Member Article

On November 7, 2023, Ohio voters passed Issue 1, the Right to Reproductive Freedom with Protections for Health and Safety, to establish the constitutional right to certain reproductive decisions. The new right will be enshrined in Section 22 of Article 1 of the Ohio Constitution, and will become effective within 30 days after the election.

The passage of Issue 1 establishes in the Ohio Constitution an individual’s right to one’s own reproductive medical treatment. Several reproductive decisions are included in the constitutional right. The text of the amendment provides in part:

Every individual has a right to make and carry out one’s own reproductive decisions, including but not limited to decisions on:

1. contraception;

2. fertility treatment;

3. continuing one’s own pregnancy;

4. miscarriage care; and

5. abortion.[1]

The amendment creates legal protections for those involved in the reproductive medical treatment. The amendment prohibits the State from directly or indirectly burdening, penalizing, prohibiting, interfering with or discriminating against the individual who voluntarily exercises the right, or a person or entity that assists the individual in exercising the right, unless the State demonstrates that it is using the least restrictive means to advance the individual’s health in accordance with widely accepted evidence-based standards of care.

Abortion

Most notably, the amendment provides an individual the right to receive an abortion in Ohio prior to the point of fetal viability. Fetal viability is 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.” The pregnant patient’s treating physician will determine fetal viability on a case-by-case basis. The State may prohibit abortions after fetal viability.

However, the State cannot prohibit abortion, at any stage of pregnancy, if the pregnant patient’s treating physician determines that an abortion is necessary to protect the pregnant patient’s life or health.

Impact on Existing Law

The Ohio Constitution supersedes Ohio statutory law. The existing Ohio statutes that conflict with the new constitutional right may be repealed, amended or challenged.[2] The amendment will not override existing Federal prohibitions on certain abortion procedures. 

This is an ongoing legal issue and Dinsmore attorneys will keep you informed of any future developments. If you have questions about the recent legal developments pertaining to reproductive medical treatment, please contact your Dinsmore attorney.

[1] See Full Text of the Amendment, available here on Page 3.

[2] The Heartbeat Law, R.C. 2919.19 through 2919.1910, is the main law governing abortion in Ohio prior to the effective date of the amendment. A preliminary injunction issued by the Hamilton County Court of Common Pleas had enjoined enforcement of the Heartbeat Law pending the outcome of litigation. The decision had been appealed to the First District Court of Appeals and the Ohio Supreme Court; however, the Ohio Supreme Court has not ruled as of the publishing date. The Heartbeat Law does not permit the performance of an abortion without first checking for fetal cardiac activity and prohibits an abortion if fetal cardiac activity is detected, with limited exceptions. With the preliminary injunction in place, abortion is permitted in Ohio up to 22 weeks of pregnancy.