At just a page long, Issue 1′s actual text is easily reviewable for all Ohioans. However, some broad language in the proposal has caused uncertainty about the amendment’s exact would-be impact.
The Dayton Daily News, Springfield News-Sun and Journal-News surveyed readers about what questions they have regarding Issue 1. The most common questions are below, along with answers derived from interviews with a local constitutional law expert, a legal assessment from the Ohio Attorney General, and input from a Dayton-area abortion provider and anti-abortion activists.
Ohio Attorney General Dave Yost released his legal analysis Thursday, calling it an “impartial resource.” Officials with the campaign behind Issue 1 question Yost’s objectivity, since he is a pro-life Republican who has defended restrictive abortion laws in court.
Q: Are there more issues than abortion rights in this amendment?
Yes. The proposed amendment lists five different areas of reproductive decisions that would be protected under Issue 1. Here’s how it reads: “Every individual has a right to make and carry out one’s own reproductive decisions, including but not limited to decisions on contraception, fertility treatment, continuing one’s own pregnancy, miscarriage care, and abortion.”
The amendment provides that there are unlisted topics that could be protected, a fact that creates “an unknown future in court litigation,” according to Yost’s analysis.
In order to protect those proposed rights, the amendment bars the state from interfering on any matters of a person’s reproductive decision, unless the state can demonstrate that it is using the “least restrictive means” possible. And, the state would have to prove that those restrictions are meant to “advance the individual’s health in accordance with widely accepted and evidence-based standards of care.”
Q: What is Issue 1′s impact on parental rights?
Several of the questions submitted to this news organization honed in on the impact Issue 1 would have on parental rights. Broadly, parental rights or parental consent is the idea that a minor’s parents should have oversight and final say on what sort of medical advice or care their child receives. In Ohio, parental consent is mandated through a variety of laws.
Current law around parental consent and abortion mandates that minors need to have express permission from at least one legal guardian in order to get an abortion. A minor can also pursue permission through a court judgment without parental consent.
Some opposed to Issue 1 worry that the state’s parental consent laws would be nullified by the amendment. The concern is largely rooted in the belief that a court could find the amendment’s assertion that “every individual has a right to make and carry out one’s own reproductive decisions” to mean that a minor’s decision cannot be overridden by their parents.
“(The abortion-rights amendment) absolutely takes away parental consent if they’re successful, which they won’t be in November,” said Ohio Right to Life President Mike Gonidakis earlier this year.
Marc Clauson, a professor of history and law at Cedarville University, said he believes the parental consent concern is “a little overblown.”
“(Issue 1 would impact parental rights) only insofar as it deals with abortion rights themselves. In other words, would you be able to pass a law that requires notification of parents before a minor has an abortion? … It might restrict that. But, it wouldn’t deal beyond that with parents rights in general having to do with minors in relation to other aspects,” Clauson said.
Yost’s legal analysis notes that Issue 1 does not specifically address parental consent, but says “There is no guarantee that Ohio’s parental-consent law will remain in effect.” In areas not involving abortion, Yost says “challenges are certainly likely, with outcomes uncertain.”
“It would certainly be too much to say that under Issue 1 all treatments for gender dysphoria would be mandated at the minor’s individual discretion and without parental involvement,” Yost’s analysis says.
Gabriel Mann, spokesperson for Ohioans United for Reproductive Rights, the campaign that authored Issue 1 and got it on the ballot, pushed back on the possibility that Issue 1 would have any bearing on parental consent in Ohio, even in areas around reproductive health.
“Issue 1 does not change Ohio’s parental consent laws,” Mann said flatly.
Q: What is fetal viability?
Issue 1 maintains that the state can ban abortions (with exceptions for the life and health of the mother) after fetal viability, which is defined in the proposal as the point in pregnancy when “the fetus has a significant likelihood of survival outside the uterus with reasonable measures.”
Under Issue 1, fetal viability would be determined on a case-by-case basis by the patient’s “treating physician.” By law, that physician will have to make the determination of what constitutes a “significant likelihood of survival” and what “reasonable measures” to ensure survival actually are.
Clauson said that, in the event Issue 1 passes, the state’s already-enacted abortion bans would be functionally retrofitted by the courts to ban abortions after fetal viability. It’s not clear if the state would take a formal step to create an official law within the confines of Issue 1.
Note: There is not a medical consensus of what fetal viability is. The American College of Obstetricians and Gynecologists suggests that a patient’s obstetrician would be the best equipped to determine a fetus’ viability. The organization defines the earliest stages that a fetus can survive outside the uterus, known as the periviable period, is from 20 through 25 weeks. In this range, many of the babies that do survive develop significant morbidities and impairments. Outcomes tend to improve further into pregnancy.
Q: Would Issue 1 allow abortions in the third trimester?
Abortions after fetal viability are rare. Ohio Department of Health data shows that only 0.6% of abortions in the state last year occurred after 21 weeks of gestation. But they are permitted in extreme circumstances in current law — including under the restrictive Heartbeat Law.
Issue 1 allows the state to ban abortions after fetal viability, except in cases when the patient’s treating physician deems it necessary to protect to patient’s life or health.
The Heartbeat Law allows abortions — even after the detection of a embryonic cardiac activity — to prevent the death of the mother, in cases of ectopic pregnancy and due to a serious risk of the substantial and irreversible impairment of a major bodily function of the pregnant mother.
Q: If Issue 1 fails, what will be the abortion law in Ohio?
There are two main possibilities.
The most recent legislation passed by the Ohio General Assembly was the Heartbeat Law that bans abortions once embryonic cardiac activity is detected, which usually occurs about six weeks into pregnancy. The bill has exceptions for cases when a person’s life is in jeopardy, but offers no exceptions for cases of rape or incest.
However, that bill was only in effect for about 11 weeks in 2022 before it was put on hold as a result of legal challenges. The case is currently before the Supreme Court of Ohio, which is expected to soon decide whether or not the case’s plaintiffs, including Planned Parenthood, had grounds to challenge the law.
In its stead, abortion providers in Ohio have been able to perform abortions up to 22 weeks into pregnancy. After that, current state law only allows abortions when the mother’s life is in jeopardy.
Q: How might Issue 1 change current Ohio laws?
For decades, state laws regulating abortion could be struck down by the courts if it was proved that the law placed an “undue burden” on individuals exercising their right to an abortion. This legal standard was set by a 1992 U.S. Supreme Court decision in Planned Parenthood v. Casey and was viewed as a revision of the court’s stance it had taken two decades prior in Roe v. Wade, which federally protected an individual’s right to abortion and created a “strict scrutiny” standard.
Yost notes that a new legal standard would be set by Issue 1 that, in his estimation, would “give greater protection to abortion to be free from regulation than at any time in Ohio’s history.”
Under the new standard, state laws could not “directly or indirectly” burden or otherwise interfere with an individual’s access to reproductive decisions, and if those burdens did occur, the state would have to prove that they were put in place “using the least restrictive means to advance the individual’s health in accordance with widely accepted and evidence-based standards of care.”
Under this standard, Yost said many Ohio laws pertaining to abortion could be challenged — some challenges he believes would succeed, others he opted not to predict.
He wrote that the new standard would block the state’s Heartbeat Law; a law blocking abortions after 20 weeks; a law blocking doctors from performing an abortion when the abortion is motivated by a fetal Down syndrome diagnosis; and Ohio laws blocking particular methods of abortion.
If Issue 1 passes, Yost said some laws would have an unclear future. These include an Ohio law mandating a 24 hour waiting period on abortions; another law requiring informed consent; the state’s restriction on post-viability abortions; the state’s mandate for parental consent; abortion-pill safety regulations; and bans on using state money on abortions.
READ THE AMENDMENT
Below is the full text of the proposed amendment to the Ohio Constitution Ohio voters will decide on in November with a vote on Issue 1.
Be it Resolved by the People of the State of Ohio that Article I of the Ohio Constitution is amended to add the following Section:
Article I, Section 22. The Right to Reproductive Freedom with Protections for Health and Safety
A. Every individual has a right to make and carry out one’s own reproductive decisions, including but not limited to decisions on:
- contraception;
- fertility treatment;
- continuing one’s own pregnancy;
- miscarriage care;
- and abortion.
B. The State shall not, directly or indirectly, burden, penalize, prohibit, interfere with, or discriminate against either:
- An individual’s voluntary exercise of this right or
- A person or entity that assists an individual exercising this right, unless the State demonstrates that it is using the least restrictive means to advance the individual’s health in accordance with widely accepted and evidence-based standards of care.
- However, abortion may be prohibited after fetal viability. But in no case may such an abortion be prohibited if in the professional judgment of the pregnant patient’s treating physician it is necessary to protect the pregnant patient’s life or health.
C. As used in this Section:
- “Fetal viability” means “the point in a pregnancy when, in the professional judgment of the pregnant patient’s treating physician, the fetus has a significant likelihood of survival outside the uterus with reasonable measures. This is determined on a case-by-case basis.”
- “State” includes any governmental entity and any political subdivision.
D. This Section is self-executing.
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