On November 7, 2023, Ohio voters passed Issue 1, the Right to Reproductive Freedom with Protections for Health and Safety, to establish the constitutional right to certain reproductive decisions. The new right will be enshrined in Section 22 of Article 1 of the Ohio Constitution, and will become effective within 30 days after the election.
The passage of Issue 1 establishes in the Ohio Constitution an individual’s right to one’s own reproductive medical treatment. Several reproductive decisions are included in the constitutional right. The text of the amendment provides in part:
Every individual has a right to make and carry out one’s own reproductive decisions, including but not limited to decisions on:
1. contraception;
2. fertility treatment;
3. continuing one’s own pregnancy;
4. miscarriage care; and
5. abortion.[1]
The amendment creates legal protections for those involved in the reproductive medical treatment. The amendment prohibits the State from directly or indirectly burdening, penalizing, prohibiting, interfering with or discriminating against the individual who voluntarily exercises the right, or a person or entity that assists the individual in exercising the right, unless the State demonstrates that it is using the least restrictive means to advance the individual’s health in accordance with widely accepted evidence-based standards of care.
Abortion
Most notably, the amendment provides an individual the right to receive an abortion in Ohio prior to the point of fetal viability. Fetal viability is defined as “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.” The pregnant patient’s treating physician will determine fetal viability on a case-by-case basis. The State may prohibit abortions after fetal viability.
However, the State cannot prohibit abortion, at any stage of pregnancy, if the pregnant patient’s treating physician determines that an abortion is necessary to protect the pregnant patient’s life or health.
Impact on Existing Law
The Ohio Constitution supersedes Ohio statutory law. The existing Ohio statutes that conflict with the new constitutional right may be repealed, amended or challenged.[2] The amendment will not override existing Federal prohibitions on certain abortion procedures.
