COLUMBUS, Ohio (WCMH) – Millions of Ohio voters cast their ballots Tuesday with an elephant in the voting booth: abortion.

In three months, Ohioans will likely decide whether to enshrine protections for the procedure in the state constitution. With the failure of Issue 1 on Tuesday, the path to a constitutional right to abortion is a little bit clearer – but far from settled.

Ohioans overwhelmingly rejected a Republican-led attempt to enact stricter requirements for constitutional amendments to become law. Instead of the 60% threshold proposed under Issue 1, Ohio retained the simple majority requirement it’s had for 111 years.

A spokesperson for the coalition behind the abortion rights amendment called Issue 1 an attack on Ohio’s democracy.

“Let’s be clear, this attempt to impose an extreme government agenda on Ohioans will not succeed in November,” Rhiannon Carnes with Ohioans United for Reproductive Rights said in a statement. “The voices of Ohioans will never be silenced. Ohioans will now turn their focus to protecting their right to access abortion and to once again rejecting extremism and government control.”

The proposed amendment would assure the right to abortion before the point of fetal viability, as determined by a person’s physician. It prohibits restrictions after that point – about 22 weeks’ gestation – if the life or health of the pregnant person is in jeopardy.

State lawmakers and anti-abortion groups conspicuously tied Issue 1 to blocking the abortion rights amendment. From Secretary of State Frank LaRose declaring to voters that Issue 1 was “100%” about abortion, to pro-Issue 1 commercials making the disproven claim that the amendment would nullify parental consent laws, Issue 1 supporters made it clear that they hope the 60% threshold is too high a hurdle for the abortion amendment to overcome.

Polling on the initiative – and abortion rights in general – shows a majority of Ohioans support access to the procedure prescribed under the amendment, although not at the 60% threshold.

In June, a Scripps News/YouGov poll of 500 Ohioans – not all of whom were registered voters – showed 58% agreed with the amendment’s proposal, while 23% opposed and 20% were undecided.

A month later, a Suffolk University/USA Today poll of 500 likely Ohio voters also found that 58% supported the amendment, while 32% opposed it and 10% were undecided. Days after that, about 54% of Ohioans in an Ohio Northern University poll said they supported the amendment, compared with 30% who opposed and 16% undecided.

The Ohio Northern poll found slightly broader support for abortion access in general – with 60% saying they believe the procedure should be legal.

Before a vote, the court must decide

As the Nov. 7 election inches closer, voters will soon learn whether the abortion amendment will be on their ballots after all.

With two Hamilton County Republicans’ 11th-hour challenge to the amendment, the Ohio Supreme Court has until Monday to decide whether the amendment can proceed as planned. The challenge came days after LaRose certified the amendment’s signatures, clearing what is usually the final test for a citizen-initiated amendment to be proposed to voters.  

The complaint claims that the proposed amendment doesn’t include necessary language identifying which statutes or constitutional provisions would be repealed or changed upon its passage. 

The challengers assert that three statutes would be overturned should abortion become legal up until a physician determines fetal viability: A law requiring parental consent for minors undergoing the procedure; a law banning abortion if the fetus has or is suspected to have Down Syndrome; and the “Heartbeat Bill,” a ban on abortions after fetal cardiac activity can be detected, around six weeks gestation.

In their merit brief, attorneys for the amendment petitioners contest that proposed amendments don’t require the inclusion of statutory laws that would be repealed, but rather only other constitutional provisions. To meet end-of-August election deadlines required by state law, the state’s highest court has days to decide if the amendment stands.

Another legal battleground

Regardless of the court’s decision in the amendment challenge, the state of Ohio’s abortion laws remains in limbo.

Right now, despite a six-week ban on the books, abortion remains legal through 22 weeks gestation. The so-called “Heartbeat Bill,” which passed in 2019 and contains no exceptions for rape or incest, has been rendered unenforceable while the Ohio Supreme Court ponders whether it violates the state constitution.

A federal court blocked the law from coming into effect months after it was passed. Last June, within hours of the U.S. Supreme Court’s overturning of Roe v. Wade, Attorney General Dave Yost asked the federal court to dissolve the injunction – which it did.

After being rejected by the state supreme court, a handful of abortion clinics successfully requested a temporary restraining order on the law. In September, a Hamilton County judge issued a two-week block on the abortion ban, followed by a preliminary injunction that is now pending before the Ohio Supreme Court.

The state’s highest court accepted a challenge to the preliminary injunction in March. Argument dates have not been set, according to the court docket.