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As abortion rights amendment takes place in Ohio Constitution, advocates look to future

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As abortion rights amendment takes place in Ohio Constitution, advocates look to future

Dec 08, 2023 | 4:50 am ET
By Susan Tebben
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As abortion rights amendment takes place in Ohio Constitution, advocates look to future
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COLUMBUS, OH — NOVEMBER 07: Supporters of Issue 1 react to early results at the election night watch 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. Only use photo with original article.)

Thursday marked the official date that the reproductive rights amendment, approved overwhelmingly by voters in November as Issue 1, took its place in the Ohio Constitution.

The amendment marks a “beacon of hope” and a representation of what Ohio voters can do, according to Dr. Marcela Azevedo, a leader from Ohio Physicians for Reproductive Rights and a member of the team who wrote the amendment.

The amendment is a landmark in a year full of political battles over the constitution and abortion access in the state.

“2023 has been the most consequential year in Ohio constitutional history since Ohio’s iconic 1912 constitutional convention,” said Steven Steinglass, constitutional law professor and dean emeritus of the Cleveland State University College of Law.

Steinglass also said November’s Issue 1 was a “game-changer,” calling into question various state statutes instituted or attempted even before the U.S. Supreme Court decision in Dobbs overturned Roe v. Wade’s legalizing of abortion nationwide, such as 24-hour waiting periods and hospital privilege limits for abortion providers.

Legislators over the last few years have also attempted “trigger bans,” laws that, if passed, would have automatically banned abortion at certain levels of gestation if Roe v. Wade was overturned.

One law that was a part of Ohio’s reproductive health landscape before Roe v. Wade was overturned was the six-week ban, enacted in 2019. The law was on the books for three months before lawsuits tied up the legislation. It re-emerged after the Dobbs decision, but once again was pinned down by lawsuits months later.

The law is still paused due to a ruling by a Hamilton County Court of Common Pleas judge, and awaiting an Ohio Supreme Court decision on whether or not the ban can continue as the lawsuit moves forward.

The active abortion regulations, and even the measures tied up in court, create conflict that has yet to be resolved, even as abortion rights is enshrined in the state constitution.

“Some restrictions will get litigated, and others will simply be ignored,” Steinglass said in a press conference Thursday on the amendment’s enactment. “This is a self-executing amendment, therefore even without any action by the General Assembly or the courts, the reproductive freedom amendment is now effective.”

Rather than resolve the legal conflicts simply and easily, Steinglass said the more likely scenario pits legislators against the voter-approved amendment. Efforts to undercut it have already been seen, with a bill floated by state Rep. Jennifer Gross, R-West Chester, to take enforcement of the amendment out of the hands of the judicial branch, and put control entirely into the GOP-majority legislature.

House Speaker Jason Stephens, R-Kitts Hill, has said he doesn’t see the proposal making it too far, going so far as to call it “Schoolhouse Rock-type stuff,” but efforts to repeal and replace the amendment could still be on the table in the future, as Senate President Matt Huffman, R-Lima, proposed.

Steinglass wouldn’t be at all surprised to see a lawsuit from anti-abortion rights groups arguing that the new amendment is unconstitutional, though he calls efforts to that effect “Hail Mary” strategies.

“Unless there is a major, major U-turn in the federal courts … these challenges are not going anywhere at all,” he said. “There is absolutely no precedent, and I think their chances of being successful are slim to none.”

As for the future of abortion care past the legal avenues, medical professionals hope to see guidance from Ohio Attorney General Dave Yost, and even state medical licensing boards to help them navigate a state with an abortion amendment in place, but also unclear regulations.

“Until we see some true guidance from the people who make the rules and regulations, I personally will be continuing to follow what’s in the law,” said Dr. Amy Burkett, an OB/GYN from Northeast Ohio.

There is concern from doctors about getting unbiased guidance from the State Medical Board of Ohio, considering a leader of the anti-abortion (and anti-Issue 1) movement, Ohio Right to Life President Mike Gonidakis, is a member of the board, re-appointed to the board in 2022 by Gov. Mike DeWine.

“We can not count on those people to be objective when it comes to these new laws,” Azevedo said.

As abortion services providers look to expand on their work with the new amendment in place, old problems still abound, including the stigma around abortion as medical care.

“There’s no difference between going to have an abortion and going to have a broken arm fixed,” said Lexis Dotson-Dufault, the new executive director of Abortion Fund-Ohio. “It’s just health care.”

AFO works to help patients navigate state laws and the dozens of restrictions around abortion that are still in place.

“I think we have to put in so much work to get to the people that do not know about this, that are not informed on this topic and what the legislature is doing,” Dotson-Dufault said. “Next is making sure people know abortion is available at 21 weeks and six days from the date of your last menstrual period.”

That education also includes a continued push to inform the public on persistently negative Black maternal mortality rates in the state, which a study from The Commonwealth Fund shows worsens in places where abortion access is restricted.

“We can only make our communities safer and healthier with more access to care,” Dotson-Dufault said.

AFO has interacted with more than 4,000 patients this year, using more than $1 million in donations for direct patient care, including transportation support and lodging for appointments across state lines when the six-week ban was still in place.

With new legal standards in place from the constitutional amendment in place, Dotson-Dufault hopes bigger institutions and donors will invest in abortion care.

“I think a lot of people were scared to invest big money in us because of the legality,” she said. “This is a time more than ever where we can’t stop investing in abortion care.”