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Ohio Legislators Target State Judges to Thwart New Constitutional Amendment on Abortion

Some state legislatures are demonstrating increasing hostility to judicial independence and the democratic process.

November 20, 2023

This month, Ohio passed a ballot initiative enshrining the right to an abortion in the state constitution. But the reaction of some state legislators showed disdain for both the will of the people and judicial independence, two concerning trends in statehouses around the country.

Within days of the vote, members of the Ohio House of Representatives signed a letter promising to “do everything in our power to prevent our laws from being removed” and floated a bill to gut the newly passed constitutional amendment. The bill would do so by stripping Ohio courts of their jurisdiction over legal claims seeking to implement or enforce the amendment and deeming any exercise of such jurisdiction an impeachable offense.

Ohio was the seventh state to put abortion rights to a statewide vote since the Supreme Court abolished federal abortion rights in June 2022. After defeating a brazen effort by the legislature to make it harder to pass constitutional amendments via ballot initiative, Ohio voters approved a measure giving individuals the right to “make and carry out one’s own reproductive decisions, including but not limited to abortion.” Ohio now joins the ranks of California, Michigan, and Vermont, which passed similar abortion amendments last year, as well as Kansas, Kentucky, and Montana whose voters rejected antiabortion amendments in 2022.

Ohio’s new abortion amendment explicitly prohibits the kind of pre-viability restrictions on abortion access contained in the state’s current six-week ban, but the idea put forth by lawmakers would deprive voters of any judicial means of vindicating their new abortion rights. (A court has temporarily blocked that six-week ban in litigation that began before the amendment passed, and the Ohio Supreme Court has asked the parties in the case to provide briefing on the amendment’s impact on the abortion ban.)

Voter-initiated ballot measures serve as an important check against legislative overreach, particularly in the context of Ohio, where they provide a path for voters to circumvent a gerrymandered legislature to enact their preferences. But the effectiveness of these measures depends in large part on judges having the power and independence to interpret and enforce the constitutional rights adopted by voters through such processes. To attack courts’ authority to engage in this process, particularly after voters have made it clear that they want courts to enforce certain rights, is to reject both the democratic process and the system of checks and balances on which our democracy relies.

While it appears that the Ohio house speaker has thrown cold water on the proposal for now,  Ohio legislators are not alone in their efforts to thwart voters by attacking the power and authority of courts. For years, state legislatures across the country have been engaging in political warfare against courts, seeking to control state judiciaries by politicizing judicial selection, manipulating venue rules, weaponizing judicial ethics, and threatening with impeachment judges who decide cases in ways the legislative majority dislikes. A few years ago, for example, in the midst of a major battle over public education funding, the Kansas legislature considered a constitutional amendment that would have potentially removed education funding questions from Kansas courts’ jurisdiction.

And as state courts continue to take center stage in national fights, state legislatures have adopted an increasingly aggressive posture towards state courts. This year alone, 22 state legislatures across the country considered at least 59 bills that would have enabled them to either override certain court decisions or prohibited judges from enforcing particular laws or court orders. For example, Mississippi enacted a law that prevents courts from enforcing any federal law regulating firearm suppressors manufactured in the state if the regulation does not already exist under state law. Similarly, a Missouri a bill depriving courts of jurisdiction to extend polling hours was voted out of committee.

And in an ominous sign, Montana’s senate passed a resolution declaring it “a myth” that “the court has exclusive authority to interpret the constitution and that its decisions are binding on the other two branches” and explicitly disavowed the seminal 1803 U.S. Supreme Court ruling in Marbury v. Madison, which established the authority of judicial review. Notably, among the six laws that Montana enacted this year undermining the state judiciary’s powers and independence, two bills make it harder for courts in the state to enjoin state laws.

In Dobbs v. v. Jackson Women’s Health Organization, the U.S. Supreme Court declared that decisions on abortion rights should be “resolved like most important questions in our democracy: by citizens trying to persuade one another and then voting.” Since then, voters from California to Kansas to Ohio have spoken forcefully in favor of abortion rights. Threatening to strip courts’ authority to vindicate the voice of voters, as enshrined in state constitutions, offends fundamental democratic principles. The Ohio legislature should heed the Supreme Court’s call and allow Ohio’s courts to carry out the will of the people.