This November, a simple majority of Ohio voters will decide to pass or reject an amendment that would, among other things, enshrine the right to an abortion up to fetal viability into the state constitution.
The pivotal ballot issue is likely to garner widespread attention, debate and campaign spending as Ohio becomes the sixth state to hold a direct vote on abortion access since the U.S. Supreme Court overturned Roe v. Wade in June 2022.
Throughout the election, the Dayton Daily News is committed to bringing straightforward and understandable information to readers.
Here are the basics:
What will I be voting on?
The November abortion question will ask Ohio voters if they want to amend the Ohio Constitution to grant every Ohioan the right to make their own reproductive decisions.
Simply put, what would that amendment do?
- Grant certain rights
- The amendment would grant Ohioans the fundamental right to make and carry out their own decisions on abortion, contraception, fertility treatment, miscarriage care and the continuation of one’s own pregnancy.
- Protect individuals exercising those rights from state action
- The amendment also explicitly states that individuals exercising that right, along with the entities that provide reproductive care, cannot be discriminated against, interfered with, prohibited, penalized, or burdened by the state, either directly or indirectly.
- Allow the state to ban abortion after fetal viability with exceptions for health and life of the mother
- The amendment provides that the state can ban abortions after the point of fetal viability, which usually comes at about 24 weeks.
- The amendment requires that fetal viability is determined by the pregnant patient’s physician on a case-by-case basis.
- The amendment protects abortion access after fetal viability in instances that continuing the pregnancy would be a risk to the mother’s health or life.
What are the arguments for and against the amendment?
This amendment isn’t exclusively about abortion — it’s about an individual’s reproductive choice in a variety of matters that happens to include abortion. This fact, combined with a changing political environment, has provided opportunity for new arguments on either side of this particular debate.
- What supporters are saying:
- The plain argument for supporters of the abortion rights vote is that the November proposal simply restores the guidelines that the country had operated under for 49 years after Roe v. Wade.
- Cedarville University’s Marc Clauson, professor of history and law, said that the assessment is partly true but believes it paints an incomplete picture.
- He said that changing case law guided federal policy on abortions, the federal constitution was interpreted to protect abortion access up to a certain point but allowed states to regulate abortions afterward.
- Clauson said that certain point had never been fully agreed upon through various decisions at the federal level. “By the time that Roe v. Wade was actually overturned, the Supreme Court didn’t actually have a solid view of exactly when the state’s interest would come into play to limit abortion,” he said.
- Clauson said Roe v. Wade and the subsequent decisions in that arena did not extend constitutional protections for birth control, fertility treatment, miscarriage care and the other aspects of reproductive healthcare that Ohio’s November proposal would protect.
- What opponents are saying:
- Largely, those concerns have boiled down to three key areas:
- Concern that the amendment will allow “abortion on demand” up to birth.
- Concern that the amendment will weaken or rescind Ohio’s parental consent laws that protects parents’ say over their minor child’s healthcare decisions.
- Concern that the amendment’s broad language could be interpreted as a constitutional protection for children to receive gender reassignment surgeries even without their parental consent.
- Are those fair concerns? Here’s what Clauson thinks, one-by-one.
- On concerns regarding “abortion on demand”:
- The law currently guiding Ohio’s abortion policy is murky, at best. The state’s Heartbeat Bill, banning abortions after a fetal heartbeat can be detected, has been put on hold by lawsuits and is awaiting Ohio Supreme Court decision. As a result, Ohio’s functional law on abortions bans the procedure after 22 weeks.
- Clauson said current law would functionally ban abortions after fetal viability if the November amendment were to pass, leaving the “abortion on demand” argument unfounded.
- On concerns regarding the amendment’s impact on parental consent:
- Clauson said the state might have a harder time passing or enforcing laws that require parental notification before a minor has an abortion, depending on the court’s interpretation of the amendment.
- On concerns regarding the amendment potentially protecting gender-affirming care for transgender minors:
- Clauson said this specific concern is only reasonable in the event that a judge were to have an exceedingly broad interpretation of the amendment, should it pass. He added, “This amendment has nothing to do with that. Even though some people have said that it does, it really doesn’t.”
- “Somewhere down the road, who knows if that would ever happen, you could find a judge who would interpret the constitutional amendment so broadly as to cover that, but that is extremely unlikely,” Clauson said, with a vocal emphasis on ‘extremely.’
How did we get here?
- National context:
- In its decision in Dobbs v. Jackson’s Women’s Health Organization last June, the U.S. Supreme Courtruled that the federal constitution did not generally protect an individual’s right to get an abortion, overturning the court’s previous findings in Roe v. Wade. For the first time in nearly 50 years, power over abortion policy was given to individual states.
- In the time since, five states have held statewide ballot initiatives pertaining to abortion. In each instance, access to abortion preservation has won.
- Voters in Kansas and Kentucky rejected measures that would have denied the right to an abortion in their state constitution.
- Voters in Vermont, California and Michigan approved measures that protected abortion access in their state constitution. Ohio’s November proposal is most similar to these three.
- Ohio context:
- Ohio’s November proposal was brought on by citizen organizers who created a petition and collected 495,938 valid Ohio voters signed the petition over a three-month span.
- At the same time, the Ohio General Assembly moved to create an August special election to have Ohioans vote on Issue 1, a measure that would have raised the amendment ratification threshold from a simple majority to 60% and potentially curtailed the abortion-rights vote this November.
- Issue 1 was rejected by Ohio voters 57% to 43%, so the rules remain the same. A simple majority of voters will decide the abortion-rights amendment.