Thursday, November 2, 2023
Clarifying What Is and Isn't Part of the Proposed Ohio Constitutional Amendment for Reproductive Freedom on the Ballot Next Week
In this interview with NBC News, I try to clarify what is--and isn't--part of the proposed Ohio Constitutional Amendment for Reproductive Freedom on the ballot next week.
Adam Edelman, NBC News Ohio GOP Candidate and Issue 1
[As to claims the amendment is about parents' rights"]
For one, they say, there is nothing in the text or in the intent of the proposed amendment that could affect the legal rights of minors or parents in Ohio. That’s because federal and state courts, going back decades, have upheld an existing Ohio law requiring parental consent for minors seeking abortion care.
A U.S. Supreme Court decision even upheld that law, which requires any unemancipated minor to receive consent from one parent or guardian or custodian, unless a judge has ruled that an abortion is “in the best interests of the minor.”
Tracy Thomas, director of the Center for Constitutional Law at the University of Akron Law School in Ohio, said there was "no conflict" between Issue 1 and existing minors' rights — "even when the amendment language is read broadly."
"We have 50 years of case law about minors' rights and parents’ rights," Thomas said.
Those rulings, she said, have determined that “even though individuals, including minors” have constitutional reproductive rights, “they can be more regulated than adults because minors are more vulnerable, more immature.”
“There’s no reason that would change,” she said.
In a legal analysis of the measure published last month, even Dave Yost, a Republican and the state’s attorney general, acknowledged that the measure “does not specifically address parental consent.”
Thomas explained that the claim that a woman's rapist could somehow manipulate that law to force his victim to have an abortion is also false.
"They are saying that a rapist would be an accomplice who would be immune" — under a provision in the amendment language that protects a person who "assists" someone with receiving an abortion — "and that’s just not textually accurate."
“The amendment is not doing that in any way, shape or form," Thomas said.
That's because the amendment language also makes clear that an individual's right to reproductive care is protected only if it's "voluntary."
"Someone who is assisting in an abortion that’s not voluntary is not going to be protected by this at all," Thomas explained.***
“A parent who wants to support a minor’s decision to have an abortion cannot do so,” under the law, Thomas explained. “So, defeating it actually cuts into parents’ rights.***
But there is no mention of transgender rights or parental rights in the amendment. Legal experts say it would be wrong to interpret the language to apply to most topics not specifically mentioned in the measure’s language — even when the “not limited to” phrase is considered.
“Opponents have latched on to the ‘but not limited to’ language to say that this could provide a constitutional right to, among other things, gender-affirming care rights. That’s not a legally persuasive argument,” Jonathan Entin, a constitutional law expert and professor emeritus at the Case Western Reserve School of Law in Cleveland, told NBC News earlier this year.
That’s because courts have for decades developed rules about interpreting legal documents that include lists — including ones that have “but not limited to” language — dictating that such language covers things considered only “plausibly related” to the specific items mentioned.
Tracy Thomas, Language post
Dan Kobil, Op ed, What Ohio's Proposed Abortion Amendment Really Does
The proposed Ohio amendment reinstates the freedoms that women -- and men -- had before Dobbs. It guarantees “individuals” the right to make their own reproductive decisions, and lists contraception, fertility treatment, continuing one’s own pregnancy, miscarriage care, and abortion, before viability. Viability means that the fetus has a “significant likelihood” of surviving outside the womb. The amendment will not automatically invalidate any existing Ohio laws apart from the current six-week ban.
Rather than engage the merits of the proposal, opponents have attempted to distract voters about what the amendment actually does. They contend that the amendment is aimed at depriving parents of their ability to help children decide whether to seek an abortion or “sex changes.”
This contention is highly misleading. Ohio’s current law already limits the ability of parents to choose reproductive options for their child, such as ending a pregnancy resulting from a rape. Moreover, the amendment does not include gender reassignment in its examples of protected “reproductive decisions.” The contention that “sex changes” will suddenly have constitutional status is thus a significant stretch.
And contrary to what is claimed by opponents, the amendment will not repeal Ohio’s existing law requiring parental consent for minors seeking abortions. This statute provides that an unemancipated minor must obtain the consent of one parent to obtain an abortion, unless a minor has obtained a court order that an abortion is in her best interests.
The amendment says nothing about this law, and it is unlikely that courts would invalidate parental consent if the amendment passes. In 1990, when Roe was in effect, the U.S. Supreme Court upheld Ohio’s parental consent rule. The amendment aims to reinstate the rights that Roe guaranteed