a petition to have abortion rights enshrined in the state’s constitution. It appeared on the ballot last November and was approved on a 57-43 vote. The issue contributed to a Democratic sweep of state politics there. In April, Governor Gretchen Whitmer signed a law repealing the 1931 law entirely.
In Wisconsin, Dobbs reactivated a law that made abortion illegal that was passed in 1849. No that is not a typo. The law there was only used for prosecution seventeen times between its passage and the Roe ruling in 1973, resulting in only five convictions. But the Dobbs ruling made that law effective again, so, as expected, lawsuits there were understandably initiated to challenge it. As a result, the state supreme court and its political makeup became the arena for the fight.
A vacancy was created by a retirement on the Wisconsin court requiring a statewide election there in April. The court had been controlled by conservatives 4-3, but the retirement made the ideological split even, and the election quickly became a proxy vote on abortion and the lawsuit over the 1849 law. Milwaukee County Circuit Judge Janet Protasiewicz, the liberal candidate, won by eleven points, flipping the court. The margin of victory is the real shocker here. Wisconsin is known for their evenly split electorate, but apparently not so much when the issue is abortion.
Even Kentucky has been a surprise. The Bluegrass State also passed a law in 2019, modeled after the Mississippi law that was the subject of the Dobbs ruling, and became effective last year. But the Republican legislature attempted to make their statutory total-ban even more safe by adding language to their state constitution to clarify that it did not protect abortion rights. That constitutional amendment was surprisingly defeated in November, 52-47 percent.
Which brings me to Ohio.
In 2019, Ohio passed a six-week abortion ban. Dobbs not only protected that law, it gave the state the authority to largely do whatever it wanted. But in Ohio, voters have the authority to put the question on the ballot. It’s not easy, but it can be done. And so, it is being done.
Advocates collected roughly 710,000 signatures requesting that the constitution be amended to enshrine abortion rights up to the point of “fetal viability.”
In response to the expected ballot measure, and the expected support of it by Ohioans, the Republican-controlled Ohio legislature passed their own ballot initiative. It was designed to increase the threshold for amending the constitution from a simple majority of voters to a supermajority of 60%. The legislature also strategically scheduled their vote in August, in a clear attempt to drive down participation. It didn’t work. Over three million voters showed up in Ohio last week, defeating the question known as “Issue One” on a 57-43 percent margin.
Most believe this is a proxy vote for the abortion amendment on the ballot in November.
Look at a regional map. Indiana is surrounded. In the coming months, even after Dobbs, states to our east, west and north will likely have either protected or expanded abortion rights. Even Kentucky has limited its support of the ban there.
It would be silly to believe that Hoosiers feel significantly different than the neighbors who surround us. Polling data indicates we are more like our neighbors than the Indiana General Assembly is capable of admitting.
This is the theme of our time. The Dobbs ruling is minoritarian. Courts often make rulings that result in policies that fit that description. This one differs in that it empowered states to use its gerrymandered legislative districts and implement laws that voters oppose.
It’s minority rule, on steroids. And it will ultimately make for bad politics. In Michigan, Wisconsin and now Ohio, it already has.
Americans, and Hoosiers more specifically, share more in common with our region than our state government on this one. Historically in America, that is what leads to governmental change.