On Nov. 7 (formerly known as Election Day), my fellow Ohioans and I will conclude our month of voting on “Issue 1,” which proposes a constitutional right to make “reproductive decisions.” Ohio would join only three other states (California, Vermont, and Michigan) that mention abortion in their constitutions.
As a lawyer for women’s issues and former deputy solicitor general for Ohio, I see what this amendment aims to do: require abortions to be provided throughout pregnancy, remove Ohio’s laws governing parental notification and unethical abortive procedures, and create constitutional requirements for transgender procedures for minors.
But that’s not what Ohioans are hearing.
I first saw the ads. They advertise that Issue 1 will overturn Ohio’s “heartbeat” law, which curtails abortion after six weeks, without exception for rape or incest. I then saw identical messaging hit local and corporate media. The Ohio Capital Journal, for example, explained that Issue 1 would merely bring back the pre-2022 “status quo.” The Plain Dealer (Cleveland’s paper) explained that while the amendment would overturn Ohio’s six-week abortion law, “other laws, such as whether minors generally need their parents’ permission to get an abortion, could stay in place.”
It sounds perfectly reasonable. But it’s a complete lie.
As a starting point, constitutional amendments are superior to regular statutes, meaning Ohio’s laws (and local government policies) can only stand if they comply with them. The proposed amendment provides an “individual” with the “right to make and carry out one’s own reproductive decisions.” The term “reproductive decisions” is left undefined, so it means (to state the obvious) decisions related to one’s reproduction, including decisions involving puberty blockers or irreversible transgender interventions for minors. This is no guess. In Vermont, the ACLU is already using the state’s “reproductive liberty” constitutional language to protect transgender procedures. “Individual” is also not defined, and therefore not limited to “adults.”
This Is Not a Return to Pre-2022
The proposed amendment then says Ohio may not directly or indirectly interfere with or discriminate against this broad and undefined “right” unless Ohio can prove its policy is the “least restrictive means” to further the “individual’s” health. That’s a lot of legalese. In simpler terms, it means that any law or even local policy that affects abortion or “reproductive decisions” is banned, unless the government can prove it absolutely needs the law to protect the patient. So, presumably, a law requiring that abortion tools be kept in working order would be OK: The state has a serious interest in the mother’s health, and the law directly relates to its interest. But beyond that, an enormous basket of policies, from limits on Medicaid funding for abortion to rules governing sex education, is at risk.
That’s because the proposed legal test is miles away from the “status quo,” meaning pre-2022, legal framework. For decades, the Supreme Court said that state laws serving a valid purpose that indirectly burdened abortion were valid and recognized that the state had legitimate interests in things beyond a woman’s health, such as the baby’s life, medical ethics, or permitting family decision-making.
That meant, even under Roe v. Wade, Ohio could require parental consent, because the Supreme Court accepted the “state’s interest in encouraging a family rather than a judicial resolution of a minor’s abortion decision.” Ohio could also ban particularly unethical medical procedures, such as “partial-birth abortion” (a term for birthing a child until the baby’s head won’t fit through the birth canal, and then smashing the head to finish the procedure). The Supreme Court accepted the state has “an interest in protecting the integrity and ethics of the medical profession” in approving a “ban on abortions that involve partial delivery of a living fetus.”
But say goodbye to those laws under Issue 1. Because the proposed amendment only permits state laws that promote the mother’s health and that are extremely tailored to that end, laws like parental consent and partial-birth restrictions would fall.
Another line I commonly hear is that Issue 1 allows abortion to be prohibited after “fetal viability.” Even if true, that’s still much later than Americans are on board with. But it’s not true. The amendment provides an exception so broad that it eats the rule: Abortion must be allowed if the doctor thinks it would be “necessary” for the patient’s “health.”
That’s not physical health, but undefined “health,” which courts have long interpreted — in Doe v. Bolton, for example — to be a sweeping term including “all factors” “relevant to the well-being” of the mother, which includes considerations of family size. Permitting abortion for one’s “well-being” means no restrictions at all, which is extremely unpopular among Americans.
Issue 1 Will Exacerbate Suffering
I get the appeal of Issue 1. Ohioans are reasonable creatures. We empathize with the young women suffering due to rape, or who receive news that their babies won’t make it outside the womb. And these sympathies draw us to disfavor Ohio’s heartbeat bill, even if we understand abortion and believe it’s morally wrong.
But Issue 1 will exacerbate suffering, not alleviate it. It authorizes abortions hidden from parents, enabling perpetrators to continue their violence. It delays decision-making to a stage when mothers can feel their babies dancing around, when doctors hold a live, partially born baby in their hands.
Whether you’re pro-life, pro-abortion, or somewhere in between, you deserve to know the monumental, untested, and dangerous changes Issue 1 would bring to Ohio. There are ways to change Ohio’s heartbeat law (which is enjoined for the time being). Ohio legislators can pass a law, or citizens can propose a ballot-initiative law, changing the date to 15 weeks, which would be more permissive than Europe. Or the law can be changed to add exceptions, such as for rape and incest. We deserve to consider these options, with our most vulnerable in mind.
But Issue 1 takes these decisions out of the hands of Ohioans and their representatives entirely. That immobility, anchored far beyond what supermajorities of Americans believe is best, is no way to protect Ohio women or children.
May Mailman is the vice president of Restoring Integrity & Trust in Elections and a former White House legal advisor to President Donald J. Trump.
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