Ohio Secretary of State Frank LaRose. (Graham Stokes for Ohio Capital Journal)
The Ohio Supreme Court has ordered one tweak to summary language approved by Republicans on the Ohio Ballot Board for voters to see in November on a proposed reproductive rights amendment. The split state supreme court rejected using the full text of the proposed amendment and declared that that summary language that voters will see on their ballots is not misleading.
That summary language was written by the office of Ohio Secretary of State Frank LaRose, a Republican ballot board member who has spoken out against November’s Issue 1 reproductive rights amendment proposal, and campaigned vigorously for August’s Issue 1 proposal to make amendments harder to pass, saying that the Aug. 8 effort was “100% about keeping a radical pro-abortion amendment out of our constitution.” Issue 1 in August was rejected by voters 57% to 43%.
LaRose said at the Aug. 24 ballot board meeting that he “worked extensively on drafting this” November ballot language.
Fellow Ohio Ballot Board member and Republican state Sen. Theresa Gavarone explicitly spoke against the November amendment proposal during that same ballot board meeting where the summary language for voters to see on their ballots was approved by the board in a 3-2 decision.
The coalition proposing November’s reproductive rights amendment sued to the Ohio Supreme Court, claiming that the summary language is deceptive and asking the full amendment text be used instead.
They argued that the summary makes changes advocates say alter the language in a biased way, such as using “unborn child” rather than the medically accurate term “fetus,” and changing “pregnant patient” to “pregnant woman.” The summary also only lists 1 of 5 protected rights included in the amendment, focusing on abortion and failing to mention contraception, miscarriage care, fertility treatment, and continuing one’s pregnancy.
Moreover, the abortion rights groups and individuals said the summary actually “inverts” protections that would be given in the amendment by saying the amendment would “always allow an unborn child to be aborted” if a physician determines it necessary. Amendment supporters say the actual language of the amendment “would prohibit such an abortion if the patient objects to it.”
Finally, the complaint took issue with the summary language saying “citizens of the state of Ohio” would be prohibited from enacting laws regulating abortion in certain ways instead of “the state of Ohio” would be so prohibited.
The Ohio Supreme Court ruled Tuesday that this last part is the only tweak the Ballot Board must make — they can not use “the citizens of the state of Ohio” instead of “the state of Ohio.”
Proposed amendment: “B. The State shall not, directly or indirectly, burden, penalize, prohibit, interfere with, or discriminate against either: 1. An individual’s voluntary exercise of this right or 2. 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 pregnant individual’s health in accordance with widely accepted and evidence-based standards of care. C. As used in this Section: … 2. “State” includes any governmental entity and any political subdivision.”
The Ohio Ballot Board’s language that needs changed to remove “citizens”: “The proposed amendment would: • Prohibit the citizens of the State of Ohio from directly or indirectly burdening, penalizing, or prohibiting abortion before an unborn child is determined to be viable, unless the State demonstrates that it is using the least restrictive means. • Only allow the citizens of the State of Ohio to prohibit an abortion after an unborn child is determined by a pregnant woman’s treating physician to be viable and only if the physician does not consider the abortion necessary to protect the pregnant woman’s life or health.”
The Ohio Supreme Court wrote they were tasked with determining whether the GOP summary language is “impermissibly argumentative, either in favor of or against the issue.”
Regarding the Ballot Board summary’s failure to mention 4 of 5 categories included in the reproductive rights amendment proposal, the Republican court majority cited the amendment’s own emphasis on abortion care and said “the omission is not material when considering the amendment as a whole.”
Regarding the Ohio Ballot Board changing “fetus” to “unborn child” in the summary for voters, the majority said this is not improper persuasion. They did not elucidate an argument but instead quoted precedent from a 2021 court decision: “[I]f ballot language is factually accurate and addresses a subject that is in the proposed amendment itself, it should not be deemed argumentative.”
The court majority referenced this again later in rejecting that other portions of the summary language are weighted against the proposal.
Proposed Amendment: “A. Every individual has a right to make and carry out one’s own reproductive decisions, including but not limited to decisions on: … 3. continuing one’s own pregnancy; B. The State shall not, directly or indirectly, burden, penalize, prohibit, interfere with, or discriminate against either: 1. An individual’s voluntary exercise of this right, However, abortion may be prohibited after fetal viability. But in no case may such an abortion be prohibited if in the professional judgment of the pregnant patient’s treating physician it is necessary to protect the pregnant patient’s life or health.”
Ballot Language: “The proposed amendment would: • Prohibit the citizens of the State of Ohio from directly or indirectly burdening, penalizing, or prohibiting abortion before an unborn child is determined to be viable, unless the State demonstrates that it is using the least restrictive means. • Only allow the citizens of the State of Ohio to prohibit an abortion after an unborn child is determined by a pregnant woman’s treating physician to be viable and only if the physician does not consider the abortion necessary to protect the pregnant woman’s life or health; and • Always allow an unborn child to be aborted at any stage of the pregnancy, regardless of viability if, in the treating physician’s determination, the abortion is necessary to protect the pregnant woman’s life or health.”
The court majority wrote: “While (litigants) do not like the way in which the language is phrased, the structure of statements is not improperly argumentative. As stated above, this court will not deem language to be argumentative when it is accurate and addresses a subject in the proposed amendment.”
Ohio Supreme Court Democrats agreed with ordering the change from “citizens of the state” to “the state,” but panned the approval of the rest of the ballot board’s language.
Justice Jennifer Brunner, a Democrat, said the Ohio Ballot Board “obfuscated the actual language” of the proposed amendment by “substituting their own language and creating out of whole cloth a veil of deceit and bias in their desire to impose their views on Ohio voters…”
Democratic Justice Melody Stewart said that the Ohio Ballot Board failed its duty and instead it “crafted partisan ballot language designed to do any number of things, but not simply designed to do its job—that is, inform voters of the substance of the proposed amendment.”
Democratic Justice Michael Donnelly said of the Ohio Ballot Board that “it’s unfortunate that advocacy seems to have infiltrated a process that is meant to be objective and neutral,” but that he’s confident that voters will be informed about the issue in November.
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