by Alessia Riccioli*
On November 7, 2023, in Ohio, a constitutional amendment proposed by an initiative petition of citizens, enriching constitutional protections for reproductive rights, was approved by a strong majority (57%), drawing consensus from both Republicans and Democrats. This self-executive amendment was embodied in the Issue 1 of the ballot, addressing «Abortion and other reproductive decisions», whereas Issue 2 provided for a bill to legalise marijuana, which passed as well.
The constitutional amendment on reproduction health modified the Ohio Constitution by adding a new paragraph (§22) to the Bill of Rights in Article 1, in order to protect «The Right to Reproductive Freedom With Protections for Health and Safety», referring on the principle of self-determination «on one’s own reproductive medical decisions on: 1. contraception; 2. fertility treatment; 3. continuing one’s own pregnancy; 4. miscarriage care; and 5. abortion» (Art. I, Sec. 22 (A)). According to this article, this list is not exhaustive. Moreover, the Ohio Supreme Court issued an opinion on the expression “reproductive medical treatment” embodied in the ballot (but not in the amendment), criticised for suggesting an «affirmative right to government-provided “reproductive medical treatment” of any sort to reproductive medical treatment» (State ex rel. Ohioans United for Reproductive Rights v. Ohio Ballot Bd., Slip Opinion, No. 2023-Ohio-3325, §15). On this issue, the Court held that, however imprecise, the language was not defective (§18). In the same decision, the Court also sanctioned that the expression “citizens of the State” should be changed to “the State” (§ 29) and – last, but not least – whether the term “unborn child” could stand along with the term “fetus”, as it will be addressed further.
The constitutional amendment at stake also provides for the possibility of restricting this constitutionally protected freedom (only) if the State proves 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».
As far as the right of abortion is concerned, a potential restriction may be found in the «fetal viability». However, this criterion may never exceed the protection of the «the pregnant patient’s life or health» (Art. I, Sec. 22 (B)).
It is worth noting that the word “woman” never appears in Paragraph 22, not even in relation to miscarriages or abortions. Regarding the ballot’s language, one of the main arguments between pro-life and pro-choice side in drafting the amendment regarded the expression “unborn child” along with the scientific-accepted term of “fetus”. In the above-mentioned decision, the Ohio Supreme Court rejected the relators’ argument, which considered the term “unborn child” as «argumentative» because it might affect the «the ballot-board majority’s» with « “ethical judgment or personal view” », whereas the term “fetus” or “fetal viability” was regarded as «scientifically accurate and do not carry the same moral judgment as “unborn child” » (§ 43). However, the Court noted that «relators do not argue that the term “unborn child” is factually inaccurate» (§ 44), deeming the expression as appropriate for the ballot. Consistently, the U.S. Supreme Court in Dobbs v. Jackson Women’s Health Organization, 597 U.S. ___ (2022) (which overruled Roe and Casey, mentioned hereafter) stated that «abortion is fundamentally different (…) because it destroys what those decisions called “fetal life” and what the law now before us describes as an “unborn human being”» (Opinion of the Court, at 5).
Article 1, § 22 provides for a definition of «fetal viability», described as « “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” » ((C)). Both the above-mentioned recently overruled well-known precedents reached a balance between the woman’s right to abortion and the fetus through the “fetal viability” criterion. Roe v. Wade, 410 U.S. 113 (1973) provided for a periodic model of abortion regulation, distinguishing access to abortion in three different stages, in which the woman’s capacity for self-determination was progressively reduced in relation to fetus’ ability of surviving outside the mother’s womb. Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833 (1992) provided for an indication model as well as the Ohio amendment at stake (considering abortion legal before the fetal viability, at approximately the 23rd or 24th week of pregnancy).
This constitutional amendment makes Ohio the forth “red” state to have introduced a constitutional protection to abortion, along with Kansas (where the “Kansas No State Constitutional Right to Abortion and Legislative Power to Regulate Abortion Amendment” was on the ballot in 2022, being overwhelmingly rejected by a 58,97% majority), Kentucky (referring to the “Kentucky Amendment 2” to protect human life, which was rejected in 2022 by a 52,35% majority) and Montana (where a majority of 52,6% rejected a measure that would have considered any infant “born alive” at any gestational age as a legal person, in the 2022 Legislative Referendum 131). In Kansas and Montana, the abortion is legal. In the latter, the anti-abortion national bill is currently challenged. Thus, the Montana Supreme Court issued the order of temporarily enjoining the twenty-week ban, meaning that abortion is legal before this threshold (v. Planned Parenthood of Mont, et al. v. State of Montana, No. 13-DV-21-0999). In Kentucky, instead, it is still in force the “trigger” law (House Bill 148, Human Life Protection Act) enacted after Dobbs, approved by the Republican-controlled legislature.
In fact, Dobbs affected thirteen states that have enacted the so-called “trigger” laws, that would have automatically banned the abortion almost entirely, if Roe had been overturned, as it was. According to most of these anti-abortion bills, also performing an abortion is criminalized. Some of them provide for exceptions if the health/life of the pregnant women is at risk: Arkansas, Kentucky, Louisiana, Missouri, North Dakota, Oklahoma, South Dakota, Tennessee, Texas. Others provide for exceptions also in case of incest and rape: Idaho, Mississippi (providing exemption only for rape), Utah, Wyoming (where however the abortion is currently legal since the abortion ban has been legally challenged and the case is still pending). The abortion is banned also in Alabama, American Samoa, Indiana, Northern Mariana Islands, West Virginia, Georgia, South Carolina, Nebraska, Arizona, Florida [for an overall perspective: here and here].
Ohio itself enacted a 2019 “trigger” law: the Senate Bill 23 (Fetal Heartbeat Abortion Ban), that prevents physicians from performing abortions if the fetus has developed the heartbeat (approximately at the 6th week, however it is debatedwhether the term “heartbeat” can even be used in this early stage of pregnancy). The law allows abortion to be performed only in cases of medical emergency «to prevent the patient’s death or a serious risk of the substantial and irreversible impairment of a major bodily function». On September 15, 2022, the Court of Common Pleas, Hamilton County (Preterm-Cleveland, et al. v. David Yost, et al., Case no. A2203203) temporarily blocked the anti-abortion bill, restoring the abortion access until 22 weeks. While the case is still pending, the citizenship showed its favor for abortion’ right through the ballot, which was the only statewide referendum specifically focused on reproductive rights in 2023, further confirming the winning abortion-related strategy for the next year, when several more ballot initiatives are expected.
*PhD Candidate, University of Pisa
