The following article was originally published in the Ohio Capital Journal and published on News5Cleveland.com under a content-sharing agreement.
Opponents of the Ohio reproductive rights amendment appearing on this November’s ballot contend the changes would eliminate parental consent laws. Notably, their arguments focus on gender affirming care, rather than abortion.
The reproductive rights amendment
The proposed ballot measure would reinstate a standard in Ohio similar to the one imposed nationally by the U.S. Supreme Court in 1992’s Casey decision. Prior to fetal viability, Ohioans would have the right to an abortion. After that point, however, lawmakers could prohibit the practice so long as they retain exceptions for the health and safety of the mother.
But the proposal doesn’t just rewind to 1992. Over the past thirty-plus years, conservative lawmakers have attempted to discourage abortion through red tape. In light of these provisions, mandating the width of corridors or the distance from hospitals, the amendment would also reinstate the “strict scrutiny” standard.
Under Casey, abortion regulations needed to clear the lower “undue burden” standard. A 2016 U.S. Supreme Court case determined they didn’t even clear that bar.
With strict scrutiny, the state would have to show laws achieve their ends “by the least restrictive means” to survive court challenge. Ohio’s reproductive rights amendment goes a step further, adding any potential restrictions must “advance the individual’s health in accordance with widely accepted and evidence-based standards of care.”
Opponents of the upcoming amendment hang their argument on a single word — the authors’ use of “individual.” That phrasing is gender-neutral, but Ohio Right to Life President Mike Gonidakis argues it’s age-neutral, as well.
“The state shall not make a law directly or indirectly that interferes with an individual — didn’t say adult, an individual, a 12-year-old is an individual under Ohio Revised Code — right to reproductive care,” he said after a debate on Issue 1 last month.
Secretary of State Frank LaRose added the amendment, “makes it clear that parental involvement, I think the wording is in any matter of reproductive health, is forbidden — parents can’t have a say in that.”
What does it actually say and what happens to consent laws if it passed?
To be clear, Gonidakis and LaRose overstate the amendment’s provisions. It doesn’t say “the state may not make a law,” as Gonidakis claimed. Instead, it says the state must demonstrate its law uses “the least restrictive means.” That’s a very high bar, but not a prohibition.
LaRose’s contention that parental involvement would be “forbidden” relies on the assumption that courts would start treating minors like adults. Capital University Law School Professor Dan Kobil thinks that interpretation is a stretch.
“The amendment itself does not speak to the issue of parental consent or notification,” he said. “What would have to happen would be for someone to challenge the law and say that now it does interfere with an individual’s right to make a reproductive decision.”
Although it’s possible to construct a hypothetical test case — as an example, Kobil mentioned a child raped by a family member — those cases are rare. He added that the U.S. Supreme Court upheld Ohio’s parental consent statutes in 1990, despite dissenting justices raising those examples. If finding a test case would be difficult, overturning that much precedent would be close to impossible.
“I think that the second step of the (Ohio) Supreme Court invalidating Ohio’s parental consent statute with an amendment that doesn’t even speak directly to that would be highly unlikely,” Kobil argued.
He added that the very extremity of a potential test case, might give the court room to render a narrow decision that left the broader statute in place.
Case Western Reserve University law professor Jonathan Entin is skeptical the amendment would disrupt existing consent laws as well. “The language of the amendment doesn’t purport to override other generally applicable laws,” he said.
Entin also pushed back on opponents’ reading of “individual.”
“So, the argument is minors have a right to get these treatments or services without consent from anyone else,” Entin said. “But we have a whole raft of laws that distinguish the rights of minors from the rights of adults.”
Kobil also turned the parental rights argument back on the measure’s opponents.
“The situation right now is that the government is telling parents, you cannot get your child an abortion even if she’s carrying her rapist’s child,” he said. “They are basically undercutting parental rights all over the place right now. The idea that suddenly parents are losing something, I think, is an illusory argument.”
What would the amendment mean for gender-affirming care?
While Entin was skeptical of the amendment conflicting with consent laws, he was dismissive when it comes to its impact on gender-affirming care.
“That strikes me as a real reach,” he said of the argument.
Opponents of the reproductive rights amendment contend it would allow minors to get gender-affirming care up to and including surgery without parents even knowing. Physicians have repeatedly asserted that they don’t offer surgery to minors and that other treatment like hormone therapy requires parental consent.
That hasn’t stopped political groups from running ads making the claim, and it hasn’t stopped politicians from repeating it on the campaign trail. LaRose described gender-affirming care as “child abuse.” His opponent for the Republican U.S. Senate nomination, Bernie Moreno, described it as “mutilation.”
The amendment carries a provision describing reproductive decisions as “including but not limited to” a handful of services like contraception, fertility treatment and abortion. That phrasing is intentionally open-ended, and Entin allowed it’s possible that other sorts of care might fit under the umbrella. But he argued courts have significant experience determining what does and doesn’t fit into a list, and the amendment is silent on gender-affirming care.
“Not only is (the amendment) silent, but it’s hard to envision how you could bring gender-affirming care into the amendment through ‘including but not limited to’ language,” Entin said.
“So, I think it is — to be kind — I think it is unlikely that a court would read this amendment as protecting a right to gender-affirming care for anyone of whatever age,” he added.
Kobil was just as dismissive of opponents’ arguments about gender-affirming care, but he took a different tack. After 40 years of practicing law, Kobil said, he knows a straw man argument when he sees it.
“Polling is better for gender-affirming care,” he explained. “That’s why they’re not seeking to engage directly on abortion, and why they want to distract from the fact that Ohio has severely limited the ability of, say, a 10-year-old to obtain an abortion after she has been raped.”
“They don’t want to talk about that,” he added. “They’d much rather talk about something that’s not directly raised by the amendment.”
