Opponents of ‘The Right to Reproductive Freedom with Protections for Health and Safety’ proposed constitutional amendment are using nothing more than scare tactics, stretching the truth and outright lies about what a court may likely do in tv ads. Law professors reviewed the claims made in the ads aired by opponents and agreed parental consent would not be eliminated.
Ohioans could vote on abortion access as soon as this November. But opponents of the measure are trying to shift the debate to parental consent instead.
Protect Women Ohio, which opposes the proposed constitutional amendment, launched television ads that claim parents could not stop their children from having an abortion or receiving medical treatment for transgender minors. “You could be cut out of the biggest decision of her life.”
Proponents of the abortion measure say that’s not true. “There is absolutely nothing in the amendment that mentions or supersedes Ohio’s parental consent laws,” Dr. Lauren Beene, executive director of Ohio Physicians For Reproductive Rights, said in a statement.
Law professors interviewed by the USA TODAY Network Ohio Bureau agreed that it’s highly unlikely that the proposed amendment would eliminate parental consent in Ohio.
One reason is children are often afforded fewer rights than adults. Laws limit what they can say in school and when they can buy a gun despite constitutional protections for speech and bearing arms.
“It would have zero effect on parental consent,” said Dan Kobil, a professor of constitutional law at Capital University. “The amendment doesn’t say anything about children having the same rights that adults do with respect to reproductive decisions.”
Another reason is Ohio’s Republican judges would be tasked with interpreting any conflict between state law on parental rights and the state constitution.
“The likelihood of a Republican-dominated Ohio Supreme Court reaching an expansive interpretation of these rights seems to be between slim and none,” Kobil said.
What is parental consent?
Parental consent is when a parent or guardian signs off on a medical procedure for someone younger than 18.
Emancipated minors, those who married before 18 or those who entered the military at age 17 can also make their own medical decisions.
Is parental consent required to have an abortion in Ohio?
In most cases, yes.
Ohio law requires those younger than 18 to receive approval from a parent, guardian or a juvenile court judge to have an abortion.
How many minors have abortions in Ohio?
In 2021, 538 abortions were had by minors younger than 18 in Ohio, according to the Ohio Department of Health’s induced abortion report. The state health department recorded 57 abortions for children younger than 15.
Those 538 abortions represent 2.5% of all abortions performed in Ohio in 2021.
What does the proposed Ohio constitutional amendment say about parental consent?
The proposed amendment to the Ohio Constitution would give individuals the right to make and carry out reproductive decisions, ranging from contraception and fertility treatment to abortion. Ohio lawmakers and prosecutors could not burden or interfere with that right before fetal viability, which is about 22 to 24 weeks into a pregnancy.
The language does not expressly mention “parental consent” or medical treatments for transgender minors.
Opponents of the measure say voters have to read between the lines. They argue that the language gives minors the right to carry out their reproductive decisions, including abortions, without state-imposed burdens like parental consent.
“The Ohio proposal is so broadly worded that it would prevent the legislature not only from requiring the consent of parents before their child pursues a particular procedure but also from requiring mere notification of parents − well short of the power to veto their child’s decision − before the procedure takes place,” wrote attorneys Carrie Campbell Severino and Frank J. Scaturro, both of the Judicial Crisis Network, a conservative judicial advocacy group. “After all, requiring even notification has the effect of ‘directly or indirectly’ burdening or interfering with the decision in question.”
University of Cincinnati law professor Jenn Dye disagreed with that analysis. “There’s no indication that it would overrule or impact the existing consent law that’s already in effect.”
“Even if you were to say the word ‘individual’ is overly broad because it could encompass minors, that’s a stretch,” Dye said. “It’s a misstatement of what the amendment is trying to say.”
Mary Ziegler, a law professor at the University of California at Davis, said the Ohio amendment would require the state to use the “least restrictive means” before limiting abortion access. That could be a high hurdle to clear.
However, minors are often granted fewer rights than adults, even when those rights are strongly protected.
“For example, in federal law, the First Amendment receives really strong protection,” Ziegler said, “And yet, we allow more curbs on students’ speech in schools when they are minors.”
In 1990, the U.S. Supreme Court ruled in favor of Ohio’s parental consent requirement for abortions. “The Ohio statute, in sum, does not impose an undue, or otherwise unconstitutional, burden on a minor seeking an abortion,” wrote then-Justice Anthony Kennedy.
Would the amendment affect medical treatment for transgender minors?
Ohio’s proposed constitutional amendment would not affect medical treatments for transgender minors or parental consent for those treatments, Ziegler said.
“I don’t even see an argument that that’s anything but a scare tactic,” Ziegler said. “If you transition, it can affect your fertility, but I don’t think anyone thinks gender-affirming care is fertility treatment or miscarriage care.”
Kobil agreed, saying the ad was “stretching what a court would be likely to do.”
What would happen next if Ohio passed this abortion amendment?
If Ohio voters approve the constitutional amendment, proponents of abortion access would challenge restrictions in court.
Judges would decide whether Ohio’s abortion bans and limits are unconstitutional using that new voter-approved framework. The final arbiter would be the Ohio Supreme Court, which includes four Republican justices and three Democratic justices on the bench.
“Whether Ohio’s parental involvement law would survive a challenge under this is anybody’s guess. I think you can hardly say in an ad that they’re coming for the parental involvement law because we don’t know what it means for that,” Ziegler said.
“That’s one plausible interpretation of what happens,” she said. “It’s equally plausible that Ohio’s parental involvement law would stick around, especially given who would be tasked with deciding the question, which is the Ohio state Supreme Court.”
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