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Analysis: Why Ohio abortion rights supporters are fast-tracking a constitutional amendment

a woman with long blonde hair wears a hat that reads "abortion forever" while organizing papers, flyers and signs for the group pro-choice ohio on a table
Pro-Choice Ohio
A person with Pro-Choice Ohio, part of Ohioans for Reproductive Freedom, one of the groups that filed the initiative, organizes materials during an event at the House of Blues in Cleveland in December 2022.

Abortion rights advocates in Ohio are racing to get their constitutional amendment on the ballot this November, instead of waiting until next year's presidential election, when there will likely be record turnout.

Why now?

Because abortion rights supporters are hearing footsteps. Footsteps that could make it exponentially more difficult for them to pass a constitutional amendment making abortion access a right in Ohio.

You know the old gag from the Peanuts comic strip where Lucy yanks away the football just as Charlie Brown is about to kick it?

Conservative, anti-abortion rights Republicans in the Ohio legislature may be on the verge of pulling that trick on the coalition backing the constitutional amendment.

GOP legislators have brought back a proposal they failed to get passed in time to be put on the May primary ballot in Ohio — a constitutional amendment that would require citizen-led ballot issues to garner at least 60% of the vote to pass.

ANALYSIS: Why is Frank LaRose pushing a ballot issue not many seem to like?

If that rule had been in place in Michigan last November, when 57% of voters there supported an abortion rights guarantee similar to the one being proposed in Ohio, it would have failed.

That bears repeating: The Michigan measure would have failed despite a 57% "yes" vote.

The proponents of that seemingly undemocratic idea — including Ohio Secretary of State Frank LaRose, the chief elections officer of the state — say it is necessary to keep outside "special interests" from using the state constitution for their own gain.

But, clearly, this is meant to target just such a constitutional amendment as the abortion rights groups are proposing. Constitutional amendments the Republicans don't like, that is.

The Republicans may be able to place their "60% solution" on the November ballot. Getting it passed by voters will be quite another. Hundreds of organizations from across the political spectrum came out against it in the lame duck session.

But just in case Ohio voters lose their minds this fall and give away part of their power to change the state constitution, the abortion rights coalition has decided not to tempt fate and do it in 2023 instead of 2024, before any change could take affect.

"This might be one of our last opportunities to get this done," Dr. Laura Beene of Ohio Physicians for Reproductive Rights said in a Zoom press conference with leaders of the coalition working to put abortion rights on the November ballot.

"We are doing this now in part to avoid being impacted by (the 60% rule) if it becomes law," Beene said.

RELATED: Even if a reproductive rights amendment passes in Ohio, it could still face challenges

The Ohio Physicians for Reproductive Rights and a coalition called Ohioans for Reproductive Freedom submitted proposed ballot language with the Ohio Attorney General Dave Yost's office. Yost sent a letter to the lawyer for the abortion rights groups Thursday afternoon saying signing off on the ballot language, although he said he believes its passage would lead to lawsuits.

Now, the five-member Ballot Board, chaired by LaRose, must sign off on the ballot language. Once that happens, the groups can begin their petition drives.

The coalition will have a Herculean task ahead - gathering 412,591 valid signatures of Ohio voters from at least 44 of Ohio's 88 counties by July 5.

Practically speaking, that means gathering at least 600,000 signatures — every petition campaign comes up with a lot of signatures ruled invalid.

This will be a very expensive campaign.

Beene said last week the coalition can figure on $2-$8 million for the signature gathering itself.

Add to that another $20-$30 million to get the constitutional amendment passed. Much of that money, organizers say, will come into Ohio from national organizations with deep pockets.

Those are the "out-of-state interests" you will doubtless hear a lot about from the opposition.

Organizers of the campaign are confident they can get it done.

They had to submit the signatures of 1,000 registered voters just to submit the language to Yost's office.

Dr. Marcela Azevedo, a campaign organizer, said the campaign gathered 7,000 signatures in less than two days.

"It just really shows that Ohioans are thirsty for this," Azevedo said. "They want their rights back."

RELATED: Analysis: The group that defeated abortion rights challenges in Kansas and Kentucky is in Ohio

The amendment itself contains 246 words. It not only would write the individual right to an abortion into the state constitution, it would guarantee protection for other reproductive health measures such as contraception and fertility treatment.

The state would still be allowed to prohibit abortion after the point at which a fetus can live outside the womb. But it does include an exception for late-term abortions if a patient's doctor believes it is necessary to protect the patient's life or health.

What abortion rights opponents say

Ohio Right to Life and its affiliates around the state are gearing up for a campaign this fall.

"It is deception to call abortion health care," said Laura Strietmann, executive director of Cincinnati Right to Life. "In each procedure a woman is harmed and a preborn son or daughter loses their life through a painful, violent procedure. Ohio cares about women and children and we plan on keeping this out of our state."

Here's what the proposed constitutional amendment would not do — it would not automatically nullify any abortion-related law now in place, including Ohio's so-called heartbeat law, which bans abortion after the point a fetal heartbeat can be detected, usually at about six weeks into a pregnancy.

But it would become the legal standard in any lawsuit challenging the restrictions.

"It will be the law that applies to determine whether (the heartbeat law) can stand," said Jessie Hill, a Case Western Reserve University law professor who worked on the ballot language. "But the effect more broadly is when you pass a constitutional amendment, it doesn't automatically erase everything and start over. But it would mean that laws that conflict with it would not and should not be enforced."

And, perhaps most importantly, it would tie the hands of legislators who want to get around the constitutional amendment.

"It will be very hard for legislators to twist the meaning of this," Hill said. "It's plan English."

Updated: March 2, 2023 at 2:21 PM EST
Howard Wilkinson is in his 50th year of covering politics on the local, state and national levels.