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Abortion is now a constitutional right in Ohio. But the work isn’t done.


Abortion is now a constitutional right in Ohio. But the work isn’t done.

Nov 08, 2023 | 12:38 pm ET
By Susan Tebben
Abortion is now a constitutional right in Ohio. But the work isn’t done.
COLUMBUS, OH — NOVEMBER 07: Dr. Marcela Azevedo, founder of Ohio Physicians for Reproductive Rights listens to Nancy Kramer, co-chair of Ohioans United for Reproductive Rights address the crowd at the Issue 1 election night party hosted by Ohioans United for Reproductive Rights and Pro-Choice Ohio, November 7, 2023, at the Hyatt Regency downtown, in Columbus, Ohio. (Photo by Graham Stokes for Ohio Capital Journal. Republish photo only with original article.)

The celebration of the passage of Issue 1 in Ohio went long into the night, but Wednesday morning, abortion rights advocates were back at work on next steps.

Issue 1 passed with 56.62% of the vote on Tuesday in unofficial results from the Ohio Secretary of State’s office. Of the 3.86 million votes cast across Ohio, the “yes” vote made up more than 2.1 million.

The newest amendment to the Ohio Constitution, which allows the right to abortion up to fetal viability and puts medical decisions in the hands of doctors and patients, will take effect 30 days after Election Day.

In the meantime, those who supported the amendment are working through court cases regarding abortion that were started before the amendment was put to voters.

“All of us who have been continuing to fight litigation will continue to work together to ensure that restrictions and bans that are currently in place are no longer in place,” said Lauren Blauvelt, co-chair of Ohioans United for Reproductive Rights, a coalition who led the amendment campaign.

While Blauvelt said the group was not yet revealing their legal strategy as they move forward, she acknowledged that previous lawsuits regarding the six-week abortion ban would have to be resolved.

That could mean a motion to dismiss the Hamilton County case in which the injunction was set for the six-week ban, or some other legal maneuver to deem the case moot based on the amendment’s passage.

Jessie Hill, an attorney and Case Western Reserve University law professor who presented the case against lifting a pause on the six-week ban to the Ohio Supreme Court in September, said the state could agree that the six-week ban law is now unenforceable, but she is prepared for the alternative.

“This gives us a new claim we can add into our pending litigation, and we can fight it out from there if the state insists on trying to defend its laws,” Hill told the OCJ. “But we are now in a very strong position based on the new amendment.”

Supporters also know state legislative leaders won’t go quietly after the defeat of an opposition campaign which featured Gov. Mike DeWine in anti-Issue 1 ads, and included a separate effort led by Ohio Secretary of State Frank LaRose to raise the threshold to approve a constitutional amendment, specifically meant to impact the abortion amendment vote.

DeWine has yet to comment on the passage of Issue 1, but back in August when the measure to raise the approval threshold was rejected by 57% of voters – a less than 1% difference from Tuesday night’s numbers – he said that issue was “settled.”

“And I think the people spoke – they have spoken. And so I would not look for this to come up in, certainly not in the immediate future,” DeWine told reporters at the time.

Senate President Matt Huffman told reporters on Tuesday night that the abortion fight would come back again, with promises of efforts to repeal and replace the amendment.

Historically, multiple efforts to pass a proposed amendment, right, or law have been seen, but more often than not those cases happen when an issue has failed, rather than after voters overwhelmingly pass the measure.

Tracy Thomas, director of the Center for Constitutional Law at the University of Akron, said Prohibition and women’s right to vote were examples when Americans saw multiple votes over one issue, a back-and-forth as to where the issues would land.

Legislative efforts also abounded over those issues, but the true motivation for a ballot initiative came from the people being unsatisfied with legislative efforts, so they decided for themselves.

“The point of the initiative … is meant to be responsive to the populace,” Thomas said.

Going forward, the legislature could put forth a new constitutional amendment meant to repeal or replace the reproductive rights amendment, but Thomas also said movement at the federal level for a 15-week abortion ban, or legal decisions at the U.S. Supreme Court level could complicate things, and create the question of whether the state issue can stand on its own.

“(Issue 1) is a win, but it’s just the nature of the process, it’s the best we can do at the state level,” Thomas said.

The fact that governmental leaders might continue to take a swipe at the rights voted on this past election doesn’t seem to come as a surprise to advocates, or even those who worked toward the success of Issue 1.

For Marla Zwinggi, organizing a team of 50 to collect all of the signatures obtained in Geauga County was just another step in fighting for the Ohio that she and her late mother, who was the first to sign the petition before she passed away, envision.

“We can’t just say, ‘okay, we’re fine now,’ because as soon as you let your foot off the gas, that’s when stuff happens, and the rug gets pulled out from under you,” Zwinggi said, amid Tuesday night celebrations of the amendment’s passage.

Under current law, abortion is legal up to 22 weeks in Ohio.