How August and November ballot initiatives could affect abortion in Ohio: an explainer

Washington, D.C. Newsroom, Jul 19, 2023 / 13:20 pm

Ohioans are set to vote on two major ballot initiatives in the coming months — one in August and another in November — that will determine how constitutional amendments are adopted and whether the state constitution will guarantee a right to abortion.

A proposed amendment that will likely be on the ballot on Nov. 7 would prohibit state lawmakers from passing bills that restrict abortion before viability and establish a constitutional “right to make and carry out one’s own reproductive decisions.”

An earlier ballot initiative, slated for a vote on Aug. 8, would create a higher threshold for adopting constitutional amendments, such as the proposed abortion amendment. Under current law, voters only need a simple majority to adopt a constitutional amendment, but this proposal would raise that threshold to 60%.

What would the Nov. 7 abortion constitutional amendment ballot initiative do?

The Nov. 7 amendment proposal would amend Article I of the Ohio Constitution, which establishes the state’s Bill of Rights. It would add another section to the Bill of Rights to include a right to “reproductive freedom.”

Under this proposal, the new section would state that “every individual has a right to make and carry out one’s own reproductive decisions.” This would include, but not be limited to, abortion, contraception, fertility treatment, miscarriage care, and continuing one’s pregnancy.

Lawmakers would only be allowed to restrict abortion “after fetal viability,” which is defined as the point in pregnancy in which the child could survive outside of the uterus. This usually occurs at about 24 weeks of pregnancy but would be determined on a case-by-case basis.

However, lawmakers would be more restricted in cases in which a physician determines that an abortion “is necessary to protect the pregnant patient’s life or health.” In such cases, lawmakers would not be allowed to impose any restrictions.

The amendment would further prohibit the government from directly or indirectly burdening, penalizing, prohibiting, interfering with, or discriminating against “an individual’s voluntary exercise of this right” or “a person or entity that assists an individual exercising this right.”

There would be an exception for regulations meant to protect a person’s health and safety, as long as it uses “the least restrictive means to advance the individual’s health in accordance with widely accepted and evidence-based standards of care.”

At this stage, the petitioners have submitted the necessary number of signatures to state officials, but those signatures must still be checked and verified by the county board of elections officials and Secretary of State Frank LaRose. If the required number of signatures are collected and determined to be valid, it will appear on the ballot.

How would this amendment be adopted?

Ohio is one of 18 states that allow citizens to initiate ballot initiatives to amend the constitution without going through the state’s elected representatives. This is done by creating a petitioner’s committee, obtaining signatures, and following other guidelines set in state law.

If the proposed amendment receives the necessary number of signatures, meets the required deadlines, and follows the laws related to ballot language, then voters can choose whether to adopt the amendment by directly voting for or against the proposal on a ballot.

Under current law, voters only need a majority for an initiative to be added to the state constitution.

How would the Aug. 8 constitutional amendment reform ballot initiative change that?

Before Ohioans vote on the constitutional amendment related to abortion, there will be voting on a constitutional amendment that would change the process for adopting amendments, which could make it more difficult for the Nov. 7 abortion proposal to be adopted.

The Aug. 8 constitutional amendment proposal would amend several sections in Article II and Article XVI of the Ohio Constitution to reform how ballot initiatives are adopted.

The most significant change is that it would require proposed constitutional amendments to receive support from at least 60% of voters rather than the current 50% plus one needed to adopt an amendment.

If a majority of voters approve the Aug. 8 constitutional amendment, then the new threshold would immediately go into effect. For all subsequent constitutional amendment ballot initiatives, including the Nov. 7 ballot initiative, supporters will need to get 60% of the electorate rather than just a majority. If the initiative fails, the threshold will remain at 50% plus one.

The proposed amendment would make two additional changes to the constitutional amendment adoption process, but these other changes would not go into effect until Jan. 1, 2024.

One of those changes would require petitioners to receive signatures from every county in the state. Under current law, petitioners only need signatures from half of the state’s counties. The required number of per-county signatures is 5% of the electorate, which is determined by how many people voted in the most recent gubernatorial election.

The other change would eliminate a provision that allows petitioners 10 additional days to gather signatures for a proposed constitutional amendment if the original submission did not have enough valid signatures.

These changes would only apply to ballot initiatives that would amend the state constitution, but they would not apply to other ballot initiatives.

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Early voting for this constitutional amendment has already begun.

What are Ohio abortion laws right now?

Under current Ohio law, abortion is legal up to 22 weeks of pregnancy, which is shortly before most unborn children reach viability.

Ohio lawmakers passed legislation to ban abortion when a fetal heartbeat can be detected — which occurs at about six weeks of pregnancy — which was signed into law in 2019. Although it was meant to go into effect after the U.S. Supreme Court overturned Roe v. Wade, a judge approved an injunction to indefinitely block the state from enforcing the law.

The litigation over the legality of the six-week abortion ban is still pending.