Issue 1: They’re seeking expansion beyond it’s true scope and beyond what Ohio voters approved

By Lisa Murtha

You may have seen it in the news lately – accusations that Ohio Attorney General Dave Yost is trying to stop implementation of Issue 1, Ohio’s Right to Reproductive Freedom Act, which passed with 57% of the vote in November 2023.

An emotional op-ed published in the Ohio Capital Journal and Cincinnati City Beat this week accuses Yost of being “fixated on generating headlines and getting on TV” and of “doing his level best to legally obstruct implementation of the newly amended state constitution by maintaining the legitimacy of burdensome and discriminatory pre-Issue 1 abortion restrictions that clearly violate the letter of the law post-Issue 1.” The writer, Marilou Johanek, also calls him a “courtroom combatant for the hard right.”

While name-calling and unprovable allegations about people’s motives are key components of all emotion-based arguments; facts go farther in helping the average Ohioan understand what’s really happening here.

Perhaps the first thing to know about the current lawsuits surrounding abortion rights in Ohio courts right now is that Dave Yost did not instigate them – they were brought forth in April by a group of pro-abortion clinics and one doctor (Preterm-Cleveland et al, ie: the “Plaintiffs,” who are in turn backed by the national ACLU and Planned Parenthood). The group is challenging established Ohio law after the passage of Issue 1; Yost, as Attorney General, is responding to the lawsuits and refuting the legal standing of their assertions.

In fact, at the very top of his public opposition filing for this case, Yost states: “In November 2023, shortly after the U.S. Supreme Court in Dobbs overturned Roe v. Wade, the People of Ohio, acting directly through a voter-approved initiative, passed an amendment to the Ohio Constitution with the purpose of restoring the pre-Dobbs legal regime restricting abortion regulation pursuant to the tests established in Roe and Planned Parenthood v. Casey.” Since “All political power is inherent in the people,” he goes on to say (citing the Ohio Constitution), “Accordingly, as the State has made clear in separate ongoing litigation, the State cannot, and should not, oppose Plaintiffs’ challenge to that specific law.”

The second thing to understand is that the current iteration of the lawsuit brought by Preterm-Cleveland et al, which is now before the Franklin County court, is merely to determine what will happen in Ohio for the next year, as the actual trial that Preterm Cleveland et al brought forth will not happen until April of 2025.

And the third and fourth – and perhaps most important – things to understand about this lawsuit are: what the Plaintiff clinics, Planned Parenthood and the ACLU are asking Ohio courts to do, and why Yost felt compelled to respond in the way he did.

In April, five months after Issue 1 became law, Preterm-Cleveland and its partners filed a case aimed at nullifying four existing Ohio legal provisions that have been in place since Roe v. Wade ruled the land: the waiting period provision, the in-person provision, the informed consent provision and the heartbeat check provision.

In more detail, these provisions require:

• that women seeking abortions wait 24 hours between an initial consult with a doctor and an abortion procedure;
• that they sign documents indicating they are: informed about the risks of abortion, not intoxicated and not having the procedure by force before obtaining an actual abortion (the last piece speaks extensively to victims of human trafficking);
• that pregnant women meet with a doctor in-person before procuring an abortion, and
• that doctors must confirm the baby has a heartbeat, and offer mothers a chance to hear that heartbeat, before performing an abortion (this, too, says Cleveland.com is currently being challenged by a separate lawsuit in Hamilton County).

The history of these provisions is summarized in Yost’s public opposition, starting on page three; interesting to note here is that Preterm Cleveland has sued Ohio before, specifically about some of these exact provisions. The outcome? Per Yost, “the court concluded that Preterm lacked standing to challenge any of these statutes.”

Yost also notes that the statutes Preterm is once again challenging are “substantially the same today” as they were when the organization originally challenged them and that “The only differences are the additions of a criminal penalty for performing or inducing an abortion before checking for a fetal heartbeat and a requirement that the pregnant woman sign a form that she was provided the information required.”

The current argument being made by Preterm et al and the OCJ columnist alike is that these specific laws should have been automatically overridden by passage of the new state law. But, interpreting law is a tricky thing that cannot be directed by simple emotion.

In reading the actual text of the new constitutional amendment (Section 22 of Article 1 in Ohio’s Constitution), nowhere in the verbiage does it say that all prior legislation related to abortion and “reproductive rights” in Ohio is hereby null and void (Yost himself alludes to this line of thinking on page 11 of his opposition memo).

So, the argument that pro-abortion proponents make – that the line of the Ohio constitution now saying “the state shall not, directly or indirectly, burden, penalize, prohibit, interfere with, or discriminate against either an individual’s voluntary exercise of this right [to reproductive freedom] or a person or entity that assists an individual exercising this right” nullifies all earlier Ohio legislation relating to abortion or reproductive rights – actually isn’t clearly true at all. The prior Ohio legislation may, in fact, have a right to coexist with the new law.

Only time, and, for now, a Franklin County judge, will tell.

One argument Yost is making, on behalf of the state, is that these particular plaintiffs – multiple pro-abortion clinics and one specific doctor who has given no examples of any specific harm she has incurred as a result of these provisions – have no legal standing to bring forth this lawsuit.

But Yost is also arguing that these Plaintiffs – Preterm-Cleveland et al – “seek to expand the Amendment beyond its true scope and intent—beyond what Ohio voters approved.”

He goes on to state that “Plaintiffs, along with other pending abortion-related cases, seek to commandeer the Amendment for their own purposes, essentially claiming in the aggregate that the Amendment bars all laws that touch on abortion—and even some laws that have nothing to do with abortion or anything else the Amendment mentions. Just as it is the State Government’s duty to respect the will of the People by conceding the invalidity of a statutory provision that conflicts with the current language of the Ohio Constitution, it is also the State Government’s duty to respect the will of the People by defending statutory provisions that the Amendment does not invalidate against meritless attack. Against such overreach, the State will stand fast.”

Yost also argues in his public opposition that, in the months leading up to last November’s election, “Voters were primarily told, by the dominant and successful voices, that the Amendment would restore the status quo” of life under Roe v. Wade. Among the dominant voices he cites are legal scholars statewide, media outlets and the Ohio League of Women Voters. In short, says Yost, “the dominant understanding was that the Amendment would ‘restore Roe,’ and that warnings of broader effects were dismissed as overblown.” In other words, allowing a new law to take down all other pre-existing laws amounts to a bait-and-switch against Ohio voters.

Looking at the case from a big-picture view, a crucial question for Ohio voters is why abortion clinics would want to do away with things like a 24-hour waiting period, or the requirement that pregnant women be fully informed about the potential complications of abortion? Virtually all medical procedures today, and especially invasive surgical procedures, require these kinds of safeguards.

I haven’t yet read the reasons the pro-abortion lobby presents for not wanting the provisions, but given that the pro-abortion crowd insists they are major proponents of “reproductive health,” the only rational conclusion is that they are concerned women will want to keep their babies if they have time to think about it or if they hear the babies’ heartbeats.

But if the pro-abortion lobby is actually pro-women’s “choice” and pro-“reproductive health,” why would they care if a woman chose to have a baby, so long as she was “reproductive[ly] health[y]?” What do these clinics stand to gain if a woman chooses to abort her baby or not?

Money, we know, is a driving factor in the majorly lucrative abortion industry; no abortion = no payment. But shouldn’t “women’s reproductive health centers” and doctors technically be indifferent? They should. Unless, of course, they are no longer pro-choice and instead have become anti-birth.

Also interesting to note is what happens in states where abortion is already fully legal with few, if any, restrictions, as this provides a glimpse into Ohio’s potential abortion-related future. First in California and now in New York, Attorney Generals have sued / are suing pro-life pregnancy centers to stop them from advertising for abortion pill reversal services (FYI, abortion pill reversal is a real, hormone-induced antidote to the first step in a two-part chemical abortion and has been used by pregnancy centers across the nation already to save thousands of babies).

But again, this makes no logical sense. If the “pro-choice” side is actually pro-choice, they would be indifferent to abortion pill reversal. It would be a woman’s “right to choose” to change her mind and ultimately to decide whether she has the baby or not.

The fact that pro-abortion lobbyists are so opposed to the reversal pill that they are trying to shut it down – in NY Attorney General Letitia James’ case, by claiming pregnancy clinics who offer the service are delivering “misleading” or “false advertising” – indicates again that the term “pro-choice” is now a misnomer. Anti-birth unfortunately feels more accurate today.

In the photo at the top of the Cleveland.com piece about this case, editors featured a group of women celebrating at an Issue 1 “watch party,” when the legislation officially passed. If readers didn’t know the context, they might think the women were at a rock concert or a religious revival – screaming with abandon, kneeling with arms held high, standing and cheering. Curiously, the women most prominently featured in the image – and those with the most exuberant reactions – were women of color, a group whose offspring are disproportionately being wiped out by abortion nationwide. Hamilton County Auditor Dusty Rhodes got in deep trouble with the Democratic party once for trying to spread this truth on his Twitter page.

Recently, I also heard a Federalist editor being interviewed about a book he wrote, which argues that we live in a post-Christian society, and that Democracy cannot survive without the Christian foundation on which it was originally based. A major topic of discussion in that interview was about abortion, and how it has become a sort of religion or cult to so many young women today… a religion bearing a remarkable resemblance to that of primitive pagan societies, where child sacrifice was encouraged, expected and required.

Will the people of the future see the Issue One “watch party” photo someday and feel a pain deep in their hearts for the women who have been duped into believing that their greatest gift – that of giving life to other human beings – is instead their greatest curse?

Only time will tell how the court interprets the new constitutional amendment, and whether the judge sides with Yost or the Plaintiffs who brought the case against the state. One thing is certain, though: this case and so many others in recent years highlights how crucial it is for life-minded Ohioans to vote in every election they can, as our elected officials, and most especially our Attorney Generals and state and local judges, are best poised to defend the state’s constitution and ultimately uphold Ohio’s rule of law.

Lisa Murtha is an Award-Winning Journalist for Print and Visual Media, and the 2023 National Society of Newspaper Columnists Finalist