COLUMBUS, Ohio – October 24, 2023
As the days draw nearer to Election Day, anti-abortion groups in Ohio are ramping up their efforts to oppose a reproductive rights measure with a focus on a term associated with an abortion procedure that has not been legal in the U.S. for over 15 years. This debate is central to the upcoming vote on November 7, where Ohioans will decide whether abortion should be legal in their state.
In their campaign efforts, anti-abortion groups and prominent Republicans have been increasingly mentioning “partial-birth abortions” as a potential threat if Ohio’s constitutional amendment, known as Issue 1, is approved. It’s crucial to note that “partial-birth abortion” is a non-medical term, referring to a process known as dilation and extraction (D&X), which is already federally prohibited.
Governor Mike DeWine, a vocal opponent of Issue 1, claimed that it “would allow a partial-birth abortion.” He argued that Ohio has had a law banning “partial-birth abortions” for many years and that the constitutional amendment would override it.
However, constitutional scholars argue otherwise. They argue that the amendment wouldn’t supersede the prevailing federal prohibition on “partial-birth” abortions, since federal law holds precedence over state law in accordance with the supremacy clause of the U.S. Constitution. Thus, even if Ohio voters approve the amendment, doctors would still be subject to federal restrictions.
Ohio is the only state where voters will decide the fate of abortion this November. However, the abortion debate in Ohio is not isolated but has become a testing ground for anti-abortion groups. Following several defeats, abortion rights supporters are planning to take the issue to voters in multiple states next year, making it a significant topic in upcoming races.
D&X, also known as a dilation and extraction procedure, entails the expansion of the woman’s cervix, extracting the fetus through the cervix, and ultimately delivering the fetus in a feet-first position, subsequently followed by piercing the head and reducing skull size. This procedure was previously used in both abortions and miscarriages during the second and third trimesters of pregnancy before the federal ban.
Ohio Governor DeWine, who voted in favor of the federal Partial-Birth Abortion Ban Act in 2003, believes that the federal law would not apply if Ohio amends its constitution, citing provisions that limit federal government regulation when it doesn’t affect interstate commerce. However, legal experts argue that this interpretation is unlikely to succeed in court, given the Supreme Court’s prior declaration of the ban’s constitutionality.
Attorney General Dave Yost and the Ohio Senate’s Republican supermajority have echoed DeWine’s concerns. They suggest that both the D&X and another procedure, non-intact dilation and evacuation (D&E), would be permitted if Issue 1 is approved. Legal experts assert that federally banned procedures would remain illegal, regardless of the state’s constitutional changes.
Anti-abortion groups argue that the federal ban on “partial-birth” abortions is not effectively enforced under the Biden Administration, necessitating state-level protections. Supporters of Issue 1, on the other hand, claim that the use of the term “partial-birth abortion” in campaign messaging is misleading, as it is not a medical term or procedure.
Ohio has been at the forefront of abortion regulation, passing the nation’s first ban on “partial birth feticide” in 1995. Anti-abortion advocates have used terms like “partial-birth” and “late-term” abortions to shape public perception.
Ohioans United for Reproductive Rights, the main group supporting the constitutional amendment, has received donations from Dr. Martin Haskell, the physician who pioneered the D&X procedure.
Pro-choice advocates argue that the focus on “late-term” and “partial-birth” abortions is a scare tactic, emphasizing that Issue 1 allows clear restrictions on abortion after viability while protecting patients’ health and safety. Late-term abortions are rare and often associated with heartbreaking circumstances.
Statistics indicate that Ohio has had very few abortions performed after 25 weeks gestation, and the majority fall within the limits of the state’s current laws. The low numbers, anti-abortion groups argue, are due to the state’s existing abortion restrictions.
As the debate over Issue 1 continues, Ohioans will have the final say on the future of abortion in their state, while the rest of the country watches closely as the issue remains central to political races.