Ohio Supreme Court Avoids Weighing In on Abortion Amendment

A controversial voter-initiated amendment to the state constitution, called “Issue 1,” recently won approval on the ballot in Ohio. The Supreme Court of Ohio asked for briefs on the question of how that amendment would affect a state constitutional challenge to the Ohio Heartbeat Protection Act, a bill the ACLJ helped draft. The ACLJ accepted that invitation and filed a brief urging the state supreme court to uphold the heartbeat law. However, in an eleven-word order, the Supreme Court of Ohio dismissed the appeal without interpreting Issue 1.

Let’s first walk through the steps that got us to this point.

The Ohio Heartbeat Bill

The ACLJ connection to this case goes way back. I was closely involved (along with law professor David Forte and pro-life champion Janet Porter) in the drafting of the heartbeat bill, which over the years passed the state legislature in separate pieces. That law required abortionists to test for a fetal heartbeat and to let the mother know if her baby had a beating heart, and the finally adopted version prohibited aborting babies who have beating hearts (aside from an exception for the life of the mother or for very grave maternal health concerns).

Federal Court Challenge to the Heartbeat Bill

Preterm-Cleveland, an abortion provider in Ohio, challenged the Ohio heartbeat law in federal court, arguing that the law conflicted with the U.S. Supreme Court’s abortion decisions in Roe v. Wade and Planned Parenthood v. Casey. Preterm won an initial victory. We then filed an amicus brief on behalf of some state legislators urging the federal district court to lift its injunction against most of the pro-life bill. That case went away, however, after the U.S. Supreme Court overturned Roe and Casey in Dobbs v. Jackson Women’s Health Organization. With no federal “right to abortion” any longer in place, the federal district court lifted its injunction against the Ohio heartbeat law.

State Court Challenge to the Heartbeat Bill

Preterm dismissed its federal court challenge and refiled in state court in Ohio, claiming that the Ohio Constitution contains a right to abort. In that new case, Preterm-Cleveland v. Yost, the Preterm abortion facility again won an initial injunction against the Ohio heartbeat law. The state appealed, but the appeals court dismissed the appeal. The Supreme Court of Ohio then agreed to hear the case.

Adoption of Issue 1

Meanwhile, abortion proponents in Ohio, as they have done and are doing elsewhere, launched a drive to amend the state constitution to add protection for “reproductive decisions” including “abortion.” With the financial support of Swiss billionaire Hansjörg Wyss and money from foundations associated with George Soros, the abortion amendment passed.

Interpreting Issue 1 and Its Impact on the Heartbeat Bill

What does the new amendment do? Does it affect the ongoing state constitutional challenge to the Ohio heartbeat law? That was the question the Supreme Court of Ohio wanted answered. So the ACLJ filed an amicus brief giving an answer.

The proponents of Issue 1 were not stupid. They knew that if they put language into Issue 1 saying that there was a right to kill small human beings, that states could not protect minors, or that no abortion regulations would be allowed, the amendment would fail. So instead, they used fuzzy, general language that sounded more appealing. And they did not even spell out whether any particular abortion laws, such as the heartbeat law, would fall after Issue 1. Presumably, the hope of the proponents would be that, in the hands of a pro-abortion judge or judges, the loose language of Issue 1 would provide enough cover for rulings striking down every pro-life law in the state.

However, the proponents of Issue 1 overlooked an important legal detail: Fair constitutional interpretation does not allow ballot initiatives to smuggle secret meanings into the law. As the Supreme Court of Ohio put it in a passage that we quote in our brief, “In construing constitutional text that was ratified by direct vote, we consider how the language would have been understood by the voters who adopted the amendment.” In other words, what matters is not some secret agenda of the proponents but what the language of the amendment actually communicated to the voters. Our brief then applies that rule to the case, extracting four key principles:

A proper interpretation of Issue 1 should reflect the principles [discussed] above: First, the construction should not be one that produces mutually contradictory claims of “rights.” Second, the construction should not set aside the duty of a civilized people to protect vulnerable human life from harm. Third, the amendment should not be read to nullify reasonable health, safety, and other related regulations. And fourth, Issue 1 should not be read to obliterate the distinctions between adults and minors.

Our brief expands on those four principles.

First, no contradictions. Issue 1 protects the reproductive decisions of “[e]very individual.” It does not say every “woman” or every “adult.” So whatever Issue 1 means, it cannot include an absolute individual right to abort, as that would give the father of the baby a right to abort their baby over the mother’s wishes, and vice-versa. Moreover, the aborted baby would forever lose his or her right to make “reproductive decisions.”

Second, no harm to other human beings. Those who voted for Issue 1 certainly did not think they were voting for infanticide. But “reproductive decisions” include the size of one’s family. Why can’t parents choose to eliminate some children when they think they have “too many”? Two reasons: First, infanticide is illegal. And second, infanticide kills another human being. But the same goes for abortion: Most abortions are unlawful under Ohio law, and any abortion that kills a baby necessarily hurts another human being. Our brief elaborates at length on this point:

[T]he state retains a valid interest in protecting third-party human beings, including those not yet born . . . .

Abortion typically has two conceptually distinct consequences: the termination of pregnancy and the death of the prenatal human. That these are quite different things follows from simple logic. First, childbirth terminates a pregnancy, but normally does not result in the death of the child. Second, a child can die from an accident, attack, or natural causes, while the pregnancy continues. Third, in light of in vitro fertilization (IVF), surrogacy, and – perhaps in the future – artificial wombs, a woman need not actually be herself pregnant with her biological prenatal child.

To be sure, there have been some who insist that a right to abortion includes “‘a right to a dead fetus.’” Planned Parenthood v. Ashcroft, 462 U.S. 476, 484 n.7 (1983) (quoting abortionist). The U.S. Supreme Court, however, rightly rejected that notion in Ashcroft. . . .

Consequently, abortion, understood as the termination of a pregnancy, does not necessarily include the right to the death of the intrauterine child. It follows that . . . the state can insist upon a “life of the child” exception to [abortion]. Indeed, the state may be obligated, under the federal Constitution, to enact laws providing equal protection to human beings both before and after birth. Steinberg v. Brown, 321 F. Supp. 741, 746-47 (N.D. Ohio 1970) (three-judge court) (“Once human life has commenced, the constitutional protections found in the Fifth and Fourteenth Amendments impose upon the state the duty of safeguarding it”).

Third, no free pass from reasonable regulations. As we explain:

Plainly, one can have a “right to property” yet still have one’s business or property subject to a host of taxes, zoning restrictions, health regulations, etc. The same goes for the right to bear arms. In the same way, a right to make and carry out reproductive decisions is not the same as a right to be free of any and all regulation.

Fourth, no disregard of the special needs of minors. Issue 1 refers to an “individual.” But “individuals” include everyone from age 99 down to 19 or 9 or even younger. Yet children and youths obviously lack maturity and are vulnerable to exploitation.

The term “any individual” therefore cannot be read to negate any and all limitations on the conduct of minors. While the term “any individual” would include human beings of all ages, it would be stunningly counterintuitive to say that it would be “understood by the voters,” that thirteen-year-olds now have a state constitutional right to have sexual relations with an older paramour, or that the older person has the constitutional right to pursue such relations with a minor. The obvious reason is that youths generally lack the mental and emotional maturity of adults, and so it makes perfect sense to protect minors from exploitation by disallowing, at certain ages, behaviors like smoking, drinking, marrying, entering into contracts, and engaging in sexual acts.

In light of these four principles of interpretation, we conclude:

Issue 1 should not be interpreted in some hyper-literal fashion that would produce insane and destructive results, as “a voter who knew the then-existing law,” would not have understood the “ordinary meaning” of the language in Issue 1 to effectuate such a radical transformation of the law under the guise of such gauzy terms as appear in Issue 1.

In other words, Issue 1 should not be viewed as a blank check for the abortion lobby to get whatever results it wants. To do so would be to “interpret [Issue 1] in a literal fashion . . . that would render the amendment both self-contradictory and, frankly, monstrous.”

To the contrary, we contend, Issue 1 should be read to allow for (1) no forced abortions, including by third parties, (2) a continuing state authority to protect innocent human beings before birth, including after the onset of heartbeat, (3) reasonable regulations on abortions and abortion providers, and (4) protection of minors. In light of this, the Ohio Heartbeat Protection Act can remain in place. We urged the Supreme Court of Ohio to “allow the various provisions of the Heartbeat Protection Act [to] go into effect.”

The Ohio Supreme Court did not, however, resolve these questions. Instead, the court on December 15 issued the following order: “Sua sponte, appeal dismissed due to a change in the law.” That means the case returns to the trial court, the “court of common pleas,” for further proceedings.

Why did the Supreme Court of Ohio decline to rule on the case and, in particular, on the meaning of Issue 1? The justices did not say, so we can only speculate. It is frequently the case, however, that courts of review – appeals courts and supreme courts – prefer to have legal matters hashed out in the lower courts before they weigh in. That provides both sides the opportunities to test and refine their arguments. Here, the state supreme court would have been the first court in the state to address the meaning of Issue 1. The court chose not to go first. After all, the matter can return to the Supreme Court of Ohio after the trial court rules and after any subsequent appeals. And if that happens, the ACLJ can be there making the same arguments we did this time around.

The pro-life movement has been repeatedly disappointed by the ability of well-funded abortion lobbies to get deceptively worded “reproductive rights” amendments and laws enacted. It is time the abortion proponents were called on their misdirection plays. The case of Preterm-Cleveland v. Yost supplies an opportunity for state courts to hold the abortion lobby to a rule that should govern us all: Say what you mean and mean what you say.