Ohio voters will decide a constitutional amendment on reproductive rights. Here’s what you need to know

By: Jo Ingles

On October 19, 2023

COLUMBUS, Ohio (Statehouse News Bureau) — Issue 1 would enshrine abortion and reproductive rights into the Ohio Constitution. Its opponents and supporters are making claims about what it would or wouldn’t do, and some of those claims are questionable.

Voters on the reproductive rights amendment could be easily confused

The official language of the proposed amendment can be found here. But voters might be confused, as opponents of Issue 1 have come up with their own website that features a rewrite of the amendment to include their interpretations of the language in it.

The Republican-dominated Ohio Ballot Board bolstered that imagery by approving a summary written by Republican Secretary of State Frank LaRose’s office that voters will see instead of the actual amendment. The summary is about as long as the amendment itself, and changes the medical term “fetus” to “unborn child.”

“In the Ohio Revised Code, there’s a definition of an ‘unborn child,’ so they are not just making up language,” Ohio Right to Life President Mike Gonidakis said in defending the summary.

The Ohio Revised Code also uses the term “fetus.”

Issue 1 supporters sued over the summary. The Ohio Supreme Court, which includes three Republican members of the majority who have publicly stated they oppose abortion rights, ordered a slight tweak but approved the Ballot Board’s “unborn child” language. The American College of Obstetricians and Gynecologists blasted the court for allowing that to stand.

The stats on abortion at later stages of pregnancy

The proposed amendment would allow an abortion up to viability, which is generally defined as when a fetus can survive outside the uterus with reasonable measures. The National Institutes of Health says viability happens around 24 weeks into a pregnancy.

Issue 1 says abortion may be prohibited after viability, but the amendment also says “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.”

The Ohio Abortion Report doesn’t break down numbers along the NIH’s 24-week viability standard. But of the 18,488 abortions recorded in Ohio in 2022, 107 were performed at the not yet viable 21-week gestation or later.

Opponents of Issue 1 say the amendment allows for what they call “late term abortions.” Ohio Right to Life, on its website, says: “If Issue 1 passes, it will enshrine abortion-until-birth, with zero restrictions, into Ohio’s constitution.”

“It will remove all protections for the unborn, allowing for painful late term abortion all the way through 40 weeks,” said Amy Natoce from Protect Women Ohio, which leads the Issue 1 “no” campaign.

But backers of the amendment said that’s false, and that those kinds of procedures are rare.

The Ohio Abortion Report shows 89% of abortions in 2022 were performed in the first 12 weeks of pregnancy and 98% were conducted in the first 18 weeks. Less than 1% were performed after 18 weeks.

“When someone needs a procedure later in pregnancy, it is typically because there has been something that has gone very wrong medically. And those decisions are not made any better by inserting the government between a patient and their physician,” said Kellie Copeland, executive director with Pro-Choice Ohio, and a spokesperson for Ohioans United for Reproductive Rights.

“The reality is there are no ‘late term abortions,’” said Dr. Anita Somani, a Columbus area OB/GYN who supports Issue 1 and is a Democrat in the Ohio House.

Abortions or miscarriages happen before 22 weeks, Somani said . After 22 weeks, if there is a medical problem requiring an action that would end a pregnancy, standard legal and medical procedures would dictate doctors induce birth.

“Either a birth or death certificate would be issued after 22 weeks,” Somani said.

It should also be noted that a federal law passed in 2003 and upheld by the U.S. Supreme Court prohibits a specific abortion procedure once done in later stages of pregnancy. That procedure, known clinically as intact dilation and extraction (D&X) was developed by an Ohio doctor, Dr. Martin Haskell, who still runs a Dayton-area clinic that provides abortion services. Opponents call it “partial-birth abortion.” Legal experts note the federal ruling that prohibits this procedure would still apply, regardless of the outcome of Issue 1.

Issue 1’s effect on Ohio’s parental consent law

Ohio has had a law since the 1980s that says parents must sign off before a child under 18 years old can get an abortion. The law allows minors who can’t get parental approval because of abusive situations to get a court order for an abortion.

Questions have been raised about what would happen to that law if this amendment passes. Opponents of the amendment have raised it over and over in ads, debates and interviews. Republican Lt. Gov. Jon Husted, an Issue 1 opponent, told reporters it would negate that law.

“It is true that this eliminates parental consent for your daughters,” Husted said.

But former Ohio deputy attorney general Mark Weaver, a longtime Republican strategist and vocal abortion opponent, said that’s not certain.

“It’s important to remember that one of the key forces behind this amendment was the ACLU, and they have challenged parental rights legislation all around the country,” Weaver said.

A legal analysis of Issue 1 from the office of Attorney General Dave Yost, who has been a vocal opponent of Issue 1, said the amendment doesn’t address parental rights. But it added they will almost certainly be challenged and that “there is no guarantee that Ohio’s parental-consent law will remain in effect.”

Dan Kobil, a law professor at the Capital University School of Law, pointed to three reasons why the parental-consent law has good odds of staying on the books. Parental consent laws were kept in place when they were challenged at the U.S. Supreme Court when Roe v. Wade was still in effect. Nearly the same amendment passed in Michigan last year, Kobil said, but that state’s parental consent law still stands. And he believes the wording of the amendment supports Ohioans’ parental rights.

“A very persuasive argument could be made that having parental involvement in most cases advances the health interests of a pregnant minor,” Kobil said. “After all, parents know their medical history, they know what their physical condition might be, what their psychological condition is. So I think that the state, even if they face a challenge, could very well meet the standard set forth in the amendment.”

Supporters of Issue 1 also point to the 83 days last summer when Ohio’s ban on abortions after six weeks was in effect. They say that ban prevented parents from making decisions, such as in the case ofa 10-year-old rape victim had to go to Indiana for an abortion because Ohio’s six-week ban didn’t have an exception for rape or incest.

“Voting ‘yes’ on Issue 1 actually strengthens parental rights in Ohio because it will guarantee that Ohio families will have the ability to make their own personal medical decisions without the government getting involved,” Copeland said.

Other aspects of the reproductive rights amendment

• Ohio’s six-week ban: A Hamilton County court put the ban on hold after doctors challenged it for being too vague. You can read their affidavits here. So, abortions up to about 22 weeks are permitted currently, the same as prior to the U.S. Supreme Court ruling overturning Roe v. Wade. The fate of the six-week ban now lies with the Ohio Supreme Court, which has a majority of Republican justices. A ruling on that ban is unlikely before the Nov. 7 election, and legal experts on both sides generally agree it would likely fall if Issue 1 passes.
• Individual vs. another term: Opponents of the amendment point out the word “individual” is used rather than “woman.” And they question whether that would allow child protection laws on the books to be changed. Supporters said the term “individual” is used because parts of the amendment speak to other issues where the term is more appropriate. The amendment allows for other reproductive rights like miscarriage care, IVF and birth control. Language about the reproductive rights bestowed in the amendment aren’t in the ballot summary adopted by the Ballot Board and won’t appear on ballots.
• About those other issues: Opponents of the amendment say there’s no reason to worry about birth control, IVF or miscarriage care because those aren’t under attack by Republican state lawmakers. But supporters point out legislation has been introduced that could affect some birth control or IVF procedures, such as bills that establish personhood to give legal protection to a fetus at the point of conception. And contention exists in the anti-abortion forces in Ohio. At least one group, End Abortion Ohio, wants an all-out abolition of abortion that goes farther than the six-week ban. And some doctors believe passage of a ban that outlaws abortion at the point of conception could also make it illegal to obtain some forms of birth control or IVF procedures.
• Exceptions: Polling shows most Ohioans support abortion rights, especially if there are exceptions for rape, incest, health or life of the woman. The current abortion law bans the procedure after 22 weeks, except “to prevent the death of the pregnant woman or a serious risk of the substantial and irreversible impairment of a major bodily function of the pregnant woman.” It doesn’t include exceptions for rape or incest after 22 weeks. Opponents say Issue 1 goes too far because it doesn’t have enough specified exceptions. But supporters say there is a reason for that. When the six-week abortion ban that included an exception for the life of the woman was in place last year, that law’s interpretation varied among doctors and hospitals. Some doctors testified to a Hamilton County court last year that patients were put at risk because of the different interpretations of exceptions. That court ruled the language of the ban was vague and after 83 days in effect, put the law on hold.
• Sex change/gender assignment: Ohio Right to Life says on its website that passage of the amendment would “enshrine minors’ right to undergo dangerous sex-change surgeries and acquire life-altering drugs, like Lupron, behind their parent’s backs.” There are no references to gender reassignment procedures in this amendment. Yost didn’t address that in his legal analysis, and numerous legal experts say they don’t believe the language would allow for those because they don’t involve reproductive rights.

This piece was republished WOUB News.