Ohio’s Issue 1 is About More Than Abortion

By Ken Blackwell

Ohio’s Issue 1 referendum is a contentious proposal that will undoubtedly impact the future of abortion policy within Ohio. So far, groups from within and outside the state have dumped more than $40 million into debating the so-called abortion rights amendment. However, some major policies outside the realm of the abortion debate will be impacted if voters opt to write the language of the Issue 1 referendum into the Ohio State Constitution.

Those against Issue 1 have argued the proposal will likely have ramifications outside of abortion care and may impact state policy on transgender medical procedures – including for minors whose sexual body parts will be altered without the knowledge or approval of their parents or legal guardians.

State and local media have been quick to dismiss these concerns as nothing more than an attempt to obfuscate and scare voters about an issue other than abortion. They have blindly accepted the legal arguments of ideological advocates to dismiss those concerned about the potential for Issue 1 to have far-reaching effects outside the area of abortion policy.

There’s one big problem with this view. The language of Issue 1 itself.

If Ohioans vote yes, they will be approving the following language:

“Every individual has a right to make and carry out one’s own reproductive decisions, including but not limited to decisions on contraception, fertility treatment, continuing one’s own pregnancy, miscarriage care, and abortion.”

The proposed language states that every individual has a right to make and carry out reproductive decisions. Aren’t minors individuals? I’m hard-pressed to see how status as a minor precludes one from being covered as an “individual” by the legally binding language of Issue 1 and I’m unaware of any legal definition to the contrary.

Similarly, abortion, sex change surgeries, and hormone therapies all involve human sexual organs that serve a reproductive function. It’s hard to declare a right to do whatever one wishes in regard to their own reproductive desires without casting an expansive net over the autonomy of the individual's sexual organs – including the individual who happens to be a minor child.

An objective reading of the Issue 1 constitutional amendment language must acknowledge that it says “including but not limited to” decisions on fertility, pregnancy, miscarriage care, and abortion. One need not be a constitutional scholar to recognize and understand that this is an explicit declaration that the proposed right being created is not limited to pregnancy-related issues like abortion.

This alone should give voters pause. Why is the Issue 1 language written to explicitly state the right goes beyond pregnancy-related issues if it’s simply about protecting abortion access?

Is it possible that those urging caution about Issue 1 are not really lunatics wearing tinfoil hats? Perhaps they are simply reading the language of Issue 1 and concluding that it means what is says.

Furthermore, by including references to miscarriage care and contraceptives in the text of the amendment, the advocates have cynically sought to create the impression that the aforementioned are at legal risk if voters decline to enshrine their abortion into the Ohio State Constitution.

Proponents of Issue 1 are seeking to gaslight the people of Ohio about the nuances of the language. Legal scholars know very well that laws are often interpreted outside their original intent. There’s no requirement for a judge to adhere to the original intent of the law. A recent example of this can be found in the Supreme Court’s ruling of Bostock v. Clayton Count, where the plaintiffs openly argued that Congress accidentally created workplace protections for the LGBTQ community in the 1964 civil rights act. They won their case with Trump-appointed Justice Neil Gorsuch writing for the majority that a strict textual analysis of the law overrides the original intent of the law.

Yet, the oft-cited experts like Constitutional Law Professor Daniel T. Kobil. pretend that judicial review requires fidelity to original intent when even a pre-law undergrad would know that there are no such restrictions in legal reasoning.

It would be dishonest to proclaim Issue 1 isn’t about abortion. Likewise, it’s exceptionally dishonest to pretend Issue 1 is only about individual pregnancy concerns.