Losing Our Rights?

Last Friday the U.S. Supreme Court overruled the 50-year-old decision in Roe v. Wade which recognized a woman’s constitutional right to obtain an abortion early in her pregnancy. Roe was the basis for federal court decisions barring enforcement of state anti-abortion laws, including a “heartbeat bill” here in Ohio. Effective last Friday there is no longer any federal constitutional right to obtain an abortion under any circumstances. Whether a woman can legally obtain an abortion under any circumstances is now determined by the laws of her state.

As bad as last Friday’s decision is by itself, and it is really bad, it may also be a harbinger that more rights are going away. Justice Thomas’s concurring opinion specifically targeted the rights of same-sex couples to marry and the right of all Americans to obtain contraception.

Justice Alito’s opinion for the Court denied that Friday’s decision has that effect, but that is what lawyers call “dicta” that is not meant to be taken seriously. There are many rights which we all take for granted that are clear from the concepts written in the Constitution, but which are not called out in so many words. Those rights are now in jeopardy. Given that at least five of the Justices who voted to overrule Roe are not close to retirement (there is no mandatory retirement age for Supreme Court justices), the U.S. Supreme Court will not be protecting individual rights, apart from the right to carry guns, for many years to come.

Where do we go from here?

Some people think Congress can pass a federal statute granting a nationwide right to abortion. Indeed, the Women’s Health Protection Act has passed the U.S. House. The first obstacle is that it cannot overcome a filibuster in the Senate.

Assuming Congress passes the WHPA that is still unlikely to protect the right to choose in states like Ohio. Why? Because Congress does not have the power under the Constitution to pass any laws it considers necessary. Article I, Section 8 of the U.S. Constitution contains a list of the subjects on which Congress may pass laws. The Thirteenth, Fourteenth, and Fifteenth Amendments have added a little to that list. However, there is nothing in the Constitution which explicitly grants Congress the power to legislate about any aspect of health care, much less power to pass laws specifically protecting women’s health. Were federal legislation enacted protecting the right to choose, there is at least a 50% probability that this Supreme Court would hold that legislation unconstitutional.

Like it or not, we must look to our state government in Columbus for protection of individual rights.  Right now, Columbus looks very dark. Within about an hour of the release of last Friday’s Supreme Court decision, Republican Attorney General David Yost had filed papers in federal court asking that the federal court order barring enforcement of Ohio’s “heartbeat bill” be dissolved.[1]  Given the Supreme Court decision, the federal court in Columbus will have to grant that request. Legislation to criminalize abortions in nearly all circumstances, including pregnancies resulting from rape and incest, is pending in the General Assembly.  That is expected to pass before year-end. Governor DeWine has said publicly that he will sign any anti-abortion legislation that reaches his desk.

There have already been, and will be more, marches and rallies supporting Ohio women’s right to choose. While these are positive, they will not, by themselves, change what our state government does.  The gerrymandering fiasco is instructive in this context. Last decade, Ohioans overwhelmingly voted to amend our state constitution to create fairer, more competitive General Assembly and U.S. Congressional districts.

When the time came to re-district after the 2020 census, the Republicans controlling state government ignored those votes. Our Ohio Supreme Court repeatedly held that the Republican’s new General Assembly districts violate our state constitution. The Republicans ignored those rulings. The Republicans running Ohio have ignored the voters and our state constitution. Do you really think they will pay attention to marches and rallies? Yes, it is important to “take a stand,” but we must stand in a way that Republicans cannot walk over us.

The central problem is that our legislators do not perceive that they serve all Ohioans. Rather, they perceive that they serve the Ohioans who elected them to office. Our legislative districts have been drawn so that legislators opposed to the right to choose, and other rights, will win the majority of seats in the Ohio House and Senate. Marches and rallies will not change that.

I’m not telling you not to go to marches and rallies. But you cannot substitute that for real action. The real action happens on election day in November. That is when we can start changing the people who make Ohio’s laws, including the laws criminalizing abortion.

What you need to do.

There are steps we must take in 2022. The first is to elect Nan Whaley as Governor of Ohio, Chelsea Clarke as Secretary of State, and Taylor Sappington as State Auditor. Why am I focused on those three instead of all our Democratic candidates? Because of the Ohio Redistricting Commission. The illegal General Assembly districts we have now were drawn by the Commission, composed of two Democrats and five Republicans. The Commission will draw new districts again for the 2024 election. By law, there must be at least two legislators from each party on the Commission. The Governor, Secretary of State, and State Auditor hold the decisive votes. We must have a Democratic majority to draw the districts for 2024. That means we must devote ourselves over this summer and fall to getting more votes in Clermont County for Nan Whaley, Chelsea Clarke, and Taylor Sappington.

The next step is to add Marilyn Zayas and Terri Jamison to the Ohio Supreme Court. These two Ohio Court of Appeals judges are running against conservative incumbent Republicans who consistently voted to uphold the Republicans’ illegal districts. Our state constitution is an independent source of individual rights for the people of Ohio. We must have a majority of justices who will uphold and enforce those rights.  The one Republican justice who voted to invalidate the Republicans’ illegal districts cannot run for re-election and will be gone in January 2023. Without a Democratic majority on the state supreme court, Republicans in other branches of state government will continue to ignore the Ohio Constitution.  Democrat Michael Donnelly, now Justice Donnelly, won in Clermont County in 2018.  We can do that again!

The August 2 Primary Election

The last step in 2022 to protect individual rights in Ohio starts with the August 2 primary election. Early voting for this primary starts July 6. The August 2 primary will, in Clermont County, select candidates for two seats in the Ohio House of Representatives and a man and woman to serve on our Democratic state central committee. Because they pass laws, I’m going to focus on those state House seats.

Clermont County is currently divided between two state House districts. People living in Loveland, Milford, Owensville, Miami Township, Union Township, Goshen Township, and Stonelick Township are in District 62.  Brian Flick is our candidate for state House in District 62. Brian is unopposed in the primary. However, a strong primary vote for him will materially help him win this seat in November.

The rest of Clermont County, and part of Brown County, is in District 63. Democrats in District 63 must vote in the primary.  Our candidate, Richard J. Perry, is a write-in candidate. Ohio law requires that he receive more than a specific number of votes in the primary or his name will not be on the November ballot. Democrats in the villages of Batavia, Bethel, Chilo, Felicity, Moscow, New Richmond, Neville, and Williamsburg; and in the townships of Batavia, Franklin, Jackson, Monroe, Ohio, Pierce, Washington, Wayne, and Williamsburg must vote in the August 2 primary and must write-in Rich Perry for Ohio House District 63. Otherwise, there will be no Democratic candidate in District 63 in November. We will not have laws protecting individual rights in Ohio unless we have Democrats in the General Assembly to pass those laws.

We Democrats have long paid more attention to who goes to Washington than we have paid to who makes our state laws. Like it or not, the U.S. Supreme Court told us last Friday that state laws matter, a whole lot. We must start changing who makes our state laws if we want to protect the rights of women, and men and children, in Ohio.

Stay safe.

[1] The “heartbeat bill” makes it illegal to perform an abortion when the fetus has a detectable heartbeat.  This can happen very early in a pregnancy.