Ohio Abortion Rights Advocates Gear Up For More Battles Even After Passage of Issue 1

Even though Ohio voters resoundingly approved a reproductive rights amendment on Tuesday that will enshrine the right to abortion into the state constitution, abortion rights advocates say their work is far from over. 

“There is no way the abortion fight is over in Ohio,” Daniel Skinner, professor of health policy at Ohio University, told The Messenger. “Anti-abortion groups are making that clear. But try as they may, it will be very hard for them to undo the will of 57 percent of Ohioans.”

The approval of the state’s abortion rights amendment, known as Issue 1, is a significant victory for reproductive rights in Ohio, but abortion activists are now concerned that anti-abortion forces will still attempt to enact reproductive restrictions by trying to redefine what the measure calls for or enacting new restrictive measures of their own.

But how exactly these efforts to potentially restrict abortion rights play out remains to be seen.

For pro-abortion forces, warning signs that the amendment could somehow be overturned popped up as soon as all the votes were counted. Immediately following the approval of Issue 1, many Republicans and anti-abortion groups released statements saying they would attempt to do just that. 

In response to Tuesday’s election results, Ohio Republican Senate President Matt Huffman said: “This isn't the end. It is really just the beginning of a revolving door of ballot campaigns to repeal or replace Issue 1.”

Similar to Huffman, Ohio GOP House Speaker Jason Stephens said: “I remain steadfastly committed to protecting life, and that commitment is unwavering. The legislature has multiple paths that we will explore to continue to protect innocent life. This is not the end of the conversation.”

And in a statement on Tuesday night, Anti-abortion group Protect Women Ohio said: “Tomorrow, the work starts again as we fight to be a voice for the voiceless and advocate for women and parents.”

Mary Ziegler, professor of law at UC Davis said that because Issue 1 is now on the books, anti-abortion groups won’t be able to actually challenge it, but they will likely try to reinterpret the meaning of Issue 1, by arguing that Issue 1 does in fact permit a significant number of abortion restrictions. 

“I think that you're going to just see a repeat of what we saw when Roe came down,” noted Ziegler, “which was instead of trying to get rid of it, they tried to transform what it means.” 

As a result of trying to “transform” the meaning of Issue 1, she added, Republicans might channel a significant amount of money into the state Supreme Court elections to, in her words, “say if you have the right people interpreting the law, maybe the constitutional amendment doesn't mean that much.”

Jessie Hill, an attorney representing the ACLU of Ohio and Planned Parenthood against the state’s existing six-week ban and a law professor at Case Western University, explained that Republicans could put something on the ballot to replace or repeal the measure with something that they consider more moderate. Although possible, Hill said this particular course of action is unlikely to be successful, especially because Issue 1 passed with close to 60 percent of the vote. 

More likely, she said, at least in the short term, is that the state may continue to pass restrictions on abortions. Republicans, she added, essentially control all of the branches of the state government, which is why this is a possibility. 

“They may try to push the limits where they think the amendment is unclear, or where they think they can exploit weaknesses in it,” Hill added. 

The next step for anti-abortion advocates may also, Hill said, be a push for fetal personhood on the federal level, which would be an attempt to get the right to life of embryos recognized by the Supreme Court. 

The prospects for doing this aren’t very strong in the short-term, but she still sees it as a possible direction anti-abortion advocates might go in. 

Fairness Project Executive Director Kelly Hall similarly thinks that it's important for reproductive rights advocates to not let down their guard even though Issue 1 has been approved, but she noted that constitutional amendments have a strong track record across states of being implemented. The reason being, she said, is that “the courts recognize that once there is something in the constitution that's binding on political actors.”

“I do think that we will inevitably see some shenanigans here in Ohio,” said Hall,  “but the constitution of Ohio is the sacrosanct law of the land in that state, and we have every expectation that Issue 1 will be fully implemented.” 

Issue 1 has also impacted the fate of the state’s six-week abortion ban. The ban, which was passed in 2019 and has no exceptions for rape or incest was temporarily blocked by a state court judge in September 2022 after it was challenged by abortion rights groups.  

Hill said that while the case is still pending, she would not be surprised if the Ohio Supreme Court decides to dismiss the appeal. 

“The case is not over yet,” she said. “I think everybody kind of agrees that the law is unconstitutional now, but we have to wait and see what the position the state takes in that case.”

Hall also explained that Issue 1, or this constitutional provision, which is a clear right to reproductive freedom, supersedes anything that the legislature might pass. 

“And so the court will be forced to take this new constitutional amendment into consideration when they are ruling on that existing litigation, “ she explained. “We expect that the ongoing litigation around the six-week ban will be transformed by the passage of this amendment.”