Abortion Bans or Democracy — You Can’t Have Both

People celebrate the defeat of Issue 1 during a watch party in Columbus, Ohio, on Aug. 8, 2023.

Photo: Jay LaPrete/AP

The defeat of Ohio Issue 1 on August 8 demonstrated the strength of the pro-abortion rights vote. Activists secured an initiative to be placed on the November ballot constitutionally enshrining the right to abortion until fetal viability. To head off what promises to be a slam dunk for the pros, Ohio's anti-abortion Republican legislature proposed its own amendment, to raise the bar to amend the state constitution. That was Issue 1, the sole question on the ballot of the special August election.

Issue 1 was a transparent ruse - polls showed 58 percent support for the abortion rights measure; the lawmakers specified a 60 percent majority to pass an amendment instead of the current simple majority - and voters soundly rejected it.

Now Ohio is set to follow the six states that have conferred the highest level of state protection on reproductive freedom through popular referendum. Campaigners for a similar 2024 ballot measure in Arizona are psyched by Ohio's victory, and Nebraska is gearing up for one as well. Virginia Democrats were moved to elevate reproductive liberty to the top of their platform, in hopes of winning back the state House of Representatives and firewalling abortion from Republican Gov. Glenn Youngkin's attempts to impose the most extreme prohibitions.

In Ohio, democracy prevailed - and the spirit is spreading.

Still, you could see it the opposite way. Ohio's GOP contrived to upend a process of governance that's been uncontroversial since 1912. The party introduced a bill to allow for an August election on a constitutional amendment - formerly one could be held only in the case of a fiscal emergency" - and when the bill stalled in committee, they held the election anyway. The party of skinflints magnanimously allocated $20 million in taxpayer funds to run the referendum, which set in motion the spending of another $26.6 million in advertising by organizations for and against the initiative. All in all, that's a slew of monkey wrenches in the gears of democracy, with one purpose: to force women to have children they don't want.

You can have abortion bans, or you can have democracy. You can't have both.

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Criminalizing abortion is undemocratic in the most basic sense: Increasing majorities of Americans are against it. In fact, a new poll shows that given the chance, two in three would vote to protect the right to abortion in their state constitutions. That includes nearly half of Republicans.

Abortion bans, moreover, could not have been achieved without a long prehistory of dubiously legal, anti-democratic shenanigans like those the legislature pulled in Ohio. The conservative supermajority on the Supreme Court that overturned Roe v. Wade would be a mere, potentially negotiable majority had Republican Senate Majority Leader Mitch McConnell not refused to hold confirmation hearings for President Barack Obama's nominee, the moderate Merrick Garland, to fill the seat left vacant by Antonin Scalia's death in 2016.

Republicans would not hold seemingly permanent control of Ohio's statehouse if the party had not radically gerrymandered election districts and ignored seven court rulings rejecting the maps it drew. Anti-abortion initiatives on the 2022 ballots in Kansas and Kentucky also emerged from legislatures gerrymandered to insulate members from the will of the people.

Ballot initiatives aren't perfect: The biggest spenders tend to win. Still, when representative government is disabled by election rigging and voter suppression, direct democracy may be the citizens' last resort. Watching ballot initiatives land repeated blows against minority rule, Republicans in states including Florida, Missouri, North Dakota, Utah, and Michigan are doing their damnedest to waylay referenda on the way to the polling booth.

In Michigan, Republicans on the Board of State Canvassers voted to keep two legitimately petitioned referenda off the 2022 ballot. One measure, unironically, instituted pro-voting reforms; the other constitutionally enshrined abortion rights. Both were blocked on technicalities - the latter because of spacing errors in the document. After the state Supreme Court restored the initiatives, voters approved both. Similarly, the anti-abortion measures in Kansas and Kentucky were rejected at the ballot box. In 2024, Arizona and Florida Republicans will attempt to limit the ability of voters to direct ballot or amend the constitution- but they'll have to do it through popular referenda.

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Enforcement of abortion bans requires the violation of basic constitutional and human rights. Using legislation crafted by the National Right to Life Committee, South Carolina has passed a law and Texas a bill that stomp on free speech by shutting down websites that offer information on abortion. If the laws stand in the courts, other states are likely to follow.

In Idaho this month, six public university professors and two unions brought a federal lawsuit challenging the state's 2021 No Public Funds for Abortion Act, which criminalizes the use of public funds not just to perform abortions but also to promote [or] provide counseling in favor of abortion." Educators have bowdlerized their syllabi, scrubbed their resumes, and pulled art from an exhibition in fear of overstepping the vague bounds of the law and losing their jobs or facing felony convictions that carry penalties of heavy fines and imprisonment. This law censors teaching, discussion, and scholarship about abortion at Idaho's public universities, effectively stripping professors of their First Amendment right to academic speech," said the American Civil Liberties Union, which is representing the professors.

Not content with prosecuting pill distributors as drug traffickers or prohibiting the trafficking" of fetal tissue, the antis have minted a new species of criminal trafficking. A statute signed this spring by Idaho Gov. Brad Little prohibits abortion trafficking"; it defines as a trafficker anyone who procures an abortion" or obtains an abortion-inducing drug for [a] pregnant minor to use for an abortion by recruiting, harboring, or transporting the pregnant minor" - language that suggests child sex slavery. Although transporting" refers only to the in-state portion of the trip, the law contravenes both the constitutional right to travel and, arguably, the human right to asylum from persecution.

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The End of Roe

The persistence and prevalence of pill abortions in defiance of the bans has compelled red-state law enforcers to step up surveillance, and we can expect more violations of privacy in the future. If the Supreme Court upholds the recent Texas ruling severely limiting distribution of the abortion drug mifepristone, the Comstock Act of 1873 could be resuscitated and the U.S. Postal Service authorized to open mail in search of contraband. Last year, Nebraska prosecutors used private Facebook messages and federally protected medical records to charge a teenager, Celeste Burgess, and her mother, Jessica, with self-managing the daughter's abortion using medication at about 28 weeks' gestation and attempting to burn the stillborn fetus.

But the invasion of the Burgesses' privacy was the least of it. Jessica faces up to five years in prison for violating Nebraska's abortion laws by buying the pills online and giving them to her daughter. (The law back then prohibited abortion after 20 weeks; in May 2023, Nebraska's governor signed a 12-week ban.) Celeste, who was 17 at the time and had no criminal record, pleaded guilty to the felony offense of removing, abandoning, or concealing human skeletal remains." And while anti-abortion propagandists allege that they seek compassion, not punishment, for women who abort, the judge gave Celeste 90 days' jail time plus two years' probation. Confinement is necessary," he wrote, because its omission would depreciate the seriousness of the crime or promote disrespect for the law."

Which law? It is fair to conclude that this teenager was locked up for three months for ingesting a legal drug to return her own body to its former, unpregnant state. So much for due process and proportional justice - the time fitting the crime.

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The more intimate the target, the more intrusive the surveillance. That's why several states have deputized private citizens to inform on, and sue, those who aid and abet" abortions - the new American Stasi. At the same time, the more numerous the aspects of personal life the state seeks to police - sexual behavior, gender expression, unsavory thought - the more pressing will be people's desire and need to disobey the laws, just to carry on ordinary life. The more widespread such disobedience becomes, the greater will be the perception of crime and, with it, the state's self-justification for repression.

The Grand Old Party has long since abandoned even the appearance of caring about democracy. It wants only power, and to get power its politicians pander to the base of nosy, self-righteous, cruelly unchristian evangelical Christians, who care even less. American democracy has never been perfect, but for duking out our differences, it's all we've got. Still, some things are not proper subjects of democratic debate. Among these are people's decisions about whether and when to have a baby. In this case, democracy means leaving our bodies alone.

The post Abortion Bans or Democracy - You Can't Have Both appeared first on The Intercept.