When Ohio voters approved Issue 1 in November 2023, they adopted a specific legal text that now forms Article I, Section 22 of the Ohio Constitution. This section, titled "The Right to Reproductive Freedom with Protections for Health and Safety," meticulously outlines the scope of reproductive rights and the limitations on state interference. Understanding the precise language used in this amendment is crucial to grasping its full impact on healthcare
and individual liberties in Ohio.
The Core Right to Reproductive Decisions
The foundational principle of Issue 1 is articulated in Section A, which states: "Every individual has a right to make and carry out one's own reproductive decisions, including, but not limited to, decisions on: contraception; fertility treatment; continuing one's own pregnancy; miscarriage care; and abortion." This phrasing is significant for several reasons. Firstly, it establishes the right for "every individual," emphasizing broad applicability. Secondly, the phrase "including, but not limited to" indicates that the listed items are examples, suggesting the right could encompass other reproductive decisions not explicitly named. The specific inclusion of contraception, fertility treatment, continuing pregnancy, and miscarriage care highlights the comprehensive nature of the protected rights, extending beyond just abortion.
This section ensures that individuals have autonomy over a wide spectrum of reproductive health choices, from family planning to managing pregnancy outcomes. By embedding these rights directly into the state constitution, Issue 1 provides a strong legal foundation against future legislative attempts to restrict access to these services, unless such restrictions meet stringent constitutional tests.
State Limitations and Health & Safety Protections
Section B of the amendment addresses the state's role and its limitations regarding these newly codified rights. It states: "The State shall not, directly or indirectly, burden, penalize, prohibit, interfere with, or discriminate against either: An individual's voluntary exercise of this right or A person or entity that assists an individual exercising this right, unless the State demonstrates that it is using the least restrictive means to advance the individual's health in accordance with widely accepted and evidence-based standards of care." This clause is vital for protecting both individuals seeking reproductive care and the healthcare providers who offer it.
The requirement for the state to use the "least restrictive means" and adhere to "widely accepted and evidence-based standards of care" sets a high bar for any potential state intervention. This ensures that any regulations or laws impacting reproductive decisions must be medically sound and minimally intrusive. Furthermore, the amendment explicitly allows for abortion to be prohibited after fetal viability, but with a critical exception: "in no case may such an abortion be prohibited if, in the professional judgement of the pregnant patient's treating physician, it is necessary to protect the pregnant patient's life or health." This exception underscores the amendment's commitment to prioritizing patient health and safety, even in later stages of pregnancy.
Defining Key Terms: Fetal Viability and the State
Section C provides crucial definitions for terms used within the amendment. "Fetal viability" is defined as "the point in a pregnancy when, in the professional judgement of the pregnant patient's treating physician, the fetus has a significant likelihood of survival outside the uterus with reasonable measures. This is determined on a case-by-case basis." This definition emphasizes the role of medical professionals in determining viability, acknowledging that it is not a fixed point but rather a clinical judgment based on individual circumstances. The phrase "case-by-case basis" is particularly important, as it allows for flexibility and individualized medical assessment rather than a rigid gestational age cutoff.
Additionally, "State" is defined broadly to include "any governmental entity and any political subdivision." This ensures that the protections of Issue 1 apply not only to state-level actions but also to local ordinances or policies that might seek to infringe upon reproductive rights. Finally, Section D declares the amendment to be "self-executing," meaning its provisions are immediately effective upon adoption without the need for further legislative action. This ensures that the rights and protections outlined in Issue 1 are enforceable without delay, providing immediate clarity and legal standing for reproductive freedom in Ohio.
