The pitched battle over Ohio Issue 1 is looking less about abortion and more about parents’ rights as opponents warn that the measure to enshrine “reproductive freedom” in the state Constitution goes beyond codifying Roe.
Protect Women Ohio, the “no” on Issue 1 campaign, argues that the proposed amendment on the Nov. 7 ballot is so broadly worded that it could let minors undergo abortions as well as gender-transition procedures without parents giving consent or even being notified.
“When it comes to parental consent, the [proposed] law specifically would allow any individual to make reproductive decisions,” Mehek Cooke, Protect Women Ohio spokeswoman, told The Washington Times. “There is nothing in the law that talks about an age limit. In fact, it goes on to state that the state may not ’burden’ an individual’s decisions.”
Issue 1 says the state “shall not, directly or indirectly, burden, penalize, prohibit, interfere with” an individual’s “right to make and carry out one’s own reproductive decisions,” including but not limited to abortion.
Such language could be interpreted to include hormones or surgeries affecting a person’s reproductive function, say foes. In addition, the amendment refers to “individuals” — not adults, pregnant women or even women — with no mention of age restrictions.
Proponents have blasted such concerns as a distraction and “misinformation.” Even so, the parental consent question was the first one asked by moderators at last weekend’s televised Ohio Debate Commission forum on Spectrum News.
Desiree Tims, CEO of Innovation Ohio and spokeswoman for the “yes” campaign, responded by citing Ohio Attorney General Dave Yost’s final legal analysis, which said the measure is silent on parental consent.
“There are so many confused voters out there because of the misinformation by the ’no’ campaign,” Ms. Tims said. “The legal memo is in fact clear there isn’t any language that includes anything about children. In fact, children will still have to receive parental consent for any medical procedure.”
That’s not all Mr. Yost’s memo said. The Republican attorney general also concluded there is “no guarantee that Ohio’s parental consent law will remain in effect” if Issue 1 passes in the Nov. 7 election.
“The amendment does not specifically address parental consent,” his analysis said. “However, the parental-consent statute would certainly be challenged on the basis that Issue 1 gives abortion rights to any pregnant ’individual,’ not just to a ’woman.’”
Airing tonight - @OHDebates Issue 1 Forum on @SpectrumNews1OH at 8 PM, featuring @MehekCooke debunking myths and misinformation and explaining why Ohioans must vote NO on Issue 1!
— Protect Women Ohio (@ProtectWomenOH) October 16, 2023
Here are some highlights: pic.twitter.com/ABOq7w2ZZm
The rise of the parental rights angle presents an unexpected snag for abortion rights advocates as they ride the post-Roe wave, seeking to sidestep red state legislatures by removing abortion restrictions via ballot measures.
Tracy Thomas, a University of Akron School of Law professor who specializes in constitutional law and feminist legal history, said Issue 1 “does not impact parents’ rights or change the law of minors’ rights.”
“Nothing in the text or intent of the amendment is about parents’ rights,” she said in an email. “There is longstanding precedent in law that recognizes that minors have constitutional rights, but they are more limited than adults. There is greater leeway in how states can regulate minors’ rights because of young people’s vulnerability and immaturity.”
Those disagreeing include Heritage Action, which accused the American Civil Liberties Union of “waging a war on parental rights,” saying that Issue 1 contains “such overly broad language that it could end parental consent even for harmful gender-mutilating surgeries.”
The Catholic Conference of Ohio issued a fact sheet saying Issue 1 “threatens parental rights,” while the Republican-controlled Ohio Senate passed a resolution Oct. 11 against the measure.
“Issue 1 may erase parental rights by ending parental notification and preventing
parents from being involved in the most important decisions in their child’s life, including abortions,” the resolution said.
Carrie Severino, president of the Judicial Crisis Network, predicted Issue 1 would create an “upside-down” situation where nonrelatives could take minors for abortions or sex-change surgeries — and parents could be penalized for trying to stop them.
“Complete strangers who assist children in obtaining life-altering procedures would find themselves on the right side of the law, while parents who try to protect their children would be deemed to have run afoul of the law,” said Ms. Severino in an analysis with JCN senior counsel Frank J. Scaturro.
Ms. Cooke doesn’t think Ohio’s lack of a parental consent clause is accidental. She pointed to Michigan, where voters last year passed Proposal 3, an abortion-rights constitutional amendment that also said nothing about parents or minors.
Now Michigan’s parental consent law is in the crosshairs as the Democrat-controlled Legislature seeks to eradicate state laws placing guardrails on abortion access, including 24-hour waiting periods.
A pro-choice coalition “wants lawmakers to repeal a longstanding parental-consent law for minors,” according to the Bridge Michigan news site, but Democrats are holding off for now, given the party’s slim two-seat majority in both the House and Senate.
“The goal is to do as much of this work as we possibly can, and we didn’t want to include anything that would have prohibited the rest of the package from getting through at this point in time,” Democratic state Rep. Laurie Pohutsky said at a press conference last month with Planned Parenthood, as reported by Michigan Live.
She added that there was “a broader and continuing conversation” around the idea.
In Florida, a pro-choice coalition is gathering signatures on an abortion-rights amendment, but the ballot summary says the measure “does not change the Legislature’s constitutional authority to require notification to a parent or guardian before a minor has an abortion.”
Ms. Cooke wasn’t surprised. “The ACLU realized that they would not be able to get away with an amendment like this in Florida without adding parental consent,” she said. “Not in Ohio.”
She noted that the ACLU, which backs Ohio Issue 1 and has long opposed “mandating parental involvement” on abortion, argued in 2017 that Indiana’s parental consent law posed an “unconstitutional undue burden.” A federal judge agreed.
In other words, “parental consent has already been deemed a burden,” said Ms. Cooke, who served as legal counsel to former Gov. John Kasich.
Ms. Thomas argued that the courts have determined that “even if there is a direct burden, which parental consent can be for minors, the state is permitted to impose it because of its compelling interest in protecting minors’ health.”
Ohio allows abortion up until 22 weeks gestation, then afterward to save the woman’s life and in cases of serious physical risks. A six-week “heartbeat” law passed in 2019 has been temporarily blocked pending the outcome of a lawsuit.
Parental consent for minors is required in Ohio, but those under 18 may seek to avoid the requirement by applying for a judicial bypass.
Dan Kobil, professor at the Capital University Law School in Columbus, said the parental consent issue has become “the main line of attack” in the election, but that “Issue 1 would not automatically invalidate that law at all.”
He predicted the question would wind up in the courts, where the Ohio Supreme Court’s conservative majority would have the final say.
“It would really depend on whether the state could demonstrate that the parental-consent law is the least restrictive means to advance the individual’s health in accordance with widely accepted evidence-based standards of care,” said Mr. Kobil in an interview on the Ohio Channel’s “All Sides.”
Does “individual” mean both adults and minors? “It means, to be honest, whatever the Ohio Supreme Court interprets it to mean,” Mr. Kobil said.
Mr. Yost agreed that it likely would be left for the courts to decide “whether the term ’individual’ includes a ’minor,’” as well as whether the law covers gender-change procedures.
“Given the uncertainty of the breadth of the terms ’reproductive decision’ and ’individual,’ as discussed above regarding parental consent for abortion, challenges are certainly likely, with outcomes uncertain,” Mr. Yost said.
Ohio voters rejected an August ballot measure, also named Issue 1, that would have required proposed constitutional amendments to clear a 60% threshold.
• Valerie Richardson can be reached at vrichardson@washingtontimes.com.
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