COLUMBUS — The fate of abortion access in Ohio lies with voters, who will decide next Tuesday whether to codify abortion and reproductive rights into the state constitution with Issue 1.
The citizen-led ballot initiative would amend Ohio’s constitution to include a right to “make and carry out one’s own reproductive decisions,” including a right to abortion before fetal viability as well as other reproductive health care like contraception, fertility treatment and miscarriage management.
Ohio is the seventh state where voters will see abortion access on the ballot since the U.S. Supreme Court overturned Roe v. Wade last summer, which returned the question to the states.
What would abortion access look like with or without Issue 1?
If adopted, the amendment would block a six-week abortion ban signed into law by Gov. Mike DeWine in 2019 from taking effect and would prevent lawmakers from restricting the procedure before viability, or the point at which a fetus may survive outside the womb.
The amendment comes amid backlash to a 2019 law banning most abortions after fetal cardiac activity can be detected, as early as six weeks into pregnancy before many women know they are pregnant.
The so-called heartbeat law, which briefly took effect last June following the Supreme Court’s ruling in Dobbs v. Jackson Women’s Health, permits abortions when needed to prevent a woman’s death or serious, irreversible impairment of a major bodily function.
The law does not contain exceptions for rape or incest.
A Hamilton County judge issued an injunction preventing the state from enforcing the law while a lawsuit against the ban makes its way through the courts, meaning abortion is legal in Ohio through 22 weeks of pregnancy until the courts rule on the case.
The amendment allows lawmakers to restrict abortion access after fetal viability, defined as the point in pregnancy when a physician believes the fetus could survive outside the womb, unless a doctor determines an abortion is needed to protect the woman’s life or health.
It calls for future restrictions on abortion access to adhere to “widely accepted and evidence-based standards of care.”
Attorney General Dave Yost issued an analysis of the amendment in October arguing Issue 1 would create a new legal standard that could affect other laws like the 24-hour waiting period for Ohioans seeking abortion and the state’s ban on dilation and extraction abortions, although federal law already prohibits the procedure.
The amendment could also derail efforts by anti-abortion advocates to enact legislation like the Personhood Act, which would define life as starting at conception.
Does the amendment change parental notification laws?
Ohio law requires physicians to inform a child’s parents before performing an abortion.
But the law also allows local courts to grant a judicial bypass for minors to skip the notification process if the judge believes the girl is mature enough to make the decision on her own.
While the amendment does not explicitly mention parental notification, Yost wrote that “there is no guarantee that Ohio’s parental-notification law will remain in effect” if Issue 1 passes. If the notification law is challenged in court, Yost wrote, the outcome would hinge on whether the courts believe the word “individual” applies to a minor.
Differences in ballot language, text of amendment
The ballot description voters will see differs from the text of the amendment after the Ohio Ballot Board altered the summary description to include “unborn child,” which does not appear in the amendment, in place of fetal viability.
Meanwhile, the ballot description omits several reproductive rights listed in the amendment, including contraception, fertility treatment, miscarriage management and the right to continue one’s pregnancy.
A recent Ohio Northern University survey, which asked half of respondents about their support using the original ballot language and half with the language now appearing on the ballot, found that support for the measure falls from 68% to 52% because of the change.
“The framing around Issue 1 will be critical to its outcome,” Ohio Northern University Professor Robert Alexander said in a press release Friday. “While we find relatively strong support for abortion rights, the actual ballot language of Issue 1 receives the lowest amount of support among the various ways we asked respondents about the ballot measure.
“Democrats show almost unanimous support for Issue 1 while Republicans are more divided,” he said.
Full text of proposed abortion rights amendment:
Be it Resolved by the People of the State of Ohio that Article I of the Ohio Constitution is amended to add the following Section:
Article I, Section 22. The Right to Reproductive Freedom with Protections for Health and Safety
A. Every individual has a right to make and carry out one’s own reproductive decisions, including but not limited to decisions on:
1. contraception;
2. fertility treatment;
3. continuing one’s own pregnancy;
4. miscarriage care;
5. and abortion.
B. The State shall not, directly or indirectly, burden, penalize, prohibit, interfere with, or discriminate against either:
1. An individual’s voluntary exercise of this right or
2. 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.
C. As used in this Section:
1. “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.”
2. “State” includes any governmental entity and any political subdivision.
D. This Section is self-executing.
