Ohio considers adopting a right to abortion

This month, on the first day of early voting in Ohio, pro-lifer Allie Frazier put on an Ohio State Buckeyes hat and a necklace with an Ohio-shaped charm and headed to the Franklin County Board of Elections. She was there to cast a “no” vote on Issue 1, the proposed amendment that would add a right to abortion to the state constitution.

“Issue 1 would: Legalize abortion through all 9 months of pregnancy in Ohio, eliminate basic health and safety standards, enable abusers to force minors into abortions, put [parents’] rights at risk,” Frazier wrote in a reel she posted to Instagram a few days later. Video showed her walking into the Board of Elections building and holding up an “OHIO VOTED” sticker afterwards.

Frazier’s warnings about the amendment echo those of Protect Women Ohio, the coalition opposing the pro-abortion amendment. Rather than highlighting the amendment’s most immediate threat to the state’s currently unenforced heartbeat bill, Protect Women Ohio is zeroing in on the possible threats to other, more widely accepted laws. But pro-abortion groups accuse pro-lifers of lying about these expected outcomes. Even some pro-lifers—while agreeing that the amendment would be devastating—believe the “vote no” campaign has over-sensationalized the potential fallout of the amendment’s success.

This battle over messaging highlights the difficulty of explaining to distracted voters the detrimental long-term effects of adding a right to abortion to state constitutions.

The amendment declares that “every individual has a right to make and carry out one’s own reproductive decisions,” including abortion. The text appears to allow restrictions on later abortions and says nothing about removing the state’s existing parental consent requirements.

But press secretary Amy Natoce from Protect Women Ohio said the danger of Issue 1 lies in the minutiae of the word choice, pointing out that the amendment “has so many gray areas due to its broad language.” She said pro-lifers “need to make sure that Ohioans … know these loopholes that will lead to late-term abortion and the loopholes that will gut parental consent laws.”

A digital flyer put out by the American Policy Roundtable shows a marked-up version of the amendment that highlights some of the vague terms. According to the document, the term “every individual” doesn’t limit this right to adults, meaning parents won’t be able to stop their minor children from getting abortions. It adds that the required “health” exception for post-viability abortions is broad and undefined.

“What we have seen time and time again in court cases across the country is that, when left undefined, ‘health’ doesn’t just mean a mother’s physical health,” Natoce said. “It also means her mental health, her emotional health, her social health, even her financial health.” That interpretation could allow for abortions due to concerns as common as feeling stressed about the pregnancy.

Pro-lifers in Ohio frequently point to the state’s northern neighbor as an example of what could happen if the amendment passes. In Michigan, voters in November approved Proposal 3, a similar amendment adding a right to abortion to the state constitution.

Leading up to Election Day, pro-lifers warned that Proposal 3 would “repeal dozens of state laws, including our state’s ban on tax-funded abortions, the partial-birth abortion ban, and fundamentally alter the parent-child relationship.” The messaging implied that the amendment would have an immediate effect on the laws.

The new constitutional language guaranteeing a right to abortion meant state courts would never allow Michigan’s almost 100-year-old pre-Roe law protecting babies from abortion starting at conception to take effect. This spring, the legislature repealed that law.

But Proposal 3 didn’t automatically remove remaining pro-life laws from the books. Almost a year after the amendment passed, Michigan’s pro-abortion lawmakers are struggling to repeal remaining pro-life protections.

The repeal bills, which Gov. Gretchen Whitmer has championed, need the support of every Democrat in the Michigan House of Representatives to pass. Some of the measures passed the Senate last week, but a lone Democrat in the House Health Policy Committee in September voted against the pro-abortion package. Rep. Karen Whitsett said she opposes legislation that would allow for taxpayer funding of abortion and that would repeal the existing requirement for a 24-hour waiting period for women seeking abortions. She told a local news outlet in September that she had heard from seven other Democrats who share her concerns.

And even among the struggling package of bills, one provision is notably absent. Despite pro-life warnings that the new amendment would spell the end of the state’s parental consent requirement, Democrats ultimately decided against pushing to repeal that law.

Pro-lifer Adam Carrington, associate professor of politics at Hillsdale College in southern Michigan, said he thinks the campaign against Proposal 3 was “a bit sensationalist” leading up to the election, perhaps overselling the immediate effects of the amendment.

“In Michigan, it definitely clarified that the 1931 abortion ban was not in effect,” Carrington said of the amendment. Whether or not Proposal 3 will destroy other remaining pro-life protections in the state, he said, depends on if Democrats can come together in the legislature. If the legislative path fails, pro-abortion groups could use Proposal 3 to challenge existing laws in the courts. But even in that avenue, whether or not a specific law stands or falls depends on how state judges interpret the amendment.

With a strong liberal majority in the Michigan Supreme Court, eventual rulings declaring remaining pro-life protections unconstitutional seem likely.

That’s why Genevieve Marnon, legislative director of Right to Life of Michigan, said she doesn’t think the state’s pro-lifers overpromised what the fallout of Proposal 3 would be.

“Just because it hasn’t played out immediately doesn’t mean it’s not going to,” she said. “It’s a pretty sure bet.” Marnon speculates that abortion supporters in Michigan have been slow to yank other pro-life legislation because they want to paint pro-lifers as liars while allaying the concerns of Ohioans.

“As soon as [Ohio’s] constitutional amendment vote happens on Nov. 7, … my guess is that we will start to see the court cases challenging all the laws” in Michigan, she said.

Ohioan Rob Walgate, vice president of the American Policy Roundtable, predicts a similar future for Ohio. “Whether it’s parental consent, or whatever it is, someone’s gonna go to court, and they’re gonna say, I have a constitutional right, and here’s the constitutional right to do it,” Walgate said. He said even Ohio’s conservative supreme court will have no way to interpret the amendment otherwise, rendering the parental consent requirement unconstitutional. “And that’s how, unfortunately, it’s going to play out,” Walgate said. “There’ll be no need [for the legislature] to repeal any laws in Ohio.”

But Carrington disagrees. He acknowledged that Issue 1 would clearly make Ohio’s nascent heartbeat law unconstitutional, discarding the state’s strongest protection for unborn babies. But he argued that neither the legislative nor the judicial avenues for erasing laws like the state’s parental consent requirement or the partial-birth abortion ban is “palpable” at this time, due to the pro-life leanings of Ohio’s three branches of government.

“I would be very surprised if, in the near- to medium-term, those kinds of things—parental consent and partial-birth abortion, anything like that—were in danger in Ohio—again, because of the fact that Ohio politics is now very solidly Republican,” he said. The more likely effect of the amendment, according to Carrington, would be to hamstring further efforts to protect unborn life.

Carrington recognizes the temptation of overstating how dramatically or quickly political changes will flow from the amendment. For governments based on popular rule, “it’s sometimes a challenge to keep people’s attention politically because they have busy lives.”

He says pro-lifers should consider other messaging to oppose Issue 1. “The pro-life movement has to be arguing, what are the long-term corrosive effects … on our view of human dignity, of human life, of women?” Carrington said. “But that’s a harder argument to make.”