The ACLJ Submits Legal Testimony Supporting a Resolution To Keep Planned Parenthood's Deceptive Abortion Amendment at Bay

Recently, a coalition of pro-abortion groups proposed an initiative that would create a right to abortion in the Ohio Constitution. The proposed amendment is supported by two groups: Ohio Physicians for Reproductive Rights (OPRR) and Ohioans for Reproductive Freedom (ORF). OPRR is “a coalition of physicians and health care professionals,” while ORF is a coalition of well-known, pro-abortion groups, including the ACLU, Abortion Fund of Ohio, Pro-Choice Ohio, and Planned Parenthood Advocates of Ohio.

In response to this effort by radical pro-abortions groups to come in and change the very nature of Ohio, Senate Joint Resolution Number 2 was proposed to amend the Ohio Constitution to shore up protections for the constitution against these radical changes. In support of that Joint Resolution, the ACLJ just submitted written testimony and legal analysis of the dangers of Planned Parenthood’s proposed constitutional amendment. Senate Joint Resolution 2 would raise the simple majority requirement to 60% for constitutional amendments to become law. A special election, including this resolution, may be held as early as August 8.

As we stated in our testimony in support of the Joint Resolution:

Since the founding of the United States, Americans have valued and protected innocent human life. As recently affirmed by the U.S. Supreme Court, the U.S. Constitution clearly contains no language conferring a right to abortion. And, while Planned Parenthood is trying to change this fact, neither does the Ohio Constitution. The Ohio Constitution does, in alignment with the U.S. Constitution, protect the “inalienable” right to life. In fact, it protects the right to “enjoy[] and defend[] life.” . . . Planned Parenthood’s proposed amendment would conflict – not only with the constitutionally protected right to life, but with the right to defend life.

While a constitutional right to abortion is troubling on its own, Planned Parenthood’s proposal to amend Ohio’s constitution is riddled with especially disturbing details. Its sweepingly broad language is likely to undermine parental rights, force Ohioans to pay for abortions up to birth, create incompatible standards for Ohio patients, give abortion “doctors” a blank check, and leave preborn babies completely unprotected. As we state in our testimony, “The basic premise of Planned Parenthood’s proposed amendment . . . is that the state constitution should give one group of human beings (pregnant women) a freedom-based ‘right’ to intentionally kill other separate, unique, living human beings (preborn children), and no one has much, if any, say in the matter.” Moreover:

[T]he question of when and whether the law should authorize, or at least excuse, the intentional killing of a living human being is never a primarily private or individual question. To the contrary, both the public and the government clearly have compelling interests at stake whenever human life is being taken, regardless of whether the circumstance entails abortion, capital punishment, murder, the use of lethal force by individuals asserting defense of self or others, deaths caused in military operations, suicide, or euthanasia. The fact that a particular killing impacts the individuals involved in a more direct way than it impacts the general public does not render legislatures powerless to carefully weigh the competing interests at stake and set policies that reflect the values of the public.

Planned Parenthood’s proposed amendment gives no deference to parents, leaving the decision to abort to “every individual” without a minimum age. While touted as the decision of the pregnant mother, it will undoubtedly be influenced by those in the abortion industry. Pregnant minors, who are already in a heightened state of vulnerability, ought to have the counsel of their parents.

The proposed amendment could also force Ohioans to fund the abortion industry. Ohio would not only be prohibited from “discriminating” against mothers seeking an abortion but also against abortion facilities. As stated in our testimony, “There are many ways in which the state may favor childbirth over abortion and could be sued for constitutional violations for ‘discriminating against,’ ‘burdening,’ or ‘interfering with’ an individual’s ‘right’ to abortion, and an abortion provider’s ‘right’ to perform abortion.” Only time will tell how far the discrimination language will be taken, but it is reasonably foreseeable that it will be used to force Ohio taxpayer money into the hands of abortion giants such as Planned Parenthood.

While Ohio often leans conservative, this proposed amendment could force liberal medical standards on Ohio patients. According to our testimony:

[T]he proposed amendment would have seismic effects, disrupting the many laws in place that currently protect life and conscience. Most notably, the passage of Planned Parenthood’s amendment would undermine all pro-life laws that have already been enacted and would prohibit future legislative efforts to place even reasonable restrictions on abortion, thwarting those who value innocent life and seek to protect it.

Under this amendment, Ohio could only restrict reproductive decisions on the basis of “widely accepted and evidence-based standards of care.” But these standards aren’t always clear; and when they are, they are often dictated by large über-liberal states such as California and New York. Furthermore, “Planned Parenthood’s amendment contains no saving provisions for already existing laws – even those laws that are clearly acceptable and legitimate under current Supreme Court precedent.”

With the proposed amendment, Planned Parenthood is trying to give abortionists a blank check. In theory, the proposed amendment creates an exception for viability that would allow Ohio to restrict abortion after viability. However, this exception is rendered futile by subjectivity. First, any treating physician will decide if the preborn child is viable. Second, the exception is overridden to protect the “patient’s life or health.” This opens the floodgates because health could be anywhere from a life-threatening disease to a mental or emotional disturbance.

Last—and most importantly—the proposed amendment blocks any Ohio legislation that would protect the preborn baby. As we make clear in our testimony, “‘widely accepted’ and ‘evidence-based’ standards of care [are] the . . . only forms of restriction that the state may place . . . for protecting the pregnant woman’s health. . . . [T]his amendment provides no ability for the state to restrict abortion in the interest of the preborn baby’s health.” In fact, the only way the state can regulate or have any governing interest in abortion is if it demonstrates that it is using the “‘least restrictive means to advance the individual’s health . . . .’ This standard completely annihilates any interest that the state has in protecting the life and health of the preborn child.” Our testimony continues:

Ohio’s Constitution would benefit from an update to reflect the current ability of corporations to influence and change its laws. Currently in Ohio, it is easier for a corporation (such as Planned Parenthood) to use dark money to alter the Ohio Constitution than it is for Ohio’s elected officials to follow the legal process to amend the Constitution.

SJR 2 applies a consistent standard to amend the Ohio Constitution. As you know, the General Assembly may pass a resolution with 3/5 of the body voting for the constitutional amendment and send it to the ballot. The second method permits a corporation to pay community organizers to gather signatures and place constitutional changes directly before voters. SJR 2 aligns the legislative approval requirement with the corporate-led constitutional process by bringing each to 60%.

Before the proposed amendment can appear on the November 7 ballot, supporters must gather signatures from 10% of Ohio voters by July 5 (more on the Ohio initiative process). If sufficient signatures are not acquired, they will have to wait until the next general or regular election cycle. If the proposal makes it to the ballot, a simple majority vote will ratify the amendment to the Ohio Constitution. Unfortunately, a recent poll indicates Ohio voters might be persuaded to adopt the proposed amendment. The poll found that 59.1% of registered Ohio voters said they favored adding a right to abortion to the Ohio Constitution.

This concerning poll is understandable because most Americans do not understand what a constitutional right to abortion actually means. Nor do they fully comprehend the consequences of an amendment as egregious as the one proposed by Planned Parenthood et al. As we explained in our testimony:

As Planned Parenthood knows, the overwhelming majority (79%) of Americans are in favor of restrictions on abortion. According to a recent Pew Research Center survey, 8% of Americans believe that abortion should be illegal in all cases, with no exceptions, 2% think it should be illegal in all cases, with a few exceptions, 27% think it should be illegal in most cases, 36% believe it should be legal in most cases, and 6% believe it should be legal in all cases, but that there are exceptions when abortion should be against the law. This leaves only 19% of Americans who believe that abortion should be legal in all cases with no exceptions.

Knowing this, Planned Parenthood has inserted the appearance of a limitation on abortion that still allows abortion on demand, for any reason, up until the point of birth. This has been achieved in two ways.

First, by stating that “abortion may be prohibited after fetal viability” and then defining “fetal viability” as “the point in a pregnancy when, in the professional judgment of the pregnant patient’s treating physician, the fetus has a significant likelihood of survival outside the uterus with reasonable measures.” Moreover, viability is determined on a “case-by-case basis.” By using this language, Planned Parenthood is eliminating any ability of the state to implement a bright-line standard for viability, such as the typical bans on abortion after 20-weeks’ gestation. Not only does it prevent any gestational limit on abortion, but it leaves the determination of viability up to the abortion provider in every individual case, and fails to define what “reasonable measures” would be with regard to the likelihood of the baby surviving outside of the mother’s womb.

Second, since the first limitation was not a sufficient hindrance on the state’s ability to protect “viable” pre-born babies (capable of feeling the excruciating pain of being killed), Planned Parenthood’s amendment also allows the abortionist to determine that the abortion (at any stage of pregnancy, even up to the point of birth), is necessary for the “health” of the woman. Again, “health” has no definition and may broadly be interpreted to include mental health.

Planned Parenthood must not be allowed to deceive the public about its true intentions, and the ACLJ intends to fight against this horrific amendment in any way that we can. Join with us. Share our analysis with your friends and family and inform them of the radical agenda of abortionist groups.