Tomorrow, Ohio citizens will vote on Issue 1, which would amend the state constitution to protect reproductive rights. But if you read the state Board of Elections explainer—the language that will actually appear on the ballot—you might not know WTF the amendment does. That is by design; Republican-ruled state legislatures have learned the hard way that an issue with 65% support will probably pass if people know what they're voting for.
Here's the actual proposed amendment, which would become Section 22 of Article 1 (the Ohio Bill of Rights):
A. Every individual has a right to make and carry out one’s own reproductive decisions, including but not limited to decisions on:
- fertility treatment;
- continuing one’s own pregnancy;
- miscarriage care; and
B. The State shall not, directly or indirectly, burden, penalize, prohibit, interfere with, or discriminate against either:
- An individual's voluntary exercise of this right or
- A person or entity that assists an individual exercising this right,
unless the State demonstrates 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.
However, abortion may be prohibited after fetal viability. But in no case may such an abortion be prohibited if in the professional judgment of the pregnant patient’s treating physician it is necessary to protect the pregnant patient’s life or health.
C. As used in this Section:
- “Fetal viability” means “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.”
- “State” includes any governmental entity and any political subdivision.
D. This Section is self-executing.
That's about 200 words of plain English. Here's what the Board of Elections decided to put on the ballot:
A Self-Executing Amendment Relating to Abortion and Other Reproductive Decisions
Proposed Constitutional Amendment
Proposed by Initiative Petition
To enact Section 22 of Article I of the Constitution of the State of Ohio
A majority yes vote is necessary for the amendment to pass.
The proposed amendment would:
- Establish in the Constitution of the State of Ohio an individual right to one's own reproductive medical treatment, including but not limited to abortion;
- Create legal protections for any person or entity that assists a person with receiving reproductive medical treatment, including but not limited to abortion;
- Prohibit the State from directly or indirectly burdening, penalizing, or prohibiting abortion before an unborn child is determined to be viable, unless the State demonstrates that it is using the least restrictive means;
- Grant a pregnant woman's treating physician the authority to determine, on a case-by-case basis, whether an unborn child is viable;
- Only allow the State to prohibit an abortion after an unborn child is determined by a pregnant woman's treating physician to be viable and only if the physician does not consider the abortion necessary to protect the pregnant woman's life or health; and
- Always allow an unborn child to be aborted at any stage of pregnancy, regardless of viability if, in the treating physician's determination, the abortion is necessary to protect the pregnant woman's life or health.
If passed, the amendment will become effective 30 days after the election.
Shall the amendment be approved?
So what was wrong with the actual text of the amendment? And why did the Republicans in the Board of Elections want this text instead? One of the authors of the amendment, Dr David N Hackney, explains:
The clear lesson from 2022, when six states cast votes for reproductive rights, as well as the results of the recent Wisconsin Supreme Court race, is that voters vote in favor of abortion rights. Every straight up or down vote on reproductive freedom since Dobbs v. Jackson Women’s Health Organization has gone in favor of defending or expanding access to abortion. So the strategy of anti-abortion activists has become to pull any available political, messaging or legal levers to prevent that.
[S]tate law allows our ballot board to substitute a summary, as long the initiative is reflected fairly — or at least that’s how it’s supposed to work. This is sensible for amendments excessively long or thick with legalese, making an unadulterated replication on paper ballots impractical. Issue 1, by contrast, consists of only 205 words (including numeration), in plain English. The 193-word summary written by the ballot board rescues voters from reading a total of 12 words.
Perhaps the most egregious change between the Issue 1 language and the summary written by the ballot board is the substitution of “unborn child” for “fetus.” “Fetus” is the unequivocally accepted medical term used in textbooks, lectures and research publications.
Ohio’s leaders have formally argued that “unborn child” is valid because it’s written into our existing anti-abortion statutes. This reasoning is circular, as “unborn child” is inappropriate in those contexts as well. Our attorney general’s office stated in a merit brief that “ballot language including the term ‘fetus’ has the potential to confuse voters, who may not know or understand the term’s varying definitions.”
This is, of course, just one of the tactics the Christianist Right uses all the time. They know they can't win on the merits, so they obfuscate, hoping to confuse or demoralize the people who would vote against their positions. Let's hope it once again fails tomorrow.