This text was written by Jessie Hill and originally appeared on MsMagazine.com on March 15, 2023.
When the Supreme Court ruled to overturn Roe v. Wade, taking away Americans’ constitutional right to abortion, the majority opinion reiterated that the issue should be left to “the democratic process … established by the Constitution.”Before it fell, Roe gave people the right to an abortion, but the ruling still allowed states to restrict access severely. Even though Roe is gone, we can build back the right to more effectively protected abortion access—but we can only do so with the democratic process fully intact.
In its Dobbs v. Jackson Women’s Health Organization ruling, the Supreme Court failed to acknowledge that Americans’ ability to participate freely and effectively in the democratic process on the state level has severely deteriorated. For years, some states have been distorting and eroding the right to fair representation—mainly through gerrymandering, a process used for centuries by all political parties. The use of gerrymandering across the U.S. was never going to allow the scenario conjured by the Court to play out as planned.
States with extremely gerrymandered legislatures, like my home state of Ohio, cannot be trusted to reflect the will of their constituents. Now, as people voice their will when it comes to abortion—as instructed by the Supreme Court—we’re witnessing these same lopsided legislatures moving to further distort the one remaining democratic option: the ballot initiative process.
The initiative process allows citizens of 26 U.S. states to place legislation on a ballot for a popular vote.
In 2022, voters in six states—California, Kansas, Kentucky, Michigan, Montana and Vermont—expressed their desire to protect abortion rights through voting on ballot initiatives in their states, further proving that even in red states, voters support protecting the right to abortion. Advocates in recent years have also used ballot initiatives to expand Medicaid, legalize marijuana, increase the minimum wage and enact other progressive measures. The success of these campaigns convinced gerrymandered, anti-abortion legislatures that ballot initiative processes must be eliminated.
The number of bills introduced in statehouses to amend citizen-initiated ballot measure processes has nearly doubled nationwide since 2014. In 2021, 226 bills were introduced, and 36 became enacted into law (compared to just 116 in 2014). The following year, at least 232 bills to change citizen-initiated ballot measure processes were introduced, and 23 were signed into law. And these efforts show no sign of slowing down: Just weeks into 2023, legislators in Florida, Missouri and Ohio have come forward with legislation seeking to curtail their states’ ballot initiative processes.
In 2021, the ballot initiative process in Mississippi was rescinded entirely. The decision came shortly after voters used it to legalize medical marijuana and just days after a campaign was launched to place Medicaid expansion on the ballot. It marked the first time in the modern era that the judiciary of any state had struck down an entire initiative process.
The justices in the majority of Dobbs may have felt that the issue of abortion should be decided by the people, but it’s clear that state legislators, protected by gerrymandering, feel empowered enough to demonstrate no such interest in hearing from the constituents that elected them. Make no mistake: Many legislators are in hot pursuit of tweaking, if not fully rescinding, ballot initiative processes because they want to stop the people from enshrining the right to abortion back into law.
The central premise of Dobbs was to kick the decision of abortion rights back to “the people.” But gerrymandered legislatures make a mockery of that ruling when they try to mute the people’s voices. Despite their praise for Dobbs, at least some of the people’s elected representatives seem displeased with the “processes of democratic self-government.”