On 10 April 2019, the Ohio legislature easily passed SB 23, a bill that banned abortion after a fetal heartbeat is detected, as early as six weeks into a pregnancy.
It was a move that should have carried considerable political risk in Ohio, a state closely divided between Democrats and Republicans. There wasn’t widespread support for the bill – polling showed public opinion was nearly evenly split over the bill (a poll after the bill was passed showed a majority opposed it), John Kasich, a previous Republican governor, had twice vetoed the bill, saying it was unconstitutional, and it had stalled in the legislature for years.
But Ohio’s governor, Mike DeWine, a Republican, nonetheless signed the bill into law the next day. And the following fall, when the politicians who passed the measure came up for re-election, Republicans didn’t lose any seats in the state legislature. In fact, they expanded their majority.
Ohio offers a case study of how US politicians enact extreme abortion measures that don’t align with voters’ views but face little accountability at the polls – an issue even more at stake this month as the supreme court is on the verge of issuing a decision that will probably overturn Roe v Wade, the landmark 1973 decision establishing a constitutional right to an abortion. In Ohio and elsewhere, politicians are protected by their ability to draw their own political districts every 10 years, distorting them in such a way as to virtually guarantee their re-election. Republicans drew the lines in Ohio in 2011 and have held a supermajority in the state legislature ever since. “We can kind of do what we want,” Matt Huffman, the top Republican in the Ohio senate, told the Columbus Dispatch recently.
In a leaked draft opinion overturning Roe, Justice Samuel Alito wrote that disputes over abortion should be resolved through the political process. “The permissibility of abortion, and the limitations, upon it, are to be resolved like most important questions in our democracy: by citizens trying to persuade one another and then voting,” Alito wrote, quoting the late Justice Antonin Scalia.
But as it urges returning abortion to the political sphere, the supreme court has sanctioned a manipulation of the political process that makes it nearly impossible for Ohioans and voters in other states to make their voices heard on abortion. In 2019, Alito and four of the court’s conservative justices said federal courts could not do anything to police partisan gerrymandering, giving lawmakers in Ohio and elsewhere more freedom to gerrymander their districts.
That kind of gerrymandering will probably serve as an invisible, virtually impenetrable fortress that will allow lawmakers across the US to continue to push extreme abortion measures that are unsupported by the public. Although public attitudes about abortion can be complex, the vast majority do not support overturning Roe v Wade and a majority supports legalized abortion in some form. State lawmakers who have pushed measures criminalizing abortion and outlawing it entirely have ignored those attitudes.
“They are different strands of the same braid. We don’t have those restrictions without the gerrymandering,” said Kellie Copeland, the executive director of Pro-Choice Ohio, a group that works to protect abortion access in the state.
When Ohio was considering the six-week abortion ban, Copeland said, her organization facilitated a “parade of witnesses” – medical professionals, women who had abortions, religious leaders – to give emotional testimony to the legislature. Many lawmakers didn’t stick around to listen. “They don’t care. And they don’t care because they know they’re untouchable because of gerrymandering,” she said.
It’s a problem that exists beyond Ohio. The vast majority of Americans believe abortion should be legal in at least some circumstances, but state lawmakers continue to offer a blitz of increasingly extreme restrictions on abortion. Republicans control far more state legislative chambers than Democrats do and only about 17.5% of state legislative districts are expected to be competitive over the next decade. Very few chambers are expected to flip partisan control. In Ohio, Republicans have once again come up with a state legislative map distorted to their advantage and have openly defied the state supreme court’s orders to come up with a fairer map.
Extreme restrictions with extreme consequences
In 2010, Kasich had ousted an incumbent Democrat and Republicans flipped control of the Ohio house as part of a nationwide Republican effort aimed at winning state legislative chambers to control the redistricting process. Armed with complete redistricting power, Ohio Republicans drew new districts that allowed them to win a supermajority in the state legislature throughout the last decade, even as Barack Obama carried the state in 2008 and 2012.
A wave of new restrictions on abortion restrictions began to flow. In 2012, the state enacted a new law banning abortions after a fetus was viable, except in cases of medical emergency, and requiring viability testing at 20 weeks (three to four weeks before the accepted medical definition of viability). The next year, Ohio lawmakers tucked a number of restrictions into a budget bill, including a hugely consequential measure that prevented abortion clinics from entering into required patient-transfer agreements with taxpayer-funded hospitals. The state went on to prohibit certain government money from going to Planned Parenthood, ban abortion at 20 weeks post-fertilization outright and, in 2019, passed the six-week abortion ban.
“Throughout the ’80s, ’90s, early 2000s, there were occasional laws that would tinker with the informed consent requirement for an abortion or tinker around the edges with minors access to abortion and things like that,” said Jessie Hill, a law professor at Case Western Univerity. “We really started to see an uptick in abortion restrictions after 2010, or 2011, the last time the redistricting took effect in Ohio. It’s been since then, just sort of increasingly extreme restrictions.”
Those restrictions produced extreme consequences. Between 2011 and 2015, seven of the state’s 16 abortion clinics either closed or curtailed their operations (six full-service clinics remain open today with three additional clinics providing medication abortion services). A complete ban on abortion in the state could increase the average distance a woman has to travel in Ohio to an abortion clinic from an average of 26 miles to as much as 269 miles in a worst-case scenario, according to one recent study.
It’s a burden that significantly harms those in rural areas, who have seen clinics in their counties close and who will have to take more time off work to travel.
“It’s kind of death by a thousand cuts,” said Sri Thakkilapati, the interim executive director of PreTerm, an abortion clinic in Cleveland. “Maybe any one or two of these things you could overcome, but all together it becomes a really burdensome process,”
As the supreme court weighs overturning Roe v Wade, Ohio is now considering a virtually complete ban on abortion. Such a ban would mean that those seeking an abortion will have to pay “exorbitant amounts of income” to travel to obtain an abortion out of state, said Danielle Bessett, a professor at the University of Cincinnati who studies abortion access. “People who are not gonna be able to afford that travel … are then going to try and self-source abortion care at home. And we’ll probably see lots of inequality in how people are prosecuted and arrested for that,” she said.
And lastly, she said, there will be those who don’t try either of those and are forced to carry their pregnancy to term. “There are equity issues there, too, with Black women having the highest rate of maternal mortality,” she said.
As lawmakers have pushed these severe restrictions, they have consistently remained out of line with what most Ohioans believe. Polls have consistently shown that a majority of Ohio voters support some form of legalized abortion, while a minority believes it should be illegal.
“Those who are anti-abortion and claim a faith tradition, they don’t speak for me. They don’t represent the countless folks who are faithfully pro-choice. Same thing with our elected leaders. They don’t represent who we are and what we believe in our communities,” said Elaina Ramsey, the executive director of Faith Choice Ohio, which works to protect abortion access.
Thakkilapati agrees. “It’s frustrating. In some ways it’s hopeful that people do think that abortion should be a right and should exist for people in Ohio. It’s helpful to know that there are more of us. But in some ways it’s very disheartening,” she said. “It feels like it’s not gonna make a difference.”
