Washington, D.C. Newsroom, Sep 1, 2023 / 10:15 am

A group that is leading a ballot initiative to establish abortion rights in the Ohio Constitution sued state officials this week after a board finalized ballot language that uses the term “unborn child” rather than the group’s preference to use the term “fetus.”

Although the pro-abortion ballot initiative, titled Issue 1, is guaranteed to appear on the Nov. 7 ballots, the Ohio Supreme Court will need to decide what language voters will see when they enter the ballot box to cast their vote.

The Ohio Ballot Board approved ballot language for Issue 1, which states that the proposed amendment would prohibit the government from restricting abortion “before an unborn child is determined to be viable” but would “always allow an unborn child to be aborted at any stage of pregnancy, regardless of viability if, in the treating physician’s determination, the abortion is necessary to protect the pregnant woman’s life or health.”

Ohioans United for Reproductive Rights, which is an ad hoc pro-abortion group created to push the ballot initiative, argued in its lawsuit that any reference to an “unborn child” would introduce an “ethical judgment” about “what stage of development a zygote, embryo, or fetus becomes a ‘child.’” The group petitioned the Ohio Supreme Court to order that the state provide voters with the exact language of the proposed amendment, rather than use the language finalized by the board.

“Issue 1 was clearly written to protect Ohioans’ right to make our own personal health care decisions about contraception, pregnancy, and abortion, free from government interference,” Ohioans United for Reproductive Rights spokeswoman Lauren Blauvelt said in a statement. 

“The summary that was adopted by the ballot board is intentionally misleading and fails to meet the standards required by Ohio law,” Blauvelt added.

The proposed amendment would add a new section to the state constitution that would create a “right to reproductive freedom.” It would prohibit the government from restricting abortion before viability. If a physician, such as the mother’s abortionist, determines the pregnancy is a threat to her life or health, then that abortion right would extend up until birth.

Viability usually occurs at about 24 weeks of pregnancy, but the amendment’s language fails to include a strict cutoff. Rather, the physician, which could be the mother’s abortionist, is allowed to determine viability on a case-by-case basis.

Other criticisms of board-approved language

Ohioans United for Reproductive Rights raised several other objections to the board’s ballot language. One of their other primary concerns is that the language fails to mention the other rights established in the proposed amendment, which goes further than abortion.

In addition to the right to an abortion, the proposed amendment would also create a right to make decisions about contraception, fertility treatment, continuing one’s own pregnancy, and miscarriage care. The board-approved language makes no mention of these elements of the amendment, which the group claims violates the board’s legal obligations.

The group also objected to other aspects of the way the ballot was written, such as the use of words like “only” and “always,” which it alleges, in its lawsuit, is done to “play up contrasts where none exists and warps negative language into positive language to suggest the state’s intrusion into private affairs.” The lawsuit claims “the ballot language aims to persuade against the amendment.”

“The ballot language’s length and the context in which it was drafted confirm that the above defects are no accident but are, instead, part of a deliberate attempt to mislead and sway voters,” the lawsuit argues.

Ohioans United for Reproductive Rights asked the court to order that the state include the full text of the amendment or to prescribe the changes that must be made and retain jurisdiction to ensure the order is followed.