An Attempt to End the Winning Streak for Abortion Rights

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By Ketrin Agustine

An Attempt to End the Winning Streak for Abortion Rights

By Nov. 7, my fellow Ohioans will cast votes on Issue 1, a ballot initiative that would secure access to reproductive health care, including abortion. It is the only statewide election specifically about reproductive rights in 2023. Whichever way the vote goes, both sides of the debate are likely to draw lessons about abortion-related strategy for next year, when several more ballot initiatives are expected.

The outcome will carry implications well beyond Ohio, where a dangerous and extreme ban on abortions after about six weeks of pregnancy is at stake. I have no doubt that if Ohioans simply read the proposed amendment and then voted according to their views on abortion rights — which are popular both nationally and in Ohio — the ballot initiative would pass comfortably. I’m on the committee that helped draft the language for the proposed amendment: It is short (just over 200 words), easy to understand and written to specifically reflect the beliefs of our state.

Abortion opponents most likely know this as well, which is why when Ohioans enter the voting booth, we will not, amazingly, see the actual amendment language on our ballots. Instead, voters will see an unnecessary and biased summary of the proposed amendment. Those in positions of power have chosen to press their thumbs on the electoral scales.

The clear lesson from 2022, when six states cast votes for reproductive rights, as well as the results of the recent Wisconsin Supreme Court race, is that voters vote in favor of abortion rights. Every straight up or down vote on reproductive freedom since Dobbs v. Jackson Women’s Health Organization has gone in favor of defending or expanding access to abortion. So the strategy of anti-abortion activists has become to pull any available political, messaging or legal levers to prevent that.

An earlier such attempt in Ohio was a special election, held in August, to raise the threshold to pass ballot initiatives on constitutional amendments from a simple majority to 60 percent. The state’s lawmakers, who have been introducing extreme abortion restrictions for years, wanted to change the rules in the run-up to the vote on the initiative, throwing the chessboard into the air while still setting pieces. The August date was selected, at enormous taxpayer expense, to circumvent the November election, with our secretary of state declaring the August vote to be “100 percent” about abortion. If passed, though, the August initiative would have affected all future ballot measures, wherever they may have fallen on the political spectrum. Voter initiatives, it turns out, are possibly even more popular than abortion rights, and the August amendment was defeated by a 14 percentage point margin. Anti-abortion activists filed two lawsuits against the ballot measure to stop the process; both failed.

The November ballot initiative now inevitable, the anti-abortion strategy has shifted toward distraction and disinformation. Opponents of the reproductive freedom amendment have disingenuously asserted that it isn’t needed because abortion is already legal in the state until 22 weeks of pregnancy, but that’s only because the six-week abortion ban, which does not include exceptions for rape, incest or lethal fetal anomalies, is under injunction, awaiting a ruling from our State Supreme Court, which could arrive at any time.

Voters have, additionally, not been immune to political talking points raising the fantastical specter of abortions at the end of a full-term pregnancy. As a physician practicing high-risk obstetrics, I can assure Ohioans that such procedures are not part of standard medical care in the United States and never will be.

But none of these contortions are as insidious as the alteration of what voters will see on the ballot. There is no practical or legal reason for the language of the amendment not to appear, as written, on the ballot.

However, state law allows our ballot board to substitute a summary, as long the initiative is reflected fairly — or at least that’s how it’s supposed to work. This is sensible for amendments excessively long or thick with legalese, making an unadulterated replication on paper ballots impractical. Issue 1, by contrast, consists of only 205 words (including numeration), in plain English. The 193-word summary written by the ballot board rescues voters from reading a total of 12 words.

Obviously, those 12 words are not the point. The point of the summary is that it is disturbingly biased against the amendment, in my opinion and that of the American College of Obstetricians and Gynecologists. Opponents disagree — their reasoning outlined in response to a lawsuit filed to the Ohio Supreme Court by Ohioans United for Reproductive Rights, an umbrella group that includes our committee. The court, which has a majority of anti-abortion justices, ruled predominantly against us, thus cementing the summary into the ballot instead of the true language. Being a doctor and not a lawyer, I will leave the arguments of legality to others, though actions can certainly be both legal and duplicitous.

Perhaps the most egregious change between the Issue 1 language and the summary written by the ballot board is the substitution of “unborn child” for “fetus.” “Fetus” is the unequivocally accepted medical term used in textbooks, lectures and research publications. The very name of my specialty, stitched in thread on my white coat, is maternal fetal medicine.

Do maternal fetal medicine specialists ever say “child” in reference to someone’s pregnancy? Of course we do, informally, all the time, in concert with our patients. In my field, I mostly work to advance pregnancies against obstetric risks, talking along with my patients of their hopes for a child. But these are the patients who have chosen to continue their pregnancies and have chosen to frame them as such. Conceptually or medically, this is not the choice of every patient, making the imposition of “unborn child” presumptive and value laden in a way that does not help patients.

Ohio’s leaders have formally argued that “unborn child” is valid because it’s written into our existing anti-abortion statutes. This reasoning is circular, as “unborn child” is inappropriate in those contexts as well. Our attorney general’s office stated in a merit brief that “ballot language including the term ‘fetus’ has the potential to confuse voters, who may not know or understand the term’s varying definitions.”

I believe Ohio voters know what a fetus is and can read and understand 205 words. Voters can cut through the rhetoric and sleight of hand by reviewing the actual initiative and drawing their own conclusions, assuring Ohioans protection against cruel, extreme bans. But the results of any election are never guaranteed, and given the strategies leading up to Nov. 7, a defeat in Ohio would certainly portend darkly for the rest of our country in 2024 and beyond.

David N. Hackney is a member of the committee behind Ohio’s reproductive freedom ballot initiative. His forthcoming book, “The Decision,” is about high-risk obstetrics after Dobbs v. Jackson Women’s Health Organization.

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