Washington, D.C. Newsroom, Oct 17, 2023 / 10:50 am

As early voting continues on the controversial Issue 1 abortion proposal in Ohio, pro-life groups are warning that the vague language in the proposed amendment could strip away parental rights and lead to late-term, partial-birth abortions on demand there.

Early voting began on Oct. 11 in the state, including on the proposed amendment to the state constitution that would guarantee the right to “every individual” to make “reproductive decisions,” including those on abortion. Under the new rule, lawmakers could only prohibit an abortion after “fetal viability” was established.

Supporters and opponents of the proposal have disputed what impact the proposed language would have on late-term and partial-birth abortions in the state, how viability will be measured, and whether children will need parental consent to procure an abortion.

Under current Ohio law, abortion is legal up to 22 weeks of pregnancy. Legislation that would ban abortion upon the detection of a heartbeat, which occurs around six weeks of pregnancy, is currently under review by the Ohio Supreme Court.

What the proposed amendment says

The amendment, if passed, would broadly establish that the state is not allowed to “directly or indirectly, burden, penalize, prohibit, interfere with, or discriminate” against anyone seeking an abortion.

Although the proposal adds that the state can prohibit abortion “after fetal viability,” the measure does clearly define that standard. It defines viability as “the point in a pregnancy when … the fetus has a significant likelihood of survival outside of the uterus with reasonable measures.”

Viability usually occurs around the 24th week of pregnancy, but the proposal does not set a strict week-based limit, instead allowing viability to be determined on a case-by-case basis based on the “professional judgment of the pregnant patient’s treating physician.”

If the physician determines that the mother’s “life or health” is at risk, then abortion is permitted at any point in the pregnancy, even after viability, according to the proposal. Neither “life” nor “health” are defined.

With no clearly established cutoff for abortion, opponents of the measure have warned that this would allow the abortionists to determine viability however they choose and that there would consequently be no real restrictions on abortion in the state.

Megan Wold, the former deputy solicitor general in the Ohio attorney general’s office, said in a statement that the amendment “would impose no-limits abortion on Ohio.” 

“The initiative demands a capacious exception for post-viability abortions: In no case may abortion be prohibited (even where a baby is viable) if a physician determines that an abortion is necessary to protect a ‘pregnant patient’s’ life or health,” Wold said.

“As a legal matter, that phrasing is extremely broad — so broad that it amounts to permitting abortion on demand even if there is a post-viability ban in place.”

Molly Smith, a board member for the anti-Issue 1 group Protect Women Ohio, called the initiative “extreme.”

“The practice of late-term abortion is so barbaric that Republicans and Democrats agree it should be banned,” Smith said in a statement. “The groups behind Issue 1, including the ACLU, clearly missed the memo: Abortion-on-demand up until birth is too extreme for Ohioans. Period.”

This question was also a major point of contention in a debate on Issue 1, which was released on Oct. 15, hosted by the Ohio Debate Commission.

Mehek Cooke, a spokeswoman for Protect Women Ohio, emphasized the same argument during the debate.

“It’s determined case-by-case, so now you’re letting the abortionists decide when viability exists,” Cooke said. “This is extreme. It’s allowing for late-term, partial birth abortions.”

Desiree Tims, the president and CEO of Innovation Ohio, who defended the initiative’s language, accused the pro-life movement of spreading “misinformation” about the language and encouraged voters to read the entirety of the proposal.

“Fetal viability should be determined by a physician, someone who’s actually studied medicine, [and] not someone who got voted into office at the state House,” Tims said during the debate.

“Fetal viability — that should not be determined by any politician on the state House floor. There are reasonable limits [and] the language is clear. I encourage you to also read it for yourself.”

On the issue of health exceptions, Tims said “that’s between the doctor and the patient.” She argued that “politicians shouldn’t be defining health” and that “physicians studying health care, every doctor will tell you every pregnancy is different.”

No clear protections for parental consent for abortion, opponents say

The language that guarantees reproductive freedom rights to “every individual” has also led to concerns that the proposal could affect parental rights. Under current Ohio law, a minor needs parental consent to obtain an abortion in most cases.

Barb Driehaus, a spokeswoman for the Ohio chapter of Democrats for Life, said in a statement that “by repeatedly using the word ‘individual,’ never ‘adult,’ ‘woman,’ or ‘person over 18,’ Issue 1 allows minors to legally obtain abortions without parental consent or even parental notification,”

“An abuser could coerce the minor victim and Issue 1 will make it easier to cover up the crime,” Driehaus continued. “Even those who favor expanded abortion laws ought to vote ‘NO’ on Issue 1.

Cooke, the spokeswoman for Protect Women Ohio, asked during the debate earlier this month why the measure’s draftees didn’t use the word “woman” in writing the policy.

“If this was truly about abortion, they would have used the word ‘woman’ instead of ‘individual,’” Cooke said. “They would have stated that there was an age limit to perform an abortion. They don’t do that. They’re taking away parental consent and notification.”

Tims disputed that interpretation, arguing that children will still need parental consent, and again encouraged voters to read the language.

“There isn’t any language that includes anything about children,” Tims said. “In fact, children will still have to receive parental consent for any medical procedure.”

How will the amendment be decided?

Early voting has already begun, while the state’s Election Day is about three weeks away, on Nov. 7. An amendment is either accepted or rejected on a majority vote, meaning that voters only need just over 50% of voters to support the amendment to ensure its adoption.

Polls that have been conducted generally show Ohioans supporting the amendment by a margin of more than 20 points.