November 2023 Ohio Issue 1

The 2023 Ohio reproductive rights initiative, officially titled "The Right to Reproductive Freedom with Protections for Health and Safety" and listed on the ballot as Issue 1, was a citizen-initiated constitutional amendment adopted on November 7, 2023, by a majority (56.8%) of voters. It codified reproductive rights in the Ohio Constitution, including contraception, fertility treatment, miscarriage care, and abortion up to the point of fetal viability, restoring Roe v. Wade-era access to abortion in Ohio.

In 2019, the state legislature passed a near-total ban on abortion in Ohio, without exceptions for rape or incest. The statute became active after the Supreme Court of the United States held in Dobbs v. Jackson Women's Health Organization that the U.S. Constitution does not confer a right to abortion. While the ban was in place, multiple children fled the state seeking abortions after being raped. One such case involved a ten-year-old girl from Columbus, Ohio, who traveled to Indiana (where abortion was legal at the time) for the procedure, generating national attention and becoming a central campaign issue. A state court put the ban on hold while a challenge alleging it violated the Ohio Constitution was heard. Several members of the "no" campaign had called for bans on forms of birth control that prevent the implantation of a fertilized egg and in vitro fertilization if the initiative failed.

The "yes" campaign drew support from Ohio medical organizations, doctors, economists, trade unions, editorial boards, reproductive rights groups, and several religious organizations. They argued that a "yes" vote would further limited government, protect bodily autonomy and religious liberty, while preventing interference with patient-physician privacy. The American College of Obstetricians and Gynecology, alongside other professional associations of doctors, campaigned for Issue 1. In late August 2023, former President Donald Trump, who appointed three of the Supreme Court justices who voted to overturn Roe v. Wade, condemned six-week abortion bans, including Ohio's, as going "too far" and a "terrible mistake". Religious groups were generally divided on the issue.

Ohio is a moderately conservative state – Donald Trump easily won the state over Joe Biden in the 2020 presidential election – so the results of the referendum were seen as a bellwether for the national opinion on abortion rights. Voters have supported the "pro-choice" side along overwhelming and bipartisan margins in referendums since the 2022 overturning of Roe v. Wade. Ohio's Issue 1 was the first time since the Dobbs decision that voters of a conservative state were asked whether to enshrine abortion protections in their state constitution. As such, the referendum's approval was widely interpreted as evidence for a national consensus in favor of broad abortion rights.

Among those between 18 and 24 years old, an estimated 76% voted "yes" on Issue 1. Some conservative political analysts and commentators called a continued alliance with the anti-abortion movement "untenable" and an "electoral disaster", and urged the party to adopt a more pro-choice stance on the issue. Exit polling indicated that 61% of Ohioans agree that abortion should be legal in most or all cases, versus only 37% who disagree.

Text

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:

1. contraception;
2. fertility treatment;
3. continuing one's own pregnancy;
4. miscarriage care; and
5. abortion

B. The State shall not, directly or indirectly, burden, penalize, prohibit, interfere with, or discriminate against either:

1. An individual's voluntary exercise of this right or
2. 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:

1. "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."
2. "State" includes any governmental entity and any political subdivision.

D. This Section is self-executing.

Background

Heartbeat bill

In April 2019, the Ohio legislature passed, and Governor Mike DeWine signed, a six-week ban on abortion, with exceptions for threats to the mother's life, but not for rape or incest. The statute was blocked by a federal judge in July 2019, a week before going into effect. It first became active in July 2022, hours after the Supreme Court of the United States issued its decision in Dobbs v. Jackson Women's Health Organization. The Supreme Court ruled that the U.S. Constitution does not confer a right to abortion, overturning Roe v. Wade and allowing states to impose unlimited restrictions on abortion access. The statute was in effect for 82 days before a state court blocked it temporarily on September 14, 2022, and ultimately blocked it indefinitely.

2022 Ohio child-rape and Indiana abortion case

While the six-week abortion ban was in place, multiple children fled the state for abortions after being raped. The most notable case involved a ten-year-old girl from Columbus, Ohio, who traveled to Indiana on June 30, 2022, to get an abortion. Her case drew national attention and commentary from public figures, due in part to its proximity to the June 24, 2022, decision of the Supreme Court of the United States in Dobbs.

Her rapist was arrested by July 13. Before this arrest was made public, Ohio politicians who oppose legal abortion access called the story a hoax; Ohio's attorney general Dave Yost said, "Every day that goes by, the more likely that this is a fabrication." After news of the arrest validated the Star's story, these sources did not apologize for claiming the story was a hoax. Jim Bopp, the general counsel for the National Right to Life Committee, said in an interview that the child should have been legally forced to carry the pregnancy to full term and give birth, and that "She would have had the baby, and as many women who have had babies as a result of rape, we would hope that she would understand the reason and ultimately the benefit of having the child." In September 2022, shortly after Ohio's six-week abortion ban went into effect, a woman made national news when she almost bled to death after an Ohio hospital refused to treat her miscarriage.

Ballot measure submission

On February 21, 2023, Ohioans for Reproductive Freedom, the group leading support for the initiative, filed the amendment's language with the office of Ohio Attorney General, Dave Yost, who certified it on March 2. The proposed amendment was then sent to the Ohio Ballot Board, which further certified it on March 13, permitting supporters to begin collecting signatures. On July 5, supporters filed 709,786 signatures, nearly 300,000 more than the minimum number required. The Ohio Secretary of State, Frank LaRose, certified the petition on July 25, 2023, after certifying 495,938 valid signatures, more than the approximately 410,000 required.

Attempt to change threshold

To thwart the proposed constitutional amendment, the Ohio Republican Party attempted to increase the threshold required for referendum passage to 60%. The threshold change was put to public vote in an August 8 special election, known as August 2023 Ohio Issue 1. Voters rejected the change 57%–43%, keeping the threshold for passage at a simple majority.

Rejected ballot challenge

On August 11, the Ohio Supreme Court unanimously rejected a lawsuit, filed by Republican former state Representative Tom Brinkman and 2022 Republican state representative candidate Jenn Giroux, that would keep the initiative off the ballot.

Campaign

The campaign for the initiative drew support from Ohio scientific and medical communities, economists, trade unions, editorial boards, human rights, and many religious organizations. They argued that the initiative would limit government, protect bodily autonomy and religious liberty, and prevent interference with personal medical decisions, including another situation similar to the aforementioned abortion case. The American College of Obstetricians and Gynecologists, alongside other professional associations of physicians, campaigned for the citizen-initiated constitutional amendment. According to legal historian Mary Ziegler, "The main force behind the ballot initiative was physicians who said, 'We are not willing to practice medicine under this regime and we think voters support us.'"

While several Ohio's Catholic dioceses condemned the measure, many Catholic voters were expected to vote for "yes", along with several dissenting groups, including Catholics for Choice.

Controversies

Comments by Ohio Right to Life activist Lizzie Marbach

Shortly before the election there was a major rift within the Ohio Right to Life (ORTL) organization. The campaign suffered from intense infighting after comments made by Lizzie Marbach, the organization's communications director. Marbach called for restrictions or bans on birth control and in vitro fertilization. She was fired in mid-August 2023.

Several Catholic anti-abortion activists urged opponents of the measure to not cast a ballot, or, cast one intentionally spoiled as a protest vote in the wake of the controversy, stating that the "against" campaign was furthering anti-Catholicism.

Ballot wording

Proponents of the amendment initially suggested that the amendment appear in full on voters' ballots in November. However, the Ohio Ballot Board substituted its own summary wording to appear before voters. The summary, written by Ohio Secretary of State and Republican Senate candidate Frank LaRose and approved by the Ballot Board's Republican majority, received criticism for its allegedly biased language, including opting for the phrase "unborn child" over the medically accurate term "fetus" and omitting reference to other rights the proposed amendment would protect, including contraception, miscarriage care, and fertility treatment. Abortion rights groups sued to have the full text of the amendment presented on the ballot, but the Republican majority on the Ohio Supreme Court sided with the Ballot Board, allowing the language to appear in the ballot summary.

The Ballot Board's summary received criticism from medical groups as well as some voices opposed to legal abortion access, who have described it as deliberately deceiving voters to vote "no" under false pretexts. National conservative columnist Jude Russo wrote, "We have failed to persuade the American people. Simply put: Lawyerly tricks (and tricky lawyers) are losers. Asking the commons to cede power voluntarily is a loser." The American College of Obstetricians and Gynecologists stated, "The language used to discuss abortion has a profound impact on how people form their opinions about reproductive health care, and the emotionally charged language that will now be presented to voters is neither clinically nor legally sound."

Misleading campaign advertisements

Advertisements from the "no" campaign claimed that the referendum would take away parental rights and force transgender surgery on children. The claims received widespread criticism from legal experts, who described them as baseless and misleading. Constitutional law expert Jonathan Entin wrote:

If you drink too much alcohol, if you ingest certain drugs, if you drive too fast – all of those things could have shorter or longer term implications for your ability to reproduce... That doesn't mean that speed limits and drug laws and alcohol regulations are somehow going to be affected by this amendment if it's adopted.

Catholic anti-abortion columnist Mary Pezzulo criticized the advertisements for discussing parental rights while ignoring the anti-abortion movement's mission to "protect the lives of unborn babies". She wrote, "They're lying to get people to vote against Issue 1."

Endorsements

Polling

Financial contributions

Results by county

Reaction

Within a day of the close of polling, Ohio's top Republican leaders, who preside over majorities, suggested that action would be taken against the new abortion rights granted by Issue 1. Ohio Republican House Speaker Jason Stephens said that Issue 1 is "not the end of the conversation" because there are "multiple paths that we will explore to continue to protect innocent life." A spokesperson for Ohio Senate President Matt Huffman reacted to the result: "This isn't the end. It is really just the beginning of a revolving door of ballot campaigns to repeal or replace Issue 1".

Two days after the result, Ohio State Representatives Jennifer Gross, Bill Dean, Melanie Miller, and Beth Lear, all Republicans, released a statement calling Issue 1 "deceptive", declaring that "Ohio legislators will consider removing jurisdiction from the judiciary over this ambiguous ballot initiative" so that only Ohio legislators can "consider what, if any, modifications to make to existing laws", instead of Ohio courts.

Rick Santorum, a Republican and former U.S. Senator, commented on the results of Issue 1 and a simultaneous Ohio voter ballot measure successfully legalizing recreational marijuana: "You put very sexy things like abortion and marijuana on the ballot, and a lot of young people come out and vote. It was a secret sauce for disaster in Ohio … pure democracies are not the way to run a country." Conservative commentator Sean Hannity urged Republicans to adopt a "safe, legal, and rare" framework on abortion.

According to Jessie Hill, professor and associate dean at Case Western Reserve University School of Law, the only way the Issue 1 amendment could be challenged is if there were a change to federal law regarding abortion or if another Ohio constitutional amendment restricting abortion was passed, which would require a majority vote in an election.

On December 15, 2023, the Ohio Supreme Court dismissed the state of Ohio's challenge to a lower court ruling from Hamilton County which stayed Ohio's six-week abortion ban. In March 2023, the Ohio Supreme Court agreed to review the matter following a challenge from the state. However, following the passage of Issue 1, the Ohio Supreme Court dismissed the matter, citing a change in the law.

Voter demographics

See also

• 2023 Ohio Issue 2
• Abortion in Ohio
• 2022 Kansas abortion referendum
• 2022 California Proposition 1
• 2022 Michigan Proposal 3
• 2024 Florida Amendment 4
• Initiatives and referendums in the United States

References

External links

• "The Right to Reproductive Freedom with Protections for Health and Safety" official text at Ohio Attorney General
• Ohio Right to Make Reproductive Decisions Including Abortion Initiative (2023) at Ballotpedia