Issue 1 would not only enshrine abortion rights into Ohio’s constitution but would also provide care for miscarriages and other reproductive rights. Questions about those rights are prompting discussions.
Backers of Issue 1 said they included the right to fertility treatments, contraceptives and miscarriage care in the amendment because of fear that "extremist politicians" would enact more restrictions on abortion but also further limit or eliminate reproductive rights.
Opponnets have said there's no cause to worry about that, especially with treatment for miscarriage.
“We just wanted to ensure that everybody knows Catholic hospitals provide comprehensive miscarriage care, treatment for ectopic pregnancies and perform other life saving measures," said Michelle Duffey, associate director of communications for the Catholic Conference of Ohio said in a statement.
Duffey said certain reproductive services may or may not be provided, depending on how they fit into the hospital’s mission. She said the facilities provide care that “upholds the dignity and sanctity of life.”
Why Issue 1 goes beyond just abortion rights
A ban on abortion after a fetal heartbeat is detected - usually about six weeks into a pregnancy - passed in 2019. It was on hold through litigation, but went into effect after the U.S. Supreme Court overturned a federal right to abortion. Abortion providers filed suit, and the Hamilton County Court of Common Pleas put the law on hold again after 82 days. Since then, Ohio has been operating under a law passed before the six-week ban was signed, which allows for abortion until viability, or up to 22 weeks into a pregnancy.
Supporters of Issue 1 say inconsistency of what services are protected by the constitution is why the amendment is needed. In that case in Hamilton County, medical professionals argued the narrow exception that only allowed abortion “to save the life of the mother” was being interpreted differently by varied medical providers.
Affidavits in the court case told of women with pregnancies thought to be non-viable who were unable to attain abortions until they became gravely ill. One of the most notable was a 10-year-old rape victim who was taken to get an abortion in Indiana, where it was legal until 22 weeks. (Indiana has had a near-total ban on abortion since August.)
There are no exceptions for rape or incest in Ohio's six-week abortion ban. Sen. Kristina Roegner (R-Hudson) sponsored the ban, and said when testifying for it in 2019, "While rape and incest are dreadful situations, no other laws allow for the state to treat one person differently than another based on the way in which that person was conceived."
But Attorney General Dave Yost said the medical exception in the law would have allowed an Ohio doctor to perform an abortion on a 10-year-old. Doctors and legal experts have disagreed. (Yost also initially expressed doubt that the story of the girl was true and refused to apologize initially, but later told the Associated Press: "what people heard created a lot of pain — and I regret that deeply.")
The Ohio Supreme Court is considering the fate of the six-week ban and could reinstate it. Three of the four Republican justices on the seven-member court have made public statements that they believe life begins "at conception."
Ohio Supreme Court Justice Joe Deters is the former prosecuting attorney for Hamilton County when the lawsuit was filed. He was named in the lawsuit, and recused himself when the case came before the high court. He was replaced by 12th District Judge Matthew Byrne, who has served on an advisory board for a crisis pregnancy center and has expressed his conservative and religious values on social media.
If Issue 1 passes, legal scholars have said it would be impossible for the six-week ban to go into effect.
Why some say exceptions don't work
Dr. Beth Liston is also a Democratic state representative. She is supporting Issue 1. Liston said exceptions in abortion bans have proven to be problematic because those laws are written by politicians and lawyers.
“Our laws are written by people who don’t have medical backgrounds and are not scientists and so there’s a lot of gray in interpretation that makes it really hard for doctors to know what’s legal and what isn’t," Liston said.
Liston said Ohio’s six-week ban was treated differently by different doctors or hospitals, depending on different interpretations of the law. She said it is hard to write exceptions into abortion laws.
The proposed amendment would legalize abortions until viability and beyond if a doctor deems the procedure to be necessary.
Why other reproductive rights are included
“Medicine is complicated. Pregnancy is complicated," Liston said. "There are going to be so many circumstances that come up between a woman and her physician in reproductive health that it would be possible for any law to take all of this into account."
Issue 1 would also protect access to in-vitro fertilization (IVF) treatments, miscarriages and birth control.
While it's true there isn’t legislation pending in the legislature that would outlaw birth control, there have been bills introduced that could make it illegal to use certain methods of birth control or IVF. And some Ohio lawmakers have said they would support that type of legislation in the future.
