Certification of proposed reproduction rights amendment must stand, AG says

The Ohio Ballot Board and petitioners for a proposed amendment to the Ohio Constitution — which would ensure access to abortion — responded to anti-abortion activists in a lawsuit before the Ohio Supreme Court, saying the board’s previous decision certifying the petition as drafted must stand.

“The people of Ohio reserved to themselves the power to draft and propose amendments to the Ohio Constitution,” says Dave Yost, Ohio attorney general, and Julie M. Pfeiffer, counsel of record, in the Ohio Ballot Board’s response to relators from Cincinnati Right to Life. “The Ohio Ballot Board and its members correctly refused to usurp the people’s power by splitting the petition titled ‘The Right to Reproductive Freedom with Protections for Health and Safety’ into multiple amendments.”

Margaret DeBlase and John Giroux, the relators in this case who are from Cincinnati Right to Life, are seeking to have the Ohio Supreme Court force the Ohio Ballot Board to vacate its previous decision certifying the proposed amendment as containing one amendment and not multiple. This allowed petitioners to go forward and begin collecting signatures from registered voters in Ohio to have the proposed amendment placed on the November ballot.

The relators, who are being represented by the law firm of Curt C. Hartman, said the Ohio Ballot Board “members acted in clear disregard” of the law by giving approval for this proposed amendment. Anti-abortion activists contend that abortion has been recognized as being “inherently different” and a “unique act,” saying it is separate from reproductive decisions. The Ohio Ballot Board “failed to even consider the particular language of the proposal and what actually falls (or may fall) within the ambit of being ‘one’s own reproductive decisions,’” relators said in their merit brief filed March 31.

“The weakness of Relators’ claim is best exemplified by their failure to argue how many proposed amendments are supposedly included within the petition and what those amendments are,” Yost and Pfeiffer say on behalf of the Ohio Ballot Board in their merit brief filed this week. “If, as Relators claim, the petition so obviously includes multiple amendments that the Ballot Board abused its discretion in concluding otherwise, surely it would be easy for Relators to articulate the number and content of each separate amendment? Yet, a reader searching for the number of separate amendments purportedly included in the petition will not find it in Relators’ Complaint or Merit Brief.”

Yost and Pfeiffer go on to say the court cannot issue a writ of mandamus — which would be a judicial order to the Ohio Ballot Board in this case, forcing the board to change its decision — on “so thin a showing.” They later conclude that the arguments from relators DeBlase and Giroux, as well as their other supporters from other Right to Life organizations, to be “arguments on the substance of the proposed amendment” rather than the role of the Ohio Ballot Board.

“The Ballot Board correctly ignored these substantive arguments, decided the petition contained one amendment, and certified it as drafted,” Yost and Pfeiffer say.

In the merit brief filed this week by the petitioners for the proposed amendment, they say the proposed amendment all relate to one general purpose or object, saying “all of the proposed amendment’s provisions deal with decision-making related to reproduction.” Counsel for the petitioners, Donald J. McTigue of McTigue & Colombo, LLC and the ACLU of Ohio, say in this brief the relators’ “analytical approach is misguided.” McTigue says “calling abortion ‘unique’ does not mean that abortion is unrelated to the common purpose of the right to make and carry out one’s own reproductive decisions.”

The petitioners response goes on to say there is “no evidence of deceit or logrolling,” as well as say the relators “failed to establish that the Ballot Board abused its discretion.” The petitioners also say the writ of mandamus should be denied as it would violate Ohioan’s rights under the Ohio Constitution, which allows for citizen-led proposed amendments to the state constitution.

A reply brief filed by the relators from Cincinnati Right to Life on Friday reiterated statements that abortion is a “unique act.” The relators’ brief filed Friday says the Ohio Ballot Board “conveniently attempts to recast the actual language involved” and “the failure to exercise any discretion constitute an abuse of discretion” on behalf of the board. The relators continue to say abortion should not be included with the statements regarding reproductive decisions and ask the court to have the board vacate its previous decision on the proposed amendment.

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