On December 7th, 2023, Ohio’s Issue 1 went into effect. This constitutional amendment, passed by ballot initiative 30 days prior, enshrined a right to abortion into the state’s constitution and asserted comprehensive protection of other “reproductive rights.”[1] Such euphemisms were not only instrumental in the passage of this radical change to Ohio’s founding document, they also obscured how legally vulnerable existing pro-life laws would become due to Issue 1’s passage. From that uncertainty, two distinct approaches to combat the amendment have emerged: attempt to pass legislation that could curtail Issue 1, or focus on reducing the prevalence of abortion by directly targeting its societal drivers. By examining both strategies, and the efforts pro-life Ohioans are employing to these ends, helpful insights into the complexities of advocacy after pro-abortion ballot initiatives can be determined.

 

 

Before delving into specific strategies, it is helpful to outline key portions of Issue 1’s language to understand the complex threat it poses to current and future legislation. Issue 1 asserts a “right to make and carry out one’s own reproductive decisions, including…abortion” and uses a viability framework similar to that used in Planned Parenthood v. Casey to stipulate when the state can ban abortion, namely, once a child is determined to be able to survive outside the womb.[2] [3] It also adds a clause that prohibits the banning of abortions deemed necessary for the health of the mother.[4] Although the use of viability terminology, combined with a health exception, may seem straightforward, this approach enables the same loopholes that plagued U.S. abortion law during the time of Roe.  By inserting a vague health exception, Issue 1 effectively allows abortion through all nine months of pregnancy for reasons such as a woman's mental health or familial situation.[5] It is also astute to reflect that the same physician determining whether an abortion on the basis of health could be justified, would very likely be the same one profiting from carrying out the procedure. The conflict of interest arising from such a situation is obvious upon a legal dissection of the language, but not immediately apparent to the layperson. Such semantic barriers aided Issue 1’s passage.

 

 

However, Issue 1’s even more dangerously obscured implication comes from its dictates against the State’s jurisdiction over abortion regulation. It prohibits any government entity from “directly or indirectly” imposing any “burden” or interference on an individual’s right to reproductive choices along with any person or entity helping them exercise said right. Regulations pertaining to that right will only be allowed if the State can prove they are employing the “least restrictive means,” a high bar that will be difficult to interpret.[6] This could put almost any pro-life protection Ohio has in Issue 1’s crosshairs. Even safety regulations such as laws requiring abortionists to maintain admitting privileges to local hospitals in the event of a medical emergency were ruled an “undue burden” during the days of Roe, and it is not a far leap to expect such laws to be interpreted similarly under Issue 1.[7] [8] During the fight to pass Issue 1, its innocuous title “The Right to Reproductive Freedom with Protections for Health and Safety” obscured this fact with abortion activists rightly assuming the average Ohioan would take the amendment at face value.[9] Now, the damage has been done. Successfully keeping or implementing any current or future pro-life legislation will be an uphill, and potentially losing, battle.

 

 

Regardless of these seemingly insurmountable challenges, several legislative actions have been proposed that attempt to curtail Issue 1. Abortion abolitionists in Ohio have proposed putting forth a life at conception bill that would outlaw nearly every abortion in the state and grant preborn babies legal personhood. They believe that by invoking the equal protection clause of the US Constitution under the 14th Amendment, abortion could be made illegal.[10]

 

 

However, there has been no indication that the Ohio Supreme Court would share the same legal interpretation. Ohio’s highest court appears to acknowledge, if not explicitly, that Issue 1 fundamentally changed the way abortion cases in the state may be decided. For example, Ohio Attorney General Dave Yost’s request to continue assessment of the case surrounding Ohio’s Heartbeat Law was turned down soon after Issue 1’s passage, with the court citing “change in law.”[11] Although Yost acknowledged in his brief that Issue 1 clearly made the Heartbeat Law unconstitutional, he argued that it remained unclear whether abortion facilities had the standing to bring the lawsuit in the first place and expressed a desire to continue to inquire on those grounds.[12] But one could speculate that if the court, which leans pro-life, believed they could invoke a federal clause to save vital pro-life legislation, they could have done so already. Instead, they sent the case back to the lower court, while indirectly citing Issue 1.[13] All speculation aside, the bill has no practical future as Speaker of the Ohio House Jason Stephens has already stated his intent to work towards supportive services, not entertain challenges to Issue 1.[14]

 

 

Ultimately, this is for the best, as the bill’s stated intention to copy and paste current criminal penalties into abortion law would put women at risk of prosecution, a strategy the pro-life movement overwhelmingly rejects.  As tempting as ending abortion through a one-size-fits-all bill may be, such solutions willfully ignore the legal needle-threading necessary to implement - and keep- a just society. The same biased media that helped obscure the impact of Issue 1’s terminology to assist in its passage would no doubt use the opportunity granted to them via such a bill to fearmonger public perception even further away from a culture of life. Women and babies deserve better. The movement cannot build our legacy on a cracked, or even worse, warped foundation. 

 

 

The abolition bill is simply one of many such legislative “band-aids” brought forth in the aftermath of Issue 1’s passage. HB 371, introduced earlier this year and dubbed the “Issue 1 Implementation Act” would give the Ohio Legislature “exclusive jurisdiction over implementing [Issue 1]” and dismiss all attempts of the courts to  “enforce or implement” Issue 1, thereby saving Ohio’s current pro-life laws.[15] [16] This would create a potentially unprecedented standoff between the state of Ohio’s Legislative and Judiciary branches by asserting the legislature can and will withhold all jurisdiction from the courts pertaining to Issue 1. Although the bill’s sponsors believe Ohio’s Constitution suggests that the legislature can determine what scope over legislation courts can hold, it seems unlikely that once the law itself inevitably reached the courts, that same court would then willingly rule against itself. [17]

 

 

HB 371 does not appear a tenable or even constitutional way to curtail Issue 1 and the bill has garnered little support from pro-life leaders across the state. It remains in committee with no hearings yet held[18] Although HB 371 comprises an ill-conceived attempt to mitigate Issue 1, other efforts could prove useful to that end.

 

 

One such law is HB 68, also known as The SAFE Act. HB 68 bans medical gender transition for minors in Ohio among other safeguards.[19] Whether Issue 1’s scope includes a minor’s right to transition has been widely debated, but Issue 1’s open-ended “including but not limited to” mention of protected reproductive rights led many to believe a frighteningly broad interpretation could be in play.[20] In the lead-up to Issue 1’s passage, pro-lifers remained adamant the amendment would enshrine gender transitions in Ohio’s founding document, an assessment that became the target of pointed fact checks.[21] Those assertions were confirmed in part when Planned Parenthood announced days before Issue 1 went into effect that all Ohio locations would begin offering gender transition services, albeit only to adult patients. Their press release also included mention of Issue 1, an indicator they viewed its passage as pertinent to the access to “gender-affirming care.” [22]

 

 

Despite this, the SAFE Act passed several weeks later although Ohio Governor Mike DeWine subsequently vetoed it.[23] Interestingly, Ohio Right to Life, which has historically opted to not engage in LGBTQ+ issues, supported HB 68 and voiced strong opposition to the Governor’s veto which the Ohio Legislature ultimately overrode.[24] The ACLU has already announced they will take legal action against HB 68.[25] The outcome of such a court case could prove enlightening as to the scope of Issue 1.

 

 

Such legal opposition may offer a win-win scenario for the pro-life movement. If HB 68 withstands a legal challenge, Ohio children will be spared mutilation and sterilization. If HB 68 is struck down by the courts, especially on the basis of Issue 1’s language, concerns that abortion ballot amendments form a danger to children both inside and outside of the womb will be confirmed. Although an undeniably smaller consolation, this would still provide useful evidence for other states’ fights against abortion ballot initiatives.

 

  

A final legal method should be highlighted, due to its relevance in national conversations surrounding abortion. Ohio’s pro-life movement has also considered a ballot initiative instituting a ban on abortions after 15 weeks, but this idea has not been pursued further.[26]  Under 11% of abortions in Ohio occur after 13 weeks gestation (Ohio does not distinguish statistics at the 15-week mark) and such a ballot initiative proposed on the heels of Issue 1 would most likely prove both costly and ineffective.[27] Ohio’s pro-life movement may very well pursue a pro-life ballot initiative in the future, but timing will be key. A strategic wait may improve the pro-life movement’s chance of success, just as Issue 1’s intentional timing allowed it to be viewed by voters as a referendum on the overturning of Roe. Lastly, a 15-week ban would also set a strange tone for abortion policy going forward, potentially creating roadblocks for future efforts and unnecessary divisions. With all this in mind, a more hands-on approach toward pro-life advocacy is advisable.

 

 

At this time, lowering the number of abortions through improved societal safety nets seems the most productive option until it becomes clear how Ohio’s pro-life laws fair in court. The Guttmacher Institute reports that 75% of women seeking abortions are at or below the poverty line and 73% of women obtained abortions for financial reasons.[28] Targeting such financial concerns could prove highly successful in saving lives. Additionally, with pro-abortion panic funding Post-Roe finally beginning to subside, Ohio’s abortion funds are financially vulnerable. Abortion Fund of Ohio, which pays for travel and other expenses for those seeking abortions, subjected itself to a direct patient funding freeze earlier this year, due to a “dramatic drop-off in funds.” [29]  Such moments of weakness provide pro-lifers with opportunities to consolidate our resources into pregnancy help directives and provide uninterrupted care.

 

 

Thankfully, Ohio’s biennial budget was set in 2023, with Ohio leaders having the foresight to strengthen TANF (Temporary Assistance for Needy Families) grants available for pregnancy resource centers by doubling the dollar amount before Issue 1’s passage. 15 million dollars were made available for pregnancy centers and other life-affirming agencies over the next two years.[30] Unfortunately, the Biden Administration has recently targeted states’ allocation of TANF, with a new rule which claims pregnancy centers fail to meet TANF eligibility requirements. This odd interpretation willfully ignores that nearly 90% of PRCs provide parenting classes and/or support through economic hardships (for pregnancy centers, this comprises giving material goods), both of which are named as services that qualify entities for funding in the new rules.[31] [32] However, whether or not PRCs continue to receive TANF dollars, they will remain a key line of defense against the culture of death. A study by The Ohio State University, reported by the Ohio Capital Journal, found that “nearly one in seven women in Ohio has been to at least one [PRC], and attendance at centers is ‘higher among non-Hispanic Black women and those with lower socioeconomic status.’ ” [33]  Given that these demographics are disproportionately affected by abortion, it is an encouraging sign that Ohio PRCs are successfully reaching these women when they need it most.[34]

 

 

In a very real sense, Ohio is treading new and old ground simultaneously. The full impact of Issue 1’s passage is not yet manifest, although it will be as Ohio’s pro-life laws are slowly but surely taken to court by abortion activists groups. The best path forward is a persistent and principled “death by a thousand cuts” approach. Daunting as this may seem, the pro-life movement would do well to remember their intentional advocacy that eroded and ultimately ended Roe v. Wade. Issue 1 can also be overcome and eventually undone, but it will require consistent, often culture-focused advocacy.  Legislative actions such as The SAFE Act, which at the very least, clarify the jurisdiction and threat of Issue 1, are a tenable strategy and foster forward momentum. Potential legislative efforts such as reforming Ohio’s abortion reporting, for which statistics are only become available annually, expanding parental leave, and lowering or even eliminating birthing costs, could also prove fruitful in re-building Ohio’s culture of life, though such initiatives are still in the planning stages. Such actions would likely not constitute a direct threat to Issue 1’s right to an abortion and could withstand court challenges. As for Ohio’s other pro-life laws, only time will tell which will survive the fallout of Issue 1. Until then, Ohio will continue to search for and God willing, find, survivors in the ashes.

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[1] Ingles, Jo. “Starting Today, Ohioans Have a Constitutional Right to an Abortion as Issue 1 Takes Effect.” statenews.com, December 7, 2023. https://www.statenews.org/government-politics/2023-12-07/starting-today-ohioans-have-a-constitutional-right-to-an-abortion-as-issue-1-takes-effect.

[2] “Why Is This Important?” See the Language | Ohio Ballot Initiative. Accessed February 2, 2024. https://seethelanguage.com/.

[3] “Planned Parenthood of Southeastern PA. V. Casey, 505 U.S. 833 (1992).” Justia Law. Accessed February 2, 2024. https://supreme.justia.com/cases/federal/us/505/833/.

[4] See [2]

[5] Yost, Dave. “Issue 1 on the November 2023 Ballot A Legal Analysis by the Ohio Attorney General.” ohioattorneygeneral.gov, n.d.

[6] See [2]

[7] “Whole Woman’s Health v. Hellerstedt, 579 U.S. ___ (2016).” Justia Law. Accessed February 2, 2024. https://supreme.justia.com/cases/federal/us/579/15-274/.

[8] “June Medical Services L. L. C. ET AL. v. Russo, Interim Secretary, Louisiana Department of Health and Hospitals,” Supreme Court of the United States (Supreme Court of the United States 2020).

[9] Trau, Morgan. “What Is Ohio Issue 1? We Explain the Proposed Abortion Rights Amendment.” Ohio Capital Journal. October 19, 2023.

[10] Trau, Morgan. “After Ohio Supreme Court Dismisses Anti-Abortion Arguments, Advocates Work to Unveil Total Abortion Ban.” news5cleveland.com, December 18, 2023. https://www.news5cleveland.com/news/abortion-in-ohio/after-ohio-supreme-court-dismisses-anti-abortion-arguments-advocates-work-to-unveil-total-abortion-ban.

[11] Szilagy, Sarah. “Challenge to Block on 6-Week Abortion Ban Dismissed by Ohio Supreme Court.” nbc4i.com, December 15, 2023. https://www.nbc4i.com/news/your-local-election-hq/challenge-to-block-on-6-week-abortion-ban-dismissed-by-ohio-supreme-court/.

[12] Wildow, Samantha. “Yost Asks Court to Continue Appeals Case Stemming from Heartbeat Law.” daytondailynews.com, December 8, 2023. https://www.daytondailynews.com/ohio/yost-asks-court-to-continue-appeals-case-stemming-from-heartbeat-law/P74RYW4HORDTXE45ZXTV6A72GY/.

[13] See [3]

[14] Evans, Nick. “Pumping the Brakes: Ohio House Speaker Dismisses Effort to Limit Court Jurisdiction on Issue 1.” ohiocapitaljournal.com, November 15, 2023. https://ohiocapitaljournal.com/2023/11/15/pumping-the-brakes-ohio-house-speaker-dismisses-effort-to-limit-court-jurisdiction-on-issue-1/.

[15] “H.B. No. 371.” 135 General Assembly Regular Session 2023-2024, n.d.

[16] “House Bill 371 Status.” House Bill 371 Status | 135th General Assembly | Ohio Legislature. Accessed January 31, 2024. https://www.legislature.ohio.gov/legislation/135/hb371/status.

[17] Kreemer, Avery. “Local Reps’ Bill Would Prevent Courts from Hearing Challenges to Abortion Laws under Issue 1.” daytondailynews.com, January 21, 2024. https://www.daytondailynews.com/local/local-reps-bill-would-prevent-courts-from-hearing-challenges-to-abortion-laws-under-issue-1/GWLY2S2QC5DXRPPAUKXDXI7RBM/.

[18] See [8]

[19] Center for Christian Virtue. “Breaking News: Senate Overrides Gov. DeWine.” ccv.org, January 25, 2024. https://www.ccv.org/news/breaking-news-senate-overrides-gov-dewine-veto-hb68.

[20] See [2]

[21] Kobil, Daniel T. “There Are a Lot of Despicable Lies about Issue 1. Here’s the 3 Nastiness: Lawyer.” dispatch.com, November 5, 2023. https://www.dispatch.com/story/opinion/columns/guest/2023/10/27/3-biggest-lies-about-ohio-issue-1-constitutional-abortion-amendment-on-nov-7-ballot/71319818007/#:~:text=Yet%20the%20amendment’s%20text%20protects,doubt%20by%20the%20Dobbs%20decision.

[22] “Planned Parenthood of Greater Ohio Launches Gender-Affirming Care Program in Cleveland.” Plannedparenthood.Org. Planned Parenthood of Greater Ohio, December 5, 2023. Planned Parenthood of Greater Ohio. https://www.plannedparenthood.org/planned-parenthood-greater-ohio/newsroom/planned-parenthood-of-greater-ohio-launches-gender-affirming-care-program-in-cleveland#:~:text=CLEVELAND%2C%20Ohio%E2%80%94Planned%20Parenthood%20of,patients%20aged%2018%2B%20across%20Ohio.

[23] Zorthian, Julia. “Ohio Governor Vetoes Bill Banning Gender-Affirming Care for Young People.” time.com, December 29, 2023. https://time.com/6551149/ohio-governor-gender-affirming-care/.

[24] “Ohio Right to Life Releases Statement Praising the Senate’s Legislative Veto Override of HB 68 .” Ohiolife.Org. Ohio Right to Life, January 24, 2024. Ohio Right to Life. https://ohiolife.org/ohio-right-to-life-releases-statement-praising-the-senates-legislative-veto-override-of-hb-68/.

[25] Henry, Megan. “ACLU of Ohio to File Lawsuit to Stop Gender-Affirming Care Ban for Trans Youth.” ohiocapitaljournal.com, January 30, 2024. https://ohiocapitaljournal.com/briefs/aclu-of-ohio-to-file-lawsuit-to-stop-gender-affirming-care-ban-for-trans-youth/.

[26] Trau, Morgan. “Ohio Senate GOP Floats Idea of 15-Week Abortion Ban despite Voters Saying No.” ohiocapitaljournal.com, November 16, 2023. https://ohiocapitaljournal.com/2023/11/16/ohio-senate-gop-floats-idea-of-15-week-abortion-ban-despite-voters-saying-no/.

[27] Ohio Department of Health. “Induced Abortions in Ohio, 2022 Report,” September 2023.

[28] Jerman, Jenna, Rachel K. Jones, and Tsuyoshi Onda. “Characteristics of U.S. Abortion Patients in 2014 and Changes since 2008.” Guttmacher Institute, August 11, 2023. https://www.guttmacher.org/report/characteristics-us-abortion-patients-2014.

[29] Tebben, Susan. “Ohio Abortion Services Still Struggle with Funding as Anti-Abortion Causes Get More from State.” news5cleveland.com, January 26, 2024. https://www.news5cleveland.com/news/state/ohio-abortion-services-still-struggle-with-funding-as-anti-abortion-causes-get-more-from-state.

[30] Walsh, Maeve. “Ohio Lawmakers Double Available Funds for Crisis Pregnancy Centers.” nbc4i.com, July 12, 2023. https://www.nbc4i.com/news/local-news/ohio-lawmakers-double-available-funds-for-crisis-pregnancy-centers/.

[31] Children and Families Administration. “Strengthening Temporary Assistance for Needy Families (TANF) as a Safety Net and Work Program.” federalregistration.gov, October 2, 2023. https://www.federalregister.gov/documents/2023/10/02/2023-21169/strengthening-temporary-assistance-for-needy-families-tanf-as-a-safety-net-and-work-program.

[32] Charlotte Lozier Institute, Care Net, Heartbeat International, and National Association of Family and Life Advocates. “Pregnancy Centers Offer Hope for a New Generation.” lozierinstitute.org, December 2023.

[33] Tebben, Susan. “Report: Columbus Crisis Pregnancy Centers, Funded by the State, Show ‘Gross Inadequacies.’” ohiocapitaljournal.com, September 5, 2023. https://ohiocapitaljournal.com/2023/09/05/report-columbus-crisis-pregnancy-centers-funded-by-the-state-show-gross-inadequacies/#:~:text=Pro%2DChoice%20Ohio%20cited%20research,those%20with%20lower%20socioeconomic%20status.%E2%80%9D.

[34] Finer, Lawrence B., Lori F. Frohwirth, Lindsay A. Dauphinee, Susheela Singh, and Ann M. Moore. “Reasons U.S. Women Have Abortions: Quantitative and Qualitative Perspectives.” guttmacher.org, August 25, 2022. https://www.guttmacher.org/journals/psrh/2005/reasons-us-women-have-abortions-quantitative-and-qualitative-perspectives.

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