The proposed amendment is extreme in ways the average voter would not know simply from reading the text.
Direct democracy is a bad way to write a constitution. Consider the deceptive ballot measure to change Ohio’s constitution that will be put to voters this November.
Special-interest groups like the ACLU and Planned Parenthood have officially succeeded in gathering enough signatures for a vote on an amendment creating a right to abortion in Ohio’s constitution, but the proposed amendment is extreme in ways the average voter would not know simply from reading the text.
To juice support for it, the text of the proposed amendment begins by creating a constitutional right to four things no one or virtually no one wants to make illegal before mentioning abortion:
Every individual has a right to make and carry out one’s own reproductive decisions, including but not limited to decisions on:
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contraception;
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fertility treatment;
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continuing one’s own pregnancy;
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miscarriage care;
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and abortion.
The amendment then declares: “The State shall not, directly or indirectly, burden, penalize, prohibit, interfere with, or discriminate against . . . an individual’s voluntary exercise of this right.”
Nowhere in the amendment does it explicitly say anything about taxpayer funding of abortion on demand. But it is written in a lawyerly way to ensure that courts would invalidate Ohio’s version of the Hyde amendment because that long-standing popular limit on taxpayer funding of elective abortion would “directly or indirectly . . . interfere with or discriminate” against abortion.
The text of the amendment doesn’t say anything about striking down Ohio’s parental-consent law on abortion or creating a constitutional right for minors to get puberty blockers and sex-change operations, but it surely would do all of that by declaring that an “individual” — not an “adult” — has a sweeping constitutional right to “carry out one’s own reproductive decisions” that include but are “not limited to” abortion.
The average Ohioan would get the wrong impression by reading the text of the ballot measure that the amendment would allow meaningful limits on late-term abortion. The text of the amendment explicitly states that “abortion may be prohibited after fetal viability.” But — and these are two very big buts — it also says (1) that physicians may determine viability on a “case-by-case basis,” and (2) that there is a right to abortion after viability until birth to protect “health” that is not limited to physical health. When a baby is clearly viable, threats to a mother’s physical health can be treated in minutes or hours by delivering a live baby, while a late-term abortion procedure takes days. So that provision is surely designed to enshrine a right to abortion until birth to protect mental health.
When Virginia delegate Kathy Tran admitted under questioning in a 2019 state-legislative hearing that her abortion bill would allow abortion in months five through nine of pregnancy when a lone physician said the abortion was for reasons of mental health, the public was horrified at the prospect of such a right to infanticide, and Tran’s legislation died in a Democratic legislature. Where is the debate and deliberation about what Ohio’s abortion amendment really means? It’s practically nonexistent. The mainstream media are more than happy to parrot Planned Parenthood’s talking points.
A hefty number of Ohioans, like the American electorate at large, have complicated views on abortion. In September 2022, an Emerson poll asked Ohio voters: “Do you support or oppose Ohio’s abortion law, which prohibits abortion after six weeks, or when a fetus has a detectable heartbeat. This law has exceptions in order to save the mother’s life or prevent long term impairment of the mother’s bodily functions, but not for cases of rape or incest.” Ohio voters were evenly split — 50 percent to 50 percent — on support for the state’s six-week abortion limit (which is currently enjoined by a lower state-court ruling). The same poll underestimated Republican strength by nine points in the governor’s race and by three points in the Senate race, so there is good reason to believe it slightly underestimated support for the state’s six-week abortion limit.
Yet a Suffolk poll conducted this month found that 57.6 percent of Ohioans back the constitutional abortion amendment. Here’s how the question was asked:
The amendment states that “every individual has a right to make and carry out one’s own reproductive decisions, including but not limited to decisions on contraception, fertility treatment, continuing one’s own pregnancy, miscarriage care and abortion.” Abortion may be prohibited after fetal viability, when a treating physician determines the fetus has a significant likelihood of survival outside the uterus with reasonable measures. At this point, do you support or oppose this amendment?
How to reconcile the Emerson and Suffolk polls? Voters in Ohio want some right to and some limit on abortion, but they are hazy on the precise number of weeks. Six? Twenty-three? They can be swayed by poll-tested lines about fertility treatments and miscarriage, and they do not understand the true implications of the amendment on late-term abortion, taxpayer funding of abortion, and parental consent for abortion and transgender treatments.
Opponents of the radical abortion amendment have a difficult task, but they must work to convey to Ohio voters how radical the amendment truly is through advertising, media, legislative hearings, and direct voter contacts.
One outstanding question is what threshold the amendment will need to reach to be added to Ohio’s constitution. Ohio is unusual in that it currently allows constitutional amendments to be passed with a simple majority. In the 50 states, 32 do not allow outside groups to propose constitutional amendments, and half of the remaining 18 have greater requirements than a single simple-majority vote. On August 8, Ohioans will vote on whether to raise the threshold to 60 percent, which would put Ohio in line with Florida.
Raising the threshold for constitutional amendments to 60 percent would not prevent Ohioans from enacting laws via ballot initiatives with a simple majority. True, voter-initiated laws may be repealed by the legislature, but legislators would think twice before flatly reversing an initiative without making any concessions. And special-interest groups would think twice about slipping extreme and deceptive provisions — discernible to judges but not many voters — into proposed amendments if a greater consensus were needed to enact them.