Tuesday, October 17, 2023
A state constitutional amendment for reproductive freedom is on the ballot in Ohio. The "Right to Reproductive Freedom and Protections for Health and Safety" Amendment essentially restores the legal standard of Roe v. Wade of recognizing a fundamental right of reproductive choice and subjecting regulations to strict scrutiny and the least restrictive means. It does eliminate the undue burden standard of Casey, restoring the regular direct and indirect burden standard for infringements of fundamental rights generally. The Ohio amendment expressly allows prohibition of abortion after fetal viability, with an exception for the life and health of the pregnant person, thus restoring the balanced result of Roe. This seems to be a reasonable approach to abortion regulation matching what polls suggest is the view shared by a majority of people. Yet the political opposition has centered on parents' rights, gender-affirming care, sex trafficking, and the alleged "exclusive scrutiny" of the proposal.
Here is the amendment language:
- 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.
- 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.
- 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.
- As used in this 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"; and "State" includes any governmental entity and political subdivision.
- This Section is self-executing.
This is what voters will see on the ballot:
The proposed amendment would:
- Establish in the Constitution of the State of Ohio an individual right to one's own reproductive medical treatment, including but not limited to abortion;
- Create legal protections for any person or entity that assists a person with receiving reproductive medical treatment, including but not limited to abortion;
- Prohibit the State from directly or indirectly burdening, penalizing, or prohibiting abortion before an unborn child is determined to be viable, unless the State demonstrates that it is using the least restrictive means;
- Grant a pregnant woman's treating physician the authority to determine, on a case-by-case basis, whether an unborn child is viable;
- Only allow the State to prohibit an abortion after an unborn child is determined by a pregnant woman's treating physician to be viable and only if the physician does not consider the abortion necessary to protect the pregnant woman's life or health; and
- Always allow an unborn child to be aborted at any stage of pregnancy, regardless of viability if, in the treating physician's determination, the abortion is necessary to protect the pregnant woman's life or health.
The Ohio Supreme Court upheld this rewritten "summary" of the proposed amendment, with only minor changes. State ex rel Ohioans for Reproductive Rights v. Ohio Ballot Board, Ohio S.Ct. (Sept. 19, 2023)
The Ohio Attorney General took the unusual step of issuing a legal opinion said to explain rather than advocate for the amendment. Issue 1: A Legal Analysis by the Ohio Attorney General
One year ago, a trial court in Preterm Cleveland v. Yost, invalidated the state's six-week abortion ban on grounds that it violated the state constitutional rights of liberty, privacy, and health care freedom. Ohio is one of four states that has a unique health care freedom amendment protecting the right of choice in health care decisions. It was passed as a challenge to the federal health care insurance mandate to affirm the individual right to choice in health care decisions and health care insurance. The insurance provision is preempted by the federal health care statute. The Preterm Cleveland court granted a TRO and then preliminary injunction staying enforcement of the ban. The government appealed the injunction and oral arguments were held last week. But the appeal is limited to the questions of 1) whether the order is a final appealable order that the government can appeal at this preliminary stage, and 2) whether the providers have standing. The Ohio Supreme Court did not grant cert on the merits of the constitutional question.
For more on the Ohio Reproductive Freedom Amendment, see:
Julie Carr Smyth & Christine Fernando, AP, An Ohio Ballot Measure Seeks to Protect Abortion Access. Opponents' Messaging is on Parental Rights.
Valerie Richardson, Wash Times, Parental Rights Take Center Stage in Ohio's Ballot Battle Over Abortion
Christine Fernando & Ali Swenson, AP, Ohio Votes on Abortion Rights this Fall. Misinformation is Spreading.
Susan Tebben, Ohio Issue 1 Attacks on Parental Rights Do Not Appear in Amendment, Ohio Capital J.