The proposed amendment also says the state cannot interfere with this right, though it does provide that “abortion may be prohibited after fetal viability” unless it is needed to protect the patient’s life. It also says the state can impose restrictions if the state “demonstrates that it is using the least restrictive means to advance the individual’s health.”
Opponents of the proposed amendment have called into question what this means for parents, making claims that parents or guardians will not need to be notified if a minor seeks to undergo a procedure like an abortion or gender affirming surgeries.
“Moms and dads will be cut out of the most important and life-altering decisions of their child’s life, if this passes,” said Molly Smith, board member of Protect Women Ohio.
Political and legal experts say it is not that cut and dry, with a professor from the University of Cincinnati saying the law is mostly directed at keeping the state from interfering with decisions around abortion and reproductive care. It would also protect doctors treating patients going through miscarriages or ectopic pregnancies.
“Physicians wouldn’t have to be waiting on legal departments to make calls and weigh in, ‘Is there a liability here, what does the law say,’” said Jenn Dye, director of the Jones Center for Race, Gender and Social Justice at the University of Cincinnati College of Law. Contraception and fertility treatments would also be protected.
The state of Ohio currently requires parental consent for minors to undergo an abortion, though there are potential judicial bypasses in which a court could appoint a guardian ad litem for the minor. The court would then have to determine whether or not a minor can move forward, Dye said.
For health care beyond abortion, minors still need to have the consent of a parent or guardian before receiving medical care, with some exceptions in cases like emergency care or sexual assault.
“For my reading of the proposed amendment, I don’t see it impacting the currently-in-place statutory framework that we have for consent for minors—and that applies both to reproductive health care and just health care in general. I don’t think it would impact that at all,” Dye said.
There are only a few exceptions to minors needing parent consent first before receiving health care or treatment, which includes alleged sexual assault. Minors don’t need consent of a legal guardian or parent to have an examination for alleged sexual assault or treatment of a sexually transmitted infection, Dye said. The reasons being that the legal guardian or parent could potentially be the alleged perpetrator in those cases.
“The amendment really is addressed toward state actions and state officials from intervening in a person’s choices regarding reproductive decisions,” Dye said.
The only way it would potentially be construed to impact parental consent would be if somebody were to push the limits of parental consent laws and then challenge it, Dye said. Then, the case would have to be tried in court before any changes to current state statutes could occur.
Marc Clauson, professor of history and law at Cedarville University, said the amendment if passed might affect parental consent laws since those laws are statutes. “The state constitution is supreme over state laws passed by legislatures,” he said.
“But the amendment doesn’t specifically mention parental consent laws, so there also might be some ambiguity,” Clauson said.
The language of the amendment is broad, so Clauson said it would trump the state laws. He said some of the sections of the proposed amendment could allow for future parental consent laws, including if the legislature passed a law requiring parental consent for abortions after fetal viability.
Section two of the proposed amendment, which is in regard to the state not interfering with individuals exercising these reproductive rights, also allows an exception for state restrictions if 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.”
That section of the proposed amendment might also allow for parental consent, Clauson said.
“Likely a state court would have to decide any and all of these issues,” Clauson said.
FULL TEXT OF PROPOSED AMENDMENT
Be it Resolved by the People of the State of Ohio that Article I of the Ohio Constitution is amended to add the following Section:
Article I, Section 22. The Right to Reproductive Freedom with Protections for Health and Safety
A. 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.
B. 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.
- 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.
C. As used in this Section:
- “Fetal viability” means “the point in a pregnancy when, in the professional judgment 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.”
- “State” includes any governmental entity and any political subdivision.
D. This Section is self-executing.
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