The defeat August 8 of Issue 1 (raising requirements for approval of referendum-initiated state constitutional amendments) will make Ohio pro-lifers’ work to defeat a radical pro-abortion amendment to their state constitution on the November 7 ballot that much tougher.*
A coalition of pro-abortion groups is using Ohio’s “initiative-and-referendum” (I&R) process to try and insert a “Right to Reproductive Freedom” amendment into the Buckeye State’s constitution. I&R is a vestige from theearly 20th century Progressive movement which allows citizens to propose laws (even constitutional amendments) by referendum, bypassing the state legislature. Approval requires a bare majority: 50% + 1 of voters voting (even if the total number who do vote is less than a majority of voters entitled to vote).
Pro-abortion forces are exploiting I&R provisions to try to maintain a string of successes, either inserting pro-abortion language into state constitutions (Vermont, California) or at least keeping “right to abortion” language out (Kansas, Kentucky). In early August, a pro-abortion coalition announced plans to pursue a pro-abortion amendment to the Arizona Constitution in November 2024.
Ohio pro-lifers’ job is complicated because the politics of abortion is not just about rational argument. It’s also often about perceptions and storylines, narratives not necessarily grounded in fact but which play well in the media. It’s also frequently about visceral feelings.
On the question of rational argument: the proposed Ohio amendment is truly radical. If successful, it might likely prove a template for other states. The amendment would eliminate any restrictions on abortion through birth. (Ohio currently bans abortion after 5-1/2 months of pregnancy, i.e., 22 weeks. A bill banning abortion from the moment an unborn heartbeat is protected is tied up in state courts). The amendment would require state funding of abortion. It would also eliminate parental involvement (consent or even notification) in a minor child’s procuring an abortion.
But the amendment is broader than that. Because it protects “fertility treatment” (and prohibits the state from “discriminat[ing]” against protected rights), it would protect and likely require state funding of in vitro fertilization. Because “fertility treatment” is undefined, it most likely could also be extended to surrogacy. Banning a woman from choosing to have a child because of her bodily incapacity to bear a child would arguably interfere with her “fertility treatment.” Likewise, preventing homosexual couples from recourse to surrogacy to overcome their inherent sterility would almost certainly constitute abridgement of an available “fertility treatment” enabling them to become parents.
In other ways, the amendment’s language is deliberately vague, almost certainly to leave the door open to its future expansion by the courts. For example, by speaking of an “individual” exercising the “right” to abortion or allowing abortion when a “pregnant patient’s life or health” is endangered, the amendment clearly detaches pregnancy from maternity, constitutionally entrenching the legal fiction that men can become pregnant. It also cannot be ruled out as a wedge to allow the amendment to be used to ground future pushes of gender ideology, e.g., preventing parents from “interfering” with an “individual’s voluntary exercise” of rights to chemical castration or genital mutilation. Minors, after all, are “individuals” and “fertility treatment” includes sterilization.
Advocates of the amendment will almost certainly claim that the amendment has nothing to do with gender ideology issues. They are dissembling. If they truly believed that, the amendment would not speak about “pregnant persons” and there would be explicit language protecting parental rights over minor children regarding such procedures. Their absence makes the real agenda clear.
Elsewhere, the amendment provides pro-life window dressing which, on closer inspection, is taken away right after providing it. A likely lie that will be spread to pretend the amendment is not as radical as it is claimed to be is its provision banning abortion after “viability.” Its proponents will likely assert that it is just codifying Roe in protecting post-viability state interest in potential life. Don’t believe it.
First, the amendment explicitly rules out any definition of “viability.” Viability is “determined on a case-by-case basis” by the abortionist. Under that criterion, a 39-week fetus could be “unviable.”
Second, the post-viability ban on abortion is explicitly declared inapplicable if the “pregnant patient’s [note the erasure of woman] life or health” requires, in the abortionist’s judgment, “protect[ion].” 50 years of experience under Doe v. Bolton made clear that “health” is whatever an abortionist says it is, a declaration that is unreviewable and broad enough to drive a Mack truck through.
These are the rational arguments. Contemporary abortion debates rarely are conducted on rational arguments. They are conducted on storylines. The likely pro-abortion narratives will be: (1) women are dying because pro-life measures prevent proper care of miscarriage and intimidate medical personnel from using their best, proactive clinical judgment; (2) restrictive abortion laws require minors to cross state lines to escape pregnancies caused by rape and incest; (3) it’s not about “when life begins” (a murky line based on one’s philosophical and religious views) but “who chooses”—and we should get government out of Ohio’s bedrooms; (4) the reversal of yesterday’s “right to privacy” regarding abortion means they’re coming next for your contraceptives—and this amendment explicitly protects them!
Beyond the tropes that readily lend themselves to soundbites, there is one last level where voters need to be convinced: the visceral. Polls generally show most Americans are not comfortable with abortion-on-demand and want some restrictions on it. But, when push comes to shove, the tough rational work of defining those parameters is often short circuited by storylines. On top of that, theoretical commitments to “life” often grow wobbly when one is confronted with the practical consequences of that stance, especially if abortion remains an “easy way out” backup. That’s probably particularly true with young people: among the counties where Issue 1 went down to defeat by more than 70% were Franklin (Columbus and home of Ohio State) and Athens (home of Ohio University). Like it or not, almost 50 years of Roe made abortion in some ways the “old reliable.”
2023 being an off-year election, pro-abortion forces will be able to focus massive amounts of out-of-state money on the Ohio abortion referendum and electing a pro-abortion lower house in Virginia. Defeat in Ohio will probably open the door to similar efforts in other Midwestern states. For pro-life forces nationally, it’s all hands-on deck.
*[For a detailed analysis of the August 8 vote, see here].