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If reproductive rights amendment is approved by Ohio voters, it could still face challenges

Abortion right supporters block the sign of an abortion rights opponent at a rally at the Ohio Statehouse on May 14, 2022
Jo Ingles
Statehouse News Bureau
Abortion right supporters block the sign of an abortion rights opponent at a rally at the Ohio Statehouse on May 14, 2022

The coalition of groups attempting to put an amendment before voters this fall that could guarantee abortion rights in the constitution faces battles to get the measure on the ballot and pass it. But even if it passes, it could face challenges.

Ohio State University Political Science professor Paul Beck said if the amendment passes, there’s no guarantee a change in the constitution will be honored.

“The referendum and initiative are part of our constitutional order in Ohio and you would think they would be honored but if the legislature wants to defy them, which it has done in the case of redistricting, it obviously can do that and there, in a way, is no recourse," Beck said.

Beck noted the Ohio Supreme Court ruled four times that current legislative and congressional district maps were unconstitutional yet the state is still using them and lawmakers, at this point, haven't taken steps to change that.

If they do, they'll face a new makeup on the state's high court - a Republican majority that is thought to be more sympathetic to Republican state leaders on the redistricting issue. And the three Republicans elected or re-elected in November have all gone on record saying they oppose abortion.

Beck's skepticism is echoed by University of Akron Political Science Professor David Cohen.

Cohen said the Republican super-majority in Ohio government at the executive, legislative and at the Ohio Supreme Court poses a situation where people who disagree with policies being put on them by government leaders have little recourse but to take issues to the ballot and put them in the constitution. And even when they are successful, they could be ignored or applied differently in law than supporters of issues contended.

Cedarville University Political Science Professor Mark Caleb Smith said this constitutional amendment is a little different than redistricting constitutional amendment because the language in the abortion amendment has been more clearly defined in court precedent.

"Yes, the court would need to interpret and yes, you'd have some nuances here or there. But I don't see it as being something like the redistricting case, at least not on the face of it right now," Smith said.

Smith said the amendment would allow lawmakers to still regulate abortion but their powers to do that would be limited.

Jessie Hill, an attorney who helped draft the constitutional amendment that could be before voters in November, said it would allow Ohio lawmakers some limited control when it comes to regulating health or safety.

"The burden is on the government to have to be able to show that a regulation advances health and safety," Hill said.

Hill said the amendment is written in a way to make sure lawmakers can't enact laws to prohibit abortion. And she said an example would be one that's currently on hold by a Hamilton County Court since October 2022. It bans abortion as early as six weeks into a pregnancy, as soon as fetal electronic cardiac activity is detected. And it was in place during most of the summer of 2022 after Roe v. Wade was overturned. Hill said that law would not stand if this amendment passes.

"This amendment is very clear and very straightforward and we think it will be very difficult for courts, for politicians, for others to ignore or sort of twist its meaning," Hill said.

Beth Vanderkooi, executive director of Greater Columbus Right to Life, disagreed that the amendment is clear. She said the language is vague and so broad that it would allow late term abortions in many cases and could make it difficult to enforce some limitations now on the books. And she noted this amendment doesn't require lawmakers to come up with enabling legislation and the language is written to expressly support abortion rights.

"When it says that it is self-executing, I think that is a massive indicator that one of two things is going to happen. One, they will just discard any laws or regulations that they see as being a burden and two, if there is an effort to enforce those types of laws, they'll have recourse to the court," Vanderkooi said.

Cohen said abortion rights supporters have no recourse but to go around politicians and take their issue straight to voters.

"For those who are advocating for reproductive freedom, this is the smartest move, and right now, the only move to push that position," Cohen said.

Backers of the amendment face several challenges before it can make it to the ballot to begin with. Backers will need to get approval from Attorney General Dave Yost. After that, they'll need to get approval from the Ohio Ballot Board. If that happens, they must collect 413,388 valid signatures from voters by July 5 to get on the November ballot. After that, backers and opponents of the amendment say they plan to spend millions of dollars trying to persuade Ohio voters how to vote on the issue.