Barbara McQuade, experienced prosecutor and lawyer, posted this disturbing commentary at Cafe Insider. Republican legislators in Ohio are trying to overturn the recent state referendum on abortion, where 57% of voters chose to protect reproductive rights by writing them into the state constitution.

Elections, as they say, have consequences. Last week in Ohio, voters approved an amendment to their state constitution that protects reproductive rights. But some GOP lawmakers apparently would rather damage democratic institutions than accept election results that they strongly oppose. 

Ohio recently became the seventh state to enshrine the right to abortion into their state constitutions following the Supreme Court’s 2022 decision in Dobbs v. Jackson Women’s Health Organization. The Dobbsopinion, of course, overturned Roe v. Wade, the landmark case that had recognized abortion rights under the U.S. Constitution since 1973. But despite the election result, some Ohio Republican legislators are refusing to accept the will of the people of their state. 

Two days after the election, attacks on the democratic process came on three different bases. First, GOP Representative Jennifer Gross claimed, without evidence, that the amendment was passed as the result of “foreign election interference” with the money of “foreign billionaires.” If true, such outside influence would violate election laws. But there is nothing to suggest that the claim is true. This claim was made not by an extremist activist, but by an elected member of the Ohio legislature. A public official’s claim of foreign influence can undermine public confidence in elections, which, in turn, leads to voter apathy, and discourages them from casting ballots. Such cynicism erodes the strength of our democracy. 

And Gross didn’t stop there. She joined three other GOP lawmakers in a second attack, announcing an audacious plan to strip their state courts of authority to interpret the new amendment. “Issue 1,” the name of the ballot proposal, ensures the right to “make and carry out one’s own reproductive decisions” regarding birth control, miscarriage, and abortion. The amendment, which goes into effect in December, retains the state’s ability to regulate abortions after a fetus is able to survive outside the womb. The amendment locks into the state constitution the current law permitting abortions up to 22 weeks, but it conflicts with a number of other state laws on the books that regulate reproductive rights, such as one that imposes a 24-hour waiting period and another that prohibits abortions after detection of certain fetal conditions. A “heartbeat” law, passed in 2019, that prohibits abortions after six weeks with no exception for rape or incest, had been tied up in courts before the election. 

Ohio House Democrats have proposed a bill to repeal the existing laws that conflict with the new amendment, but GOP majorities in both houses will likely block their efforts. Instead, litigants will need to challenge these laws in court to get them off the books. 

But that’s where Gross and her team come in. They said they would shift power over interpreting the amendment from the courts to the GOP-controlled legislature. According to their public statement, “Ohio legislators will consider removing jurisdiction from the judiciary over this ambiguous ballot initiative.” They explained that this move was necessary, “[t]o prevent mischief by pro-abortion courts.” Instead, they propose that “the Ohio legislature alone will consider what, if any, modifications to make to existing laws based on public hearings and input from legal experts on both sides.” Draft legislation would vacate all court orders and even expose judges to criminal prosecution and impeachment for handling cases involving the amendment. 

Except that’s not how it works. One of the first cases law students read in Constitutional Law class is Marbury v. Madison. The case stands for the proposition that it is the role of courts to review laws and to decide whether they are unconstitutional. And while Marbury v. Madison dealt with federal courts, the proposition is no less true in the states. Ohio’s constitution creates a judicial branch, composed of courts that are vested with “the judicial power of the state.” Interpreting the law is the fundamental role of courts. Legislatures write the laws; courts interpret them and decide whether they violate the state or federal constitutions. By seeking to wrest control of judicial review from the courts, the legislators are corrupting the structure of government and the separation of powers. This attempted power grab is a dangerous affront to our democratic institutions. We can’t simply deconstruct the apparatus of government whenever we fear the outcome of its work. Such attacks would render our judiciary toothless and unrecognizable.

But that’s not the end of it. A third affront to our democratic process came in the remarks of one of the four GOP legislators behind the effort, who appeared to put her own religious views ahead of the will of the people. Representative Beth Lear stated in support of the legislation, “No amendment can overturn the God-given rights with which we were born.” She no doubt genuinely believes the truth of her comments, but the First Amendment entitles her to practice her own religion, not to impose it on others. 

Before the Supreme Court’s decision in Dobbs, opponents of abortion rights frequently argued that the issue should be left to the states to decide. Now that voters in the states are consistently approving abortion rights, those who oppose reproductive rights are looking for new ways to fight for bans, even if it means supplanting the will of the people. 

Regardless of the convictions of one’s views on any issue, a power grab to override the results of an election is destructive to democracy. 

Stay Informed, 

Barb