Abortion rights are on the ballot in Ohio this Election Day

(NEW YORK) — After the Supreme Court overturned Roe v. Wade in 2022, supporters of abortion rights came out on top in every statewide ballot measure on abortion. And even in races where abortion was only implicitly on the ballot, abortion rights generally won out.

This year, abortion is literally on the ballot once again, and this time, all eyes are on Ohio.

So far in 2023, we have less data on how voters are feeling about abortion more than a year removed from the Dobbs decision. The closest thing to a vote on abortion rights was an August ballot measure in the Buckeye State that technically dealt with requirements for passing constitutional amendments but was popularly framed as a battle over abortion. Supporters of abortion rights won that fight, but that was far from the main act — rather, it was preparation for a Nov. 7 ballot measure that could enshrine abortion rights into Ohio’s Constitution.

Polling indicates that Ohio voters generally support abortion rights. But that doesn’t mean the proposed constitutional amendment is guaranteed to pass. The messaging war leading up to next week’s election has complicated the question, with opponents framing it as “too extreme.”

Currently, abortion is permitted in Ohio through the first 21 weeks of pregnancy. But that’s only because the courts have temporarily blocked the state’s six-week abortion ban, which briefly went into effect when the U.S. Supreme Court overturned Roe v. Wade and would effectively ban almost all abortions in the state. If it passes, next week’s ballot measure would obviate that ban, protecting the right to abortion up through fetal viability — or about 24 weeks of pregnancy — as well as medical providers who perform abortions.

The second ‘Issue 1’ in 4 months

You might remember that Ohio held an election on something called “Issue 1” in August. But that was a different Issue 1 from the one on the ballot next week.

In Ohio, proposed constitutional amendments approved for a statewide vote are listed as “issues,” as are referenda on laws signed by the governor. “Issue 1” is simply a moniker describing the issue up for a vote. In August, that issue was a proposed constitutional amendment that required 60 percent approval from voters for all future constitutional amendments, rather than the status quo of a simple majority.

As Republicans in the Ohio Legislature were pressing for a higher threshold to amend the state constitution, a coalition of groups — including state chapters of the ACLU and Planned Parenthood — was mobilizing to pass a constitutional amendment of their own to enshrine abortion rights in the state constitution. In July, the group, Ohioans United for Reproductive Rights, submitted 700,000 signatures — far more than the 413,446 required for a citizen-initiated constitutional amendment to appear on the ballot.

However, state law stipulates that at least 125 days separate the date the petition was filed and the actual vote on the measure. So the ballot measure, titled The Right to Reproductive Freedom with Protections for Health and Safety, was put on the November ballot and labeled that election’s Issue 1.

In August, voters rejected the first Issue 1 — the amendment that would have increased the threshold for passing future amendments to 60 percent. As a result, November’s Issue 1 — the one enshrining abortion rights in the state constitution — needs only a majority of the vote to pass.

The amendment versus the ballot language

The proposed amendment guarantees, among other things, the “right to make and carry out one’s reproductive decisions, including but not limited to decisions on contraception, fertility treatment, continuing one’s own pregnancy, miscarriage care, and abortion.”

However, that’s not the exact language voters will see on the ballot. Ohio law gives a state Ballot Board, chaired by the secretary of state, the power to finalize the language that will appear on the ballot. Members appointed by Republicans, along with Republican Secretary of State Frank LaRose, approved the ballot language over Democratic members’ objections.

Even though the language in the constitution itself would appear as proposed (and be posted at polling locations), the text on the ballot summary uses language like “unborn child” instead of “fetus.” The ballot also summarizes the portion of the amendment stating that “abortion may be prohibited after fetal viability” by reversing its premise, saying it would “always allow an unborn child to be aborted at any stage of pregnancy, regardless of viability if, in the treating physician’s determination, the abortion is necessary to protect the pregnant woman’s life or health.” Ohioans United for Reproductive Rights filed a complaint with the state Supreme Court over the language, but the court affirmed the Ballot Board’s language with one minor adjustment, ordering the Ballot Board to clarify that references to “citizens of the State of Ohio” actually just referred to “the state.”

How campaigns are framing their messages

Groups leading the charge to get the amendment passed are airing ads that emphasize the role of the state government in decisions around abortion — making the case that Ohio’s six-week ban, which makes no exceptions for cases of rape, is extreme. One ad featured a couple that found out their fetus would not be able to survive, prompting the mother to seek an abortion out of state. “An abortion was our only option,” the father says. “But the government here in Ohio took that decision away from us.”

In another ad, a Columbus reverend calls abortion “a private, family decision.” He says that Issue 1 “gives families the freedom to make their own decisions, without judgment and without the government getting involved.”

On the other side, opponents of the amendment are moderating their tone compared to what we’ve seen in other elections across the country. There are fewer ads accusing the opposing side of murdering unborn children and more ads showing mild-mannered women and couples calling Issue 1 “too extreme.” In one ad, a woman described as an “Ohio mom” says that “even pro-choice people” agree “that late-term abortion shouldn’t be allowed,” arguing that the law is “too extreme for Ohio.”

Gov. Mike DeWine and his wife Fran also star in an ad, speaking directly to the camera. “Whether you’re pro-life or pro-choice, Issue 1 is just not right for Ohio,” Gov. DeWine says, while Fran DeWine caps off the ad by saying, “Issue 1 just goes too far.”

Some groups opposed to the amendment have also framed Issue 1 as a parents’ rights issue, arguing that it would allow minors to have abortions without consulting their parents despite the fact that parental rights are not targeted in the proposed amendment. And others have gone so far as to argue that Issue 1 would open the door for children to receive gender affirmation surgery without parents’ consent, though that doesn’t appear in the amendment, either.

What do the polls say?

The limited public polling that’s available indicates that there’s a good chance the constitutional amendment will pass, although it’s far from guaranteed. With turnout so hard to predict in an off-year election, even polling that shows the issue passing could very well be missing the mark.

For example, Baldwin Wallace University conducted a poll Oct. 9-11 that found 58 percent of Ohio voters would vote “yes” on the proposed amendment, 34 percent would vote no, and 8 percent were undecided. Not surprisingly, 89 percent of Democratic voters said they would vote yes, but so did 51 percent of independents and 40 percent of Republicans. That poll also found that only 6 percent of voters thought abortion should always be illegal, while just 24 percent said it should always be legally permitted. Overall, 55 percent of respondents agreed that abortion should either always be legal or legal with exceptions, while 37 percent said it should be always illegal or illegal except in cases of rape or to save the life of the mother.

Ohio Northern University also conducted a poll Oct. 16-19 testing how Ohio voters responded to the proposed amendment when given two versions of the same question: one using the “unborn child” wording that will appear on the ballot and the other using the official language of the proposed amendment. In both cases, the amendment received a majority of the vote, but by vastly different margins. The version that included the language as it will appear on the ballot garnered 52 percent support, which could translate to a close election. But the version that used the language of the amendment itself garnered 68 percent. The poll also found that 65 percent of Ohio voters believe that abortions should be mostly legal.

Other polling since the Dobbs decision affirms that a majority of Ohio voters support abortion rights. Exit polls from the 2022 election race found that 58 percent of Ohio voters thought abortion should be legal and 37 percent believed it should be illegal.

But voters don’t necessarily see abortion — or Issue 1 — as a yes-or-no question on whether abortion should be legal. The 58 percent of voters who, in 2022 exit polling, said that abortion should be legal were split between saying it should be legal in all cases (27 percent) and saying it should be legal in most cases (31 percent). DeWine has said that, should Issue 1 be defeated, he would add exceptions for rape and incest into Ohio’s existing law. It’s a tacit admission that the law currently on the books is regarded as too extreme, as DeWine argues that Issue 1 is too extreme in the opposite direction.

There are other issues complicating the vote, including the existence of the two separate Issue 1s. In August, “no” was the pro-abortion-rights side; in November, it’s the anti-abortion-rights side. It might be confusing for some voters that, if they voted against an amendment a few months ago, then they should vote for a similarly titled amendment now.

Then there’s the theory that it’s harder to get voters to support changing an existing law than it is to convince them to keep the status quo. A 2019 study published in State Politics & Policy Quarterly found “strong evidence that voters will psychologically prefer arguments that oppose, rather than support,” ballot measures. Joshua Dyck and Shanna Pearson-Merkowitz, the authors of the study, argued that voters possess a built-in “negativity bias,” meaning that, regardless of how informed a voter is on an issue or how clearly the ballot language states it, arguments against a ballot measure are more effective than arguments in favor of one. In Ohio, that could mean supporters of abortion rights have a tougher task in the November election, when they need people to vote to affirmatively amend the constitution, than in August, when the pro-abortion-rights position was a vote for the status quo.

Whatever the outcome, political pundits on the day after the election are virtually guaranteed to frame the vote as an indicator of the political power of abortion rights messaging. And while the vote will certainly reflect Ohio voters’ views on abortion rights, it’s not quite that simple. The language on the ballot, the messaging of TV ads and the existence of the August ballot measure all complicate the idea that this vote is a straightforward measure of support for abortion rights. Plus, who turns out in an off-year election in a single state will be quite different from the turnout we can expect in the 2024 general election. The vote in Ohio next week may be a tea leaf ahead of the 2024 election, but it’s not a crystal ball.