Gender and the Law Blog

Where Things Stand on Opposition to Implementation of Ohio's New Reproductive Freedom Constitutional Amendment

Julie Carr Smyth & Christine Fernando, AP, Voters Back Abortion Rights, but Opponents Won't Relent.

As voters in state after state affirm their support for abortion rights, opponents are acting with escalating defiance toward the democratic processes and institutions they perceive as aligned against their cause.

Certain Republican elected officials and anti-abortion activists around the country have responded to losses at the ballot box by challenging election results, refusing to bring state laws into line with voter-backed changes, moving to strip state courts of their power to consider abortion-related laws and challenging the citizen-led ballot initiative process itself.

“We.Are.Not.Done.,” Ohio state Rep. Jennifer Gross declared on the social media platform X two days after voters enshrined the right to abortion in the state constitution earlier this month. She and 25 other Republican lawmakers vowed to block the amendment from reversing Ohio’s existing abortion restrictions.

A strong majority of Ohio voters passed the amendment, by roughly 57% to 43%. In response, the group of lawmakers said in a joint statement: “We will do everything in our power to prevent our laws from being removed based upon perception of intent.”

Gross joined three fellow Republicans to go even further, proposing legislation to prevent Ohio courts from interpreting any cases related to the abortion-rights amendment, known as Issue 1. Similar efforts have emerged in six other states since state courts became the new abortion battleground after the Dobbs decision on June 24, 2022, that overturned Roe v. Wade.

Douglas Keith, senior counsel to the Brennan Center for Justice’s Judiciary Program, said abortion politics prompted successful efforts to limit the power of state courts in Montana and Utah and unsuccessful legislation in Alaska and Kansas. Such bills are attempts to dismantle the government’s system of checks and balances, he said.

See also The Fight for Abortion Access in Ohio Isn't Over and Analysis: OH Legislature Threatens Jurisdiction Stripping to Prevent Enforcement of New Constitutional Amendment

 

Ohio Senate Leader Says After Issue 1 Vote, Abortion Won't be Back on the Ballot Soon

The Republican leader of the Ohio Senate says he doesn’t want an abortion amendment to change parts of Issue 1 passed by voters earlier this month to go before voters soon.

On Election Night, Senate President Matt Huffman (R-Lima) issued a statement saying he thinks there would be a “revolving door of ballot campaigns to repeal or replace Issue 1.” But Huffman said that doesn’t mean he wants to see another abortion amendment on the ballot right away.

“I don’t think there, certainly, should be anything on the ballot, certainly in '24 and we will have to see about that going forward," Huffman said.

Ohio's 2024 primary is in March, and the contests for the Republican nominations for president and U.S. Senate are likely to bring out GOP voters. But Huffman said, "I didn't say anything about putting something on the ballot in March."

Abortion also played a key role in the August special election, in which voters rejected a proposal to require 60% voter approval to pass future constitutional amendments. The abortion and reproductive rights amendment passed with just under 57%.

House Speaker Jason Stephens (R-Kitts Hill) and Gov. Mike DeWine, who both strongly opposed Issue 1, have also said an abortion issue shouldn’t be on the ballot next year.

 

Ohio's Top Court to Consider How Issue 1 Affects Six-Week Abortion Ban                                                                                   

The Ohio Supreme Court, which has been considering a technical question about the state's ban on abortion after six weeks, asked the parties involved in the lawsuit to file written arguments on the impact of a constitutional amendment approved by voters last week.

    

Analysis: Ohio Legislature Threatens Jurisdiction Stripping to Prevent Enforcement of New Constitutional Right to Reproductive Freedom

In November, people in Ohio passed an initiative for Reproductive Freedom of abortion, contraception, and reproductive rights by 57%. The initiative was proposed by a public petition process, where pro-choice supporters from the medical profession led the petition signing campaign to get the amendment on the ballot.

Maneuvers to Defeat Reproductive Freedom Amendment

The Ohio legislature and executive, Republican controlled, tried many maneuvers to defeat this amendment. The legislature added an August special election to change the standard for passing a constitutional amendment by initiative from 50% to 60%. After prohibiting special August elections the year before. The voters rejected that change in the one-hundred year standard by 57%. Then the Secretary of State “summarized” the actual language of the amendment in ways that suggested abortion would be freely allowed any time (while the amendment expressly says prohibitions are allowed after fetal viability) and changed fetus to “unborn child.” One poll showed this impacted 5% of the voters, particularly men and conservative women in the middle, who would have withdrawn their support based on the language. Then the Attorney General issued an “explanation” of the amendment that called it an extreme law that established a new level of “exclusive scrutiny” under the constitution never before seen. Even though the amendment is a reasonable restoration of the prior balance of Roe and state law drawn at viability and applying strict scrutiny. The Governor advocated strongly against the amendment, calling it extreme and jeopardizing parents’ rights over minors’ abortions. See Jessica Bulman-Pozen & Miriam Seifter The Right to Amend State Constitutions, Yale L.J. Forum (Nov. 10, 2023) (discussing larger trend of  maneuvers to block the right to amend). 

After the passage of amendment, the Governor announced he accepted the results of the election and recognized the amendment. “He said along with the rest of Ohioans, the state will wait to see how the constitutional amendment is applied.” “I always said that all of at least can be up to the courts," DeWine said. "So these things will have to play out in the court of law. So we will we'll see how they how they play out and what the courts decide."

Repeal or Replace

There have been some hints of new amendments to be quickly proposed to “repeal or replace” the 2023 Amendment. Reproductive Freedom Wins in Ohio. But That's Not the End of the Story.  Ohio has no regulatory limits on new amendments, unlike some states that have laws prohibiting these types of immediate proposals. Seven states have limits on repeat measures, typically temporal restrictions that prevent similar measures within 2 to 3 years.

Ohio has some precedent on this type of repeal. Ohio’s constitution originally banned gambling. But in 1973, voters approved a state lottery. Between 1973-2009, four initiatives failed to approve casinos, with one barely passing in 2009.

A similar back and forth happened with women’s presidential suffrage in 1917. Presidential suffrage was a partial suffrage measure granting women the right to vote in presidential elections. The legislature passed a bill authorizing presidential suffrage. But opponents, most from the liquor industry fearing women voters would vote for prohibition, quickly put together an initiative to repeal the law. Women suffragists led by attorney and later Judge Florence Allen challenged the petition signatures as fraudulent. But the amendment was placed on the ballot and strongly passed, thus overturning women’s limited suffrage. See Tracy Thomas, The Jurisprudence of the First Woman Judge, 27 William & Mary J. Race, Gender & Social Justice J. 293, 316-17 (2001).

Threats of Jurisdiction Stripping

However, the legislature has not. A significant minority of legislators issued a statement saying they intend to strip courts of jurisdiction to hear cases about the amendment. See Ohio GOP Lost on Issue 1. Now Some Want to Strip Power Over Abortion Laws from the Courts. “Jurisdiction” is a court’s power or authority to consider a case. What this proposal does is prevent courts from enforcing the amendment by injunction and by declaring laws in contravention of the Reproductive Freedom Amendment unconstitutional. Because these legislators have indicated they will not recognize or enforce this right.

The Ohio legislative group issued a statement saying it would pass a bill saying that the state courts and/or Supreme Court could not hear cases about reproductive rights and/or would limit enforcement remedies like injunctions and contempt it could award. “The draft proposal from Rep. Jennifer Gross (R-West Chester) said state lawmakers would have exclusive authority over implementing Issue 1, with all jurisdiction withdrawn from local and state courts. It also would order the immediate dismissal of lawsuits, and violations by judges would be impeachable offenses.” Id.

 "It's even more extreme than I expected. A better title would be the Issue 1 Non-Implementation Act," said Steven Steinglass, dean emeritus at the Cleveland State College of Law and wrote the best known book on Ohio’s constitution.

Steinglass said the draft proposal violates the state's constitution in several ways. He said it goes against the new reproductive rights amendment, it violates the constitutional role given to the judiciary to interpret constitutional issues and goes against principles of separation of powers. He said it violates due process at the state and federal level, and he also said it arguably violates equal protection laws.

"So it seems to me that legally it really is and should be a non-starter," Steinglass said. Id.

 The Unconstitutionality of Jurisdiction Stripping

Jurisdiction stripping is a political tool from conservative playbooks to limit judicial action on social issues. In the 1980s, federal Congress members proposed bills to remove or limit the power of the U.S. Supreme Court to adjudicate issues of abortion, desegregation busing, and school prayer. Four bills were introduced in 1981 specifically to limit jurisdiction over abortion in opposition to Roe v. Wade. Chief Justice Roberts, then working as a lawyer in the Senate, did the research endorsing this approach. (And recently, liberals have grabbed on to jurisdiction stripping as a court-reform strategy to limit the impact of the current Supreme Court).

Jurisdiction stripping assumes that the legislature has power to dictate the jurisdiction of the courts, and thus has the power to limit that jurisdiction. At the federal level, this is Congress’ power under Article III of the Constitution to create the appellate jurisdiction of the U.S. Supreme Court with exceptions and its power over the lower courts.

However, jurisdiction stripping is blatantly unconstitutional conduct. It violates separation of powers, one of the key principles of the U.S. Constitution establishing three branches of government with checks and balances on each. Eliminating jurisdiction from courts over targeted controversial issues encroaches on the legislature’s power to interpret the law and check the excesses of the legislature. It threatens the rule of law itself if the dialogue with the judicial branch is strangled and legislatures are unaccountable to constitutional rights.

The potential power of jurisdiction stripping is also different whether a statutory or constitutional right is at issue. Tracy Thomas, Congress' Section 5 Power and Remedial Rights, 34 U.C. Davis L. Rev. 673 (2001). There is some support for the argument that legislatures can remove or limit jurisdiction or remedies for statutory rights, because they created those very statutory rights and could eliminate those rights completely. Id. at 696. However, constitutional rights are superior paramount rights that are not created by the legislature. The legislature cannot eliminate or change that constitutional right short of subsequent constitutional amendment. Without the power to change the right, there is no power to change the procedure, remedy, or jurisdiction over that right.

The History of the Politics of the Legal Standard of History and Tradition

Mary Ziegler, The History of Neutrality: Dobbs and the Social-Movement Politics of History and Tradition, Yale L. J. (2023)

To hear the Supreme Court tell it, the end of abortion rights will begin a new era of judicial neutrality. In Dobbs v. Jackson Women’s Health Organization, the majority reasoned that by adopting an approach to unenumerated rights rooted in history and tradition, the Court could “guard against the natural human tendency to confuse what [the Fourteenth] Amendment protects with our own ardent views about the liberty that Americans should enjoy.”1

Understanding what the Court means by neutrality—and how the majority defines its relationship to history and tradition—has high stakes for unenumerated but fundamental rights housed in substantive due process jurisprudence. In Dobbs, for example, Justice Thomas’s concurrence suggested that a commitment to judicial neutrality requires the Court to jettison its substantive due process jurisprudence, since the doctrine itself “exalts judges at the expense of the People from whom they derive authority.”2 The dissenters in Dobbs likewise indicated that what the Court means by history and tradition will decide the future of rights to same-sex marriage, contraception, and intimacy.3 “Either the mass of the majority’s opinion is hypocrisy,” the dissenters reasoned, “or additional constitutional rights are under threat.”4

Perhaps most centrally, the Court staked its claim to the legitimacy of Dobbs—and other decisions that will implement its history-and-tradition method—on the neutrality such an approach ostensibly delivers.5 The Dobbs majority flagged the recognition of unenumerated rights as a particularly fraught exercise, one that makes it easy to fall prey to the kind of “freewheeling judicial policymaking that characterized discredited decisions such as Lochner v. New York.”6 The Court should guard against this abandonment of neutrality, the Dobbs majority explained, by focusing on “the history and tradition that map the essential components of our liberty.”7 Justice Kavanaugh likewise promised in concurrence that the Court can maintain judicial neutrality in the area of unenumerated rights by adhering to an approach centered on history and tradition.8

How the Supreme Court's History and Tradition Test Threatens Women's Rights and Safety

Melissa Murray & Kate Shaw, The Conservative Supreme Court Vision That Means Inequality for Women

But even if the court upholds the challenged law, it seems unlikely that it will address the broader issue at the heart of this case: whether and how a long-distant past constrains present-day policymakers, and particularly the impact of such an interpretive approach on women.

The court made clear its commitment to a history-and-tradition-bound method of constitutional interpretation in June 2022 when it announced its decisions in the gun-regulation case New York State Rifle and Pistol Association v. Bruen as well as in the case that overruled Roe v. Wade, Dobbs v. Jackson Women’s Health Organization.***

The requirement that present-day gun laws resemble gun laws of the distant past prioritizes history and tradition in much the same way the Dobbs court looked to the historic regulation of abortion, pregnancy and birth to support the view that the Constitution did not protect a right to abortion.

In this regard, Rahimi is not only a sequel to Bruen, but also a sequel to Dobbs. Rahimi has little to do with abortion rights, but as Solicitor General Elizabeth Prelogar noted in her stirring defense of the gun law on Tuesday, the court’s decision will have real consequences for women’s safety, as well as the safety of police officers who respond to domestic violence calls and the broader public. The court may seem poised to uphold the law, but the conservative justices did not appear interested in revisiting the history-and-tradition test announced in Bruen.

Only Justices Elena Kagan and Ketanji Brown Jackson appeared openly skeptical of the test. In one remarkable back-and-forth with attorneys for both sides, Justice Jackson, who was not a member of the court when Bruen and Dobbs were decided, said that she was “trying to understand if there’s a flaw in the history-and-traditions kind of framework to the extent that when we’re looking at history and tradition, we’re not considering the history and tradition of all of the people but only some of the people.”

Reproductive Freedom Wins in Ohio, but That's Not the End of the Story

Ohio's Reproductive Freedom Amendment enshrining in the state constitution the protection of an individual's choice of abortion and contraception won at the polls yesterday 56% to 43%. See Ohio Votes Continues a Winning Streak for Abortion Rights, NY Times.

However, that is not the end of the story.

Repeal and Replace

State legislators State legislators have already claimed they will be moving to "repeal and replace" the amendment. This is a legal reality of the state constitutional amendment process. The legislature or public initiatives can continue to put amendments on the ballot.  These could be replacements, for example proposing a narrower law of 15 weeks with certain exceptions-- the approach advocated by the Virginia Republican Governor. Or these could be outright appeals seeking a redo on the amendment that just passed. Whether this is an effective political strategy is another question. 

There is some Ohio precedent for this repeal and replace, though not exactly on point. Women's suffrage fell at the vicissitudes of repeat amendments.  A constitutional amendment proposed by the legislature failed in 1912. A constitutional amendment proposed by popular initiative failed worse in 1914. Then the legislature passed limited suffrage of presidential suffrage, to vote in presidential elections, in 1916. But a public initiative put the repeal of that law on the ballot and it passed, thus ending limited women's suffrage. Another example of repeal and replace was Prohibition, which failed at the state level many times, then passed, then was repealed from the state constitution many years later.

Still, the state constitutional amendment for reproductive right is the best approach that can be used at the state level after Dobbs. It is more stable than a court opinion, which can be appealed or changed based on the distinctions of specific cases. The amendment is also more stable than a statutory law, which can be changed by a subsequent legislature. But it is not as guaranteed as a federal constitutional right, which theoretically is not up for reconsideration each term -- but which proved that it too was not impossible to change. 

Federal Oversight

The Ohio reproductive freedom amendment could also be threatened by a federal law restricting abortion. This might be Congress' proposed 15 week ban. Federal law preempts state law in the same field, as we saw with the federal health insurance mandate and state constitutional amendments rejecting that mandate. Opponents did try to "repeal and replace" the health insurance law. A preemption abortion federal rule might also come from a fetal personhood decision by the Supreme Court, a move advocated by pro-life groups that would likely ban most abortions. Of course, a federal law from Congress could also be protective of reproductive freedom, which would control over any restriction passed by a state. 

Ongoing Litigation

Given the movement to repeal and replace, the ongoing litigation in the challenge to Ohio's 6 week abortion ban might continue to be relevant. In Preterm Cleveland v. Yost, a trial court held that Ohio's Constitution already protects abortion. The court cited the Ohio Constitution's liberty guarantees, due process, equality, and its unique Health Care Freedom Amendment (passed by voters challenging Federal Health Insurance in 2011) as synergistically protective of this choice. The case is pending in the Ohio Supreme Court on procedural challenges to the government's ability to file an interlocutory appeal and on standing of whether the providers are the proper parties to litigate. So maybe the case is not moot and will, or should, not be dismissed.

French President Moves to Enshrine Right to Abortion in Constitution

Macron Moves to Add Abortion to France's Constitution, Reacting to US, Wash. Post

President Emmanuel Macron on Friday submitted language for an amendment that would make France the first country to enshrine a right to abortion in its constitution.

Macron has declared on social media that by next year “the right of women to choose abortion will become irreversible.”

The push comes in direct response to the restriction of abortion rights in the United States.

Abortion in France has not been similarly under threat. The French public overwhelmingly supports abortion rights. Abortion is legal for any reason through the 14th week of pregnancy and fully covered by the country’s health insurance system.

But after the U.S. Supreme Court’s Dobbs ruling that overturned Roe v. Wade last year and allowed states to outlaw abortion, French women clamored to further protect their right.

In many countries, abortion is protected by law, not court decision

“The Dobbs case was very shocking in France,” said Mathilde Philip-Gay, a law professor at Jean Moulin Lyon 3 University. “A movement was born just after the case, and women asked Parliament to act and especially to change the constitution.” She noted that polls in the summer of 2022 showed that about 80 percent of the population supported abortion rights and a similar percentage was in favor of adding a right to abortion to the constitution.

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.

See also Change in Ohio Ballot Language May Have a Big Effect on Support for Issue 1 Reproductive Freedom Constitutional Amendment

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                           

Religious Free Exercise of Abortion

Elizabeth Sepper, Free Exercise of Abortion, 49 BYU L. Rev. (2023)  

For too long, religion has been assumed to be in opposition to abortion. Abortions consistent with, motivated by, and compelled from religion have been erased from legal and political discourse. Since the fall of Roe v. Wade, free exercise claims against abortion bans have begun to correct course. Women and faith leaders in several states have filed suit, asserting their religious convictions in favor of abortion. They give form to the reality—as progressive theologians have long argued—that to have a child can be a sacred choice, but not to have a child can also be a sacred choice. And they center women’s conscientious decisions for the first time in many decades.

In law and religion circles, the predominant response has been skepticism. As claims for reproductive freedom have appeared, erstwhile supporters of expansive exemptions propose to raise the bar. They increase standards for religiosity, sow doubts about women’s sincerity, and argue for lightening the government’s burden. Constitutionally illicit stereotypes about women’s (in)capacity for moral agency, trustworthiness, and altruism seep into religious liberty arguments.

These attacks on the free exercise of religious convictions about abortion implicitly—and sometimes expressly—advance religious preferentialism. They invite—and expect—the courts to reject pro-abortion religious claims even as they treat anti-abortion convictions as sacrosanct. The result would be to exile some categories of religious people from religious liberty protections, while Christian conservatives gain systematic favor.

Equally troubling, this debate reveals that scholars and advocates who treat concerns about employee benefit plans and beard length as deserving of unquestioning respect have not considered that a woman’s moral and religious convictions shape—indeed may drive—her reproductive decisions. Yet, reproduction and religion are linked in the lives of many Americans. The central issues of reproductive freedom–how to constitute a family, whether to bear children, how to define marriage, and how to raise children—are fundamental to religious liberty, especially for those whose bodies and souls bear the burdens of pregnancy, labor, and motherhood. A religious liberty doctrine that fails to recognize this reality would instead make women of reproductive age strangers to free exercise.

The Implications of Dobbs to the Fundamental Rights of Family Privacy

Rona Kaufman Kitchen, Privacy: Pre- and Post-Dobbs, 61 Duquesne U. L. Rev. (2023)  

The United States Supreme Court has interpreted the Due Process Clause of the Fourteenth Amendment to include a fundamental right to familial privacy. The exact contours of that right were developed by the Court from 1923 until 2015. In 2022, with its decision in Dobbs v. Jackson Women’s Health, the Supreme Court abruptly changed course and held that the right to terminate a pregnancy is no longer part of the right to privacy previously recognized by the Court. This essay seeks to place Dobbs in the context of the Court’s family privacy cases in an effort to understand the Court’s reasoning and the impact the decision may have in the future.

Change in OH Ballot Language May Have a Big Effect on Support for Issue 1 Reproductive Freedom Constitutional Amendment

Change in Ballot Language May Have a Big Effect on Support for Issue 1 (OH Reproductive Freedom Amendment)

Advocates for Issue 1 were angered that the summary language facing voters at the ballot box was altered to include the phrase “unborn child” rather than the original language of “fetal viability.” To examine what effect this may have on support for Issue 1, we asked half of our respondents about their support with the original ballot language and half with the language now appearing on the ballot. We find majority support for both versions of Issue 1, albeit with 52% agreeing with the current ballot language and 68% agreeing with the original ballot language.
 
Much of the difference in support can be found among Republicans and Independents who are more supportive of the original language and less supportive of the current ballot language. Democrats show almost universal support for both versions (87% for each). Likewise, men are much more likely to support the original version of Issue 1, whereas women demonstrate little change in support for either version of Issue 1 (68% and 63%, respectively). The margins of error are appreciably higher for these specific questions because we split our sample to test the effects of the change in ballot language, so results should be taken with caution. Nonetheless, the change in ballot language will likely have an effect on the level of support for Issue 1.

Here is the initiative language endorsed by the petition signatories:

1. 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.
2. 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.
3. 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.
4. 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.
5. This Section is self-executing.

Here is the ballot language rephrased by state officials:

        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.

This changed ballot language was upheld by the Ohio Supreme Court. Ohioans for Reproductive Rights v. Ohio Ballot Board (Sept. 19, 2023)

Combined with the Ohio Attorney General's Opinion on Issue 1, an unusual and misleading "neutral" opinion on the interpretation and implications of the amendment, the misinformation and misunderstanding of the amendment is making a big impact on passage.

Gender, Health and the Constitution Conference at the Center for Con Law at Akron

 

Con Law Conference Focuses on Gender, Health & the Constitution

The Center for Constitutional Law at The University of Akron School of Law held its annual conference on Oct. 13. This year’s theme was Gender, Health and the Constitution. The Center is one of four national resource centers established by Congress, along with Drake University, Howard University and the University of South Carolina, to support research and public education on issues of constitutional law. It includes five faculty fellows, student fellowships, a J.D. certificate program and an online journal, ConLawNOW.

“Speakers at this year’s conference all agreed on the need for attention to these issues of gender discrimination in the health care context,” said Akron Law Professor and Con Law Center Director Tracy Thomas. “The 20 featured panelists included national scholars and local practitioners in both law and medicine who provided a broad range of expertise from theoretical to practical implications.”

Those attending the conference included judges, attorneys, academics, students and members of the community interested in learning more about these emerging issues. Akron Law faculty Bernadette Bollas Genetin, Mike Gentithes, Dr. George Horvath and Brant Lee moderated the panels.

The first topic was reproductive rights and the profound legal and medical changes since the U.S. Supreme Court’s invalidation of the long-recognized fundamental right to reproductive choice. Maya Manian, director of the Health Law and Policy Program at American University, recommended a new theoretical approach grounded in health justice. Dr. Allison Kreiner, medical analyst with Plakas Mannos, revealed the stark detriment of the invalidation to patients in practice. Legal scholars Naomi Cahn from the University of Virginia, Tiffany Graham from Touro Law and Sonja Sutter from George Washington University discussed applications in the contexts of minors’ rights and assisted reproduction.

 The second panel turned to the topic of gender identity. Panelists spoke about recent bans on gender-affirming care, the history and meaning of gender identity, and new laws prohibiting transgender girls from participating in sports. Noted national legal scholars speaking on gender identity included Deborah Brake from the University of Pittsburgh, Noa Ben-Asher from St. John’s University, Jennifer Bard from the University of Cincinnati, Susan Keller from Western State University and Dara Purvis from Penn State University.

 The next panel discussion focused on bias in medical science and the ways in which medical science excludes women in research, resulting in significant negative physical effects. Panelists diagnosed existing problems and suggested preventive measures. These legal experts on medical science included former Akron Law Professor Jane Moriarty, now at Duquesne University; Jennifer Oliva from Indiana University; and Aziza Ahmed from Boston University. Dr. Rachel Bracken from Northeast Ohio Medical University also presented.

The final panel of the day focused on the broader meanings and implications of medical autonomy. Professor Thomas discussed Ohio’s unique health care freedom constitutional amendment and how it might apply to reproductive freedom. Abby Moncrieff, co-director of the Health Law Center at Cleveland State University, considered the theoretical neutrality bases of medical autonomy and how they applied to several of the emerging legal issues discussed at the conference, including gender-affirming care and reproductive rights. Attorneys Marie Curry from Legal Aid and Megan Franz Oldham ’05, partner at Plakas Mannos, discussed how these issues from daily medical practice. Oldham addressed how medical malpractice claims arise when physicians discount women patient’s reported symptoms. Curry shared information about racial impacts and discrimination in pregnancy care, and alternative patient-centered approaches to redress these concerns.

 Many papers presented at the conference will be published in the Spring symposium of ConLawNOW.

National Academies Hosting Event on Legal Aftermath of Dobbs at the State Level

On October 27, 2023, at 12:00 EST, the Standing Committee on Reproductive Health, Equity, and Society within the National Academies of Sciences, Engineering, and Medicine and will host a public webinar on "legal strategies employed at the state level and their impact on the science of and access to reproductive health following the Dobbs v. Jackson Women’s Health Organization verdict."

Speakers include: 

• Ellen Wright Clayton, Craig-Weaver Professor of Pediatrics, Professor of Law, Professor of Health Policy, Vanderbilt University
• Joia Crear-Perry, Founder and President, National Birth Equity Collaborative
• Jessie Hill, Associate Dean for Research and Faculty Development and Judge Ben C. Green Professor of Law, Case Western Reserve University 
• Fran Linkin, Director of Research, Reproductive Rights, Six State Innovation Exchange
• Laurie Sobel, Associate Director, Women's Health Policy, KFF.

Following  the event, a "proceedings-in-brief will be produced by a designated rapporteur."  You can register here. 

A Theory of Perversity as an Outer Bound of Rational Basis Review

Professor Boone's theory discussed, and then applied to the contexts of abstinence-only sex education, mandatory arrest laws in domestic violence, and targeted regulation of abortion providers.

Meghan Boone, Perverse & Irrational, 16 Harv. Law & Policy Rev. (2022)  

In our system of representative democracy, legislatures are given a great deal of latitude to select and pass laws that they deem to be in the public interest. Assuming that no suspect class or fundamental right is involved, the Constitution has been interpreted to only require legislative action to satisfy rational basis review—a highly deferential standard that requires only that a legitimate purpose exist and the means adopted to achieve that purpose are rationally related to that purpose. Under rational basis review, legislatures can and do enact laws that are significantly over- or underinclusive to the identified problem. They can enact laws that do not even accomplish their intended purpose in most instances. They can even enact laws which are unsupported by any evidence, much less high-quality evidence. And yet . . . courts insist that rational basis review still means something. That it is something other than a blank check for legislatures to do as they will.

This Article explores one example of the outer bounds of rationality—demonstrated perversity. That is, a law that clearly contravenes the overarching legislative intent because the law is solely or primarily responsible for producing the opposite result of that intent. Although often unnamed as such, perversity presents itself across the legislative landscape, from mundane local ordinances to sweeping federal legislation. And while not explicitly recognized as a basis for finding a law unconstitutional, Supreme Court precedent clearly hints at the possibility that demonstrated perversity could be a basis for invalidating laws.

By defining perversity, identifying when and how it occurs, and exploring how it might be used to challenge the constitutionality of various government actions, this Article aims to illuminate an undertheorized corner of the already robust literature on rational basis review. It argues that current rational basis review precedent already employs a type of perversity analysis, although courts fail to explicitly acknowledge it as such. Moreover, it argues that modern changes in scientific and empirical methodologies and the explosion of the information economy demonstrate the need for this type of analysis; without it, rational basis review is meaningless. Ultimately, the Article concludes that while rational basis scrutiny gives legislatures wide latitude, courts must set a constitutional limit by striking down statutes which cause outcomes clearly counterproductive to legislative goals.

Understanding Ohio's Constitutional Amendment for Reproductive Rights

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:

1. 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.
2. 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.
3. 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.
4. 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.
5. 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:

Susan Tebben, Long-fought Abortion Battle in OH Could End in Amendment of Six-Week Ban

Julie Carr Smyth & Christine Fernando, AP, An Ohio Ballot Measure Seeks to Protect Abortion Access. Opponents' Messaging is on Parental Rights.

Jo Ingles, Ohio Voters Will Decide a Constitutional Amendment on Abortion. Here's What You Need to Know.

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.

Eric Heisig, Ohio Case Pits State Against Doctors Suing to Treat Patients

Kenyan Court Exonerates Health Care Provider and Mother of Adolescent Girl From Abortion Charges

The Center for Reproductive Rights reported on the dismissal of Republic v. Samson Mwita & Grace Wanjiku on September 25th. The Center for Reproductive Rights summarizes the case: 

The defendants, Samson Mwita and Grace Wanjiku, were arrested and charged in September 2018 when police stormed the health facility where Wanjiku’s 16-year-old daughter was being treated by Mwita for pregnancy related complications following a sexual assault as a minor.

Under the charges of procuring an abortion, Mwita and Wanjiku faced up to 14 years imprisonment under section 158 of Kenya’s Penal Code—but the Court determined that the prosecution presented no evidence to sustain the charges. Following the acquittal by the Chief Magistrates Court, neither Mwita nor Wanjiku can be charged again for the same allegations.

* * *

“After living under the shadow of prosecution for five long years, our clients, Mwita and Wanjiku, have finally received release from unjust charges that have affected every facet of their lives. No mother or health care provider should be treated as a criminal for protecting the rights of an adolescent.”

Kenya’s 2010 Constitution protects abortion as a fundamental right guaranteed when life or health, including mental health, are at risk, and in cases of sexual assault. Despite those protections, Kenya’s Penal Code continues to criminalize abortion, and abortion care remains almost unobtainable in most of the country, especially in rural areas. In addition, women, girls and health care providers continue to face harassment, arrest and prosecution when attempting to access or provide abortion care.

Trans Sex Equality Rights After Dobbs

Marc Spindelman, Trans Sex Equality Rights After Dobbs, 172 U. Pa. L. Rev. Online 1 (2023).

In L.W. v. Skrmetti, a divided Sixth Circuit panel gave Tennessee the green light to start enforcing its ban on gender-affirming care for transgender youth. Central to that decision, since extended to cover a companion case, was the panel’s distinctive vision of what Dobbs v. Jackson Women’s Health Organization means for trans people’s constitutional sex equality rights. This brief essay examines that vision and explains why it’s deficient in the face of Dobbs’ insistent promises that it’s a ruling limited to abortion rights. By its own terms, Dobbs announces no authoritative deviation from established legal protections for other constitutional rights, including LGBTQIA+ peoples’ rights, and, more specifically, trans people’s sex equality rights. Beyond being duty-bound to follow Dobbs’ promises—emphasizing abortion’s uniqueness as key to Dobbs’ self-limitations—lower courts should affirm Dobbs’ line-drawing as an exercise seeking to preserve the Court’s institutional legitimacy and the American public’s faith in the rule of law. Dobbs effectively instructs it’s up to the Supreme Court—not lower courts—to decide whether to honor or abandon Dobbs’ promises, including in the Fourteenth Amendment sex equality setting involving trans sex equality rights.

Teneille Brown on "Abortion and the Extremism of Bright Line Rules"

Teneille R. Brown has posted a copy of Abortion and the Extremism of Bright Line Rules on SSRN. The article is forthcoming in the Northwestern University Law Review. The abstract provides: 

Rather than eliding the workability or necessity of bright-line rules in certain domains, this essay is a rallying cry for epistemic humility regarding what biological criteria can and cannot say. Policymakers sometimes lean on the biosciences to offer clear-cut, “objective” solutions to thorny moral and legal issues. But descriptive biological data cannot answer normative questions on their own. Cloaking the theoretical, normative scaffolding in biological criteria is a disingenuous but common phenomenon I refer to as the “bio-legal mismatch." When we ignore the bio-legal mismatch, we undermine the fairness and legitimacy of the law by obfuscating the moral justifications with objective biological criteria.

For example, some fetal cells pulsate at roughly six weeks post-fertilization. But what does this tell us that is morally significant, vis-à-vis the relationship between the fetus, the pregnant person, and the state? How does the presence of something like a human heartbeat answer normative questions for us? The answer is that on its own, it cannot. In this essay I discuss various abortion-restrictive statutes and cases to engage with the bio-legal mismatch. Specifically, I explore the rigid use of gestational age, definitions of medical emergency, fetal anomalies, fetal pain, and the perverted way informed consent is mandated and particular medical procedures are banned. Each of these advance biologically-naive, black-and-white thinking to reinforce gender norms and dehumanize pregnant people and the complex reasons they terminate. After explaining how black-and-white thinking relies on cognitive distortions and triggers tribalism, I conclude with a non-exhaustive list of factors that legislators and judges should examine when developing policy based on biological criteria—such as in the highly contested context of abortion. The factors are geared at assessing whether the biological criteria are reliable and connected to legally and normatively relevant events, or whether they are being exploited to mask ideological extremism.

Ohio Supreme Court Considers Procedural Issues in Appeal of Decision Striking Down Six-Week Abortion Ban

Some of my thoughts on the pending procedural appeal in the case declaring Ohio's six-week abortion ban unconstitutional are included in Eric Heisig, Abortion Case Pits Ohio Against Doctors Suing to Treat Patients, Bloomberg.

For more details and history of this case, go to Court News Ohio, Oral Argument Previews.  Oral arguments are Wednesday, Sept. 27 and are livestreamed by the Court.

In other Ohio news, the Supreme Court upheld the secretary of state's revision of the proposed ballot language for the pro-choice constitutional amendment, changing the word "fetus" to "unborn child."  See Ohio Abortion Rights Activists Suffer Blow in Suit Over Referendum Language.  

Milan Markovic on "Charging Abortion"

Milan Markovic has posted Charging Abortion on SSRN. The article is forthcoming in the Fordham Law Review. The abstract is excerpted here. 

As long as Roe v. Wade remained good law, prosecutors could largely avoid the question of abortion. The Supreme Court’s decision in Dobbs v. Jackson Women’s Health has now placed prosecutors at the forefront of the abortion wars. Some chief prosecutors in anti-abortion states have pledged to not enforce anti-abortion laws whereas others are targeting even out-of-state providers. This post-Dobbs reality wherein the ability to obtain an abortion depends not only on the politics of one’s state but also the policies of one’s local district attorney has received minimal scrutiny from legal scholars.

Prosecutors have broad charging discretion, but prevailing ethical rules and standards do not allow them to disregard laws that they regard as unjust. Nevertheless, since prosecutors do not have unlimited resources, and abortion cases are complex and sensitive, they should use their discretion to focus only on cases where abortion care endangers women and in instances of coercion, as they did pre-Roe. Extraterritorial applications of anti-abortion law are constitutionally suspect and are unlikely to further the public interest.

Abortion is one of the most contentious issues in American life. In a morally pluralistic society, prosecutors must strive for neutrality in the abortion wars by relying on professional standards to guide their charging discretion rather than following public opinion and the dictates of individual conscience.

California Attorney General Sues "Crisis Pregnancy Centers"

California has sued "crisis pregnancy centers" alleging violations of consumer protection laws. The complaint is available here. The core claims are excerpted here: 

Defendants have engaged in and continue to engage in, aided and abetted and continue to aid and abet, and conspired to and continue to conspire to engage in acts or practices that constitute violations of Business and Professions Code section 17500 et seq., by making or causing to be made untrue or misleading statements with the intent to induce members of the public to undergo [Abortion Pill Reversal] APR. Defendants’ untrue and misleading representations include, but are not limited to, the following:

 

a. that APR can “reverse” a medication abortion, as well as an “effective” process that “has been shown to increase the chances of allowing the pregnancy to continue,” and that APR has a 64-68% success rate, even though no credible scientific evidence supports these claims;

 

b. that APR may be effective after a 72-hour window following administration of mifepristone by encouraging pregnant people to contact them “even if more than 72 hours have passed,” even though no credible scientific evidence supports this claim;

 

c. that the rate of birth defects following APR “is less or equal to the rate in the general population,” even though no credible scientific evidence supports these claims;

 

d. that “thousands of lives” have been saved via APR, even though no credible evidence supports this claim;

 

e. that APR may be effective following administration of misoprostol and methotrexate, even though no credible scientific evidence supports this claim; and

 

f. that APR can cause only non-life-threatening side effects, when in fact APR can cause severe, life-threatening bleeding. 

 

Defendants knew or should have known that these statements were misleading.

 

* * * 

 

Defendants have engaged in and continue to engage in, aided and abetted and continue to aid and abet, and conspired to and continue to conspire to engage in unlawful, unfair, and/or fraudulent acts or practices, which constitute unfair competition within the meaning of section 17200 of the Business and Professions Code.