By this point, it’s a familiar tune: Progressives achieve a victory at the ballot box in a state with a Republican legislature, and the legislature attempts to undo the victory after the fact. When Democrats were elected to the governorships in Michigan, North Carolina, and Wisconsin in recent years, Republicans moved to strip them of their powers. When Janet Protasiewicz won the high-profile election for the Wisconsin Supreme Court earlier this year, state legislators threatened to impeach her.
And now, after Ohioans overwhelmingly voted to amend their state constitution to include explicit protections for abortion rights—only the fourth state in the country to do so—Republicans in the Ohio General Assembly are eager to completely neuter the amendment with one weird trick. The workaround that they’ve identified is simple: Just don’t let the courts interpret the amendment.
Several Republican members of the state House recently issued a press release that claimed that “[f]oreign billionaires”—antisemitic code for “George Soros”—were responsible for the passage of Issue 1, which they characterized as “foreign election interference.” They also announced that they would “consider removing jurisdiction from the judiciary over this ambiguous ballot initiative.”
Yet, despite that the trial balloon they floated quickly crashed and burned, with widespread condemnation of its blatant disregard for voters, they followed it up with a proposed bill.
The “Issue 1 Implementation Act” grants the legislature “exclusive authority” over implementing the constitutional amendment and withdraws “[a]ll jurisdiction” from state courts “on any and all claims attempting to enforce or implement” the amendment. It also directs that any lawsuits to enforce the amendment be “immediately dismissed” and any existing court rulings to be “vacated.” Finally, it makes any effort by a judge to interpret the amendment an impeachable offense.
In short, they’re proposing to strip their state courts of the power to rule on what the abortion-rights provision in the Ohio Constitution means—and when state laws might be unconstitutional under it.
Efforts to prevent courts from ruling on certain matters or issues—more commonly known as “jurisdiction stripping”—occur with some frequency at the national level. While they may sound problematic, Congress has the power under Article III of the U.S. Constitution to set the jurisdiction of federal courts. But Congress does not have the power to decide the outcome of individual disputes—to say, for example, “In Smith v. Jones, Smith wins.” Doing that would infringe on the judiciary’s role and violate the constitutional separation of powers.
Though these questions have been litigated far less frequently in state courts, the answer should be no different in Ohio. The Ohio legislature, like Congress, has the power to set the jurisdiction of state courts, and the Ohio Constitution, like the U.S. Constitution, has an implied system of separated powers that prevents one branch from interfering with the powers of another.
But, and far more importantly, that isn’t how constitutional rights work. By their very nature, they establish a set of fundamental liberties that all people enjoy, and then guarantee that the government—including the legislature!—won’t infringe on those protections. Many state constitutions, for example, make clear the rights they enumerate are “self-executing,” meaning that the rights laid out in them are fully operational without legislative action; many state courts have reached similar conclusions.
No legislature has the power to pass a law that violates a constitutional right. To say that they actually can pass such a law, so long as they also pass a law that strips state courts from hearing any lawsuits that seek to invoke those rights, makes a mockery of the very idea of constitutional rights. The Ohio legislature might think that it’s discovered one weird trick to do an end run around its constitution’s bill of rights, but this idea is absurdly unworkable.
Imagine an analogous situation where the partisan roles are flipped. The Illinois Constitution, for instance, protects “the right of the individual citizen to keep and bear arms.” If the state legislature passed a law that barred its state court system from hearing any lawsuit that claimed that this guarantee was violated, Republicans would be apoplectic.
The context is no different here. If Ohio Republicans can strip state courts of the power to interpret the scope of their state constitution’s new abortion-rights provision, then no right or liberty in any state constitution is safe from manipulation or nullification. Any time that voters add a new right to their state constitution, a state legislature could turn right around and pass a law depriving courts of jurisdiction to interpret the right.
Moreover, stripping courts of jurisdiction in abortion-related cases would produce total chaos. Under Ohio law, when a physician performs an elective abortion after a fetal heartbeat is detected, it is a crime, punishable as a misdemeanor or a felony. Performing an abortion also exposes a physician to a civil suit and suspension of their medical license. (A state court has temporarily blocked this law from taking effect.)
A prosecution and a civil lawsuit necessarily involve the state court system. Stripping courts of the ability to interpret a constitutional right that affects either a prosecution or a lawsuit could very well be a due process violation under the U.S. Constitution. A physician charged with a crime or sued has a valid argument that the state law is unconstitutional under the Ohio Constitution—but under this proposed act, they would be barred from raising that argument, because it would require a court to interpret the abortion-rights amendment.
None of this is to say that the Ohio General Assembly will actually pass the Issue 1 Implementation Act. House Speaker Jason Stephens recently said that the legislature wouldn’t pass the act—“This is Schoolhouse Rock-type stuff,” he sniped—but for decades, Republicans claimed that they had no interest in overturning Roe v. Wade, either.
And, of course, there's no guarantee that the Ohio Supreme Court will unequivocally strike the law down if passed—it’s a partisan court, after all, and its Republican majority has shown little willingness to protect voters’ rights in the past. But the blatant unconstitutionality of this proposed law, coupled with its obvious unenforceability in practice, certainly should lead the court to do so.
If not, what constitutional right or liberty is truly safe in any state?
