(WJW) — Since the U.S. Supreme Court overturned Roe v. Wade last year, ending Americans’ longstanding constitutional right to abortion and putting the issue up to states, voters in five states have either enshrined abortion rights in their state constitutions or rejected anti-abortion proposals.
Here we break down the proposed constitutional amendment, named The Right to Reproductive Freedom with Protections for Health and Safety.
What is Ohio’s Issue 1?
Issue 1, if passed, would change the Ohio Constitution to give individuals the right to make their own decisions relating to reproductive health, including on abortion, contraception, fertility treatment, continuing one’s own pregnancy and miscarriage care. The government would not be able to interfere with this right.
The proposal allows for abortions to be prohibited after a fetus reaches viability. Fetal viability is when a physician determines a fetus has “a significant likelihood of survival outside the uterus with reasonable measures,” reads the proposed amendment.
Viability is determined on a case-by-case basis. According to the American College of Obstetricians and Gynecologists, most clinicians consider a fetus to be viable outside the uterus sometime between weeks 20 and 25 — though survival rates can vary greatly over that period and infants who do survive will likely face health issues.
Currently, abortions in Ohio are banned after 21 weeks and six days of pregnancy.
Though Issue 1 would allow the government to prohibit abortions after fetal viability, abortions would still be permitted no matter what if a physician determines “it is necessary to protect the pregnant patient’s life or health,” the amendment reads.
Issue 1 needs a simple majority vote of 50% plus one vote to pass. A recent effort to make it harder to amend the state’s constitution by a citizen-led ballot initiative — by increasing that vote threshold to 60% — failed in the state’s August special election.
Here is the full text of the proposed amendment, which would be added as a new section:
The language that will actually appear on Ohio voters’ Nov. 7 ballot, as prescribed by the Ohio Ballot Board, has been criticized by abortion advocates for actually being longer and more complicated than the proposed amendment itself, and for replacing the term “fetus” with “unborn child” — a term Democratic board member state Sen. Paula Hicks-Hudson, of Toledo, has called “biased.”
Ballot board members in August were split on the language’s approval, with Democratic state Rep. Elliott Forhan, of South Euclid, and Hicks-Hudson outvoted by the board’s Republican members, Secretary of State Frank LaRose and state Sen. Theresa Gavarone, of Bowling Green, and its fifth member, William Morgan of Stoutsville.
Here’s how Issue 1 will appear on the Nov. 7 ballot:
Arguments for and against Issue 1
Voting “yes” on Issue 1 is a vote to add an amendment establishing new protections for reproductive choices to the Ohio Constitution.
Petitioners argue that if Issue 1 fails, abortion could be banned outright in Ohio, “even in cases of rape, incest, or when a woman’s life is at risk.”
“Vote YES to keep government out of our family’s personal decisions,” reads their argument in favor of Issue 1. “Ohioans agree that abortion is a personal, private decision that should be up to women and their families, not the government.”
Read the official argument in favor of Issue 1 below:
Voting “no” on Issue 1 is a vote to keep the Ohio Constitution as it is, without protections for reproductive choices.
“Issue 1 is a dangerous attack on the unborn, women and parents. It’s an extreme attempt to create abortion-on-demand and to eliminate reasonable health and safety standards for pregnant women,” reads the argument against Issue 1, written by Republican state Sens. Kristina Roegner of Hudson and Michele Reynolds of Canal Winchester and Republican state Rep. Melanie Miller of Ashland.
Opponents argue passage of Issue 1 would allow abortion providers to “self-regulate” and perform abortions past the point of fetal viability, at their “sole discretion.” They also claim Issue 1 would abolish safety protections for women — and even protect people who coerce women into having an abortion — and cast down an Ohio rule requiring parents to give consent for juveniles to get an abortion.
Read the official argument against Issue 1 below:
What Issue 1 means for Ohio law
The office of Republican Attorney General Dave Yost — an abortion opponent — has released what it calls an “impartial” legal analysis of Issue 1. It indicates the amendment would make Ohio’s abortion law less restrictive “than at any time in Ohio’s history” — even less than under the decades-old precedents of landmark U.S. Supreme Court decisions including Roe v. Wade and Planned Parenthood v. Casey.
“This is not a policy analysis and is designed only to describe what the legal effects of Issue 1 will be on our state,” it reads. “Whether Issue 1 is good, bad or mixed policy is for the voters to decide. My purpose here is to describe what the choice is, not to suggest what that choice ought to be — the ‘what,’ not the ‘why.'”
Here are breakdowns of some of the key issues of debate surrounding the initiative:
Does Issue 1 allow ‘late-term’ abortions?
Protect Women Ohio, an anti-Issue 1 coalition that has paid for on-air advertisements and coordinated rallies urging a ‘No’ vote, argues the amendment’s language allowing for abortions to be performed after a fetus is considered viable — so long as a physician deems it “necessary to protect the pregnant patient’s life or health” — is too vague, and would permit “painful, late-term abortions.”
The coalition claims Issue 1 would allow for “abortion-on-demand up until birth” in Ohio, even after a fetus is capable of feeling pain, which is after 24 or 25 weeks, according to the American College of Obstetricians and Gynecologists.
A pregnant person is considered “late-term” at 41 weeks through 41 weeks and six days of gestation.
But the term “late-term abortion” is not used in the medical field, according to the college. Terms like “abortion up until birth” or “abortion after birth” are instead examples of “derogatory language used by opponents of abortion access that [are] not based in facts,” according to the college. “Neither is accurate, and neither uses clinically appropriate language.”
“In many cases, when abortion care does occur later in pregnancy, it is because something has gone terribly wrong regarding the patient’s health or the pregnancy,” the college wrote. “Those patients should be treated with compassion and judgment-free, evidence-based care.”
Does Issue 1 affect Ohio’s ‘heartbeat’ abortion ban?
In 2019, Ohio enacted a ban on abortions after a fetal heartbeat can be detected, which is often by about six weeks of gestation — before some people even know they’re pregnant.
The so-called “Heartbeat Act” has been on hold since October 2022, when a Hamilton County judge issued a preliminary injunction. The Ohio Supreme Court has since taken up the case, and heard the first oral arguments in September, FOX 8 sister station WCMH reported.
Yost’s analysis states the law “would not exist if Issue 1 passes,” since the state would no longer be allowed to limit abortions before a fetus is viable outside the womb, which is “generally thought to be around 21 or 22 weeks.”
Currently, abortions in Ohio are banned after 21 weeks and six days of pregnancy.
Does Issue 1 affect parental consent?
Protect Women Ohio argues Issue 1 would 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 Yost’s analysis.
“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.”
Since Issue 1 is a constitutional amendment, any legal challenges to Ohio’s parental consent law after its passage would fall under the jurisdiction of the Ohio Supreme Court, which currently has a conservative majority, The Associated Press reported.
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, according to Yost’s analysis — what’s called a “judicial bypass.”
Does Issue 1 affect gender-affirming care?
Issue 1 opponents claim the amendment would allow minors to receive gender-affirming care, including surgery, without the consent or notification of their parents. They point to a perceived loophole in the phrasing of the amendment’s protections for reproductive decisions “including but not limited to” contraception, fertility treatment, continuing one’s own pregnancy, miscarriage care and abortion.
But supporters say the amendment is not about gender-related health care at all, The Associated Press reported.
“A reproductive decision to me, is a decision to reproduce or not to reproduce,” Tracy Thomas, a University of Akron professor of constitutional law, told AP. “The only word there that might arguably be raised (as tied to gender-related care) is fertility treatment. I think fertility treatment is [in vitro fertilization]. It means treatment for the purpose of reproducing.”
Yost’s analysis foresees a potential conflict with Ohio law if the amendment’s use of “individual” could be interpreted to include minors.
“It would certainly be too much to say that under Issue 1 all treatments for gender dysphoria would be mandated at the minor individual’s discretion and without parental involvement,” it reads. “This is a developing area of the law nationally, and all that could be said with certainty is that Issue 1, if passed, would impact the analysis of any future law.”
How have Ohio and other states voted on abortion rights?
Since the reversal of Roe v. Wade in the summer of 2022, six states have called votes impacting abortion rights, including Ohio. In each election, voters supported access to abortion.
This past summer, Ohio voters soundly rejected an effort to make it harder to amend the state constitution. It was the sole item on the ballot for the state’s Aug. 8 special election, and intended to disrupt this November’s proposal to enshrine abortion rights in the state constitution. It was voted down 57% to 43%.
Voter turnout for that one issue was stronger than in any of the primary elections over the past 10 years — except in 2016, when former President Donald Trump first seized the Republican ticket — and even stronger than some general elections in non-presidential years.
Here are results of abortion rights votes in the five other states:
Kansas; Aug. 2, 2022
In the first statewide abortion rights vote after the overturning of Roe v. Wade, voters rejected an amendment to the state’s constitution which would have removed abortion as a constitutional right and opened the door to state legislation on the issue. The measure was voted down 59% to 41%.
California; Nov. 8, 2022
More than two-thirds of voters approved an amendment to the state’s constitution that expressly provides individual rights to reproductive freedom, “which includes the fundamental right to choose to have an abortion and the fundamental right to choose or refuse contraceptives.” The measure passed 67% to 33%.
Kentucky; Nov. 8, 2022
An amendment to the state’s constitution that would have entirely ruled out the right to abortion and government funding for abortions was rejected 52% to 48%.
Michigan; Nov. 8, 2022
Voters approved a state constitutional amendment providing every person “a right to reproductive freedom, including the right to make and carry out pregnancy-related decisions.” That includes abortion up to the point of fetal viability, after which point the state would be allowed to regulate abortion. It would also keep the state from prohibiting abortions to protect the pregnant person’s physical or mental well-being. It passed 57% to 43%.
Vermont; Nov. 8, 2022
Voters overwhelmingly supported a state constitutional amendment stating personal reproductive freedom is “central to the liberty and dignity to determine one’s own life course and shall not be denied or infringed” except by the “least restrictive means.” The measure was approved 73% to 22%, and the remaining 5% of ballots were left blank.