Next month, Ohio voters may effectively legalize all abortion, at any stage of pregnancy and for any reason.
Ohio Attorney General Dave Yost issued a legal analysis on Thursday declaring that the proposed constitutional amendment on abortion would give greater rights to abortion than even the Supreme Court’s overturned Roe v. Wade ruling.
“[T]he Amendment would give greater protection to abortion to be free from regulation than at any time in Ohio’s history,” stated the analysis. “That new test includes definitions and other terms that likewise make it harder for any law covering ‘reproductive decisions’ to survive.”
There is no more serious exercise of power than when the sovereign people exercise their power to directly enact a statute or a constitutional provision.
As the chief legal officer for the people of Ohio, today I published a legal analysis of the effects of Issues One and Two.
— Attorney General Dave Yost (@DaveYostOH) October 5, 2023
The attorney general explained that the amendment would limit the state from “directly or indirectly” burdening or discriminating against the pregnant mother or regulating for reasons other than advancing the pregnant mother’s health, thereby nullifying existing laws that regulate based on the interest in fetal life. The amendment would also require the state to prove it abides by “widely accepted and evidence-based standards of care” rather than its own medical judgment.
Yost predicted the amendment’s passage would mean the likely demise of the state’s pre-viability limits on abortion; ban on abortions after 20 weeks and post-viability; ban on discriminatory abortions, i.e. those based on the unborn child’s sex or disability; requirement that abortionists kill the unborn child by injecting a heart-stopping drug prior to engaging in dilation and evacuation, i.e. dismemberment, and dilation and extraction, i.e. partial-birth, abortions; requirement that the mother undergo a 24-hour waiting period and receive informed consent prior to an abortion.
Yost also determined that the amendment presented a threat to the viability of Ohio’s regulations on abortion pills and ban on taxpayer-funded abortions.
The proposed amendment didn’t specify an age limit on its scope of authority — using the term “individual” rather than “woman” — meaning, said Yost, that minors could be afforded a right to abortion without parental consent contrary to current Ohio law. The attorney general couldn’t say with certainty whether this language choice would then enable minors to obtain gender transition procedures without parental involvement.
“It would certainly be too much to say that under Issue 1 all treatments for gender dysphoria would be mandated at the minor individual’s discretion and without parental involvement,” said Yost. “This is a developing area of the law nationally, and all that could be said with certainty is that [the amendment], if passed, would impact the analysis of any future law.”
Yost also stated that doctors would have the final say on whether post-viability abortions could occur, regardless of state law, should the doctor determine that the pregnancy presents a threat to the mother’s health. The amendment doesn’t define “health.” Yost said the lack of a definition means that court precedent defines the term, citing cases in which “health” included a woman’s mental health, existing number of children, and maternal age.
“[The amendment] gives sole discretion to the physician in deciding if the law applies, with no requirement for a second opinion or objective criteria for evaluating the physician’s professional judgment,” stated the analysis.
In a press release, Yost explained that the legal analysis was issued to “ensure a meaningful and accurate public discourse,” not render a judgment on policy.
“Too often, the rhetoric will become inflamed and inaccurate, with contradictory statements made about what the proposals would do. If history is any guide, the passions will run high but the amount of quality information will likely be low,” said Yost in a statement.