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What does the new abortion rights amendment really mean in terms of Ohio’s abortion policies?

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COLUMBUS, Ohio (Statehouse News Bureau) — Supporters and opponents of Issue 1, the proposal passed by Ohio voters Tuesday, are determining where to go from here. After all, the constitutional amendment doesn’t immediately do away with laws but sets a standard on which laws are judged. And a lot of people are taking a beat to determine their next steps when it comes to politics and policy.

Within minutes of Issue 1 passing Tuesday night, Ohio’s Republican legislative leaders issued statements saying they’ll push to change the right it creates to abortion until viability and beyond if a doctor thinks it’s necessary.

House Speaker Jason Stephens (R-Kitts Hill) said, “the legislature has multiple paths that we will explore.” And in a statement, Senate President Huffman called Tuesday “revolving door of ballot campaigns to repeal or replace Issue 1.”

John Fortney, a spokesman for Senate President Matt Huffman (R-Lima), said to expect more action on this issue: “This isn’t the end. President Huffman has been very clear months ago saying that if this would pass, then there’s going to be another initiative by another group that’s going to try to repeal and replace that language.”

For his part, Republican Gov. Mike DeWine has been urging the General Assembly for months to revisit the language in the ban on abortion after six weeks which is now on hold by courts, and had said if Issue 1 was rejected, rape and incest exceptions could be added to that ban.

Ohio House Minority Leader Allison Russo (D-Upper Arlington) is all smiles as she talks to fellow supporters of the abortion rights amendment
Ohio House Minority Leader Allison Russo (D-Upper Arlington) is all smiles as she talks to fellow supporters of the abortion rights amendment as the results come in on Election Night in downtown Columbus on November 7, 2023. [Daniel Konik | Statehouse News Bureau]

Changes might not be imminent on abortion laws

Passage of Issue 1 could have a more immediate impact on some abortion laws. For example, Jonathan Entin with the Case Western Reserve University School of Law said Issue 1’s passage would make it harder for the Ohio Supreme Court to reinstate the six week ban, also called the “heartbeat law”.

“It’s hard to see a good legal argument that would uphold the ‘heartbeat law’ under Issue 1,” Entin said.

But beyond that, it’s unclear exactly how Issue 1’s passage will affect Ohio laws, at least in the short term. Lauren Blauvelt with Ohioans United for Reproductive Rights isn’t saying much about how her group plans to go forward with strategy to challenge other bans or abortion limitations off the books.

“We are not sharing our legal strategy right now but you know all medically unnecessary restrictions are and should be removed and we know Ohio voters spoke loud and clear that abortion is a personal medical decision that should be up to a patient and her family and not the government so we will work really hard to ensure that these restrictions go away and once we start that process, we will be able to talk about it more,” Blauvelt said.

One thing that complicates the situation for supporters of the amendment – the Ohio Supreme Court. It’s Republican-dominated and four of the seven justices on it have come out publicly against abortion rights, as has the judge who sat in on the arguments on the six week ban after Justice Joe Deters recused himself. To get laws or rules off the books, a legal challenge might prove necessary. And it’s possible the state’s high court would make those determinations. Blauvelt said restrictions that are in place will likely stay that way for now. Entin said doing nothing for the moment is definitely an option.

“You might not do anything right away and simply just do what you are going to do and see if somebody sues you. And then, if you get sued, you raise Issue 1 as a defense, saying that under Issue 1, this restriction is unconstitutional,” Entin said.

Will Issue 1 passage help Democrats?

Ohio Democratic Party Chair Liz Walters has set her mind on making changes, saying the party will be fielding “exciting” new candidates for the Ohio Supreme Court. The question will be getting them elected.

But Issue 1 had support in unexpected places – like Delaware County, which has been a Republican stronghold, yet Issue 1 performed better there than it did statewide. Walters said this result shows the majority of voters agree with Democrats on many issues and candidates need to make that known.

“Issue work and candidate work isn’t apples to apples. But what it does do for voters is clarify their choices about what our values are and what the different parties are willing to fight for,” Walters said.

The amendment will not officially take effect for 30 days. But some Democratic lawmakers who are also medical doctors will propose a blueprint they say will achieve constitutional protection for Ohioans.

Reps. Anita Somani (D-Dublin) and Beth Liston (D-Dublin) will unveil their plans for the Reproductive Care Act, legislation to repeal existing statutes related to abortion care and adds protections for patients and providers. The doctor duo said their plan includes data privacy, non-discrimination, civil and criminal protections for evidence based care.

In the meantime, it appears people on all sides of the fight over abortion are taking a breath and considering their next steps, whether they are based in policy or politics.