(WJW) — Access to abortion is now a constitutionally protected right in Ohio, with a majority of state voters’ approval of Issue 1 on Tuesday’s general election ballot.
The measure protects Ohioans’ right to make their own decisions relating to reproductive health, including on abortion, contraception, fertility treatment, continuing one’s own pregnancy and miscarriage care.
It passed Tuesday 2,186,962 votes (56.6%) to 1,675,728 votes (43.4%), according to unofficial election results from the Ohio Secretary of State. As with all citizen-initiated constitutional amendments approved by a majority vote, it will take effect 30 days after the election, on Dec. 7.
Representatives of the coalition that backed the ballot initiative, Ohioans United for Reproductive Rights, spoke to reporters on Wednesday morning. Watch that briefing below:
How does it affect Ohio law?
Once it’s added to the Ohio Constitution, it won’t immediately invalidate Ohio’s abortion laws, such as the state’s six-week abortion ban enacted in 2019, said Jonathan Entin, a constitutional law professor at Case Western Reserve University’s School of Law.
Rather, certain laws — such as the six-week ban, called the “Heartbeat Act” — could face new lawsuits challenging their constitutionality, he said.
Although the Ohio Supreme Court is currently considering whether to uphold a stay on the Heartbeat Act handed down in October 2022, that case was brought before Issue 1’s approval. So the question of whether or not the Heartbeat Act is even valid anymore is “not a question that the court has on its plate right now,” he said.
Abortion providers can also assert the new amendment as a defense if accused of providing abortion care unlawfully, or facing regulatory sanctions.
In those cases, courts would then make rulings on the validity of state abortion laws under the new constitutional standard. Those decisions could also be subject to appeal, all the way up to the state’s high court, Entin said.
See the full text of the amendment below:
Since the U.S. Supreme Court put the abortion issue up to states by overturning Roe v. Wade — the landmark decision that for decades protected Americans’ access to abortion — voters in California, Michigan, Vermont and, now, Ohio have approved state constitutional amendments protecting abortion rights.
Though Ohio’s Issue 1 keeps the government from interfering with that right, it does allow the state to prohibit abortions after a fetus reaches viability — or when a physician determines the fetus has “a significant likelihood of survival outside the uterus with reasonable measures,” the amendment reads.
The point of fetal viability is determined on a case-by-case basis, but it’s often considered to be between 20 weeks and 25 weeks and six days of gestation, according to the American College of Obstetricians and Gynecologists. Currently, abortions in Ohio are banned after 21 weeks and six days of pregnancy.
Issue 1 allows abortions to be permitted no matter what if a physician determines “it is necessary to protect the pregnant patient’s life or health,” the amendment reads.
Aside from the Heartbeat Act, Attorney General Dave Yost’s office foresees other potential legal challenges of existing Ohio law under the new constitutional standard.
Parental consent
Protect Women Ohio, the anti-Issue 1 coalition, argued Issue 1 will conflict with Ohio laws requiring parents to be notified and give consent before minors can undergo an abortion, pointing to the amendment’s language prohibiting laws from interfering with “reproductive decisions.”
But the amendment does not specifically address parental consent, according to the Office of Attorney General Dave Yost, which released an “impartial” analysis of the issue last month.
“However, the parental-consent statute would certainly be challenged on the basis that Issue 1 gives abortion rights to any pregnant ‘individual,’ not just to a ‘woman,'” it reads.
“Before Roe was reversed, parental consent laws were regularly challenged in courts. If Issue 1 passes, the questions for a court will be whether the term ‘individual’ includes a ‘minor.’ There is no guarantee that Ohio’s parental-consent law will remain in effect.”
Entin said he thinks a challenge to Ohio’s parental consent laws is possible, but he said he’s “skeptical” it would succeed, and wondered what kind of scenario could prompt such a question to the courts.
Under Ohio law, a pregnant minor is able to skip parental notification if a judge finds the minor to be mature enough to decide for themselves, or if the abortion is in their best interests — what’s called a “judicial bypass.”
Entin said one hypothetical scenario could see a pregnant minor, who’s unable to obtain parental consent or a judicial bypass, appealing based on the law’s constitutionality. But the longer the case spends in the court, “the more complicated the medical process becomes,” he said.
A direct challenge to the law is also possible, but it would likely be difficult, since the U.S. Supreme Court has in the past upheld parental consent laws on the books in Ohio and Pennsylvania, he said.
State-funded abortions?
Yost’s analysis also claimed Issue 1 could allow for state subsidies of abortions and abortion providers and for elective fertility treatments such as artificial insemination and in-vitro fertilization. Under Ohio law, taxpayer money cannot go toward an abortion, unless it is medically necessary or was caused by rape.
What Yost questions is whether that denial could be considered discriminatory under Issue 1.
“These laws have been challenged in court over the years and would likely be challenged under the new language of Issue 1,” the analysis reads. “The outcome would be uncertain.”
Entin, however, said he would be surprised if Issue 1 were used successfully to counter those laws, since it doesn’t give an affirmative right to state funding for reproductive treatments.
“It’s simply saying to the government, ‘Get out of the way,'” Entin said. “It’s a negative right to government interference. It’s not a positive right to have the government provide the funding itself.”
