Allie Frazier

Fellow

Society of St. Sebastian   |  22 April  2024

Since the passage of Ohio’s Issue 1 in November 2023, many assertions made by the pro-life movement regarding the ultimate impact of this radical constitutional amendment have remained purely speculative. Prior and post the amendment’s implementation, pro-life advocates and legal scholars have warned that Issue 1, which enshrined a right to abortion into Ohio’s constitution, could lead to a widespread repeal of health and safety requirements.[1] [2] Such warnings were realized on March 29th, 2023 when the ACLU filed a lawsuit on behalf of multiple members of the Ohio abortion industry, arguing that state laws surrounding informed consent for abortion procedures were unconstitutional under Issue 1’s new standard.[3] Those targeted portions included sections of Ohio Revised Code 2317.56 and 2919.192–2919.194 which include stipulating a 24-hour waiting period before abortion procedures, ensuring women seeking abortions are informed of the risks of both abortion procedures and pregnancy continuation, offering information on the gestational age and detected heartbeat of their preborn child, and providing resources available to them if they decide to continue the pregnancy, among other requirements.[4]

 

 

Before delving into the ACLU’s specified justifications for the lawsuit, Preterm-Cleveland v. Yost, it is helpful to outline the connection between Issue 1’s passage and the ACLU’s decision to attack several of Ohio’s informed consent requirements. In 1991, Ohio passed HB 108, the 24-hour waiting period measure along with attached informational requirements for women seeking abortions. The ACLU rapidly vowed to sue.[5] At the time, Roe v. Wade remained the law of the land, however, Ohio’s informed consent law was not struck down. It is interesting to note that Planned Parenthood v. Casey,  a case decided in 1992, upheld a 24-hour waiting period law, asserting that it “... helps ensure that a woman's decision to abort is a well-considered one…It may delay, but does not prohibit, abortions; and both it and the informed consent provisions do not apply in medical emergencies.” [6]  However, the language of Issue 1 goes further than either the standard of Roe or Casey, the latter of which outlined an “undue burden” as the bar by which pro-life protections must be measured.[7] In contrast, Issue 1 prohibits any action which “directly or indirectly” affects someone from exercising their “right to reproductive health decisions [including abortion].” [8] With this in mind, the timing of the ACLU’s lawsuit becomes obvious. Issue 1’s more extreme language opens the door wide for a rolling back of Ohio’s informed consent under the justification that regulations, which affect the abortion process are “directly or indirectly” hindering one’s rights to reproductive choices.

 

 

To delve into the lawsuit itself, the ACLU argues that Ohio unfairly singles out abortion procedures for 24-hour waiting periods, claiming that no other time-sensitive medical procedures in the state are subjected to such delays.[9] It is worth noting that the Ohio Revised Code allows for waiving the 24-hour waiting period in the case of a medical emergency.[10] It is also worth noting that the “time-sensitive” nature of abortion is due to the continued development of a preborn human and that 24 hours is much shorter a window than required for many other reproductive medical procedures subjected to waiting periods in the U.S. healthcare system. For example, Medicaid requires a 30-day waiting period before elective sterilization procedures.[11] Likewise, the state of Washington requires a 72-hour waiting period for hysterectomies.[12] Although a waiting period for hysterectomies is not required by law in Ohio, a brief search into the process to obtain such a procedure at The Cleveland Clinic thoroughly describes a “first appointment” in which intentional and serious counseling along with a discussion of risks and alternatives occurs, very similarly to Ohio’s current informed consent processes for abortion procedures.[13] Although descriptions of the Cleveland Clinic's hysterectomy process are not explicit, it seems a natural conclusion to assume that a “first appointment” would be denoted in a scenario in which a second (or third or fourth) appointment would also follow. The Cleveland Clinic may understand the necessity of robust and unhurried informed consent for life-altering medical procedures, however, the ACLU appears to actively oppose it. Better a rushed abortion than no abortion at all. Additionally, it is pertinent to mention that in Preterm Cleveland v. Vionivich, the ruling which dissolved the injunction against HB 108 in 1993, the court found that a 24-hour waiting period “is not too far afield of the common insurance company practice of requiring second opinions before invasive procedures are undertaken.”[14] Although the ACLU would like to assert that such common sense safeguards have no precedent in the broader healthcare community, that is simply not the case.

 

 

In line with a similar rejection of reality, the ACLU also argues in Preterm-Cleveland that the informational material provided, but not required for women to read during the abortion process, is manipulative and medically inaccurate.[15] This is an odd assertion considering the Ohio Revised Code challenged by the lawsuit explicitly stipulates that information given to women including that regarding fetal development and the risks of abortion “...shall be objective and nonjudgmental, and shall include only accurate scientific information…”[16] The section goes so far as to detail that any depictions of preborn human development must include easily understandable language and scaling measures to ensure the child is accurately depicted.[17] The ACLU appears to have conflicts not with inaccurate information, but with clearly explained scientific processes.

 

 

It is unsurprising then that Preterm-Cleveland claims that women are unnecessarily distressed by additional time and information with which to consider their options.[18] Such sentiments are echoed in an article published in the International Journal of Women’s Health in 2020 which considered the impacts of mandatory waiting periods, or MWPs on women. It states, “having an extended period of time to possibly change their mind about their decision to have an abortion by thinking counterfactually about their situation may result in people having negative feelings such as anxiety at the prospect of making a decision that might be regretted in the long-run.”[19]  It seems odd to not question a pattern of consistent negative emotion associated with additional time and scientific information when considering a particular choice. Clearly, women are able to intelligently come to their own conclusions based on presented facts and when given the proper space in which to consider such facts. Why would this prove a threat to their decision making? The study even goes on to argue that protecting women from the negative emotion they feel is more important than giving them adequate time to reflect, stating that “it seems prudent to put greater emphasis on the impact of waiting periods on people’s emotional functioning rather than focus overly on the supposed benefit of having longer for their decision-making and their wider cognitive functioning.” [20] These chilling opinions are perpetuated in the ACLU’s lawsuit which emphasizes the momentary emotions of a woman undergoing the process of obtaining an abortion, claiming that the additional time requirement is “deeply distressing” and “reflects the patronizing stereotype that women do not think carefully about their decisions” [21] The conclusion that women experience distress after being given ample time to think carefully about an abortion decision says more about the nature of abortion itself, and women’s instinctive understanding of its repercussions, than it says about MWPs. The ACLU clearly distrusts women’s emotional intuition enough to sue to silence it.

 

 

But placing sole blame on the ACLU for this blatant attack on Ohio’s informed consent presents an incomplete picture. The ACLU filed the lawsuit on behalf of five Ohio abortion facilities, organizational affiliates, or in one instance, an abortionist.[22]  It is unsurprising that these particular entities would fight against information, which outlines abortion risks, given that their own documented infractions prove the sobering validity of such cautions. These infractions include but are not limited to, failure to properly sterilize instruments, utilizing physicians with unverified credentials, and failing to have a plan for ensuring consistent quality of care for patients.[23] [24] Notably, Cleveland-based abortion business Preterm, involved in both the current ACLU lawsuit and HB 108’s injunction case decades previously, has seen at least two women die after they underwent abortions at the facility.[25] [26]

 

 

Despite these documented points of concern, Preterm-Cleveland argues that providers are already equipped to administer patient-centric care, however, the track record of both the facilities involved in the current lawsuit and their national affiliates suggest otherwise.[27] Planned Parenthood for example, is known to have “abortion quotas.” These quotas prove substantial enough to inspire a former Planned Parenthood nurse to describe feeling like an “abortion salesman” and commenting that she “felt more like [she] was selling abortion sometimes than treating people.” [28]  Obviously, MWPs get in the way of such endeavors. One study examined the impact MWPs have on abortion facilities. Monetary strain was listed as a consequence of MWPs, with one abortion worker complaining,“It was a huge financial impact. We’re adding a whole twenty-seven hours of nurse time that we had not budgeted.” [29]  Doubtless abortion facilities would prefer to expedite the process by eliminating the time and care spent on each patient through strong informed consent laws.

 

 

Finally, a complete unwillingness to solve the desperation, which brings women to abortion in the first place rounds off the double standard put forth by the suit against Ohio’s informed consent requirements. Preterm-Cleveland paints a desperate picture of already disadvantaged women attempting to accommodate Ohio’s informed consent requirements but fails to mention that the ACLU’s lawsuit goes after not just the waiting period requirement, but also the requirement that women seeking abortions are given comprehensive information on the many forms of public assistance available to help them both prenatally and postnatally should they choose to parent.[30] With 70% of women choosing abortion due to financial reasons, the abortion industry has chosen to actively engage in a direct attack on women’s agency by attempting to erase knowledge of their options other than abortion.[31] The ACLU and their allies have no intention of helping solve problems that make women desperate enough to choose abortion in the first place, but rush them towards the only choice off which they can fundraise.

 

 

Unfortunately, despite the fact that the ACLU’s objections to Ohio’s informed consent requirements prove dubious and unfounded, Issue 1’s language appears stricter than that of both Roe and Casey, and it is possible that many if not all of Ohio’s informed consent safeguards pertaining to abortion will ultimately be struck down. Ohio’s abortion industry, emboldened by the blank check now written into Ohio’s founding document by Issue 1, will doubtless take every chance made available to them to strike down regulations that hold them accountable and protect patients at the expense of their own bottom line.  Although Ohio’s Supreme Court currently holds a pro-life majority, Issue 1 may not provide the justices much —or any—room for nuanced rulings. The vulnerability of Ohio’s informed consent laws post-Issue 1 is a sobering reminder that pro-abortion ballot initiatives comprise both a threat to preborn babies and the health and agency of their mothers. When the abortion industry wins, women are always the first to lose.

 

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[1] Greater Columbus Right to Life. Vote No Walk Card. Columbus, Ohio: Greater Columbus Right to Life, 2023. https://www.gcrtl.org/uploads/4/7/1/2/4712557/copy_of_gcrtl_vote_no_walk_card__6_x_11_in_.pdf.

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

[3] “Ohio Abortion Providers File Lawsuit Challenging 24-Hour Waiting Period and Other Abortion Restrictions.” American Civil Liberties Union, March 29, 2024. https://www.aclu.org/press-releases/ohio-abortion-providers-file-lawsuit-challenging-24-hour-waiting-period-and-other-abortion-restrictions#:~:text=Yost%2C%20et%20al.-,The%20American%20Civil%20Liberties%20Union%2C%20the%20ACLU%20of%20Ohio%2C%20Planned,state%2Dmandated%20information%20in%20person.

[4] “Preterm-Cleveland, et al, v. Dave Yost, et Al..” American Civil Liberties Union, March 29, 2024. https://www.aclu.org/cases/preterm-v-dave-yost?document=Complaint-Preterm-Cleveland-et-al-v-Dave-Yost-et-al#legal-documents.

[5] Times Staff and Wire Reports. “Nation in Brief : Ohio : Waiting Period for Abortions Enacted.” Los Angeles Times, August 30, 1991. https://www.latimes.com/archives/la-xpm-1991-08-30-mn-1499-story.html.

[6] “Planned Parenthood of Southeastern PA. V. Casey, 505 U.S. 833 (1992).” Justia Law. Accessed April 17, 2024. https://supreme.justia.com/cases/federal/us/505/833/.

[7] Id.

[8] “The Right to Reproductive Freedom With Protections for Health and Safety.” ohioattorneygeneral.gov. Accessed April 17, 2024. https://www.ohioattorneygeneral.gov/getattachment/cf27c10f-b153-4731-ae9e-e3555a326ed9/The-Right-to-Reproductive-Freedom-with-Protections-for-Health-and-Safety.aspx.

[9] See note 4

[10] “Section 2317.56: Information Provided before Abortion Procedure.” Section 2317.56 - Ohio Revised Code | Ohio Laws. Accessed April 17, 2024. https://codes.ohio.gov/ohio-revised-code/section-2317.56#:~:text=(1)%20At%20least%20twenty%2D,will%20be%20performed%20or%20induced.

[11] “Jury Convicts Doctor of Scheme to Perform Unnecessary Surgeries on Women.” Eastern District of Virginia | Jury Convicts Doctor of Scheme to Perform Unnecessary Surgeries on Women | United States Department of Justice, November 10, 2020. https://www.justice.gov/usao-edva/pr/jury-convicts-doctor-scheme-perform-unnecessary-surgeries-women.

[12] “WAC 182-531-1550: Sterilization Physician-Related Services.” apps.leg.wa.gov. Accessed April 17, 2024. https://apps.leg.wa.gov/wac/default.aspx?cite=182-531-1550.

[13] “Hysterectomy.” Cleveland Clinic. Accessed April 17, 2024. https://my.clevelandclinic.org/services/schedule-a-hysterectomy#featured-provider-panel.

[14] Court of Appeals of Ohio, Tenth District, Franklin County. “Preterm Cleveland v. Voinovich, 89 Ohio App. 3d 684 | Casetext Search + Citator.” casetext. Accessed April 17, 2024. https://casetext.com/case/preterm-cleveland-v-voinovich.

[15] See note 4

[16] See note 10

[17] See note 15

[18] See note 4

[19] Rowlands, Sam, and Kevin Thomas. “Mandatory Waiting Periods before Abortion and Sterilization: Theory and Practice.” International Journal of Women’s Health, July 31, 2020. https://www.ncbi.nlm.nih.gov/pmc/articles/PMC7402852/.

[20] See note 19

[21] See note 4

[22] See note 3

[23] “Northeast Ohio Women’s Center.” Check My Clinic. Accessed April 17, 2024. https://checkmyclinic.org/clinics/northeast-ohio-womens-center/.

[24] “Planned Parenthood – Bedford Heights.” Check My Clinic. Accessed April 17, 2024. https://checkmyclinic.org/clinics/planned-parenthood-bedford-heights/.

[25] Kilpatrick, Mary. “Woman Died of Complications during an Abortion, Cuyahoga County Medical Examiner Rules.” cleveland.com, May 31, 2014. https://www.cleveland.com/metro/2014/05/woman_died_of_complications_du.html.

[26] Center for Christian Virtue. “Media Advisory: Press Conference on 26-Year Old’s Death at Abortion Clinic.” Center for Christian Virtue, May 10, 2022. https://www.ccv.org/news/2019/09/16/media-advisory-press-conference-on-26-year-olds-death-at-abortion-clinic.

[27] See note 4

[28] Richardson, Bradford. “Planned Parenthood Sets ‘Abortion Quotas,’ Former Employees Say: Video.” The Washington Times, February 7, 2017. https://www.washingtontimes.com/news/2017/feb/7/ex-employee-planned-parenthood-has-abortion-quotas/.

[29] Mercier, Rebecca J, Mara Buchbinder, Amy Bryant, and Laura Britton. “The Experiences and Adaptations of Abortion Providers Practicing under a New Trap Law: A Qualitative Study.” Contraception, June 2015. https://www.ncbi.nlm.nih.gov/pmc/articles/PMC5338196/.

[30] See note 4

[31] “FAQs.” Let Them Live. Accessed April 17, 2024. https://letthemlive.org/faqs/.

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