Brian Lehrer: It's The Brian Lehrer Show on WNYC. Good morning, everyone. Today is referendum day in the State of Ohio. Maybe you've already heard this in the news. The word abortion is not on the ballot, but that's what it's about, and states all over the country are watching this model of fighting for and against abortion rights. Here's why. Many states have Republican majority legislatures that are banning abortion now that the Supreme Court earlier this year removed abortion as a constitutional right, but many of those same states have a majority of the people who support a right to choose.

Abortion rights advocates are trying to go around the legislatures with these referendums where the people decide at the polls. It's called direct democracy as opposed to representative democracy. There have already been some notable abortion rights victories this way in some otherwise red states like Kansas, Montana and Kentucky. Ohio now has an abortion rights referendum set to go for this November. We'll go over the wording which is really important and different than in some other states, but here's the catch. Republicans are pushing back with referendums of their own, like the one up for a vote in Ohio today that would make all other referendums harder to pass.

It's a referendum on referendums. The word abortion is not on the ballot today, but that's what it's really about, don't kid yourself. Only Ohio is having this fight this year, by the way, so many states are watching with 2024 in mind. Let's get into the details with an Ohio reporter and a national reporter covering today's vote Haley BeMiller, state government and politics reporter based in Ohio's capital, Columbus. She's with the USA Today Network Ohio bureau, and Rachel Cohen with a national angle senior policy reporter at Vox. Haley and Rachel, thanks for coming on. Welcome to WNYC.

Rachel Cohen: Thank you. Hi.

Haley BeMiller: Thanks for having me.

Brian Lehrer: Let's take this in two parts, the abortion referendum itself first, and then the referendum on referendums, which is being voted on today. Now, Rachel Cohen, I have the abortion referendum in front of me, and it's not one line like, "Congress shall make no law abridging the freedom of speech," it's four paragraphs. If you and the listeners will bear with me, I'm going to read it because I think the details matter. I haven't heard any other broadcast news organization do this, and I think it'll be really interesting for everybody, so here goes.

Paragraph one. Every individual has a right to make and carry out one's own reproductive decisions, including but not limited to, decisions on contraception, fertility treatment, continuing one's own pregnancy, miscarriage care and abortion. Paragraph two. The state shall not directly or indirectly burden, penalize, prohibit, interfere with or discriminate against either an individual's voluntary exercise of this right, or a person or entity that assists an individual exercising this right unless the state demonstrates that it is using the least restrictive means to advance the individual's health in accordance with widely accepted and evidence-based standards of care.

That paragraph can be confusing. What is least restrictive mean? We'll come back to that. Paragraph three. However, abortion may be prohibited after fetal viability, but in no case may such an abortion be prohibited if in the professional judgment of the pregnant patient's treating physician, it is necessary to protect the pregnant patient's life or health. Paragraph four. As used in the section, fetal viability means the point in a pregnancy when in the professional judgment of the pregnant patient's treating physician, the fetus has a significant likelihood of survival outside the uterus with reasonable measures.

This is determined on a case by case basis. State, it says, includes any governmental entity and political subdivision. That's the referendum that's going to be on the ballot in November in Ohio. Rachel, where do we start? How about the fact that it does place a limit on the right to an abortion defined by the viability of the fetus. That's basically what Roe versus Wade had in that Supreme Court decision originally. Was it contentious among the abortion rights advocates whether to include that limit?

Rachel Cohen: This is the standard right now that many states are looking at, that are considering ballot measures. As you mentioned, this was the standard that existed under Roe v Wade. I think the difference here is that the advocates for this abortion rights measure are trying to be more explicit that if a doctor thinks that there are exceptions needed after the point of viability, those should be clearly allowed. The doctor should be in a position where they can make that decision.

Sometimes those point of necessary lifesaving measures, or points where it would be really detrimental to the pregnant person were really sometimes difficult to exercise in the Roe v Wade era, so this measure in Ohio was trying to restore the fetal viability standard, but also make it clear that there will be exceptions beyond that. There are continually and constantly exceptions beyond that, so they're trying to make that more explicit. To be clear, more than 90% of US abortions occur within the first 13 weeks of the pregnancy, and the ones that occur later are typically due to either a fetal complication, a life-threatening risk to the pregnant person, or because they didn't have enough money to pay to get the procedure done earlier.

Brian Lehrer: Your article on Vox is called, "The next wave of abortion rights ballot measures looks different from the last." Is the viability clause an example of that?

Rachel Cohen: Yes. The first wave which I was referring to, the six abortion ballot measures that voters cast votes on last year in 2022, most of those measures were about protecting the status quo, preventing rollbacks of reproductive rights. This year, a lot of the measures are about restoring rights, or trying to preempt for the rights too, but in Ohio, they have already restrictions, they're battling in court, so this would be a way to prevent those restrictions from taking effect, and in other states like Arizona that's considering a ballot measure, it would restore access. In Florida, it could restore access. Definitely, that's one way it's different, and another way it's different are just some of the arguments that people are making for and against the initiatives.

Brian Lehrer: Right. We'll get into how opponents of abortion rights are claiming this would legitimize all kinds of gender-affirming care for trans people in Ohio, and how that politics is creeping into it, even though that's not in the referendum at all. I have to correct one thing. I think I mistakenly said that the Dobbs decision was earlier this year. Obviously, it was last year in June from the Supreme Court.

Haley, let me bring you in at this point, and ask you about where the exceptions to a woman's right or to a person's right other than viability would come in. That confusing language in paragraph two that says, "Unless the state demonstrates that it is using the least restrictive means to advance the individual's health." What does that mean?

Haley BeMiller: I think that's intentionally vague and broad in some ways. It's worth noting that a lot of the advocates behind this enforcement amendment are doctors themselves. They want the ability to practice medicine in a way that isn't limiting. The current six-week ban in Ohio that's being challenged in court, it's pretty confusing for physicians to perform abortions because they're not really sure what they can do to save the mother's life. They want the flexibility to be able to make those medical decisions. It's not totally clear what that language means for cases of rape or incest, for example, but those exemptions are something that abortion advocates want to see in the state and are not currently something that's in place right now.

Brian Lehrer: Interesting. Also Haley, was there much of a conversation among the abortion rights advocates getting this language on the ballot about whether to say pregnant women or pregnant people? I see the two references here are pregnant patient and an individual.

Haley BeMiller: I'm not sure what the behind-the-scenes was, but I imagine that they did that to leave room for transgender Ohioans to make the language more inclusive. That's something increasingly that physicians and abortion rights advocates are recognizing here.

Brian Lehrer: Now, Rachel, I also want to draw attention to the first line of the referendum, which is very broad. I see this is how Republicans are trying to convince people. It's about other things than abortion, like gender-affirming care, I'll read that first line of the referendum. Again, it says, "Every individual has a right to make and carry out one's own reproductive decisions, including but not limited to, decisions on contraception, fertility treatment, continuing one's own pregnancy, miscarriage care, and abortion." Why was it worded that way, and is that also different from the last wave of abortion rights ballot measures?

Rachel Cohen: I think what opponents of this amendment are trying to do is they're trying-- the first thing they're doing is they are harping on the words, "Every individual," to say, "Oh, well, that could include minors, that can include your children, oh, this is a threat to parents." They're really trying to take the focus away from the reproductive decision-making of adults and trying to say this is a threat to Ohio's parental consent laws, and this could enable young people to get surgeries for gender-affirming care that their parents might not like. That's pretty transparent.

If they spend their time talking about how this could restrict abortion rights, but we know from multiple polling over years that that's not very popular with voters in Ohio. This is one attempt to try to pivot the conversation to things that might be less popular and cause more discomfort with voters. The question of, is it broader than other ballot measures? I mean, not entirely, for months was spanning the spectrum of reproductive care. They're definitely looking at-- some states are looking at more inclusive language about the full spectrum.

To your point, some states are looking at what's happening in Ohio as opponents of abortion are trying to make this about either youth healthcare or transgender youth healthcare. In Florida, they have put more explicit language in their proposed ballot measure that this would not affect Florida's rules around parental consent. I know in other states like Arizona they're considering similar language. Not because they agree that Ohio's language does undermine Ohio's parental consents, and indeed a lot of legal experts have said it doesn't, but they want to try to preempt that line of attack from distracting from their broader focus around reproductive health care.

I guess the last thing I'll say is there's definitely legal experts who say the way that courts have long interpreted statutes is that, historically, there's long been a difference in how you interpret the word individual between adults and minors. That's another reason why I think it's a stretch that they're making it, but you can see the argument that, "Oh, this is too broad," and that's what they're trying to claim.

Brian Lehrer: You're saying that case law indicates that even when state constitution has the language, "Every individual," in it, or language like that, that's that broad, it has found not to restrict the state's ability to pass parental consent or parental notification laws. Haley for you as the Ohio reporter, what is Ohio law in that respect now, does a minor seeking an abortion need parental notification or parental consent?

Haley BeMiller: They do. That is one of the state's many abortion regulations. Another point on this debate over whether this would affect transgender health care. Ultimately, this is going to go before the Ohio Supreme Court, various laws are going to be challenged as a result of this language. A lot of the legal observers look at our state supreme court which is controlled by conservatives and say, they're not going to make a sweeping decision on parental rights that would ultimately take those rights away from parents. This is a conservative court, that's not something they're likely to decide. The likelihood of this affecting transgender healthcare here is slim, but parental consent is required for things like that, and abortion.

Brian Lehrer: What are the LGBTQ advocates saying, Haley, about whether this amendment would confer a right to gender affirming care? I could see where they would want it to be interpreted that way or that they don't want to enable the abortion rights opponents to use them as a distraction.

Haley BeMiller: I don't think any LGBTQ advocates are really getting behind that argument. To your point, a lot of the ads that are running against the abortion amendment and even against Issue 1, which we're voting on today, are using a lot of this language about taking parental rights away, allowing children to get gender surgery without parental consent. Abortion advocates and LGBTQ advocates say this language is a scare tactic. It's not accurate. They don't really want to be involved in that, they don't want to be used as a pawn in the debate for abortion.

Brian Lehrer: Listeners, if you're just joining us, we're talking about the abortion rights amendment to the Ohio State Constitution, which will be on the ballot there this November. The petitions to get it on the ballot just got approved the other day in Ohio. This is big news in that respect. Today is election day in Ohio on a referendum that would make it harder to pass the abortion referendum in November and we haven't even gotten to what they're voting on today, the referendum on referendums, we will get to that.

We've been looking so far at the language of the Ohio abortion rights referendum which will be voted on in November, including as a model for other states around the country that are seeing how this turns out for what kind of referendum they might have on their ballots next year. My guests are Rachel Cohen, with the national angles senior policy reporter at Vox, and Haley BeMiller, state government and politics reporter based in Ohio's capital, Columbus. She's with the USA Today Network Ohio Bureau.

Listeners, your questions, comments, and stories, welcome on today's referendum on referendums, and the implication for abortion rights there and nationally, and the November abortion rights referendum. I'm waiting, 212-433-WNYC, 212-433-9692. Haley, why this year for this abortion rights referendum? This is otherwise an off-year election, all the other states planning abortion rights ballot measures are setting them up for next year. Why this year in Ohio?

Haley BeMiller: I think there's been a pretty great sense of urgency among abortion access advocates in Ohio. As soon as Dobbs went into effect, Ohio's more or less six-week ban went into effect. There are no exemptions for rape or incest for that law. It's also muddy in terms of what is allowed for life with the mother exceptions and things like that. I think advocates really just wanted to get this done.

They know that abortion has been top of mind for Ohioans since the Dobbs decision, they know that a lot of people are thinking about it. I think there's something to avoiding the chaos of the 24 election too. We're going to have a contentious Senate race here, obviously, the presidential race. This allows them to just really focus on this one issue, sell this one issue before voters and not have it muddied with everything else happening next year.

Brian Lehrer: Rachel, anything else that other states are watching for in the abortion referendum itself before we turn the page and get through today's referendum about referendums?

Rachel Cohen: I definitely think that this has been highly watched for several reasons. If it backfires on Republicans, that will be significant because there are other states that are considering their own similar efforts to restrict ballot measures next year. There's definitely a lot of attention being paid to how this goes today. Then for Ohio's amendment coming up in November, there is a lot of attention being paid as other states try to figure out their language and they're really paying attention to the attacks they made this time around on Ohio.

Brian Lehrer: You mean that it enables gender-affirming care, that it enables abortion care without parental consent.

Rachel Cohen: A lot of collapsing of this various culture war fights. I think there are definitely-- anti-abortion leaders came out of the midterms and tried to spin it really positively for them while it is true that abortion rights one in all six states where it appeared on the ballot in 2022, there were also a fair number of governors who were reelected or elected who ran on really anti-abortion platforms, Ron DeSantis, one and he just passed extreme measures. There's definitely this competition right now of anti-abortion leaders saying, "Look, the reproductive rights activists are overstating how bad 2022 was for us, it actually wasn't that bad and voters aren't actually that energized by abortion rights."

I think that a big win for abortion rights in Ohio this year will really be important to setting some of that narrative debate straight heading into 2024. It would be really important for people who want to see if this really is a really galvanizing issue, if it can motivate voters, especially independents and Republicans. That's something everyone is really eager to see in Ohio, the only place where it's really on the ballot in November this year.

Brian Lehrer: All right. Now we'll take a break and turn the page and then we'll get to today's vote, which is about the rules that would govern the November referendum. Stay with us.

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Brian Lehrer on WNYC, as we continue on this election day in Ohio, by talking about the abortion rights ballot that will be voted on in November, in that state, in the Buckeye State, and the referendum on referendums that Republicans placed on the ballot for today to make it harder to pass an abortion rights referendum. Our guests are Haley BeMiller, state government and politics reporter in Columbus. She's with the USA Today Network, Ohio Bureau, and Rachel Cohen with the National Angle Senior Policy reporter at Vox. All right, Haley, what's on the ballot today? What would it actually do?

Haley BeMiller: Issue one would make it harder to change our state constitution, and it does that in a few ways. The headline is that it would require 60% of the vote to enact new constitutional amendments instead of a simple majority. It also makes changes to the signature-gathering process for citizen initiatives, citizen amendments. For example, right now, citizen groups only need 40 signatures from 44 counties to put an amendment on the ballot, they would need 88 to put something on the ballot if issue one passes, and it would also get rid of a 10-day cure period that's currently in place that essentially allows these groups to replace signatures if the Secretary of State's office determines that any of them are faulty for any reason.

Brian Lehrer: There was a battle I see over the petition signatures, there were 700,000 petition signatures, and they needed 400-something thousand to be approved by the court in order to get the abortion rights referendum on the ballot for November. Haley, that just happened last week, right?

Haley BeMiller: Yes, they finally got all the signatures that they needed. It took a long time. They were very organized, though. With these ballot initiatives, you tend to see groups get far more signatures than they actually need because election officials will throw a bunch out if someone didn't provide the right address, or if they aren't actually a registered voter. There are a lot of reasons that signatures can get tossed. The groups tend to make up the difference in droves to account for that.

Brian Lehrer: The 60%, Rachel, I think it was in your article that you pointed out that in the states that have passed abortion rights referendum, they passed pretty quickly. I mean, pretty easily, but not with 60%.

Rachel Cohen: They exceeded 60% in Vermont and California but in the states--

Brian Lehrer: Blue states.

Rachel Cohen: In states that last year, Kentucky and Montana and Michigan, and Kansas, they won with votes between 52% and 59%. Lawmakers look at that, and they see, this definitely passed with majority support, but it wasn't able to get super majority support in those states. There's been polling on the idea of reproductive freedom in Ohio that has also had a clear majority but not quite 60%. It's like 58%. It's the kind of threshold that would make an amendment in November not impossible, but definitely harder to do, to beat, to win.

Brian Lehrer: Haley in Columbus, from the hypocrisy watch department, doesn't Ohio have some kind of rule against holding elections in August?

Haley BeMiller: Yes, the legislature passed a new election law last year that restricted most August special elections. It says that local municipalities and school districts that want to hold an election can only do so if they're in a fiscal emergency. Now, proponents of issue one and the Republican majority says that this law did not take away the legislature's constitutional right to set special elections for proposed amendments, and the Ohio Supreme Court ultimately agreed with that when opponents of issue one sued over this election, but opponents are definitely quick to point this out.

They like to highlight the reasons that the legislature decided to get rid of most special elections in August, and that's because it costs money, and also turnout is abysmal. Now, I think it's shaping up to be a little bit better this time around, but when we had a special election in August, for example, last year, I think turnout was like 8% or something.

Brian Lehrer: Wow. Now, you've been having early voting for a while on this referendum on referendums. Today's the final election day, what we call election day itself, but from the early voting, do you have a sense of how turnout has been? Are people being galvanized by these? Are people getting that this is about abortion rights, and whether the November referendum has a better or worse chance of passing and therefore turning out in droves, or anything approaching droves, Haley?

Haley BeMiller: Early voting has definitely surprised election officials and groups on both sides are encouraged by that. I think the final early vote tally is around 500,000 and 600,000, and that's more than came out for early voting in our May 2022 primary which had competitive primaries for US Senate and governor on the ballot. Whether that translates to high turnout today, still remains to be seen. It's not clear if everyone was voting early because they were energized and also had other things to do on a Tuesday in August, or if we're going to see a lot of people out today, as well.

I'll be voting later, so I will see at least how my polling place looks. To your other question, I think it's become clear to a lot of voters that this is directly related to the abortion question in November. Both sides have made it about more than just abortion. They say that this is about democracy, citizens' rights, et cetera, but abortion has been the elephant in the room the whole time, and voters who are paying attention are aware of that.

Brian Lehrer: Let's take a phone call. Here's Philippa in Manhattan, you're on WNYC. Thank you for calling in. Hello.

Philippa: Hi, good morning. Can you hear me?

Brian Lehrer: I can hear you just fine. You hear me?

Philippa: Yes, I can. Thank you first of for bringing this very important topic to light. A couple of months ago, Brian, you had a couple on your show. This was after the impact to Roe v Wade, and the couple calls in. I believe they're from a Midwest state. The wife had suffered complications to her pregnancy, and because of the restrictive health care, they had to go through a bunch of loopholes and out of state to get her the help that she needed thankfully, but the comment that was made that really agitated me and stuck with me was, we just didn't think it would impact us.

The ignorance, arrogance, entitlement, that people have when it comes to thinking, "This isn't going to be my problem, this will be somebody else's. I'll always get the care that I need," couldn't be further from the truth. This is an assault on reproductive rights. This is an assault or a beginning of further assault on our democracy. People need to wake up. They need to mobilize.

They need to get out there and vote these people out that continue to hurt marginalized people, continue to hurt women, continue to impede on our rights as Americans, as citizens. It's really angering to me how people are just not more outraged over this and not going to the polls in droves to push these people out of office. Please vote. Please, please vote. Please get that message out there and voting matters. That's all I just wanted to say. Thank you, Brian, to you and your team for the outstanding reporting that you do.

Brian Lehrer: You're very kind. Thank you for your call, Phillipa. Anyone else from Ohio happened to be listening right now? 212-433-WNYC. Tell us a story of how you've perceived the campaigning on today's ballot measure or anything else. 212-433-9692. You can call or text or tweet @BrianLehrer. Rachel, here's an interesting text that has come in that, "I want to ask you a history question about listener rights. Ohio's vote on issue one today is about basic democracy, not just abortion. The GOP's issue one would increase the threshold for citizen's ballot measures to 60% from 50% for all ballot measures.

If issue one passes, it will be much harder for citizens to pass ballot measures for things like minimum wage increase ending gerrymandering, et cetera. I actually want to frame a history question around that concern from a progressive, am I right that referendums have historically been mostly a conservative political tool like California's famous Proposition 13 from the 1970s that limited property taxes?"

Rachel Cohen: I guess it depends on how far back in history you want to go, but I think there's so many examples, including in Ohio of it being used for progressive purposes. Some of the examples that opponents of issue one keep bringing up are some of the really important moments in Ohio's history that, for over 100 years, they've had it as a simple majority or 50% plus one. On the ballot in Ohio, they have used that to take whitemail from the constitution's list of voter eligibility requirements. They've used that to raise the minimum wage or integrate the National Guard.

I think and we've really seen, especially over the last 15 years across the country in red states, a lot of progressives have used ballot measures to pass things like raising the minimum wage or marijuana legalization or various campaign finance reforms. I think that is why we're seeing a lot of these pushes to restrict ballot measures coming primarily from Republican control states.

You're right, there are times for sure when business interests, and we've seen that in the last few years in California too, use referendums to override and there is an argument that supporters of issue one are making that if you make it harder to change Ohio State Constitution, you can help prevent these outside interests from influencing the will of the voters and overstating their votes. That argument doesn't really hold up very well especially given how much outside money is being used to fund the pro issue one side of the ledger.

Brian Lehrer: Certainly, it's a good example of progressive using ballot measures that quite a few states have legalized recreational adult marijuana use that way in recent years. Haley, also on the history track in Ohio, wasn't there a famous anti-gay marriage referendum in 2004 that won at the polls anti-gay marriage and that also did a lot to help George W. Bush win the presidency?

Haley BeMiller: There was. If I recall correctly, that did not pass with 60%. I think that was somewhere between 50% and 60%. Ohio has a long history of constitutional amendments going on the ballot, and a lot of them are proposed by the legislature, not citizens or outside groups. I believe all of the proposed amendments that have been proposed by citizens, only 19 have passed in the last 100 or so years. Opponents like to bring out that figure and say Ohio's constitution is not being abused or co-opted like supporters say it is because more often than not, the legislature is the one putting these on the ballot and they follow a completely different process to do that than outside groups do.

Brian Lehrer: In 2004, as I understand it, the anti-gay marriage referendum was placed in part for its own sake and in part to boost Republican turnout, which as I understand the history it did, and people who know that election know that Bush beat Kerry by a hair in Ohio and Ohio was the decisive swing state that year. That's an example of how an issue referendum was used by the right to help swing an election. Rachel, I wonder if you see that happening next year when there are going to be a lot more abortion rights referendums in states, including swing states where Democrats are hoping to boost turnout that will also help win Congress or the White House

Rachel Cohen: Can you repeat what are you expecting for next year? Or are you thinking--

Brian Lehrer: I'm just wondering if progressives are using abortion rights referenda for next year. Not just for their own sake, but to boost democratic turnout because I think the majority is on their side. They'll get more Democrats going to the polls and that'll help swing Congress or the presidency their way.

Rachel Cohen: There's certainly no place where they're going to put it on the ballot in a state that doesn't need it or where it's not important. It's not like it's going on the ballot in South Dakota primarily to help Democrats or something like that. For sure that there is this sense that abortions are a really mobilizing issue, motivating issue for voters across the spectrum, and especially in swing states, it could be helpful. There was division amongst reproductive rights advocates in Ohio.

Some of the groups really did want to put it on the ballot in 2024 and the reason that it really moved forward in 2023 is because of these doctors who really led the push and led a lot of the organizing. It got to the point where then everyone else got on board and said, "I guess this is what's happening." I don't think that it would be a mistake to see Arizona or Florida as doing it primarily or to boost Democrats. There's no question that political consultants see the opportunity that organizing for a ballot measure campaign might have for Joe Biden or senate candidate.

Brian Lehrer: We're almost out to time. Let me get Emily in Findlay, Ohio in here. Emily, you're on WNYC. Hi there, real quick.

Emily: Hi. I just wanted to thank you for covering this. It's really important. I know that I'm in a very red area and the coverage on it, or the political ads on it have just been very confusing, I think for people. One thing that I've heard that I don't think I've heard mentioned on the show yet was the right saying that it will really help small interests and keep the voice of the little people. Every time I hear that out, I'm very confused how you were making that argument. I think there's just a lot of false advertising out there. I appreciate you having such clear coverage.

Brian Lehrer: Emily, thank you very much. We're going to let Emily be the last word as we run out of time, a consequential election day in Ohio today on the rules for passing referendums. We thank Haley BeMiller, state government and politics reporter based in Ohio's Capital Columbus. She's with the USA Today Network Ohio Bureau and Rachel Cohen with the National Angle Senior Policy Reporter at Vox. Thank you both so much.

Haley BeMiller: Thank you.

Rachel Cohen: Thank you.

Brian Lehrer: Callers. Thank you.

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