It is misleading and confusing, beginning with its title, “The Right to Reproductive Freedom with Protections for Health and Safety.”
It states, deceptively, that it would create a right for individuals to exercise “reproductive decisions.” Under its terms, generally the only kinds of laws which could be enacted concerning such decisions would be for the purpose of advancing the health of those making the decisions.
It lists five examples of “reproductive decisions.” Clearly, though, of the five the only type of decision at stake is the decision to have an abortion. The goal of the proposed change is to prohibit any laws which would declare abortions illegal.
Under the proposed, constitutional change pregnant women and girls would have the right to have abortions. Abortion-performing doctors, their assistants, and clinics would also be exempt from any penalty.
Theoretically the change would permit laws outlawing abortions after the point in time when an unborn child becomes viable. “Fetal viability” is defined as when the baby would have a “significant likelihood of survival outside the uterus with reasonable measures.” If our lawmakers enacted a statute prohibiting abortion after “fetal viability,” however, even then it would be nearly impossible to prevent any abortions under that law.
The difficulty in enforcing any such laws stems from the proposed language specifically protecting abortion providers. The first protection is the way the proposed amendment dictates how “fetal viability” is determined. It mandates that the abortion provider, the one with financial incentive to perform the abortion, is the one authorized to make the determination, using the subjective standard of that doctor’s own “professional judgment.” The proposed amendment could have provided, but does not provide, an objective standard, such as a certain number of weeks of gestation. It also states that the assessment of viability is to be made on a “case-by-case basis,” providing added discretion for the abortion provider.
The second protection for the abortion-performing doctor, even when the abortion is performed after the baby is viable, is that the doctor is deemed to be acting lawfully when that physician determines that the abortion is “necessary to protect the pregnant patient’s life or health.” “Health” is neither defined nor limited to physical health. Further, any perceived detriment to the patient’s health does not need to reach any level of severity. A late-term abortion provider, as a general practice, would simply note in the patient’s chart: “Abortion necessary to protect patient’s emotional health.”
Imagine: Mary Jones is pregnant. The baby is at 36 weeks of gestation. Mary goes to see Dr. Smith, a late-term abortion provider. He writes in her chart: “Patient distressed at thought of giving birth. It is necessary to terminate the pregnancy to protect Ms. Jones’s emotional health.” He performs the abortion.
Under these circumstances what prosecutor would attempt to enforce a law outlawing late-term abortions? Virtually no one. Issue 1, if passed, would not technically create a right to abortion at any time for any reason, but under its provisions penalizing any doctor for performing any abortion would be virtually impossible.
Is this a change we citizens of Ohio want in our foundational, constitutional law? I pray it is not.
Charles Pater is a retired judge of the Butler County Court of Common Pleas.