Ohio's Abortion Law: Signed, Sealed, Delivered

Ohio's abortion law has been a hotly debated topic in the state and beyond. In 2022, the Supreme Court overturned Roe v. Wade, ending the constitutional protection of abortion rights and allowing individual states to regulate the procedure. Since then, Ohio has witnessed a back-and-forth legal battle over abortion access, with a federal judge first lifting an injunction on a law banning abortion after six weeks of pregnancy and then another judge blocking the ban, temporarily restoring abortion rights in the state.

The issue of abortion has been placed on the ballot in Ohio for the November 2024 election, with voters set to decide on a proposed constitutional amendment known as Issue 1 or The Right to Reproductive Freedom with Protections for Health and Safety. A “yes” vote on Issue 1 would amend the Ohio Constitution to restore the right to abortion and other reproductive health care, while a “no” vote would allow the state to continue creating legislation relating to abortion and reproductive health actions.

The debate around Issue 1 has been marked by intense campaigning from both sides, with opponents of the amendment suggesting that it would revive partial-birth abortions, despite this procedure being banned nationwide for over 15 years. On the other hand, supporters of Issue 1 argue that it would protect access to contraception, fertility treatment, miscarriage care, and the right to continue a pregnancy, in addition to abortion.

The outcome of the vote on Issue 1 will have significant implications for reproductive rights in Ohio, with a yes vote restoring abortion access up until fetal viability and a no vote potentially leading to the resumption of the six-week abortion ban if the Ohio Supreme Court rules in favour of the state.

Ohio's abortion law history

Early History:

• Until the mid-19th century, abortion was not a significant controversy in the United States. Most people adhered to the traditional Protestant Christian belief that personhood began at quickening (between 18 and 21 weeks of pregnancy).
• In 1821, Connecticut became the first state to regulate abortion, outlawing the procedure after quickening.
• By the 1850s and 1860s, the abortion rate had increased, and abortion began to attract public attention due to health risks associated with unsafe practices.

20th Century Developments:

• In the early 20th century, physicians were the leading advocates for criminalizing abortion, citing advances in medical knowledge about fetal development.
• By 1900, abortion was a felony in every state, with some states allowing exceptions to protect the woman's health or in cases of rape or incest.
• In 1973, the Supreme Court's Roe v. Wade ruling decriminalized abortion nationwide, establishing a minimal period during which abortion was legal and allowing for more or fewer restrictions throughout pregnancy.
• In 1978, Akron, Ohio, passed a city ordinance restricting abortion rights, requiring abortions after the first trimester to be performed in hospitals and imposing a 24-hour waiting period, among other provisions.
• The 1980s saw a shift, with evangelical Christians joining anti-abortion Catholics to overturn Roe v. Wade.
• In 1992, the Supreme Court's Planned Parenthood v. Casey ruling modified the Roe v. Wade framework, allowing states to impose legal restrictions on abortion as long as they did not create an "undue burden" for women seeking abortions.

21st Century Developments:

• In 2006, the Partial-Birth Abortion Ban Act was passed, banning a specific abortion procedure considered partial-birth abortion.
• In 2011, Ohio introduced a "fetal heartbeat" bill, seeking to ban abortions after the detection of embryonic cardiac activity. This bill was shelved by the Republican-majority Senate.
• In 2013, Ohio passed a Targeted Regulation of Abortion Providers (TRAP) bill, imposing various restrictions on abortion providers, including admitting privileges and licensing requirements.
• In 2019, Ohio Governor Mike DeWine signed the Human Rights and Heartbeat Protection Act, banning abortion after the detection of embryonic cardiac activity (usually around six weeks) with limited exceptions.
• In 2022, the Supreme Court overturned Roe v. Wade in Dobbs v. Jackson Women's Health Organization, returning the power to regulate abortion to the states.
• In November 2023, Ohio voters approved a referendum (Issue 1) to amend the state constitution, restoring the right to abortion and other reproductive health care.

The current legal status of abortion in Ohio

In November 2023, Ohioans voted on a ballot measure called Issue 1, or the "Right to Reproductive Freedom with Protections for Health and Safety". A "yes" vote supported amending the Ohio Constitution to restore the right to an abortion, as well as other reproductive health care such as fertility or miscarriage treatment. A "no" vote opposed amending the Constitution and allowed the state to continue to create legislation relating to abortion and other reproductive health actions. The result of this vote is not yet clear.

Ohio's abortion laws have been the subject of much debate and legal action in recent years. The state has a ban on abortion after six weeks of pregnancy in place, but this ban has been temporarily blocked by a judge. The Ohio Attorney General, Dave Yost, has challenged this ruling, and the case is currently under review with the Ohio Supreme Court. If the Court rules in favour of the state, the six-week abortion ban will go into effect.

The debate around abortion in Ohio has also been influenced by the US Supreme Court's decision in Dobbs v. Jackson Women's Health Organization in June 2022, which overturned Roe v. Wade and allowed individual states to regulate abortion. This decision has had a significant impact on abortion access across the country, including in Ohio.

The proposed constitutional amendment

If passed, the amendment would establish a state constitutional right for individuals to "make and carry out their own reproductive decisions", including decisions about abortion, contraception, fertility treatment, miscarriage care, and continuing pregnancy. It would also prohibit the state of Ohio from interfering with this constitutional right, except when the state can demonstrate that it is using the least restrictive means to advance the individual's health, in accordance with widely accepted and evidence-based standards of care.

The amendment would allow the state to restrict abortion after fetal viability, defined 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". Additionally, the state would be prohibited from banning abortion when, in the professional judgment of a physician, an abortion "is necessary to protect the pregnant patient's life or health".

The amendment would not affect parental rights or consent laws in Ohio. It would also not impact gender-affirming care.

If Issue 1 passes, abortion would be legal up until fetal viability, as it was for nearly half a century since Roe v. Wade. Access to miscarriage care, contraception, fertility treatments, and the right to continue a pregnancy would also be protected. The state would be allowed to restrict abortion beyond viability, with exceptions made when a physician deems abortion necessary for the life or health of the pregnant patient.

If Issue 1 does not pass, laws around abortion and other reproductive health care would continue to be made by the state government. Currently, Ohio has a ban on abortion after the 6th week of pregnancy, but this ban has been temporarily blocked by a judge. The Ohio Attorney General, Dave Yost, has challenged this ruling, and the case is under review with the Ohio Supreme Court. If the Court rules in favour of the state, the 6-week abortion ban will resume, making abortion after 6 weeks of pregnancy illegal, including in cases of rape or incest.

The impact of the Supreme Court's overturning of Roe v. Wade

On the 24th of June, 2022, the Supreme Court overturned Roe v. Wade, holding that the Constitution does not include a right to abortion and allowing states to ban the procedure. This decision has had a profound impact on abortion access and reproductive rights across the United States, including in Ohio.

Prior to the Supreme Court's ruling, abortion was legal in all 50 states under the precedent set by Roe v. Wade, which guaranteed the right to abortion up to the point of fetal viability, typically around 22-24 weeks of pregnancy. With Roe v. Wade overturned, individual states are now able to set their own abortion laws, and many states, including Ohio, have introduced restrictive abortion laws or triggered existing "trigger laws" designed to take effect following the overturning of Roe v. Wade.

In Ohio, abortion is now illegal in most cases, with exceptions only made to save the life of the pregnant woman or in cases of serious risk of substantial and irreversible impairment of a major bodily function. This means that abortions can no longer be obtained in Ohio for reasons of fetal abnormality or because of a pregnancy resulting from rape or incest. Doctors who perform abortions in violation of these laws can face felony charges, and those who travel to Ohio from other states to obtain an abortion can be prosecuted for aggravated murder.

The impact of the Supreme Court's decision has been significant. Abortion clinics in Ohio have ceased providing abortion services, and many have closed entirely. Women seeking abortions in Ohio now face significant barriers, including increased travel distances to access abortion services in other states, financial burdens associated with travel and the procedure, and potential loss of privacy and autonomy due to the involvement of law enforcement and judicial systems.

The overturning of Roe v. Wade has also had a chilling effect on abortion access in neighbouring states, as providers and patients navigate a complex and rapidly changing legal landscape. The decision has triggered a wave of litigation, with courts being asked to clarify and interpret the scope and application of these new abortion restrictions. The ongoing legal battles create uncertainty and further complicate abortion access, especially for those with limited resources and marginalised communities who already face significant barriers to healthcare.

The role of the state government in abortion law

The role of state governments in abortion law has been a contentious issue in the United States, with varying opinions on whether abortion should be legal or not. The Supreme Court's decision in Roe v. Wade in 1973 established a federal right to abortion, but this was later overturned in 2022, giving states the power to impose their own regulations on the procedure.

State governments now have broad discretion to prohibit or regulate abortion as they see fit, and the legal status of abortion varies significantly from state to state. Some states prohibit abortion entirely, while others permit it up to a certain point in a woman's pregnancy. In states where abortion is legal, there may still be restrictions in place, such as parental consent or notification laws, mandatory waiting periods, and counselling requirements.

In Ohio, for example, abortion is currently legal up to the point of fetal viability. After viability, abortion is only permitted if a physician deems it necessary to protect the pregnant patient's life or health. However, there was a ban on abortion after the 6th week of pregnancy in place, which has been temporarily blocked by a judge. The Ohio Attorney General, Dave Yost, has challenged this ruling, and the case is currently under review with the Ohio Supreme Court. If the Court rules in favour of the state, the 6-week abortion ban will be reinstated.

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