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Issue 1 passed in Ohio, protecting abortion rights — now what?


Issue 1 passed in Ohio, protecting abortion rights — now what?

Nov 09, 2023 | 4:45 am ET
By Morgan Trau
Issue 1 passed in Ohio, protecting abortion rights — now what?
COLUMBUS, OH — NOVEMBER 07: Dr. Arthur Lavin and Dr. Lauren Beene, leaders of Ohio Physicians for Reproductive Rights celebrate the early results at the Issue 1 election night watch party, 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.)

Ohioans voted to protect and legalize abortion access Tuesday night, but the fight is not over.

In a 13-point victory, Issue 1 passed.

“This is a huge win,” said Veronica Ingham with Ohioans United for Reproductive Rights. “We must continue to fight for freedom and defend democracy.”

Even though the constitutional amendment will go into effect in early December, all of the restrictions up until now will need to be settled and dealt with in court.

“All of those things are going to get litigated in the courts as the government proposes rules and plaintiffs attack those rules as being overly restrictive,” Case Western Reserve University law professor Atiba Ellis said.

There are restrictions currently being evaluated by the Ohio Supreme Court, like the six-week ban.

Despite their decisive loss, Statehouse Republicans and anti-abortion groups have plans to stop Issue 1.

One idea is fighting to keep the most stringent restrictions they can under the amendment, according to House Speaker Jason Stephens.

“The legislature has multiple paths that we will explore to continue to protect innocent life,” Stephens said. “This is not the end of the conversation.”

End Abortion Ohio’s Austin Beigel is on board with that.

“There are processes through our system of government that can change things around,” he said.

His idea would be to use the 14th Amendment in the U.S. Constitution to rule that the state constitution is now in violation of the equal protection clause. This is often called the “personhood” argument.

“I don’t think it’s a very good argument,” nonpartisan CWRU law professor Entin said. “I think that there has been a virtually universal understanding among lawyers and judges that when the Constitution talks about people or persons, we’re talking about folks who are born.”

Beigel begs to differ, and said he is working with lawmakers on possibly proposing legislation to support this idea.

The other main GOP plan is putting forward another amendment to repeal Issue 1, which comes from Senate President Matt Huffman.

“This isn’t the end,” Huffman said. “It is really just the beginning of a revolving door of ballot campaigns to repeal or replace Issue 1.”

Both law professors, Ingham and Beigel, all believe this isn’t a good idea.

“I don’t think that the pure democratic process works for the abortion issue right now if you’re against abortion,” Beigel said.

Secretary of State Frank LaRose and many of the Republican lawmakers pushed for the controversial August Issue 1, which would have made it more difficult for the abortion amendment to pass in November. This strategic attempt to thwart the will of the people was shot down in a bipartisan fashion. The Republicans then tried everything they could to stop people from supporting November’s Issue 1. If they put up another amendment to try to stop abortion, the voters will “lose their minds,” according to an Issue 1 victory party-goer.

However, Entin explained that there is a way the Republicans could get a win. The conservative Ohio Supreme Court justices can read the six-week ban and interpret it however they want — possibly putting it back into effect — but that would be a huge and unlikely stretch.

“I have a really hard time believing that the justices would be willing to just bend the language to that extent,” he said. “I could envision anti-abortion justices in a case involving the Heartbeat Law saying, ‘We think this is a terrible outcome, but the language of the Ohio Constitution means that we have to strike down this law.'”

OURR will be watching, and the advocates plan to respond to whatever comes next.

“We’ll work really hard to ensure that these restrictions go away.” Lauren Blauvelt said.

Here are answers to some other questions you may have about Issue 1:

Is the amendment in effect?

Not yet. It takes effect on Dec. 7, 2023.

Are all the restrictions gone, and is abortion totally legal?

No. Each restriction needs to be taken to court and repealed.

There have been 31 abortion restrictions passed since 2011, according to OURR.

However, Democrats can propose legislation that would eliminate all of the restrictions — and they plan to do so. It is significantly more likely that this will be dealt with in court, considering the GOP has a supermajority and it would be shocking to see them pass protections for abortion.

What is the current status of abortion law?

Right now, abortion is legal up until 22 weeks.

How is the GOP planning to fight against Issue 1?

The lawmakers have made vague comments about how this is “not the end,” and they plan on putting forward legislation or proposals to stop the effects of the amendment that was passed by 57% of Ohio voters.

“It’ll be a challenge, maybe not an insurmountable challenge, but it will be a challenge for the state to adopt additional pre-viability abortion restrictions given that the state already has a bunch of those, and some of them may be vulnerable to challenge post-viability,” Entin said.

The Ohio Supreme Court is conservative. Can they just ignore the constitutional amendment?

Not really, but there are a few legal loopholes.

Since the court is the ultimate interpreter of Ohio law, their rulings stick. It is possible the justices could interpret something in a “counterintuitive fashion,” according to Entin, but he doesn’t believe they will.

Still confused? Reach out to Statehouse reporter Morgan Trau with questions. Email her at [email protected].

This article was originally published on News5Cleveland.com and is published in the Ohio Capital Journal under a content-sharing agreement. Unlike other OCJ articles, it is not available for free republication by other news outlets as it is owned by WEWS in Cleveland.

Follow WEWS statehouse reporter Morgan Trau on Twitter and Facebook.