The wording of a proposed constitutional amendment on Ohio's fall ballot to ensure abortion rights seems straightforward: It would enshrine the right “to make and carry out one's own reproductive decisions.”
Yet as the campaigning for and against the nation's latest tug-of-war over abortion begins in earnest this weekend, voters are getting a different message from the measure's opponents. They are characterizing it as threatening a wide range of parental rights.
“As parents, it’s our worst nightmare," one particularly ominous online ad funded by Protect Women Ohio, the opposition campaign, says of November's Issue 1.
The ad suggests the amendment would let minors end pregnancies and receive gender-related health care without parental permission: "A potential reality so grim it’s hard to even imagine.”
It's no surprise that anti-abortion groups opposed to the amendment are promoting that message. They are trying to flip the script in how they talk to voters after a string of losses in statewide ballot fights since the U.S. Supreme Court ended a nationwide right to abortion last year.
Measures protecting access to abortion have succeeded in Democratic- and Republican-leaning states, including California, Kansas, Kentucky, Michigan, Montana and Vermont.
Data collected last year by AP VoteCast, a broad survey of the electorate, showed that 59% of Ohio voters believe abortion should generally be legal. Just last month, Ohio voters soundly defeated a measure that GOP lawmakers placed on a special election ballot that would have raised the threshold to pass constitutional amendments to 60% — a proposal seen as a first step to defeating the abortion amendment.
Before what is expected to be the highest profile national issue in November's elections, Ohio also is serving as a testing ground for political messaging headed into next year's presidential race. Abortion rights groups are trying to qualify initiatives in more states in 2024, potentially including the perennial battleground of Arizona.
To try to reverse their string of losses, anti-abortion groups are using the Ohio campaign to test arguments over parental rights and gender-related health care as potentially a winning counterpunch.
“It’s clear that the misinformation about abortion is not winning,” said Elisabeth Smith, director of state policy and advocacy at the Center for Reproductive Rights. “It didn’t win in Michigan. It didn’t win in Vermont. It didn’t win in Kansas. It didn’t win in Kentucky. So instead, we are seeing anti-abortion factions in search for that new, winning talking point.”
Legal experts disagree over what effect, if any, the Ohio amendment would have on parents' ability to control their children's access to abortion and gender-related health care, including surgery.
The points of contention are in the measure's fine print. Where the amendment says “every individual has a right to make and carry out one's own reproductive decisions,” opponents focus on the words “individual” and “reproductive” as potential openings.
Mehek Cooke, a Republican lawyer working with Protect Women Ohio, said the amendment's authors were intentionally vague when they used the word “individual,” allowing it to apply to any gender and to both adults and children.
“This is very deliberate, and I don’t think it’s open to interpretation,” she said. “It’s very clear ‘an individual’ means both.”
Ohio already has a parental consent law governing minors' access to abortion. Cooke said the amendment's wording means that would become unconstitutional, along with possible new laws aimed at restricting minors' access to gender-related health care.
Tracy Thomas, a University of Akron law professor who directs the school’s Center for Constitutional Law, was among several legal scholars who said that reading of the amendment is a stretch.
“It is a straw argument, a false argument that they're setting up,” she said. “Children do have constitutional rights, but we have lots of examples in the law, both state and federal, where these children’s rights are limited. Marriage is a good example.”
To be overturned, Ohio's existing parental consent law would have to be challenged in court and struck down by the state Supreme Court, which has a conservative majority, said Jessie Hill, a law professor at Case Western Reserve University and a consultant to the Issue 1 campaign.
Hill said similar arguments related to parental consent were made before Michigan’s vote last year to codify abortion rights in that state’s constitution, and “none of these things have come to pass.”
Ohio is among 36 states that require parental involvement in a minor’s decision to have an abortion, according to the Guttmacher Institute, a research and policy organization that supports legal access to abortion.
Dan Kobil, a law professor at Capital University in Columbus, said courts upheld Ohio's parental consent law when abortion was legal nationwide “as being consistent with a woman’s right to terminate a pre-viability pregnancy, as long as it maintained a provision for a judicial bypass in extreme cases.”
Because of that, he said it's reasonable to think that parents would retain the right to be involved in reproductive decisions involving their children if voters approve the abortion amendment.
The amendment makes no reference to gender-related health care, and it's supporters say the reason is simple: It's not about that.
The proposal cites reproductive decisions “including but not limited to” contraception, fertility treatment, continuing one's own pregnancy, miscarriage and abortion.
Opponents are making a case to voters that such phrasing could open the door to minors' gender-related health care decisions being constitutionally protected from parental interference.
Frank Scaturro, a constitutional lawyer working with Protect Women Ohio, said legal interpretations under the Roe v. Wade standard were dealing with a document — the U.S. Constitution — “that says nothing at all specifically about abortion, or even more broadly about reproduction.” He said that under the Ohio amendment, anything that alters the human reproductive system could be understood as a “reproductive decision.”
David Cohen, a law professor at Drexel University, called such interpretations of the measure “far-fetched.”
“This is a very clear provision that is based in, or connected to, abortion and pregnancy, and that is a very different topic than gender-affirming care,” he said. "I can imagine some gender-affirming care might be related to fertility treatment, but that’s a very specific part of gender-affirming care. This is a scare tactic to try and make this about that.”
___
Fernando reported from Chicago. Associated Press writer Ali Swenson in New York contributed to this report.
