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Abortion rights backers sue Ohio officials for adding "unborn child" to ballot language and other changes

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Washington — Abortion rights supporters in Ohio are suing state officials over ballot language they approved for a proposed constitutional amendment that would enshrine abortion rights in the state constitution. Among other changes, Ohio officials added the term "unborn child," in what is the latest front in the ongoing effort to protect abortion access in the state. 

The lawsuit from Ohioans United for Reproductive Rights and five voters was filed Monday, after the five-member Ohio Ballot Board adopted new language for the ballot measure that will be before voters in the November general election. The challengers argue the language approved by the board in a party-line vote "aims improperly to mislead Ohioans and persuade them to oppose the amendment." 

They are asking an Ohio court to order the ballot board to reconvene and adopt the full text of the constitutional amendment as the ballot language, or adopt ballot language that "properly and lawfully describes the amendment." 

The citizen-initiated amendment, known as Issue 1, would establish "the right to reproductive freedom with protections for health and safety." If approved by a simple majority of voters, the amendment would enshrine in the Ohio Constitution the right to make reproductive decisions about contraception, fertility treatment, miscarriage care, continuing one's own pregnancy and abortion. 

But the amendment would also allow the state to prohibit abortion after fetal viability, generally around 22 to 24 weeks of pregnancy, except when necessary to protect the life or health of the mother.

According to the language adopted by the ballot board in a 3-to-2 vote — which would be what voters see on their ballots — the proposed amendment would establish in the Ohio Constitution "an individual right to one's own reproductive medical treatment, including but not limited to abortion," and "create legal protections for any person or entity that assists a person with receiving reproductive medical treatment, including but not limited to abortion."

The board-adopted language, drafted by GOP Secretary of State Frank LaRose, states that under the proposal, Ohio citizens are barred from "burdening, penalizing, or prohibiting abortion before an unborn child is determined to be viable." The proposed amendment would also allow Ohio citizens "to prohibit an abortion after an unborn child is determined by a pregnant woman's treating physician to be viable," according to the ballot language certified by the ballot board.

LaRose's ballot language summarizes the original amendment's section allowing abortion to be outlawed after fetal viability except when the pregnant woman's life or health is at risk to state that the measure would "always allow an unborn child to be aborted at any stage of pregnancy, regardless of viability, if, in the treating physician's determination, the abortion is necessary to protect" the life or health of the mother.

In their challenge, the pro-abortion rights advocates argue the language fails to capture the full reach of the constitutional amendment by mentioning only abortion, even though five categories of reproductive health decisions are covered. They also argue that using the term "unborn child," which does not appear in the amendment, "introduces an ethical judgment — at what stage of development a zygote, embryo, or fetus becomes a 'child' — which is" outside the proposal's scope, and about which there is much disagreement. 

"The Amendment's text is direct, clear, and concise — and by definition accurate. The adopted ballot language is anything but," they wrote in their suit. "The ultimate question before the Court is accordingly quite simple: whether the people of Ohio can be trusted, on November 7, to read, interpret, and weigh the Amendment's text (or an accurate summation of it) for themselves, or whether they will instead be subjected to a naked attempt to mislead perpetrated by their own elected officials."

The abortion rights advocates argue the ballot language approved by the board is factually inaccurate and distorts the amendment's text and meaning, rendering it unlawful.

"The ballot language's length and the context in which it was drafted confirm that the above defects are no accident but are, instead, part of a deliberate attempt to mislead and sway voters," the plaintiffs claim. 

Ohio law allows "condensed text" that describes a constitutional amendment to be used on a ballot. But the pro-abortion rights challengers note that the full text of abortion rights amendment  is actually shorter than the ballot language green-lighted by the board — 194 words compared to summary's 203 words.

The effort by pro-abortion rights groups in Ohio to protect abortion access through the state constitution began after the Supreme Court overturned Roe v. Wade in June 2022. If voters approve the constitutional amendment this fall, Ohio would join several other states — including two traditionally red states — that have protected abortion rights through the ballot box since the high court's ruling.

The proposed constitutional amendment is backed by 58% of likely Ohio voters, according to a July poll from the USA Today network and Suffolk University. The measure needs to garner support from a simple majority of voters in order to win approval, though Republicans in Ohio unsuccessfully attempted to change that threshold earlier this month with a separate ballot measure, also called Issue 1.

Ohio voters definitively rejected the proposal to raise the bar for approving future constitutional amendments through the ballot box from a simple majority — 50%, plus one vote — to 60%.

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